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Eleventh Circuit Tells BOP Prisoner in Georgia: Bivens Is On “Endangered Species List”
On October 3, 2024, the United States Court of Appeals for the Eleventh Circuit told a federal prisoner in Georgia that he could not hold the federal Bureau of Prisons (BOP) liable for damages caused by actions and inactions of its employees. The prisoner, LaQuan Johnson, had asked for an extension of an exception to the federal government’s immunity from suit, one first recognized by the Supreme Court of the U.S. (SCOTUS) over a half-century ago in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). That was apparently a more enlightened era for SCOTUS though; as the Eleventh Circuit noted, the high court since then has put its Bivens ruling “on the judiciary’s equivalent of an endangered species list.”
Johnson was both a pre-trial detainee and then a sentenced prisoner at the U.S. Penitentiary in Atlanta, when various BOP officials allegedly subjected him to excessive force and failed to protect him from assault by other prisoners on three separate occasions, including once while housed to await trial with a convicted prisoner who attacked him. Additionally, Johnson accused BOP staff of deliberate indifference to his serious medical needs in violation of his Eighth Amendment guarantee of freedom from cruel and unusual punishment by failing to treat his injuries; as the Court also noted, he “still walked with a limp” because of the shoddy treatment he received.
When he attempted to raise these claims through BOP’s four-level grievance process, Johnson said that staff either refused to provide him the necessary forms or otherwise hindered his ability to pursue administrative remedies. He then filed suit in federal court for the Northern District of Georgia, invoking its jurisdiction to hear and decide constitutional claims for monetary damages against federal officials under Bivens. But the district court, citing a cadre of more recent SCOTUS rulings refusing to do that very thing, determined that it was without authority to recognize an implied cause of action beyond the limited class of constitutional claims that the high court had previously recognized—for unreasonable search and seizure under the Fourth Amendment in the original Bivens case; for a due-process violation under the Fifth Amendment for gender discrimination by a U.S. Congressman who fired his secretary because she was a woman, in Davis v. Passman, 442 U.S. 228 (1979); and for an Eighth Amendment violation by failing to provide a prisoner medical care, after BOP failed to treat a prisoner’s asthma before it killed him, in Carlson v. Greene, 446 U.S. 14 (1980).
When Johnson’s claim was then dismissed for failure to fall under one of these exceptions to governmental immunity, he appealed to the Eleventh Circuit, but it affirmed the lower court’s decision. In a strongly worded opinion, it signaled to all federal district courts within its jurisdiction that no new Bivens actions should be recognized because SCOTUS had made clear that Bivens was “like its natural history analogue, the ivory-billed woodpecker,” the Court said: “Both the decision and the bird are staring extinction in the face.”
Whether Bivens is destined to be overruled by the high court, the fact remains that since Congress enacted 42 U.S.C.§ 1983, authorizing suits for money damages against state officials for violations of their constitutional rights, it has never created a similar cause of action against federal officials. In the four and a half decades since Carlson, SCOTUS has steadfastly refused to extend its recognition of an implied cause of action against federal officials in numerous other contexts; recently, it went so far as to say that creating such an extension is a “disfavored” judicial activity, one best left to Congress, which for “rational reasons” might not do so either. See: Ziglar v. Abbasi, 582 U.S. 120 (2017); and Egbert v. Boule, 596 U.S. 482 (2022).
SCOTUS even developed a two-part test to determine first whether a particular case requires an extension of Bivens beyond the three exceptions permitted so far, and if it does, a court must also determine whether “any special factors” exist “that counsel hesitation about granting the extension.” See: Hernandez v. Mesa, 589 U.S. 93 (2020)
The High Court’s critique and limitation of the Bivens doctrine turns primarily on its belief that creating causes of action is the role of the Legislative branch and that courts are ill-suited to determine whether the public interest is served by imposing new substantive legal liability on federal officials, including “economic and governmental concerns, administrative costs, and the impact on governmental operations systemwide,” to quote Egbert.
Given this trend, the Eleventh Circuit concluded that extending Bivens beyond the three specific factual scenarios and legal claims that the high court had previously recognized was simply not permissible. Accordingly, the district court’s dismissal of Johnson’s Bivens action was affirmed, with prejudice. See: Johnson v. Terry, 119 F.4th 840 (11th Cir. 2024).
The Eleventh Circuit also took issue with a recent Fourth Circuit decision extending Bivens to a federal prisoner’s Eighth Amendment excessive force claims in Fields v. Fed. Bur. of Prisons, 109 F.4th 264 (4th Cir. 2024). It called Fields “a far-afield outlier” that “may lead to en banc reconsideration or to the Supreme Court finally rendering Bivens cases extinct.” The Fourth Circuit opted against en banc review, as PLN reported. [See: PLN, Dec. 2024, p.40.] So far, SCOTUS has not issued a petition for certiorari review of the case. If it does, it would not be surprising to see Bivens finally jettisoned, given the High Court’s current make-up, its willingness to overrule precedent and its apparent hostility toward individual liberties.
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Related legal cases
Johnson v. Terry
| Year | 2024 |
|---|---|
| Cite | 119 F.4th 840 (11th Cir. 2024) |
| Level | Court of Appeals |
| Conclusion | Bench Verdict |
| Appeals Court Edition | F.4th |
Ziglar v. Abbasi
| Year | 2017 |
|---|---|
| Cite | 582 U.S. ___ (U.S. Supreme Court 2017) |
Supreme Court of the United States
582 U.S. ___; 137 S.Ct. 1843; 198 L.Ed.2d 290; 2017 U.S. LEXIS 3874
JAMES W. ZIGLAR, PETITIONER v. AHMER IQBAL ABBASI, ET AL ;
JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, ET AL., PETITIONERS v. AHMER IQBAL ABBASI, ET AL.;
DENNIS HASTY, ET AL., PETITIONERS v. AHMER IQBAL ABBASI, ET AL.
January 18, 2017, Argued;
June 19, 2017, Decided*
Nos. 15-1358, 15-1359 and 15-1363.
Notice: This preliminary Lexis version is unedited and subject to revision. The LEXIS pagination of this document is subject to change pending release of the final published version.
Prior History: [*1] ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Disposition: 789 F. 3d 218, reversed in part and vacated and remanded in part.
Syllabus
In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, former Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facility’s warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional violations under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that petitioners detained them in harsh pretrial conditions for [*2] a punitive purpose, in violation of the Fifth Amendment; that petitioners did so because of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit affirmed in most respects as to the Wardens but reversed as to the Executive Officials, reinstating respondents’ claims.
Held: The judgment is reversed in part and vacated and remanded in part.
