case: 12-50301 document: 00511988175 page: 1 date filed ...€¦ · certificate of interested...

No. 11-50792

IN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT

____________________JESUS C. HERNÁNDEZ, Individually and as the surviving father of Sergio

Adrián Hernández Güereca, and as Successor-in-Interest to the Estate ofSergio Adrián Hernández Güereca; MARÍA GUADALUPE GÜERECA

BENTACOUR, Individually and as the surviving mother of Sergio AdriánHernández Güereca, and as Successor-in-Interest to the Estate of Sergio

Adrián Hernández Güereca,

Plaintiffs-Appellants, v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OFHOMELAND SECURITY; UNITED STATES BUREAU OF CUSTOMS ANDBORDER PROTECTION; UNITED STATES BORDER PATROL; UNITED

STATES IMMIGRATION AND CUSTOMS ENFORCEMENT AGENCY;UNITED STATES DEPARTMENT OF JUSTICE,

Defendants-Appellees._________________________

CONS w/ 12-50217

JESUS C. HERNÁNDEZ, Individually and as the surviving father of SergioAdrián Hernández Güereca, and as Successor-in-Interest to the Estate of

Sergio Adrián Hernández Güereca; MARÍA GUADALUPE GÜERECABENTACOUR, Individually and as the surviving mother of Sergio AdriánHernández Güereca, and as Successor-in-Interest to the Estate of Sergio



JESUS MESA, JR.,

Defendant-Appellee.

Case: 12-50301 Document: 00511988175 Page: 1 Date Filed: 09/14/2012Case: 11-50792 Document: 00511971575 Page: 1 Date Filed: 08/29/2012

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CONS w/ 12-50301

JESUS C. HERNÁNDEZ, Individually and as the surviving father of SergioAdrián Hernández Güereca, and as Successor-in-Interest to the Estate of

Sergio Adrián Hernández Güereca; MARÍA GUADALUPE GÜERECABENTACOUR, Individually and as the surviving mother of Sergio AdriánHernández Güereca, and as Successor-in-Interest to the Estate of Sergio



RAMIRO CORDERO and VICTOR MANJARREZ, JR.,

Defendants-Appellees.____________________

ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF TEXAS____________________BRIEF FOR APPELLEES CORDERO AND MANJARREZ____________________

STUART F. DELERY Acting Assistant Attorney General

ROBERT PITMAN United States Attorney

ROBERT M. LOEBHENRY C. WHITAKER (202) 514-3180 Attorneys, Appellate Staff

Civil Division, Room 7256

Department of Justice

950 Pennsylvania Avenue, N.W.

Washington, ED.C. 20530-0001


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CERTIFICATE OF INTERESTED PERSONS

Jesus C. Hernández, et al. v. United States, et al., Nos. 11-50792,

12-50217, 12-50301

The undersigned counsel of record certifies that the following

listed persons and entities as described in the fourth sentence of Rule

28.2.1 have an interest in the outcome of this case. These

representations are made in order that the judges of this Court may

evaluate possible disqualification or recusal.

Jesus C. Hernández

María Guadalupe Güereca Bentacour

United States

U.S. Department of Homeland Security

U.S. Bureau of Customs and Border Protection

U.S. Border Patrol

U.S. Immigration and Customs Enforcement Agency

U.S. Department of Justice

Jesus Mesa, Jr.

Ramiro Cordero

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Scott A. Luck

Victor Manjarrez, Jr.

Carla L. Provost

Robert C. Hilliard, Hilliard Muñoz Gonzales, LLP

Cristobal M. Galindo

Rudy Gonzales, Jr., Hilliard Muñoz Gonzales, LLP

Jacob Munoz, Hilliard Muñoz Gonzales, LLP

Catherine Tobin, Hilliard Muñoz Gonzales, LLP

Justin L. Williams, Hilliard Muñoz Gonzales, LLP

John B. Martinez, Hilliard Muñoz Gonzales, LLP

Marion M. Reilly, Hilliard Muñoz Gonzales, LLP

Christopher A. Antcliff

Randolph J. Ortega, Ellis & Ortega

Cori A. Harbour-Valdez, The Harbour Law Firm, P.C.

