On June 7, 2010, border patrol agent Jesus Mesa fatally shot Sergio Güereca, a 15–year–old Mexican national. Güereca was standing near the cement culvert separating the United States and Mexico. Hernández and several friends had run up the culvert’s embankment on the U.S. side, touched the border fence, and returned to Mexican territory. Agent Mesa had fired the fatal shot from the U.S. side of the border. (The factual context is no doubt more complex and certainly hotly disputed.) The question of whether Mesa was subject to a Bivens claim for his actions reached the Supreme Court. The Supreme Court remanded the case in light of its decision last year in Ziglar v. Abbasi, 582 U.S. —, 137 S. Ct. 1843 (2017). Hernandez v. Mesa, 582 U.S. —, 137 S. Ct. 2003 (2017). The Fifth Circuit recently decided Hernandez v. Mesa on remand, not surprisingly finding that a Bivens claim did not lie. Hernandez v. Mesa, 885 F.3d 811 (2018)(en banc).
This post will critique the Fifth Circuit’s decision, and in the process suggest a different approach to Bivens liability. Specifically, challenges to official actions should be channeled toward administrative processes, which lead to corrective measures. Bivens actions have a place, albeit perhaps a limited one, when such administrative processes cannot operate properly. Thus a Bivens remedy should potentially be recognized when officials can cause an irreparable constitutional injury in contexts where no participatory rights, meaningful supervisory review, or judicial review exist. The review of broad-scale policy decisions, however, should be pursued through the normal administrative processes. Prior to the Fifth Circuit’s opinion, I had presented some of the analysis below in Bernard W. Bell, Reexamining Bivens After Ziglar v. Abbasi, 9 ConLawNOW 77 (2017-2018).
Ziglar v. Abbasi
In its decision on remand, the Fifth Circuit relied heavily on Ziglar v. Abbasi. It took to heart the case’s more obvious lessons, but paid scant attention to other subtler ones. In Ziglar v. Abbasi, Justice Kennedy, writing for the Court, exhibited a disdain for Bivens, or at least its expansion. The opinion could be read to suggest, without explicitly stating, that no new Bivens actions should be recognized. The Court outlined a test for recognition of new Bivens claims that required reasoning by analogy to the three 1970s/1980s era Supreme Court decisions: Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)(warrantless residential search), Davis v. Passman, 442 U.S. 228 (1979)(Congressman’s gender based dismissal of a staffer), and Carlson v. Green 446 U.S. 14 (1980)(deliberate indifference to a prisoner’s medical needs). In particular, lower courts must determine whether plaintiff’s claims differ “in a meaningful way” from the ones raised in the Bivens trilogy. Ziglar v. Abbasi, 137 S. Ct. at 1859-60. Justice Kennedy observed:
A case might differ in a meaningful way because of the rank of the officers involved; the constitutional right at issue; the generality or specificity of the official action; the extent of judicial guidance as to how an officer should respond to the problem or emergency to be confronted; the statutory or other legal mandate under which the officer was operating; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors that previous Bivens cases did not consider.
Id. at 1860. Though the Court left the significance of these potential distinctions unexplained, it demonstrated just how strict lower courts’ analogical reasoning should be in addressing plaintiffs’ allegation that the warden had encouraged, or at least willfully ignored, correctional officers’ physical abuse of detainees. Id. at 1864. The claims seemed quite similar to the claims of deliberate indifference to prisoners’ medical needs successfully asserted in Carlson v. Green. Nevertheless, the Court identified at least four distinctions between the two cases that led it to conclude that Ziglar v. Abbasi differed in a meaningful way.
The Fifth Circuit’s Denial of a Bivens Remedy on Remand
On remand, the Fifth Circuit, sitting en banc, ruled that a Bivens cause of action did not lie for Agent Mesa’s fatal shooting of Güereca, observing that the case was not even a close one. Hernandez v. Mesa, 885 F.3d at 823. The en banc majority easily concluded that the cross-border shooting presented a “new context” unlike any case in the Bivens trilogy. Id. at 816-818. Indeed, the majority explained, to hold that Mesa deprived Güereca of any constitutional right, it would have to resolve “novel and disputed [constitutional] issues.” Id. at 817. In addition, special factors counseled hesitation in creating a Bivens remedy. The majority viewed the plaintiffs’ proposed extension of Bivens as a threat to “the political branches’ supervision of national security.” Id. at 818. Worse still, it would “risk interference with foreign affairs and diplomacy more generally.” Id. at 819. Indeed, the majority noted that Güereca’s death had “initiated serious dialogue between the two sovereigns.” Id. at 820. While the United States had refused to extradite Mesa, it had “resolv[ed] to ‘work with the Mexican government within existing mechanisms and agreements to prevent future incidents.’” Id.