789 F. 3d 218, reversed in part and vacated and remanded in part.
Justice Kennedy delivered the opinion of the Court, except as to Part IV-B, concluding:
1. The limited reach of the Bivens action informs the decision whether an implied damages remedy should be recognized here. Pp. 6-14.
(a) In 42 U. S. C. §1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress [*3] provided no corresponding remedy for constitutional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens-type remedies twice more, in a Fifth Amendment gender-discrimination case, Davis v. Passman, 442 U. S. 228, and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v. Green, 446 U. S. 14. These are the only cases in which the Court has approved of an implied damages remedy under the Constitution itself. Pp. 6-7.
(b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to “provide such remedies as are necessary to make effective” a statute’s purpose. J. I. Case Co. v. Borak, 377 U. S. 426, 433. The Court has since adopted a far more cautious course, clarifying that, when deciding whether to recognize an implied cause of action, the “determinative” question is one of statutory intent. Alexander v. Sandoval, 532 U. S. 275, 286. If a statute does not evince Congress’ intent “to create the private right of action asserted,” Touche Ross & Co. v. Redington, 442 U. S. 560, 568, no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions [*4] implied to enforce the Constitution itself. Bivens is well-settled law in its own context, but expanding the Bivens remedy is now considered a “disfavored” judicial activity. Ashcroft v. Iqbal, 556 U. S. 662, 675.
When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the analysis. The question is whether Congress or the courts should decide to authorize a damages suit. Bush v. Lucas, 462 U. S. 367, 380. Most often it will be Congress, for Bivens will not be extended to a new context if there are “‘special factors counselling hesitation in the absence of affirmative action by Congress.’” Carlson, supra, at 18. If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating that kind of remedy. An alternative remedial structure may also limit the Judiciary’s power to infer a new Bivens cause of action. Pp. 8-14.
2. Considering the relevant special factors here, a Bivens-type remedy should not be extended to the claims challenging the confinement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Officials in [*5] the wake of the September 11 attacks. These “detention policy claims” include the allegations that petitioners violated respondents’ due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegations that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The detention policy claims do not include the guard-abuse claim against Warden Hasty. Pp. 14-23.
(a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Respondents’ detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens [*6] context and then performed a special factors analysis before allowing this damages suit to proceed. Pp. 15-17.
(b) The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed.
With regard to the Executive Officials, a Bivens action is not “a proper vehicle for altering an entity’s policy,” Correctional Services Corp. v. Malesko, 534 U. S. 61, 74, and is not designed to hold officers responsible for acts of their subordinates, see Iqbal, supra, at 676. Even an action confined to the Executive Officers’ own discrete conduct would call into question the formulation and implementation of a high-level executive policy, and the burdens of that litigation could prevent officials from properly discharging their duties, see Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 382. The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sensitive Executive Branch functions. See Clinton v. Jones, 520 U. S. 681, 701.
Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those claims challenge major elements of the Government’s response to the September 11 attacks, they necessarily require an inquiry into national-security [*7] issues. National-security policy, however, is the prerogative of Congress and the President, and courts are “reluctant to intrude upon” that authority absent congressional authorization. Department of Navy v. Egan, 484 U. S. 518, 530. Thus, Congress’ failure to provide a damages remedy might be more than mere oversight, and its silence might be more than “inadvertent.” Schweiker v. Chilicky, 487 U. S. 412, 423. That silence is also relevant and telling here, where Congress has had nearly 16 years to extend “the kind of remedies [sought by] respondents,” id., at 426, but has not done so. Respondents also may have had available “‘other alternative forms of judicial relief,’” Minneci v. Pollard, 565 U. S. 118, 124, including injunctions and habeas petitions.
The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred in allowing respondents’ detention policy claims to proceed under Bivens. Pp. 17-23.
3. The Second Circuit also erred in allowing the prisoner abuse claim against Warden Hasty to go forward without conducting the required special factors analysis. Respondents’ prisoner abuse allegations [*8] against Warden Hasty state a plausible ground to find a constitutional violation should a Bivens remedy be implied. But the first question is whether the claim arises in a new Bivens context. This claim has significant parallels to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitutional right is different here: Carlson was predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judicial guidance available to this warden with respect to his supervisory duties was less developed. There might have been alternative remedies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court’s expressed caution about extending the Bivens remedy, this context must be regarded as a new one. Pp. 23-26.
4. Petitioners are entitled to qualified immunity with respect to respondents’ claims under 42 U. S. C. §1985(3). Pp. 26-32.
(a) Assuming that respondents’ allegations are true and well pleaded, the question is whether a reasonable officer in petitioners’ position [*9] would have known the alleged conduct was an unlawful conspiracy. The qualified-immunity inquiry turns on the “objective legal reasonableness” of the official’s acts, Harlow v. Fitzgerald, 457 U. S. 800, 819, “assessed in light of the legal rules that were ‘clearly established’ at the time [the action] was taken,” Anderson v. Creighton, 483 U. S. 635, 639. If it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confronted,” Saucier v. Katz, 533 U. S. 194, 202, the defendant officer is not entitled to qualified immunity. But if a reasonable officer might not have known that the conduct was unlawful, then the officer is entitled to qualified immunity. Pp. 27-29.
(b) Here, reasonable officials in petitioners’ positions would not have known with sufficient certainty that §1985(3) prohibited their joint consultations and the resulting policies. There are two reasons. First, the conspiracy is alleged to have been among officers in the same Department of the Federal Government. And there is no clearly established law on the issue whether agents of the same executive department are distinct enough to “conspire” with one another within the meaning of 42 U. S. C. §1985(3). Second, open discussion among federal officers should be encouraged to help those officials reach consensus on [*10] department policies, so there is a reasonable argument that §1985(3) liability should not extend to cases like this one. As these considerations indicate, the question whether federal officials can be said to “conspire” in these kinds of situations is sufficiently open that the officials in this suit would not have known that §1985(3) applied to their discussions and actions. It follows that reasonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by that statute. Pp. 29-32.
Judges: Kennedy, J., delivered the opinion of the Court with respect to Parts I, II, III, IV-A, and V, in which Roberts, C. J., and Thomas and Alito, JJ., joined, and an opinion with respect to Part IV-B, in which Roberts, C. J., and Alito, J., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined. Sotomayor, Kagan, and Gorsuch, JJ., took no part in the consideration or decision of the cases.
Opinion by: KENNEDY
Opinion
Justice Kennedy delivered the opinion of the Court, except as to Part IV-B.
After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, [*11] and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court.
The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. §1980, 42 U. S. C. §1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws.
