Supreme Court

Bivens Liability and Its Alternatives

If the Court is going to abolish the 20th century remedies, can we at least have the 19th century remedies back?


On Tuesday, the Supreme Court decided in Hernandez v. Mesa that there is no cause of action for damages if a federal border patrol agent unconstitutionally shoots somebody across the border. The Court had recognized a cause of action under the Fourth Amendment against federal law enforcement agents in a 1971 case called Bivens, and extended it in two subsequent cases, but it has rejected further Bivens claims in every Supreme Court Bivens case in my lifetime and that doesn't seem likely to change. Two Justices, Thomas and Gorsuch, have called for Bivens to be overruled on the grounds that it lacks a formal or historical basis.

Justices Thomas and Gorsuch are right about that the lack of a formal and historical basis, but I worry about the broader picture. As Justice Thomas's concurrence notes, it's not like there was no remedy for unconstitutional conduct before Bivens. Rather, as Thomas writes:

From the ratification of the Bill of Rights until 1971, the Court did not create implied private actions for damages against federal officers alleged to have violated a citizen's constitutional rights. Suits to recover such damages were generally brought under state law.

What Justice Thomas does not note is that it has become very hard to bring those suits under state law either. There is some debate about whether that difficulty is attributable to Congress's 1984 enactment of the Westfall Act, various judicial decisions arguably misconstruing that act, or what (see this article by Vladeck and Vasquez), but I think at this point we're entitled to wonder, if the Court is going to abolish the 20th century remedies for unconstitutional conduct, can we at least have the 19th century remedies back?

Normally the Court lacks the ability to take a big-picture view in these cases, since it has only the issue before it. But in Hernandez, the petitioner foresaw this problem and petitioned the Supreme Court to consider a second question — if there is no Bivens liability, then, he asked:

whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.

So Hernandez is the rare case in which the Court could have considered both questions at the same time and thus provided an account for what violations of constitutional violations remain. It does seem perverse to think that Congress can eliminate state law damages for constitutional violations without either Congress or the courts providing an alternative . It's possible that this seemingly perverse result is constitutional, especially if one takes a broad view of federal power, but it seems troubling for the Court to repeatedly narrow Bivens without at least considering that question.

[Cross-posted from Summary, Judgment.]

NEXT: Today in Supreme Court History: February 27, 1901

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  1. “On Tuesday, the Supreme Court decided in Hernandez v. Mesa that there is no cause of action for damages if a federal border patrol agent unconstitutionally shoots somebody across the border. ”

    Uh, if the Supreme court said there is no cause of action, where do you get to unilaterally define the shooting a “unconstitutional”?
    Why did you choose to include that word? It changes a reporting of fact to an editorial.

    1. Because the Constitution does not contain a right to a remedy clause, which means that not every constitutional violation has a remedy. And that’s what strict construction/originalism gets you.

    2. Because the unstated premise is that there is in any event to damages claim if the shooting is constitutional. So the only relevant question is whether a damages claim is possible if the shooting is unconstitutional.

    3. Read Bivens and assume they go the other way on the remedy/implied cause of action issue. Do you still think the alleged conduct of the agents in the case was constitutional?

    4. Looking through the decision, in two places it mentions “alleged unconstitutional” acts. Nowhere does it say anything is unconstitutional. A little creative editing on Mr. Baude’s part, perhaps?

    5. The answer to this question is simple.

      The government is moving to dismiss the case under the following theory: “Even if we concede, for the sake of argument only, that what we did was unconstitutional, there would be no remedy and the case should be dismissed.”

      The Court, for the purposes of this ruling and without deciding the matter, assumes the facts most favorable to the plaintiff. Namely, that the shooting was unconstitutional and rules: “Even if the shooting was unconstitutional, there would be no remedy.”

  2. I think the so-called conservatives should just be honest and admit that they are fine with government/big corporations not being accountable when they injure people. The consistent pattern, whether it’s mandatory arbitration clauses, procedural hurdles or, in this case, simply declaring there is no remedy, is to make it has hard as possible for victims to sue the big guys.

    1. The Court did not say “the big guys” are not to be held accountable. The Court ruled that it should not do in this case what the Bivens Court did (i.e., create a right to a damages claim), but that it was for Congress to decide if such a claim may be brought in federal court. This was a separation of powers decision.

      1. And yet it involves 5 conservative justices siding with the government, just like anyone with a brain could have predicted they would.

        1. It also involved 4 liberal justices siding with trial lawyers, just like anyone with a brain could have predicted they would.

          1. Now hold on there. The lawyers from the Justice Department who were defending the government are also trial lawyers. If you mean “the lawyers representing the family of the child who was murdered in cold blood by a rogue federal agent” you should have said so.

            1. “lawyers from the Justice Department who were defending the government are also trial lawyers”

              Technically [the best kind of] correct.