As is often the case when a court refuses to recognize a Bivens action, the Fifth Circuit considered “Congress’s failure to provide a damages remedy . . . an additional factor counseling hesitation.” Id. at 820. At the same time, it explained, the absence of a federal remedy does not mean the absence of deterrence. In particular “[t]he threat of criminal prosecution for abusive conduct is not hollow.” Id. at 821. And, it observed, in some instances a state‑law tort claim might provide both deterrence and damages. Id.
The unifying feature of the Bivens trilogy is not captured by the multitudinous factors the Ziglar v. Abbassi Court highlighted. Rather each of the three cases involved exercise of discretion in an individual case rather than adoption of broadly-applicable policies. And more importantly, in none was there meaningful review of the exercise of discretion (whether manifested by action or inaction) that constituted the constitutional violation. This differentiated those cases from the more normal circumstances in which an official cannot inflict irreparable constitutional injury before the official’s actions are subject to supervisory or judicial review.
As Justice Kennedy suggested in Ziglar v. Abbassi, Bivens litigation is a particularly inappropriate vehicle for second-guessing governmental policy decisions. Ziglar v. Abbasi, 137 S. Ct. at 1860. Tort litigation against an official should not be the preferred manner of challenging an agency’s, or even an official’s, administrative action. Administrative review of proposed action, often based on the Administrative Procedure Act, followed by judicial review and reversal of an improper decision before it is given effect should be considered the preferred means to address erroneous governmental action. Litigation, and more particularly constitutional tort actions, against individual officers should be reserved for those situations in which such ex ante review is unavailable as a practical matter. The discretionary function exception to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §2680(a), reflects this approach with respect to non-constitutional torts; it precludes use of the FTCA claims to challenge policy judgments. Instead, those aggrieved by agency policy decisions must participate in the administrative process and seek judicial review if dissatisfied.
In many circumstances meaningful participatory rights, supervisory review, and/or judicial review constrain an official’s actions before they become final and irreparable. Sometimes there is ex ante judicial review, as exemplified by constitutional and statutory warrant requirements. Sometimes there are participatory processes followed by judicial review before the agency’s decision become final. Two iconic cases in which the Supreme Court denied a Bivens remedy exemplify such an administrative review system: Bush v. Lucas, 462 U.S. 367, 381-90 (1983) and Schweiker v. Chilicky, 487 U.S. 412, 414. (1988). Bush v. Lucas involved wrongful termination of a federal employee; Schwieker v. Chilicky involved a dispute over social security benefits. Proposed actions regarding termination of government employment or disability benefits do not become final and irreparable until after a full evidentiary hearing before the agency and the completion of judicial review (albeit deferential judicial review). Unfortunately, these case cases are frequently used to reject Bivens liability in circumstances where neither evidentiary hearings nor judicial review are available before individuals are irreparably deprived of constitutional rights.
In some circumstances at least there might be meaningful supervisory review. Lower level officials’ decisions can be cabined by substantive standards conjoined with the requirement for supervisory concurrence. The U.S. Customs & Border Patrol guidelines regarding border searches of the content of cell phones provide an example of such a policy. Directive 3340-049A: Border Search of Electronic Devices accessible at https://www.cbp.gov/sites/default/files/assets/documents/2018-Jan/CBP-Directive-3340-049A-Border-Search-of-Electronic-Media-Compliant.pdf . The policies specify the quantum of suspicion required for such searches and specifies certain procedural restraints on officers who perform more than a simple search of a cell phone’s content, including the requirement of supervisory presence while the search is conducted. Directive 3340-049A, §§5.1.3, 5.1.4, 5.1.5. Such managerial controls may justify precluding Bivens actions against officers who follow the rules, particularly if those substantive standards have undergone judicial review. Granted, sometimes justiciability and reviewability doctrines like standing, ripeness, and the disallowance of broad programmatic attacks might preclude judicial review of such managerial guidelines at an early stage, before they are used as a basis for actions which might infringe constitutional rights, see, e.g., Toilet Goods Assn v. Gardner, 387 U.S. 158 (1967)(ripeness); Clapper v. Amnesty International, U.S.A., 568 U.S. 398 (2013)(standing), Norton v. Southern Utah Wilderness Alliance (“SUWA”), 542 U.S. 55 (2004) (precluding APA review of broad, programmatic challenges to agency inaction).