The suit was commenced in the United States District Court for the Eastern District of New York. After this Court’s decision in Ashcroft v. Iqbal, 556 U. S. 662 (2009), a fourth amended complaint was filed; [*12] and that is the complaint to be considered here. Motions to dismiss the fourth amended complaint were denied as to some defendants and granted as to others. These rulings were the subject of interlocutory appeals to the United States Court of Appeals for the Second Circuit. Over a dissenting opinion by Judge Raggi with respect to the decision of the three-judge panel—and a second unsigned dissent from the court’s declining to rehear the suit en banc, joined by Judge Raggi and five other judges—the Court of Appeals ruled that the complaint was sufficient for the action to proceed against the named officials who are now before us. See Turkmen v. Hasty, 789 F. 3d 218 (2015) (panel decision); Turkmen v. Hasty, 808 F. 3d 197 (2015) (en banc decision).
The Court granted certiorari to consider these rulings. 580 U. S. ___ (2016). The officials who must defend the suit on the merits, under the ruling of the Court of Appeals, are the petitioner
582 U.S. ___; 137 S.Ct. 1843; 198 L.Ed.2d 290; 2017 U.S. LEXIS 3874
JAMES W. ZIGLAR, PETITIONER v. AHMER IQBAL ABBASI, ET AL ;
JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, ET AL., PETITIONERS v. AHMER IQBAL ABBASI, ET AL.;
DENNIS HASTY, ET AL., PETITIONERS v. AHMER IQBAL ABBASI, ET AL.
January 18, 2017, Argued;
June 19, 2017, Decided*
Nos. 15-1358, 15-1359 and 15-1363.
Notice: This preliminary Lexis version is unedited and subject to revision. The LEXIS pagination of this document is subject to change pending release of the final published version.
Prior History: [*1] ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Disposition: 789 F. 3d 218, reversed in part and vacated and remanded in part.
Syllabus
In the immediate aftermath of the September 11 terrorist attacks, the Federal Government ordered hundreds of illegal aliens to be taken into custody and held pending a determination whether a particular detainee had connections to terrorism. Respondents, six men of Arab or South Asian descent, were detained for periods of three to six months in a federal facility in Brooklyn. After their release, they were removed from the United States. They then filed this putative class action against petitioners, two groups of federal officials. The first group consisted of former Attorney General John Ashcroft, former Federal Bureau of Investigation Director Robert Mueller, and former Immigration and Naturalization Service Commissioner James Ziglar (Executive Officials). The second group consisted of the facility’s warden and assistant warden Dennis Hasty and James Sherman (Wardens). Respondents sought damages for constitutional violations under the implied cause of action theory adopted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, alleging that petitioners detained them in harsh pretrial conditions for [*2] a punitive purpose, in violation of the Fifth Amendment; that petitioners did so because of their actual or apparent race, religion, or national origin, in violation of the Fifth Amendment; that the Wardens subjected them to punitive strip searches, in violation of the Fourth and Fifth Amendments; and that the Wardens knowingly allowed the guards to abuse them, in violation of the Fifth Amendment. Respondents also brought a claim under 42 U. S. C. §1985(3), which forbids certain conspiracies to violate equal protection rights. The District Court dismissed the claims against the Executive Officials but allowed the claims against the Wardens to go forward. The Second Circuit affirmed in most respects as to the Wardens but reversed as to the Executive Officials, reinstating respondents’ claims.
Held: The judgment is reversed in part and vacated and remanded in part.
789 F. 3d 218, reversed in part and vacated and remanded in part.
Justice Kennedy delivered the opinion of the Court, except as to Part IV-B, concluding:
1. The limited reach of the Bivens action informs the decision whether an implied damages remedy should be recognized here. Pp. 6-14.
(a) In 42 U. S. C. §1983, Congress provided a specific damages remedy for plaintiffs whose constitutional rights were violated by state officials, but Congress [*3] provided no corresponding remedy for constitutional violations by agents of the Federal Government. In 1971, and against this background, this Court recognized in Bivens an implied damages action to compensate persons injured by federal officers who violated the Fourth Amendment’s prohibition against unreasonable searches and seizures. In the following decade, the Court allowed Bivens-type remedies twice more, in a Fifth Amendment gender-discrimination case, Davis v. Passman, 442 U. S. 228, and in an Eighth Amendment Cruel and Unusual Punishments Clause case, Carlson v. Green, 446 U. S. 14. These are the only cases in which the Court has approved of an implied damages remedy under the Constitution itself. Pp. 6-7.
(b) Bivens, Davis, and Carlson were decided at a time when the prevailing law assumed that a proper judicial function was to “provide such remedies as are necessary to make effective” a statute’s purpose. J. I. Case Co. v. Borak, 377 U. S. 426, 433. The Court has since adopted a far more cautious course, clarifying that, when deciding whether to recognize an implied cause of action, the “determinative” question is one of statutory intent. Alexander v. Sandoval, 532 U. S. 275, 286. If a statute does not evince Congress’ intent “to create the private right of action asserted,” Touche Ross & Co. v. Redington, 442 U. S. 560, 568, no such action will be created through judicial mandate. Similar caution must be exercised with respect to damages actions [*4] implied to enforce the Constitution itself. Bivens is well-settled law in its own context, but expanding the Bivens remedy is now considered a “disfavored” judicial activity. Ashcroft v. Iqbal, 556 U. S. 662, 675.
When a party seeks to assert an implied cause of action under the Constitution, separation-of-powers principles should be central to the analysis. The question is whether Congress or the courts should decide to authorize a damages suit. Bush v. Lucas, 462 U. S. 367, 380. Most often it will be Congress, for Bivens will not be extended to a new context if there are “‘special factors counselling hesitation in the absence of affirmative action by Congress.’” Carlson, supra, at 18. If there are sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy as part of the system for enforcing the law and correcting a wrong, courts must refrain from creating that kind of remedy. An alternative remedial structure may also limit the Judiciary’s power to infer a new Bivens cause of action. Pp. 8-14.
2. Considering the relevant special factors here, a Bivens-type remedy should not be extended to the claims challenging the confinement conditions imposed on respondents pursuant to the formal policy adopted by the Executive Officials in [*5] the wake of the September 11 attacks. These “detention policy claims” include the allegations that petitioners violated respondents’ due process and equal protection rights by holding them in restrictive conditions of confinement, and the allegations that the Wardens violated the Fourth and Fifth Amendments by subjecting respondents to frequent strip searches. The detention policy claims do not include the guard-abuse claim against Warden Hasty. Pp. 14-23.
(a) The proper test for determining whether a claim arises in a new Bivens context is as follows. If the case is different in a meaningful way from previous Bivens cases decided by this Court, then the context is new. Meaningful differences may include, e.g., the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases. Respondents’ detention policy claims bear little resemblance to the three Bivens claims the Court has approved in previous cases. The Second Circuit thus should have held that this was a new Bivens [*6] context and then performed a special factors analysis before allowing this damages suit to proceed. Pp. 15-17.