              However, “trial lawyer” is a term of art, referring to lawyers who represent plaintiffs in tort damage suits.

              1. Where I practice, lawyers who actually go to trial are “trial lawyers.” Lawyers who represent plaintiffs (normally individuals) in tort cases are “plaintiffs’ lawyers.”

              2. “Trial lawyer” is a term of art, meaning lawyers you do not like.

            2. Can you really call a still-employed agent who has not been disciplined and is now unaccountable “rogue”?

              1. Many, if not most, Republicans would call that agent a hero. Bigotry has consequences.

                1. Figured it out yet? Or are you still struggling?

        2. “And yet it involves 5 conservative justices siding with the government, just like anyone with a brain could have predicted they would.”

          Sure. I mean, there’s some 40 odd years of the Supreme Court telling Congress they aren’t going to continue expanding Bivens and that Congress should pass a law (like it did with Section 1983 and the Federal Tort Claims Act) if it wants there to be a remedy, so the smart money was always on the government side.

      2. My point is that there is a consistent pattern of conservatives not holding the big guys accountable. This specific case is simply a single data point in that larger pattern.

        1. “Kelo vs. New London” says Hi!

          1. Kelo was an unfortunate decision. But the overall trend is that if you believe in limited government, you don’t want any more so-called conservatives on the court.

        2. When the former Confederate states were violating the rights of their black citizens (and allies of their black citizens), Congress passed a law allowing people to sue agents of the state government for damages. Congress did not extend that ability to the federal government at the time, and has not done so in the more than 100 years since then either. For the last 40 some years, the Court has been telling Congress that it’s Congress’s responsibility to provide causes of action, not the Court’s. As far as I know, over those 40 years, Congress has never made a meaningful attempt to create an analogue of Section 1983 for federal actors. That time includes Democratic, Republican, and split congresses. It doesn’t sound like it’s just the Republicans who don’t want to hold the federal government accountable.

          1. Well they also have had Bivens for the last forty years as a fig leaf for not doing anything. That could change if Bivens went away.

            1. Yes. And maybe the outrage from overruling Bivens would be enough to actually get something passed (it took a B17 flying into the Empire State Building to get the Federal Tort Claims Act passed).

              1. Although I fear that given the opportunity to pass a federal officer analog to 1983 or amend 1983 to extend it to federal officers, Congress would succumb to pressure from law enforcement at all levels, the DOJ, and the “tough on crime” pundit/politician crowd to make things worse. They could explicitly codify qualified and absolute immunity so the courts can’t take it back as a judicial creation. Or worse still, they could establish a nominal Bivens-like remedy in conjunction with the passage of a ‘Back the Blue Act” designed to make it even harder to hold officers accountable in federal court.

                1. That is indeed one of the problems of democracy.

              2. I think the plane was a B-25

                1. You are probably right. I knew I should have gone with bomber.

                  1. You did, they’re both bombers, but it was a Mitchell rather than a Flying Fortress.

              3. Actually it was a B25 (twin engine bomber) that flew into the Empire State Building in 1945, not a B17 (four engine bomber).

        3. I want the government held accountable with respect to its dealings with Americans. I couldn’t care less about its dealings with foreigners, especially criminals.

    2. Are you remotely familiar with the concept of sovereign immunity or contract law?

      You should be more worried about people who think these should be thrown out.

      1. If sovereign immunity were to be thrown out, it might make government treat people a whole lot better than it frequently does. Are you telling me you think that would be a good thing?

        As for contract law, I support it, but there are limits. I cannot enter into a contract to have sex with a 12 year old, or to purchase a kilo of heroin, or that requires my secretary to sleep with me as a condition of continued employment. If you think those limits shouldn’t be there, you’re nuts. If you think they should be there, then we agree there are limits on contract law, even if we may not agree on the specifics of what they are.

  3. The facts alone in this case make it difficult. Baude makes it sound like Tennessee v Garner or something.

    From the case: United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, in a tragic and disputed cross-border incident. Mesa was standing on U. S. soil when he fired the bullets that struck and killed Hernández, who was on Mexican soil, after having just run back across the border following entry onto U. S. territory. Agent Mesa contends that Hernández was part of an illegal border crossing attempt, while petitioners, Hernández’s parents, claim he was playing a game with his friends that involved running back and forth across the culvert separating El Paso, Texas, from Ciudad Juarez, Mexico.

    1. I thought the decision was to dismiss, based on the idea that the claim could not be brought, and did not address the facts of the case.

      1. From skimming the decision, the facts of the case are one of the primary reasons they affirm the Fifth Circuit’s decision.