Harold E. Brown, U.S. Attorney’s Office

Helen L. Gilbert, U.S. Department of Justice

Daniel J. Lenerz, U.S. Department of Justice

Robert M. Loeb, U.S. Department of Justice

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Henry C. Whitaker, U.S. Department of Justice

s/ Henry C. Whitaker Henry C. Whitaker

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STATEMENT REGARDING ORAL ARGUMENT

The government stands ready to present oral argument if it would

assist the Court in resolving the issues raised in this appeal.

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TABLE OF CONTENTS

JURISDICTIONAL STATEMENT............................................................ 2

STATEMENT OF THE ISSUES................................................................ 3

STATEMENT OF THE CASE. .................................................................. 4

STATEMENT OF THE FACTS. ................................................................ 6

SUMMARY OF THE ARGUMENT......................................................... 15

STANDARD OF REVIEW........................................................................ 17

ARGUMENT. ............................................................................................ 17

I. Plaintiffs’ Bivens Claims Against The Supervisory Appellees Are Barred By Qualified Immunity..................... 17

A. Hernández Had No Clearly Established Fourth Or Fifth Amendment Rights At The Time Of The Alleged Incident. ............................. 20

B. The Supervisory Defendants Were Not Personally Involved In Violating Any Constitutional Rights Hernández May Have Possessed............................................................. 35

II. The District Court’s Judgment May Be Affirmed On The Alternative Ground That The Federal Tort Claims Act’s Judgment Bar Precludes This Bivens Suit.............................................................................. 43

CONCLUSION.......................................................................................... 47

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TABLE OF AUTHORITIES

Cases Page

Ali v. Rumsfeld,649 F.3d 762 (D.C. Cir. 2011). .......................................... 19, 26, 27, 34

Ashcroft v. al-Kidd,131 S. Ct. 2074 (2011). ...................................................... 19, 26, 27, 32

Ashcroft v. Iqbal,556 U.S. 662 (2009)................................................ 16, 20, 36, 37, 39, 41

Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)........................................................................ 37, 39

Bivens v. Six Unknown Named Agents of Federal Bureau ofNarcotics,403 U.S. 388 (1971)............................................................................. 2, 9

Boumediene v. Bush,553 U.S. 723 (2008)...................................................... 11, 15, 25, 26, 28

Brosseau v. Haugen,543 U.S. 194 (2004) (per curiam)......................................................... 27

Bustamante-Barrera v. Gonzales,447 F.3d 388 (5th Cir. 2006). ............................................................... 46

California v. Hodari D.,499 U.S. 621 (1991)............................................................................... 33

Camreta v. Greene,131 S. Ct. 2020 (2011). ......................................................................... 19

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Carnaby v. City of Houston,636 F.3d 183 (5th Cir. 2011). ............................................................... 38

Cronn v. Buffington,150 F.3d 538 (5th Cir. 1998). ............................................................... 38

Doe v. Covington County Sch. District,675 F.3d 849 (5th Cir. 2012). ............................................................... 36

Farmer v. Perrill,275 F.3d 958 (10th Cir. 2001). ............................................................. 45

Gasho v. United States,39 F.3d 1420 (9th Cir. 1994). ............................................................... 45

Graham v. Connor,490 U.S. 386 (1989)......................................................................... 11, 24

Harlow v. Fitzgerald,457 U.S. 800 (1982)............................................................................... 18

Harris v. United States,422 F.3d 322 (6th Cir. 2005). ............................................................... 45

Hartford Fire Ins. Co. v. California,509 U.S. 764 (1993)............................................................................... 31

Hoosier Bancorp of Indiana, Inc. v. Rasmussen,90 F.3d 180 (7th Cir. 1996). ................................................................. 45