(b) The special factors here indicate that Congress, not the courts, should decide whether a damages action should be allowed.
With regard to the Executive Officials, a Bivens action is not “a proper vehicle for altering an entity’s policy,” Correctional Services Corp. v. Malesko, 534 U. S. 61, 74, and is not designed to hold officers responsible for acts of their subordinates, see Iqbal, supra, at 676. Even an action confined to the Executive Officers’ own discrete conduct would call into question the formulation and implementation of a high-level executive policy, and the burdens of that litigation could prevent officials from properly discharging their duties, see Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 382. The litigation process might also implicate the discussion and deliberations that led to the formation of the particular policy, requiring courts to interfere with sensitive Executive Branch functions. See Clinton v. Jones, 520 U. S. 681, 701.
Other special factors counsel against extending Bivens to cover the detention policy claims against any of the petitioners. Because those claims challenge major elements of the Government’s response to the September 11 attacks, they necessarily require an inquiry into national-security [*7] issues. National-security policy, however, is the prerogative of Congress and the President, and courts are “reluctant to intrude upon” that authority absent congressional authorization. Department of Navy v. Egan, 484 U. S. 518, 530. Thus, Congress’ failure to provide a damages remedy might be more than mere oversight, and its silence might be more than “inadvertent.” Schweiker v. Chilicky, 487 U. S. 412, 423. That silence is also relevant and telling here, where Congress has had nearly 16 years to extend “the kind of remedies [sought by] respondents,” id., at 426, but has not done so. Respondents also may have had available “‘other alternative forms of judicial relief,’” Minneci v. Pollard, 565 U. S. 118, 124, including injunctions and habeas petitions.
The proper balance in situations like this, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril, is one for the Congress to undertake, not the Judiciary. The Second Circuit thus erred in allowing respondents’ detention policy claims to proceed under Bivens. Pp. 17-23.
3. The Second Circuit also erred in allowing the prisoner abuse claim against Warden Hasty to go forward without conducting the required special factors analysis. Respondents’ prisoner abuse allegations [*8] against Warden Hasty state a plausible ground to find a constitutional violation should a Bivens remedy be implied. But the first question is whether the claim arises in a new Bivens context. This claim has significant parallels to Carlson, which extended Bivens to cover a failure to provide medical care to a prisoner, but this claim nevertheless seeks to extend Carlson to a new context. The constitutional right is different here: Carlson was predicated on the Eighth Amendment while this claim was predicated on the Fifth. The judicial guidance available to this warden with respect to his supervisory duties was less developed. There might have been alternative remedies available. And Congress did not provide a standalone damages remedy against federal jailers when it enacted the Prison Litigation Reform Act some 15 years after Carlson. Given this Court’s expressed caution about extending the Bivens remedy, this context must be regarded as a new one. Pp. 23-26.
4. Petitioners are entitled to qualified immunity with respect to respondents’ claims under 42 U. S. C. §1985(3). Pp. 26-32.
(a) Assuming that respondents’ allegations are true and well pleaded, the question is whether a reasonable officer in petitioners’ position [*9] would have known the alleged conduct was an unlawful conspiracy. The qualified-immunity inquiry turns on the “objective legal reasonableness” of the official’s acts, Harlow v. Fitzgerald, 457 U. S. 800, 819, “assessed in light of the legal rules that were ‘clearly established’ at the time [the action] was taken,” Anderson v. Creighton, 483 U. S. 635, 639. If it would have been clear to a reasonable officer that the alleged conduct “was unlawful in the situation he confronted,” Saucier v. Katz, 533 U. S. 194, 202, the defendant officer is not entitled to qualified immunity. But if a reasonable officer might not have known that the conduct was unlawful, then the officer is entitled to qualified immunity. Pp. 27-29.
(b) Here, reasonable officials in petitioners’ positions would not have known with sufficient certainty that §1985(3) prohibited their joint consultations and the resulting policies. There are two reasons. First, the conspiracy is alleged to have been among officers in the same Department of the Federal Government. And there is no clearly established law on the issue whether agents of the same executive department are distinct enough to “conspire” with one another within the meaning of 42 U. S. C. §1985(3). Second, open discussion among federal officers should be encouraged to help those officials reach consensus on [*10] department policies, so there is a reasonable argument that §1985(3) liability should not extend to cases like this one. As these considerations indicate, the question whether federal officials can be said to “conspire” in these kinds of situations is sufficiently open that the officials in this suit would not have known that §1985(3) applied to their discussions and actions. It follows that reasonable officers in petitioners’ positions would not have known with any certainty that the alleged agreements were forbidden by that statute. Pp. 29-32.
Judges: Kennedy, J., delivered the opinion of the Court with respect to Parts I, II, III, IV-A, and V, in which Roberts, C. J., and Thomas and Alito, JJ., joined, and an opinion with respect to Part IV-B, in which Roberts, C. J., and Alito, J., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Breyer, J., filed a dissenting opinion, in which Ginsburg, J., joined. Sotomayor, Kagan, and Gorsuch, JJ., took no part in the consideration or decision of the cases.
Opinion by: KENNEDY
Opinion
Justice Kennedy delivered the opinion of the Court, except as to Part IV-B.
After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, [*11] and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court.
The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. §1980, 42 U. S. C. §1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws.
The suit was commenced in the United States District Court for the Eastern District of New York. After this Court’s decision in Ashcroft v. Iqbal, 556 U. S. 662 (2009), a fourth amended complaint was filed; [*12] and that is the complaint to be considered here. Motions to dismiss the fourth amended complaint were denied as to some defendants and granted as to others. These rulings were the subject of interlocutory appeals to the United States Court of Appeals for the Second Circuit. Over a dissenting opinion by Judge Raggi with respect to the decision of the three-judge panel—and a second unsigned dissent from the court’s declining to rehear the suit en banc, joined by Judge Raggi and five other judges—the Court of Appeals ruled that the complaint was sufficient for the action to proceed against the named officials who are now before us. See Turkmen v. Hasty, 789 F. 3d 218 (2015) (panel decision); Turkmen v. Hasty, 808 F. 3d 197 (2015) (en banc decision).
The Court granted certiorari to consider these rulings. 580 U. S. ___ (2016). The officials who must defend the suit on the merits, under the ruling of the Court of Appeals, are the petitioner
Hernandez v. Mesa
| Year | 2017 |
|---|---|
| Cite | 582 U.S. ___ (U.S. Supreme Court 2017) |
Supreme Court of the United States
582 U.S. ___; 137 S.Ct. 2003; 198 L.Ed.2d 625; 2017 U.S. LEXIS 4059
JESUS C. HERNANDEZ, ET AL., PETITIONERS v. JESUS MESA, JR., ET AL.