        “On remand, the en banc Fifth Circuit evaluated petitioners’ case in light of Abbasi and refused to recognize a Bivens
        claim for a cross-border shooting….that such an incident presents a ‘new context’ and that multiple factors—including the incident’s relationship to foreign affairs and national security,
        the extraterritorial aspect of the case, and Congress’s ‘repeated refusals’ to create a damages remedy for injuries incurred on foreign soil––counseled against an extension of
        Bivens….We granted certiorari…. and now affirm.

        1. Yes, but they never got to the question of whether the shooting was justified as self-defense or in some other way.

          It was mostly just, “They can’t sue because national security.”

          1. Or ‘we can’t permit this because Trump would tweet badly about us, and besides, it was just some brown kid and our supporters feel strongly about brown people along that border.’

          2. I suppose you can call it an artful dodge, but generally the facts of the case are left to the trial court to decide while appellate courts and above are for underlying issues, so they didn’t even have to.

            1. OK, but my point is they never said anything about whether the shooting was somehow justified.

              IMO, it was awful, and letting Mesa completely get away with it is disgraceful.

              1. But I’m sure you were cool with José Inez García Zárate getting away with killing Steinle. After all, you feel a kinship with illegal Mexicans, and not white Americans.

          3. Basically, yes.

            Here’s the basic issue. The US Constitution applies to US Citizens and US Territory. It doesn’t apply to non-US Citizens in non-US territories. There might be a tenuous exception for US residents in non-US territory. But the case here was neither. A Mexican citizen was killed in Mexico (by a US citizen).

            Now, Mexico can demand the US citizen be extradited. And they did. And the US citizen could be sued in Mexican courts by the family. But the crime was in Mexico, and the victim was a Mexican citizen, so the US courts don’t have jurisdiction.

            Perhaps you think otherwise. Perhaps you think that US Citizens and the US government should be able to be sued in US courts for actions they commit in other countries against non-US citizens. But let me tell you where this would lead.

            1. A plethera of wrongful death lawsuits by the family of anyone and everyone ever targeted by a US drone strike. Because the facts of the case are largely the same. A US Citizen from US soil operated a weapon that resulted in the death of a non-US Citizen on non-US soil. And every case would go to the merits. Was this death justified. Was it not? What are the facts? Where are the cash payouts?

            And from there, the cases would expand. Damages done to property. Deaths due to US troops. and more….

            1. This argument would be much more convincing if the US wasn’t ever increasingly applying its law extraterritorially and against foreign citizens. E.g., the bank fraud indictment of Meng Wenzhou concerns a meeting between her, a Chinese citizen, in Hong Kong with the British-based bank HSBC.

            2. A Mexican citizen was killed in Mexico (by a US citizen).

              A Mexican citizen was killed by an agent of the US government, who was in US territory when he fired the fatal shot (for no good reason).

              1. But again, if you’re going to apply it to this, how can you not apply it to when someone is killed in a drone strike overseas by a agent of the US government, who is operating the drone from US territory.

                How do you differentiate these cases?

                1. I’m not sure you need to, but you could well argue that the drone operator was acting on specific orders. If those orders were illegal, and they might well be, then there are a host of other issues involved.

                  I don’t think it’s reasonable to ignore the fact that the agent was in the US. And leaving Bivens aside it’s not entirely clear why he faced no consequences in the US.

                  Frankly, it stinks.

                  1. “It’s not entirely clear why he faced no consequences in the US.
                    Frankly, it stinks.”

                    He was investigated by the DoJ (under Obama no less), and charges were decided not to be filed. Perhaps they did not find sufficient evidence to press criminal charges. If you disagree, that’s fine.

                    “I’m not sure you need to, but you could well argue that the drone operator was acting on specific orders”

                    You’re missing the point here. It doesn’t matter what the drone operator orders were. A US agent operating from US territory killed a foreign civilian on foreign soil. A lawsuit would not be dismissed because “I was ordered to do it”. No court would approve it. They would simply go up the chain to the next person who gave the order. The order’s “legality” or lack there of would be debated back and forth in the court of law for months, and if you find a friendly court who thinks “it wasn’t right”, then the payments would flow. It’s hard to think of any “legal order” that would pass muster for the killing of a person, when it was clear that there was no immediate risk to the person who did the killing.

      2. “The Court had recognized a cause of action under the Fourth Amendment against federal law enforcement agents in a 1971 case called Bivens, and extended it in two subsequent cases, but it has rejected further Bivens claims in every Supreme Court Bivens case in my lifetime and that doesn’t seem likely to change.”

        Basically this means that if the facts of your case are close to Bivens, or the two other cases, you might have a shot. If the facts are not close enough, however, you are just shit out of luck. Unless, that is, Congress gets off its ass and passes a federal analogue to Section 1983, but neither party seems particularly interested in that.

  4. “to have violated a citizen’s constitutional rights.” He was a Mexican national, not a citizen. What standing did the parents have to even sue?