House v. Hatch,527 F.3d 1010 (10th Cir. 2008). ........................................................... 24

Johnson v. Eisentrager, 339 U.S. 763 (1950)........................................................................ 22, 32

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Kiyemba v. Obama,555 F.3d 1022 (D.C. Cir. 2009), vacated, 130 S. Ct. 1235, reinstated, 605 F.3d 1046 (D.C. Cir. 2010).......................................... 22

Kolbrenner v. United States,11 F.2d 754 (5th Cir. 1926). ................................................................. 32

Krim v. BancTexas Group, Inc.,989 F.2d 1435 (5th Cir. 1993). ............................................................. 43

Lynch v. Cannatella,810 F.2d 1363 (5th Cir. 1987). ............................................................. 22

Lytle v. Bexar County,560 F.3d 404 (5th Cir. 2009). ............................................................... 33

Martinez-Aguero v. Gonzalez,459 F.3d 618 (5th Cir. 2006). ............................................ 21, 22, 23, 24

Moore v. Willis Independent Sch. Dist.,233 F.3d 871 (5th Cir. 2000). ......................................................... 17, 42

Morgan v. Swanson,659 F.3d 359 (5th Cir. 2011). ............................................................... 18

Morrison v. Nat’l Australia Bank Ltd.,130 S. Ct. 2869 (2010). ......................................................................... 31

Pasco v. Knoblauch,566 F.3d 572 (5th Cir. 2009). ............................................................... 46

Pasquantino v. United States,544 U.S. 349 (2005)............................................................................... 31

Pearson v. Callahan,555 U.S. 223 (2009)............................................................................... 19

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Rasul v. Myers,563 F.3d 527 (D.C. Cir. 2009). ....................................................... 22, 34

Roberts v. City of Shreveport,397 F.3d 287 (5th Cir. 2005). ............................................................... 38

Rodriguez v. Handy,873 F.2d 814 (5th Cir. 1989). ............................................................... 45

Scheuer v. Rhodes,416 U.S. 232 (1974)............................................................................... 18

Sosa v. Alvarez-Machain,542 U.S. 692 (2004)........................................................................... 8, 35

Tenet v. Doe,544 U.S. 1 (2005)................................................................................... 26

United States v. Pack,612 F.3d 341 (5th Cir. 2010). ............................................................... 32

United States v. Verdugo-Urquidez,494 U.S. 259 (1990)........................................................... 10, 15, 21, 22,

23, 32, 33, 35

United States v. Villanueva,408 F.3d 193 (5th Cir. 2005). ............................................................... 31

Zadvydas v. Davis,533 U.S. 678 (2001).................................................................. 15, 20, 22

Statutes

18 U.S.C. § 1111........................................................................................ 29

18 U.S.C. § 1112........................................................................................ 29

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18 U.S.C. § 3236........................................................................................ 29

28 U.S.C. § 1291.......................................................................................... 3

28 U.S.C. § 1331.......................................................................................... 2

28 U.S.C. § 1346(b). .................................................................................. 44

28 U.S.C. § 2676.................................................................. 3, 17, 43, 44, 45

28 U.S.C. § 2679...................................................................................... 4, 8

28 U.S.C. § 2680(k). .............................................................................. 8, 44

Rules

Fed. R. Civ. P. 12(b). ................................................................................. 46

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IN THE UNITED STATES COURT OF APPEALSFOR THE FIFTH CIRCUIT

____________________Nos. 11-50792, 12-50217, 12-50301____________________

JESUS C. HERNÁNDEZ, et al., Plaintiffs-Appellants,

v. UNITED STATES, et al.,


JESUS C. HERNÁNDEZ, et al., Plaintiffs-Appellants,

v. JESUS MESA, JR.

Defendant-Appellee.____________________

JESUS C. HERNÁNDEZ, et al.,

Plaintiffs-Appellants, v. RAMIRO CORDERO and VICTOR MANJARREZ, JR.