June 26, 2017, Decided
No. 15-118.
Notice: The LEXIS pagination of this document is subject to change pending release of the final published version.
Subsequent History: On remand at Hernandez v. Mesa, 2017 U.S. App. LEXIS 14479 (5th Cir. Tex., July 26, 2017)
On remand at Hernandez v. United States, 2017 U.S. App. LEXIS 13666 (5th Cir. Tex., July 27, 2017)
Prior History: [***1] ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Hernandez v. United States, 785 F.3d 117, 2015 U.S. App. LEXIS 6827 (5th Cir. Tex., Apr. 24, 2015)
Counsel: Robert C. Hilliard argued the cause for petitioners.
Randolph J. Ortega argued the cause for respondent Jesus Mesa, Jr.
Edwin S. Kneedler argued the cause for federal respondents.
Judges: Roberts, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch.
Opinion
[*2004] [**627] PER CURIAM.
This case involves a tragic cross-border incident in which a United States Border Patrol agent standing on United States soil shot and killed a Mexican national standing on Mexican soil. The three questions presented concern whether the parents of the victim of that shooting may assert claims for damages against the agent under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); whether the shooting violated the victim’s Fourth Amendment rights; and whether the agent is entitled [*2005] to qualified immunity on a claim that the shooting violated the victim’s Fifth Amendment rights.
Because this case was resolved on a motion to dismiss, the Court accepts the allegations in the complaint as true for purposes of this opinion. See Wood v. Moss, 572 U. S. ___, ___, 134 S. Ct. 2056, 188 L. Ed. 2d 1039, 1051 (2014). On June 7, 2010, Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in the cement culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. Now all but dry, the culvert once contained the waters of the Rio Grande River. The international boundary runs down the middle of the culvert, and at the top of the embankment on the United States [***2] side is a fence. According to the complaint, Hernández and his friends were playing a game in which they ran up the embankment on the United States side, touched the fence, and then ran back down. At some point, Border Patrol Agent Jesus Mesa, Jr., arrived on the scene by bicycle and detained one of Hernández’s friends in United States territory as the friend ran down the embankment. Hernández ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert. While in United States territory, Mesa then fired at least two shots across the border at Hernández. One shot struck Hernández in the face and killed him. According to the complaint, Hernández was unarmed and unthreatening at the time.
The Department of Justice investigated the incident. The Department concluded that the shooting “occurred [**628] while smugglers attempting an illegal border crossing hurled rocks from close range at a [Customs and Border Patrol] agent who was attempting to detain a suspect.” Dept. of Justice, Office of Public Affairs, Federal Officials Close Investigation Into the Death of Sergio Hernandez-Guereca (Apr. 27, 2012), online at http://www.justice. [***3] gov /opa /pr /federal-officials-close-investigation-death-sergiohernandez-guereca (as last visited June 23, 2017). “[O]n these particular facts,” the Department determined, “the agent did not act inconsistently with [Customs and Border Patrol] policy or training regarding use of force.” Ibid. The Department also declined to bring federal civil rights charges against Mesa. In the Department’s view, there was insufficient evidence that Mesa “acted willfully and with the deliberate and specific intent to do something the law forbids,” and, in any event, Hernández “was neither within the borders of the United States nor present on U. S. property, as required for jurisdiction to exist under the applicable federal civil rights statute.” Ibid. The Department expressed regret for the loss of life in the incident and pledged “to work with the Mexican government within existing mechanisms and agreements to prevent future incidents.” Ibid.
Petitioners—Hernández’s parents—brought suit. Among other claims, petitioners brought claims against Mesa for damages under Bivens, alleging that Mesa violated Hernández’s rights under the Fourth and Fifth Amendments. The United States District Court for the Western District of Texas [***4] granted Mesa’s motion to dismiss. A panel of the Court of Appeals for the Fifth Circuit affirmed in part and reversed in part. The panel held that Hernández lacked any Fourth Amendment rights under the circumstances, but that the shooting violated his Fifth Amendment rights. Hernandez v. United States, 757 F. 3d 249, 267, 272 (2014); id., at 280-281 (Dennis, J., concurring in part and concurring in judgment); id., at 281 (DeMoss, J., concurring in part and dissenting in part). The panel also found “no reason to hesitate in extending Bivens to this new context.” [*2006] Id., at 275. And the panel held that Mesa was not entitled to qualified immunity, concluding that “[n]o reasonable officer would have understood Agent Mesa’s alleged conduct to be lawful.” Id., at 279. Judge DeMoss dissented in part, arguing that Hernández lacked any Fifth Amendment rights under the circumstances. Id., at 281-282.
On rehearing en banc, the Court of Appeals unanimously affirmed the District Court’s dismissal of petitioners’ claims against Mesa. The en banc Court of Appeals first held that petitioners had failed to state a claim for a violation of the Fourth Amendment because Hernández was “a Mexican citizen who had no ‘significant voluntary connection’ to the United States” and “was on Mexican soil at the time he was shot.” Hernandez v. United States, 785 F. 3d 117, 119 (CA5 2015) (per curiam) (quoting United States v. Verdugo-Urquidez, 494 U. S. 259, 271, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990)). As to petitioners’ claim [***5] under the Fifth Amendment, the en banc Court of Appeals was “somewhat divided on the question of whether Agent Mesa’s conduct violated the Fifth Amendment,” but was “unanimous” in concluding that Mesa was entitled to qualified immunity. 785 [**629] F. 3d, at 120. The en banc Court of Appeals explained that “[n]o case law in 2010, when this episode occurred, reasonably warned Agent Mesa” that “the general prohibition of excessive force applies where the person injured by a U. S. official standing on U. S. soil is an alien who had no significant voluntary connection to, and was not in, the United States when the incident occurred.” Ibid. Because the en banc Court of Appeals resolved petitioners’ claims on other grounds, it “did not consider whether, even if a constitutional claim had been stated, a tort remedy should be crafted under Bivens.” Id., at 121, n. 1 (Jones, J., concurring). Ten judges filed or joined five separate concurring opinions. Id., at 121-143.
This Court granted certiorari. 580 U.S. ___, 137 S. Ct. 291, 196 L. Ed. 2d 211 (2016). The Court now vacates the judgment of the Court of Appeals and remands for further proceedings.
