On February 25, 2020, the Supreme Court decided Hernandez et al. v. Mesa, No. 17-1678, declining to extend a judicially created damages remedy for a constitutional violation by a federal employee, a U.S. Border Patrol agent on the U.S. side of the Mexican border who shot and killed a 15-year-old Mexican national on the Mexico side.

Among other claims, the 15-year-old’s parents sued the agent under Bivens v. Six Unknown Federal Narcotics Agents, a 1971 U.S. Supreme Court decision that found an implied cause of action for individuals who allege violations of their Fourth Amendment rights even in the absence of a federal law authorizing such suits. The district court dismissed the claim, declining to extend Bivens to this context, and the Fifth Circuit affirmed.

The Supreme Court affirmed. Although courts have extended Bivens to other contexts since 1971, the Supreme Court has found such extension a disfavored “judicial activity.” In addressing the availability of a Bivens remedy in any particular context, courts must ask (1) whether a claim, not authorized by Congress, arises in a new context or involves a new category of defendants and, if so, (2) if any “special factors” counsel hesitation against extending the Bivens remedy. On the first question, although the claims rested on the same constitutional provisions as recognized Bivens remedies, the Court found that the claim arose in a new context because of the risk of a disruptive intrusion of the judiciary into the functions of Congress and the executive branch.

The Court then found that expanding Bivens into cases involving foreign relations impinged on areas entrusted to the political branches. Cross-border shootings involved the interests of two countries and could result in a disagreement between them and risk undermining national and border security. Noting that it had declined to extend in cases involving military discipline, the Court found that border agents’ functions implicated national security responsibilities of preventing the illegal entry of dangerous people and goods into the United States. The Court also noted that Congress had repeatedly declined to authorize damages against federal officials for injuries inflicted outside U.S. borders.

Justice Alito issued the opinion for the Court, in which Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh joined. Justice Thomas filed a concurring opinion in which Justice Gorsuch joined. Justice Ginsburg filed a dissenting opinion in which Justices Breyer, Sotomayor, and Kagan joined.