ON APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE WESTERN DISTRICT OF TEXAS

____________________BRIEF FOR APPELLEES CORDERO AND MANJARREZ

____________________


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JURISDICTIONAL STATEMENT

Plaintiffs sued several United States government officials in their

personal capacities for damages under Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiffs

invoked the district court’s federal-question jurisdiction under 28 U.S.C.

§ 1331. Supp. R. 305. On February 17, 2012, the district court ordered1

dismissal of the claims against defendant Jesus Mesa, Jr. Supp. R. 525.

On February 29, 2012, the district court entered summary judgment in

favor of the defendants on the claims against defendants Ramiro

Cordero and Victor Manjarrez, Jr. Supp. R. 540. Also on February 29,

2012, the district court entered a final judgment dismissing all claims

against all defendants. Supp. R. 541. Plaintiffs the same day filed a

As explained more fully below in the statement, this consolidated1

appeal involves claims that proceeded principally under two differentdistrict court docket numbers. The first docket number, 3:11-CV-00027(W.D. Tex.), involves Federal Tort Claims Act claims against the UnitedStates (which have been separately briefed before this Court). References to the record in that case are denominated as “R.” Thisappeal also involves Bivens claims against individual United Statesofficials in their personal capacities. The Bivens claims were severedfrom the FTCA claims, and proceeded separately under district courtdocket number 3:11-CV-00331 (W.D. Tex.). References to the recordfrom that docket are denominated as “Supp. R” and comprise the bulk ofthe record references used in this brief, which concerns theBivens claims.

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timely notice of appeal as to the claims against Mesa. Supp. R. 526. On

April 5, 2012, plaintiffs filed another timely notice of appeal as to the

claims against Cordero and Manjarrez. This Court has appellate2

jurisdiction under 28 U.S.C. § 1291.

STATEMENT OF THE ISSUES

Plaintiffs assert that defendants violated the Fourth and Fifth

Amendment constitutional rights of the decedent, a Mexican national

whom the complaint alleges was shot and killed by a U.S. Border Patrol

Agent, defendant Jesus Mesa, Jr. The issues are:

1. Whether the decedent, an alien present in foreign territory,

had any clearly established Fourth or Fifth Amendment constitutional

rights in this context.

2. Whether defendants Cordero and Manjarrez, alleged to be

Agent Mesa’s supervisors, personally violated any clearly established

constitutional rights that the decedent may possess.

3. Whether the judgment-bar of the Federal Tort Claims Act,

see 28 U.S.C. § 2676, precludes plaintiffs’ Bivens action because the

The second notice of appeal appears at tab 6 of plaintiffs’ record2

excerpts, but does not appear to be in the Supplemental Record. 3


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district court entered judgment on the FTCA claims against the United

States arising from the same course of conduct alleged here.

STATEMENT OF THE CASE

Plaintiffs Jesus C. Hernández and María Guadalupe Güereca

Bentacour seek money damages against the United States and various

United States officials for the death of their son, Sergio Adrián

Hernández Güereca, whom this brief refers to as “Hernández,” in

Mexico. Plaintiffs allege that Hernández was shot and killed while in

Mexico by a U.S. Border Patrol Agent who was standing across the

border in the United States.

Plaintiffs filed this damages action against the United States,

unknown federal employees, various federal agencies, and the Border

Patrol Agent, now identified as Jesus Mesa, Jr. Plaintiffs’ original

complaint, amended complaint, and second amended complaint alleged

that the defendants are liable under the Federal Tort Claims Act, the

Alien Tort Statute, and the U.S. Constitution. Supp. R. 51-67, 170-186,

219-236.

Pursuant to the Westfall Act, 28 U.S.C. § 2679, the district court

substituted the United States as defendant on the FTCA common law

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tort and ATS claims and thereafter dismissed all of the claims against

the United States. R. 558-68. The court severed the claims against the

United States from the remaining claims against Agent Mesa and

unknown federal officials, and entered a final judgment on the claims

against the United States. R. 593 (final judgment in No. 3:11-CV-00027

(W.D. Tex.)).