The Court turns first to the Bivens question, which is “antecedent” to the other questions presented. Wood, 572 U. S., at ___, 134 S. Ct. 2056, 188 L. Ed. 2d 1039, 1050. HN1 In Bivens, this Court “recognized for the first time an implied right of action [***6] for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 66, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001). A Bivens remedy is not available, however, where there are “‘special factors counselling hesitation in the absence of affirmative action by Congress.’” Carlson v. Green, 446 U. S. 14, 18, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980) (quoting Bivens, 403 U. S., at 396, 91 S. Ct. 1999, 29 L. Ed. 2d 619). In the decision recently announced in Ziglar v. Abbasi, ante, p. ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, 2017 U.S. LEXIS 3874, this Court has clarified what constitutes a “special facto[r] counselling hesitation.” See ante, at 12-14, 17-23. “[T]he inquiry,” the Court explains, “must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Ante, at 12.
The Court of Appeals here, of course, has not had the opportunity to consider how the reasoning and analysis in Abbasi may bear on this case. And the parties have not had the opportunity to brief and argue its significance. In these circumstances, it is appropriate for the [*2007] Court of Appeals, rather than this Court, to address the Bivens question in the first instance. HN2 This Court, after all, is one “‘of review, not of first view.’” Expressions Hair Design v. Schneiderman, 581 U. S. ___, ___, 137 S. Ct. 1144, 197 L. Ed. 2d 442, 450 (2017) (quoting Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___, 134 S. Ct. 2120, 189 L. Ed. 2d 37, 50 (2014)).
With respect to petitioners’ Fourth Amendment claim, the en banc Court of Appeals found it unnecessary [***7] to address the Bivens question because it concluded that Hernández lacked any Fourth Amendment rights under the circumstances. This approach—disposing of a Bivens claim by resolving the constitutional question, while assuming the existence of a Bivens remedy—is appropriate in many cases. This Court has taken that approach on occasion. See, e.g., Wood, supra, at ___, 134 S. Ct. 2056, 188 L. Ed. 2d 1039, 1050. [**630] The Fourth Amendment question in this case, however, is sensitive and may have consequences that are far reaching. It would be imprudent for this Court to resolve that issue when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case.
With respect to petitioners’ Fifth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it held that Mesa was entitled to qualified immunity. In reaching that conclusion, the en banc Court of Appeals relied on the fact that Hernández was “an alien who had no significant voluntary connection to . . . the United States.” 785 F. 3d, at 120. It is undisputed, however, that Hernández’s nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting. The en banc Court of Appeals therefore erred in granting qualified immunity [***8] based on those facts.
HN3 “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established . . . constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, 577 U. S. ___, ___, 136 S. Ct. 305, 193 L. Ed. 2d 255, 259 (2015) (per curiam) (quoting Pearson v. Callahan, 555 U. S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)). The “dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U. S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). The qualified immunity analysis thus is limited to “the facts that were knowable to the defendant officers” at the time they engaged in the conduct in question. White v. Pauly, 580 U. S. ___, ___, 137 S. Ct. 548, 196 L. Ed. 2d 463, 466 (2017) (per curiam). Facts an officer learns after the incident ends—whether those facts would support granting immunity or denying it—are not relevant.
Mesa and the Government contend that Mesa is entitled to qualified immunity even if Mesa was uncertain about Hernández’s nationality and his ties to the United States at the time of the shooting. The Government also argues that, in any event, petitioners’ claim is cognizable only under the Fourth Amendment, and not under the Fifth Amendment. This Court declines to address these arguments in the first instance. The Court of Appeals may address them, if necessary, [***9] on remand.
The facts alleged in the complaint depict a disturbing incident resulting in a heartbreaking loss of life. Whether petitioners may recover damages for that loss in this suit depends on questions that are best [*2008] answered by the Court of Appeals in the first instance.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Gorsuch took no part in the consideration or decision of this case.
Dissent by: THOMAS; BREYER
Dissent
[**631] Justice Thomas, dissenting.
When we granted certiorari in this case, we directed the parties to address, in addition to the questions presented by petitioners, “[w]hether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).” 580 U. S. ___, 137 S. Ct. 291, 196 L. Ed. 2d 211 (2016). I would answer that question, rather than remand for the Court of Appeals to do so. I continue to adhere to the view that “Bivens and its progeny” should be limited “to the precise circumstances that they involved.” Ziglar v. Abbasi, ante, at 2, 2017 U.S. LEXIS 3874 (Thomas, J., concurring in part and concurring in judgment) (internal quotation marks omitted). This case arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny. Most notably, this case involves cross-border conduct, and [***10] those cases did not. I would decline to extend Bivens and would affirm the judgment of the Court of Appeals on that basis.
Justice Breyer, with whom Justice Ginsburg joins, dissenting.
The parents of Sergio Adrián Hernández Güereca brought this constitutional tort action against a United States Border Patrol agent, Jesus Mesa, Jr. They claim that Mesa violated their son’s constitutional rights when Mesa shot and killed him on June 7, 2010. Hernández and some of his friends had been running back and forth across a Rio Grande River culvert that straddles the border between the United States and Mexico. When Mesa shot him, Hernández had returned to, and was on, the Mexican side of the culvert.
The Court of Appeals, affirming the District Court, held (among other things) that Hernández had no Fourth Amendment rights because he was not a citizen of the United States, he was “on Mexican soil at the time he was shot,” and he “had no ‘significant voluntary connection’ to the United States. ” Hernandez v. United States, 785 F. 3d 117, 119 (2015) (per curiam) (quoting United States v. Verdugo-Urquidez, 494 U. S. 259, 271, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990)). I would reverse the Court of Appeals’ Fourth Amendment holding. And, in my view, that reversal would ordinarily bring with it the right to bring an action for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). See Wood v. Moss, 572 U. S. ___, ___, 134 S. Ct. 2056, 188 L. Ed. 2d 1039, 1050 (2014) (Bivens actions lie for Fourth Amendment violations); [***11] Tennessee v. Garner, 471 U. S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (officer’s application of lethal force when there is no immediate threat to self or others violates the Fourth Amendment). See also Ziglar v. Abbasi, ante, p. 1, 2017 U.S. LEXIS 3874 (Breyer, J., dissenting).
I recognize that Hernández was on the Mexican side of the culvert when he was shot. But, we have written in a case involving the suspension of habeas corpus that “de jure sovereignty” is not and never has been “the only relevant consideration in dete
582 U.S. ___; 137 S.Ct. 2003; 198 L.Ed.2d 625; 2017 U.S. LEXIS 4059
JESUS C. HERNANDEZ, ET AL., PETITIONERS v. JESUS MESA, JR., ET AL.
June 26, 2017, Decided
No. 15-118.
Notice: The LEXIS pagination of this document is subject to change pending release of the final published version.