But sometimes the above constraints are impractical — ex ante judicial review and participatory processes preceding action are often too cumbersome when expedition is needed. At times even managerial controls must leave a great deal of discretion to lower level employees, as a matter of necessity. In such circumstances, some decisions by low-level line employees implementing policy may largely be uncontrollable, as a practical matter, at least before those employees act in ways that irreparably breach individuals’ constitutional rights. The prototypical example is the law enforcement officer deciding whether to conduct a warrantless search. That is the realm in which convention administrative law cannot prevent constitutional harms, and the only remedial option is an ex post one. Hernandez v. Mesa falls squarely within this realm — by necessity border patrol agents must possess discretion in determining when deadly force need to be employed.
This suggests a contextual approach to Bivens focuses on whether conventional administrative law can intervene before permanent harm to constitutional rights occurs. The approach is entirely consistent with Justice Kennedy’s majority opinion in Ziglar v. Abbasi. The contextual approach could justify some of the factors Justice Kennedy cites in that case as a guide for determining when a case is too similar from the Bivens trilogy. Justice Kennedy cites the rank of the officers involved as a factor. An official’s rank might generally suggest that the person is constrained by administrative processes before their decisions take effect. If nothing else, high-level officials ordinarily make decisions only after some process of deliberation involving subordinates. Low-level officials are much more likely to act without the same level of intra-agency deliberation. But high-ranking officials are not invariably constrained, consider Davis v. Passman, 442 U.S. 228 (1979), which involved a Congressman’s decision to fire an aide, and when that is the case perhaps a Bivens action could be appropriate.
Another factor Justice Kennedy cited, the constitutional right at issue, might be relevant under a contextual approach. Some rights are less likely to be infringed absent judicial error, because they are related to criminal adjudication. Others, like procedural due process violations, may more readily be rectified — the process leading to the deprivation can generally be completed in a manner that complies with procedural due process safeguards. With respect to still constitutional rights, a process that provides a damages-type remedy may already exist. For example, when government takes of property without “just compensation,” sometimes plaintiff need merely bring an inverse condemnation action.
The “generality or specificity of the official action” may matter in terms of the likelihood of some meaningful process preceding the taking of the action. For example, promulgating a guideline authorizing GPS monitoring of cars is more likely to involve broad scale considerations and deliberations, which at least include agency lawyers, than an officer’s decision to attach a GPS monitoring device to a targets vehicle in a particular case.
And consider “the statutory or other legal mandate under which the officer was operating,” which Justice Kennedy also mentions. Why is that relevant? Perhaps the contemplated significance of this factor relates to the importance of the particular law enforcement missions and a special need for fearless execution of such law enforcement functions. But the contextual analysis might suggest another reason, the statutory or legal mandate under which the agent is operating might specify constraints that limit the officer’s authority, so as to safeguard constitutional rights. Or the statutory mandate might include within it procedural protections of individual’s rights.
This contextual approach clearly does not answer all the questions related to the propriety of recognizing a Bivens action in particular circumstances. The Supreme Court has quite properly admonished lower courts to consider special factors that may counsel hesitation; it has done so from Bivens’ inception. Even under a contextual approach, deciding whether a Bivens action should ultimately be recognized may be more “art” than “science.”
Ultimately, the Hernandez v. Mesa majority certainly made a safe decision, and one which the Supreme Court may not even feel the need to grant certiorari to review. However, hopefully courts consider the merits of the contextual approach I outline above, and embrace a broader vision of the potential for Bivens actions that permits continued evolution of that remedy.