With regard to the remaining claims, proceeding under a separate

district court docket number, No. 3:11-CV-00031 (W.D. Tex.), plaintiffs,

with the district court’s leave, filed a fourth complaint. Supp. R. 302

(Third Amended Complaint). This amended complaint asserted Bivens

damages claims alleging violations of Hernández’s constitutional rights

against Agent Mesa and several named alleged supervisors, including

defendants Ramiro Cordero and Victor Manjarrez, Jr. Supp. R. 309-12.

The district court granted Agent Mesa’s motion to dismiss the Bivens

claim against him. Supp. R. 525. The district court then granted

summary judgment to the supervisory defendants, Supp. R. 539-40, and

entered final judgment in favor of all defendants, Supp. R. 541.

Plaintiffs noticed an appeal from the district court’s judgment in

No. 3:11-CV-00027 dismissing the tort claims against the United States,

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R. 596-97, which was docketed in this Court as No. 11-50792. Plaintiffs

also noticed an appeal from the district court’s judgment in No. 3:11-

CV-00031 dismissing the Bivens claim against Agent Mesa, Supp. R.

526, which was docketed in this Court as No. 12-50217. Finally,

plaintiffs noticed an appeal from the district court’s final judgment in

No. 3:11-CV-00031 dismissing the Bivens claims against supervisory

defendants Cordero and Manjarrez, see supra p. 2 n.2, which was

docketed in this Court as No. 12-50301. After briefing completed in No.

11-50792 on the tort claims against the United States, this Court

consolidated all three appeals and directed the parties to address the

Bivens claims in a single round of briefing. This brief is the appellee

brief on behalf of the remaining supervisory defendants, Cordero and

Manjarrez, addressing the Bivens claims against them.

STATEMENT OF THE FACTS

A. Plaintiffs allege that on June 7, 2010, their fifteen-year-old

son Sergio Adrián Hernández Güereca was with a group of friends in

the cement culvert that separates the United States from Mexico near

the Paso Del Norte Port of Entry. Supp. R. 307. This is one of four

international ports of entry that link El Paso, Texas with Ciudad

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Juarez, Mexico. The complaint alleges that Hernández and others were

playing a game that involved touching the barbed-wire border fence,

then retreating back down the incline of the culvert. Id.

United States Border Patrol Agent, Jesus Mesa Jr., arrived on the

scene and detained one of the individuals. Supp. R. 307. Hernández

“retreated . . . beneath the pillars of the Paso del Norte Bridge” in

Mexico. Id. Plaintiffs allege that Agent Mesa then pointed his service

weapon at Hernández and shot across the border at least twice. Id.

Still standing in Mexican territory, Hernández was shot at least once

and later died. Id. An FBI statement issued after the shooting, the

complaint notes, explained that Agent Mesa had used force because

Hernández and the other individuals had surrounded him and were

throwing rocks at him, but had refused verbal commands to stop. Supp.

R. 308; see http://www.fbi.gov/elpaso/press-releases/

2010/ep060810.htm.

The FBI, the Department of Homeland Security, and attorneys

from the U.S. Attorney’s Office and the Civil Rights Division of the

Department of Justice conducted an extensive and thorough criminal

investigation into this matter, but declined to bring any charges. See

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http://www.justice.gov/opa/pr/2012/April/12-crt-553.html.

B. Plaintiffs sued, alleging that the government, unknown

federal employees, and various federal agencies were liable under the

Federal Tort Claims Act, the Alien Tort Statute, and the U.S.

Constitution for Hernández’s death. Supp. R. 51-67, 170-186, 219-236.

Pursuant to 28 U.S.C. § 2679, the district court substituted the United

States as defendant on the FTCA common law tort and ATS claims

against Agent Mesa. R. 558-68.