Subsequent History: On remand at Hernandez v. Mesa, 2017 U.S. App. LEXIS 14479 (5th Cir. Tex., July 26, 2017)
On remand at Hernandez v. United States, 2017 U.S. App. LEXIS 13666 (5th Cir. Tex., July 27, 2017)
Prior History: [***1] ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
Hernandez v. United States, 785 F.3d 117, 2015 U.S. App. LEXIS 6827 (5th Cir. Tex., Apr. 24, 2015)
Counsel: Robert C. Hilliard argued the cause for petitioners.
Randolph J. Ortega argued the cause for respondent Jesus Mesa, Jr.
Edwin S. Kneedler argued the cause for federal respondents.
Judges: Roberts, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan, Gorsuch.
Opinion
[*2004] [**627] PER CURIAM.
This case involves a tragic cross-border incident in which a United States Border Patrol agent standing on United States soil shot and killed a Mexican national standing on Mexican soil. The three questions presented concern whether the parents of the victim of that shooting may assert claims for damages against the agent under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); whether the shooting violated the victim’s Fourth Amendment rights; and whether the agent is entitled [*2005] to qualified immunity on a claim that the shooting violated the victim’s Fifth Amendment rights.
Because this case was resolved on a motion to dismiss, the Court accepts the allegations in the complaint as true for purposes of this opinion. See Wood v. Moss, 572 U. S. ___, ___, 134 S. Ct. 2056, 188 L. Ed. 2d 1039, 1051 (2014). On June 7, 2010, Sergio Adrián Hernández Güereca, a 15-year-old Mexican national, was with a group of friends in the cement culvert that separates El Paso, Texas, from Ciudad Juarez, Mexico. Now all but dry, the culvert once contained the waters of the Rio Grande River. The international boundary runs down the middle of the culvert, and at the top of the embankment on the United States [***2] side is a fence. According to the complaint, Hernández and his friends were playing a game in which they ran up the embankment on the United States side, touched the fence, and then ran back down. At some point, Border Patrol Agent Jesus Mesa, Jr., arrived on the scene by bicycle and detained one of Hernández’s friends in United States territory as the friend ran down the embankment. Hernández ran across the international boundary into Mexican territory and stood by a pillar that supports a railroad bridge spanning the culvert. While in United States territory, Mesa then fired at least two shots across the border at Hernández. One shot struck Hernández in the face and killed him. According to the complaint, Hernández was unarmed and unthreatening at the time.
The Department of Justice investigated the incident. The Department concluded that the shooting “occurred [**628] while smugglers attempting an illegal border crossing hurled rocks from close range at a [Customs and Border Patrol] agent who was attempting to detain a suspect.” Dept. of Justice, Office of Public Affairs, Federal Officials Close Investigation Into the Death of Sergio Hernandez-Guereca (Apr. 27, 2012), online at http://www.justice. [***3] gov /opa /pr /federal-officials-close-investigation-death-sergiohernandez-guereca (as last visited June 23, 2017). “[O]n these particular facts,” the Department determined, “the agent did not act inconsistently with [Customs and Border Patrol] policy or training regarding use of force.” Ibid. The Department also declined to bring federal civil rights charges against Mesa. In the Department’s view, there was insufficient evidence that Mesa “acted willfully and with the deliberate and specific intent to do something the law forbids,” and, in any event, Hernández “was neither within the borders of the United States nor present on U. S. property, as required for jurisdiction to exist under the applicable federal civil rights statute.” Ibid. The Department expressed regret for the loss of life in the incident and pledged “to work with the Mexican government within existing mechanisms and agreements to prevent future incidents.” Ibid.
Petitioners—Hernández’s parents—brought suit. Among other claims, petitioners brought claims against Mesa for damages under Bivens, alleging that Mesa violated Hernández’s rights under the Fourth and Fifth Amendments. The United States District Court for the Western District of Texas [***4] granted Mesa’s motion to dismiss. A panel of the Court of Appeals for the Fifth Circuit affirmed in part and reversed in part. The panel held that Hernández lacked any Fourth Amendment rights under the circumstances, but that the shooting violated his Fifth Amendment rights. Hernandez v. United States, 757 F. 3d 249, 267, 272 (2014); id., at 280-281 (Dennis, J., concurring in part and concurring in judgment); id., at 281 (DeMoss, J., concurring in part and dissenting in part). The panel also found “no reason to hesitate in extending Bivens to this new context.” [*2006] Id., at 275. And the panel held that Mesa was not entitled to qualified immunity, concluding that “[n]o reasonable officer would have understood Agent Mesa’s alleged conduct to be lawful.” Id., at 279. Judge DeMoss dissented in part, arguing that Hernández lacked any Fifth Amendment rights under the circumstances. Id., at 281-282.
On rehearing en banc, the Court of Appeals unanimously affirmed the District Court’s dismissal of petitioners’ claims against Mesa. The en banc Court of Appeals first held that petitioners had failed to state a claim for a violation of the Fourth Amendment because Hernández was “a Mexican citizen who had no ‘significant voluntary connection’ to the United States” and “was on Mexican soil at the time he was shot.” Hernandez v. United States, 785 F. 3d 117, 119 (CA5 2015) (per curiam) (quoting United States v. Verdugo-Urquidez, 494 U. S. 259, 271, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990)). As to petitioners’ claim [***5] under the Fifth Amendment, the en banc Court of Appeals was “somewhat divided on the question of whether Agent Mesa’s conduct violated the Fifth Amendment,” but was “unanimous” in concluding that Mesa was entitled to qualified immunity. 785 [**629] F. 3d, at 120. The en banc Court of Appeals explained that “[n]o case law in 2010, when this episode occurred, reasonably warned Agent Mesa” that “the general prohibition of excessive force applies where the person injured by a U. S. official standing on U. S. soil is an alien who had no significant voluntary connection to, and was not in, the United States when the incident occurred.” Ibid. Because the en banc Court of Appeals resolved petitioners’ claims on other grounds, it “did not consider whether, even if a constitutional claim had been stated, a tort remedy should be crafted under Bivens.” Id., at 121, n. 1 (Jones, J., concurring). Ten judges filed or joined five separate concurring opinions. Id., at 121-143.
This Court granted certiorari. 580 U.S. ___, 137 S. Ct. 291, 196 L. Ed. 2d 211 (2016). The Court now vacates the judgment of the Court of Appeals and remands for further proceedings.