    1. First, the Fourth Amendment and due process clause of the Fifth Amendment are not limited to “citizens.”

      Second, Standing has never been limited to citizens, and obvious exists here because all of the elements are met:

      Injury: wrongful death
      Traceable: Government agents shot someone
      Remedied: A court could award money damages in theory.

      Moreover, under your reading there would be no constitutional violations if the government systematically tortured and murdered non-citizens.

    2. Rights aren’t solely possessed by citizens. Rights are universal and natural – the Bill of Rights doesn’t ‘create’ rights, it recognizes and protects pre-existing natural rights.

      You might notice that the Bill of Rights uses language like ‘The right of the people…’ and ‘No person…’. The word ‘citizen’ doesn’t appear once in the first 10 amendments. Nor does the Bill of Rights ever focus on *where* the events occur – they apply to government action, and should apply even when that government action happens outside US borders.

  5. “Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages … for which there is no alternative legal remedy”

    Congress can likely eliminate all remedies for an alleged harm. A cause of action is not “property”.

  6. Isn’t that the same as saying Congress can make the Constitution practically meaningless in a federal court? If it literally removes all remedies, then there is no way for a federal court to enforce constitutional guarantees. Then if you assume state courts cannot impose orders on federal officials, there is functionally no constitution that binds executive agents of the federal government or Congress in federal court.

  7. I think this is a bad decision because I think the Constitution should follow the flag (i.e. govt actors).

    The Constitution lays out US Government duties and responsibilities – and the Constitution DOES NOT have any physical or geo-political boundaries.

  8. A cross border shooting with no legal remedy under US law. Doesn’t that leave it as “an act of war” as the only interpretation of the incident. A retaliatory act of war would then be the appropriate response from Mexico.

    We are supposed to be civilized. Further bloodshed as the only recourse is insane.

    1. There are no other recourse? That’s what diplomacy is all about. Just because individuals can’t sue, it doesn’t mean there are no recourse.

    2. One of the Supreme Court’s findings in US v. Alvarez-Machain was that the US-Mexico extradition treaty did not prohibit cross-border abduction by bounty hunters. That shoe may fit the other foot now that the US has declined to charge or extradite the border patrol agent.

      1. It would also be interesting to hear what the approvers of this decision would be saying if the shooting scenario had been reversed 180 degrees. (Cue those folks describing how this couldn’t possibly happen rather than answering the question, besides which American Exceptionalism and Might Makes Right, er, trump minor considerations such as civilized behavior and justice).

  9. If American citizens can sue foreign countries for terrorism, then as a matter of reciprocity it would seem Mexican citizens should be able to sue the US, for something similar. In this case, the purpose of the killing could have been to terrorize the civilian minors, who posed no harm, for the political purpose of intimidating potential immigrants.

    1. Americans can sue foreign countries for terrorism IN THE U.S. Hernandez is free to sue the U.S. in Mexico. Good luck.

  10. Prof. Pfander at Northwestern made an argument along these lines in one of the endowed talks at Illinois a few weeks ago. I’m still mulling, seems to be some tension with the ultra vires logic of EP Young, and Erie means that there would be different thresholds for the wrong. If the government goes onto a ship and takes the cargo papers, it’s a trespass, yes. But it would be equally wrong if the government could do it without bending herbage (or ship’s planking). American constitutional law is basically an “action on the case,” and it would be retrograde to abandon that c/a in favor of the direct tort.

    Of course, there is one inarguable basis for overruling Bivvens: There were only five.

    FN 26 @ 6:

  11. In sidestepping the 5th amendment issue and addressing remedies first, the Supreme Court decided more than it needs to. The 5th Amendment issue affects only extraterritorial aliens. But the Bivens remedy issue affects citizens outside US territory.

    Indeed, if the 4th and 5th Amendment don’t apply as the Supreme Court has previously held, extraterritorial aliens lack standing to raise questions about remedies, Bivens or otherwise, and the Supreme Court’s opinion is advisory. But there was clear standing to decide the underlying question of applicability no matter what the outcome. .

  12. Imagine the Supreme Court deciding, in a case against an abortion provider, that a Bivens remedy is not available prenatally, without revisiting the underlying question of whether or not the 5th amendment has prenatal application.

    One could imagine the liberals on the Supreme Court taking such a step to postpone the day when the Supreme Court would decide whether to overrule its prior precedent. But it’s quasi-political juggling. It doesn’t really make sense from a strict legal point of view.

    1. But if there’s no Bivens remedy available, the plaintiff’s don’t have a cause of action so there’s nothing to decide.

  13. So Congress refuses to act by passing legislation, hoping either the Executive will issue an order or the Judicial will hand down a decision absolving Congress of the need to act.

    Then Congress complains about the Executive legislating through executive orders and the Judicial legislating through decisions.

    What do we have a Congress for, any way? Saving the youth of America from juvenile delinquency by banning comic books?

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