The district court dismissed all claims against the United States

holding that the United States had not waived its sovereign immunity

either under the FTCA or under the ATS. R. 570-71. The court noted

that the FTCA explicitly does not waive the sovereign immunity of the

United States for “‘[a]ny claim arising in a foreign country.’” R. 560

(quoting 28 U.S.C. § 2680(k)). The district court relied on the Supreme

Court’s interpretation of this provision in Sosa v. Alvarez-Machain, 542

U.S. 692 (2004), observing that the Court “unequivocally held that ‘the

FTCA’s foreign country exception bars all claims based on an injury

suffered in a foreign country, regardless of where the tortious act or

omission occurred.’” R. 561 (quoting Sosa, 542 U.S. at 712). The

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district court then held that plaintiffs’ claims were based on an injury

suffered in Mexico, as plaintiffs concede that Hernández was in Mexico

when he was shot. R. 563-65.

The district court also dismissed plaintiffs’ claim under the ATS

that the United States violated international treaties and the law of

nations, as well as the Constitution, because the United States has not

waived sovereign immunity for such claims. R. 566-68. The court

severed the claims against the United States from those against Agent

Mesa, and entered final judgment dismissing with prejudice all claims

against the United States. R. 593. That judgment was appealed to this

Court, No. 11-50792, and has been separately briefed.

C. The remaining claim against Agent Mesa proceeded separately

in district court. The district court had granted plaintiffs leave to file

another complaint asserting, for the first time in the litigation, damages

claims against Agent Mesa and other federal officials for alleged

constitutional violations pursuant to Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). Supp. R.

35.

Plaintiffs’ Third Amended Complaint filed in the severed district

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court action asserted Bivens claims against Agent Mesa and several

other named individuals whom plaintiffs alleged had supervised Agent

Mesa—Ramiro Cordero, Scott A. Luck, Victor Manjarrez, Jr., and Carla

A. Provost. Supp. R. 309-12. The amended complaint alleged that

Hernández’s Fourth and Fifth Amendment constitutional rights were

violated when Agent Mesa shot and killed Hernández on Mexican soil.

Id. 311-12. The amended complaint also alleged that the supervisory

defendants had violated Hernández’s constitutional rights by

“adopt[ing] or ratif[ying]” unspecified “official customs, policies,

procedures, and decisions” that had caused Hernández’s death, id. at

309-10, and by failing to adopt unspecified policies and other measures

that would in unmentioned ways have prevented Hernández’s death, id.

at 310-11.

D. Agent Mesa moved to dismiss the Bivens claim against him.

The district court granted the motion.

The district court relied principally on the Supreme Court’s

decision in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), in

which the Court held that an alien located in Mexican territory without

“previous significant voluntary connection with the United States,” id.

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at 271, was not protected by the Fourth Amendment. Supp. R. 521.

The Court observed that it was “undisputed” that Hernández “was an

alien, without voluntary ties to the United States” who was “standing in

Mexico when he was killed.” Id. at 521-22. The Court rejected

plaintiffs’ argument that Boumediene v. Bush, 553 U.S. 723 (2008), had

silently overruled Verdugo-Urquidez. Id. at 523. Boumediene held that

individuals detained at Guantanamo Bay, Cuba, had a constitutional

right to a habeas corpus proceeding and said “nothing of the Fourth

Amendment right against unreasonable searches and seizures.” Id.

The district court held that its rejection of plaintiffs’ Fourth

Amendment claims also required rejecting plaintiffs’ Fifth Amendment

claim. The district court noted the Supreme Court’s holding that “‘all

claims that law enforcement officers have used excessive force—deadly

or not—in the course of an arrest, investigatory stop, or other “seizure”

of a free citizen should be analyzed under the Fourth Amendment’”

rather than the Fifth Amendment. Supp. R. 524 (quoting Graham v.

Connor, 490 U.S. 386, 395 (1989) (emphasis the Supreme Court’s)). The

court explained that Agent Mesa’s alleged shooting of Hernández

properly arose, if at all, only under the Fourth Amendment, not the

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Fifth Amendment. Supp. R. 525.