The Court turns first to the Bivens question, which is “antecedent” to the other questions presented. Wood, 572 U. S., at ___, 134 S. Ct. 2056, 188 L. Ed. 2d 1039, 1050. HN1 In Bivens, this Court “recognized for the first time an implied right of action [***6] for damages against federal officers alleged to have violated a citizen’s constitutional rights.” Correctional Services Corp. v. Malesko, 534 U. S. 61, 66, 122 S. Ct. 515, 151 L. Ed. 2d 456 (2001). A Bivens remedy is not available, however, where there are “‘special factors counselling hesitation in the absence of affirmative action by Congress.’” Carlson v. Green, 446 U. S. 14, 18, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980) (quoting Bivens, 403 U. S., at 396, 91 S. Ct. 1999, 29 L. Ed. 2d 619). In the decision recently announced in Ziglar v. Abbasi, ante, p. ___, 137 S. Ct. 1843, 198 L. Ed. 2d 290, 2017 U.S. LEXIS 3874, this Court has clarified what constitutes a “special facto[r] counselling hesitation.” See ante, at 12-14, 17-23. “[T]he inquiry,” the Court explains, “must concentrate on whether the Judiciary is well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Ante, at 12.
The Court of Appeals here, of course, has not had the opportunity to consider how the reasoning and analysis in Abbasi may bear on this case. And the parties have not had the opportunity to brief and argue its significance. In these circumstances, it is appropriate for the [*2007] Court of Appeals, rather than this Court, to address the Bivens question in the first instance. HN2 This Court, after all, is one “‘of review, not of first view.’” Expressions Hair Design v. Schneiderman, 581 U. S. ___, ___, 137 S. Ct. 1144, 197 L. Ed. 2d 442, 450 (2017) (quoting Nautilus, Inc. v. Biosig Instruments, Inc., 572 U. S. ___, ___, 134 S. Ct. 2120, 189 L. Ed. 2d 37, 50 (2014)).
With respect to petitioners’ Fourth Amendment claim, the en banc Court of Appeals found it unnecessary [***7] to address the Bivens question because it concluded that Hernández lacked any Fourth Amendment rights under the circumstances. This approach—disposing of a Bivens claim by resolving the constitutional question, while assuming the existence of a Bivens remedy—is appropriate in many cases. This Court has taken that approach on occasion. See, e.g., Wood, supra, at ___, 134 S. Ct. 2056, 188 L. Ed. 2d 1039, 1050. [**630] The Fourth Amendment question in this case, however, is sensitive and may have consequences that are far reaching. It would be imprudent for this Court to resolve that issue when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case.
With respect to petitioners’ Fifth Amendment claim, the en banc Court of Appeals found it unnecessary to address the Bivens question because it held that Mesa was entitled to qualified immunity. In reaching that conclusion, the en banc Court of Appeals relied on the fact that Hernández was “an alien who had no significant voluntary connection to . . . the United States.” 785 F. 3d, at 120. It is undisputed, however, that Hernández’s nationality and the extent of his ties to the United States were unknown to Mesa at the time of the shooting. The en banc Court of Appeals therefore erred in granting qualified immunity [***8] based on those facts.
HN3 “The doctrine of qualified immunity shields officials from civil liability so long as their conduct ‘does not violate clearly established . . . constitutional rights of which a reasonable person would have known.’” Mullenix v. Luna, 577 U. S. ___, ___, 136 S. Ct. 305, 193 L. Ed. 2d 255, 259 (2015) (per curiam) (quoting Pearson v. Callahan, 555 U. S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009)). The “dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U. S. 194, 202, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001). The qualified immunity analysis thus is limited to “the facts that were knowable to the defendant officers” at the time they engaged in the conduct in question. White v. Pauly, 580 U. S. ___, ___, 137 S. Ct. 548, 196 L. Ed. 2d 463, 466 (2017) (per curiam). Facts an officer learns after the incident ends—whether those facts would support granting immunity or denying it—are not relevant.
Mesa and the Government contend that Mesa is entitled to qualified immunity even if Mesa was uncertain about Hernández’s nationality and his ties to the United States at the time of the shooting. The Government also argues that, in any event, petitioners’ claim is cognizable only under the Fourth Amendment, and not under the Fifth Amendment. This Court declines to address these arguments in the first instance. The Court of Appeals may address them, if necessary, [***9] on remand.
The facts alleged in the complaint depict a disturbing incident resulting in a heartbreaking loss of life. Whether petitioners may recover damages for that loss in this suit depends on questions that are best [*2008] answered by the Court of Appeals in the first instance.
The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Justice Gorsuch took no part in the consideration or decision of this case.
Dissent by: THOMAS; BREYER
Dissent
[**631] Justice Thomas, dissenting.
When we granted certiorari in this case, we directed the parties to address, in addition to the questions presented by petitioners, “[w]hether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971).” 580 U. S. ___, 137 S. Ct. 291, 196 L. Ed. 2d 211 (2016). I would answer that question, rather than remand for the Court of Appeals to do so. I continue to adhere to the view that “Bivens and its progeny” should be limited “to the precise circumstances that they involved.” Ziglar v. Abbasi, ante, at 2, 2017 U.S. LEXIS 3874 (Thomas, J., concurring in part and concurring in judgment) (internal quotation marks omitted). This case arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny. Most notably, this case involves cross-border conduct, and [***10] those cases did not. I would decline to extend Bivens and would affirm the judgment of the Court of Appeals on that basis.
Justice Breyer, with whom Justice Ginsburg joins, dissenting.
The parents of Sergio Adrián Hernández Güereca brought this constitutional tort action against a United States Border Patrol agent, Jesus Mesa, Jr. They claim that Mesa violated their son’s constitutional rights when Mesa shot and killed him on June 7, 2010. Hernández and some of his friends had been running back and forth across a Rio Grande River culvert that straddles the border between the United States and Mexico. When Mesa shot him, Hernández had returned to, and was on, the Mexican side of the culvert.
The Court of Appeals, affirming the District Court, held (among other things) that Hernández had no Fourth Amendment rights because he was not a citizen of the United States, he was “on Mexican soil at the time he was shot,” and he “had no ‘significant voluntary connection’ to the United States. ” Hernandez v. United States, 785 F. 3d 117, 119 (2015) (per curiam) (quoting United States v. Verdugo-Urquidez, 494 U. S. 259, 271, 110 S. Ct. 1056, 108 L. Ed. 2d 222 (1990)). I would reverse the Court of Appeals’ Fourth Amendment holding. And, in my view, that reversal would ordinarily bring with it the right to bring an action for damages under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971). See Wood v. Moss, 572 U. S. ___, ___, 134 S. Ct. 2056, 188 L. Ed. 2d 1039, 1050 (2014) (Bivens actions lie for Fourth Amendment violations); [***11] Tennessee v. Garner, 471 U. S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985) (officer’s application of lethal force when there is no immediate threat to self or others violates the Fourth Amendment). See also Ziglar v. Abbasi, ante, p. 1, 2017 U.S. LEXIS 3874 (Breyer, J., dissenting).
I recognize that Hernández was on the Mexican side of the culvert when he was shot. But, we have written in a case involving the suspension of habeas corpus that “de jure sovereignty” is not and never has been “the only relevant consideration in dete