E. The supervisory defendants, represented by the Department of

Justice, also moved to dismiss, and alternatively for summary judgment

on, the Bivens claims against them. 3

The supervisory defendants contended that Hernández had not

alleged any violation of clearly established Fourth or Fifth Amendment

rights and that, in any event, the supervisory defendants were not

personally responsible for violating any clearly established rights that

Hernández possessed. Supp. R. 384-89. The supervisory defendants

presented undisputed evidence that none of them was responsible for

supervising Agent Mesa in the months before the alleged shooting.

Supp. R. 454-55, 459-60, 463, 467-69. In view of that showing, plaintiffs

agreed voluntarily to dismiss defendants Provost and Luck from the

suit. Supp. R. 496.

The district court granted the only other remaining defendants,

The supervisory defendants comprised Scott A. Luck, Chief Patrol3

Agent of the El Paso Sector of the United States Border Patrol; Carla L.Provost, Deputy Chief Patrol Agent of the El Paso Sector; RamiroCordero, a Supervisory Border Patrol Agent in charge of the BorderPatrol’s Communications Division of the El Paso Sector; and VictorManjarrez, Jr., Chief Patrol Agent of the Tucson Sector. Supp. R. 452,457, 463, 468.

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Cordero and Manjarrez, summary judgment. The district court noted

that the summary judgment record showed that Cordero was head of

the Communications Division and had long lacked responsibility for law

enforcement supervision. Supp. R. 537. “Cordero had not served as a

line supervisor for agents in Agent Mesa’s position,” the district court

explained, “since 2006—four years before the June 7 incident.” Id.

With regard to Manjarrez, “the record indicates that eight months

before the June 7 incident, Manjarrez was no longer supervising Agent

Mesa,” id., because Manjarrez had eight months before the incident

been transferred from the El Paso Sector, where Agent Mesa worked, to

the Tucson Sector, id. at 468-69. The district court observed that

“[p]laintiffs do not contest these facts,” id. at 537, and plaintiffs did not

request discovery to explore them further, see id. at 496-98.

Plaintiffs did, however, seek discovery for the limited purpose of

uncovering the names of other individuals who had supervised Agent

Mesa, so that plaintiffs could file a fourth amended complaint naming

new defendants. Supp. R. 496-98. The district court, however, declined

to grant plaintiffs leave to amend their complaint once again, and thus

did not permit plaintiffs the limited discovery they had requested to

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name new defendants. Id. at 538-39.

The district court pointed out that plaintiffs already had several

opportunities to plead their claims, and that giving plaintiffs an

opportunity to file a fifth complaint (their fourth amended complaint)

would cause “undue delay.” Supp. R. 539. The district court also noted

that plaintiffs “have committed a series of missteps which have delayed

the proceedings and strained judicial resources.” Id. Those missteps

included “filing in the wrong division, not ensuring that Plaintiffs’

attorneys of record were admitted to practice” in the district court, “and

failing to inform the Court that Plaintiffs had served Defendants.” Id.

The district court reasoned that “it would be unfair to require

Defendants to continue responding to such claims as Plaintiffs attempt

to find a winning theory of recovery.” Id.

The district court entered final judgment dismissing all claims

against all remaining defendants. Supp. R. 541. Plaintiffs filed two

notices of appeal. Supp. R. 526; supra p. 2 n.2. Those appeals were

docketed in this Court as No. 12-50217 and No. 12-50301. This Court

consolidated those appeals with plaintiffs’ appeal from the dismissal of

the tort claims against the United States, No. 11-50792. The tort

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claims against the United States have been addressed in a separate set

of appellate briefs. This brief addresses the Bivens claims against the

supervisory defendants being sued in their individual capacities.

SUMMARY OF THE ARGUMENT

The district court properly dismissed the Bivens claims asserting

that U.S. Border Patrol Agent Mesa, and his alleged supervisors,

violated the Fourth and Fifth Amendments when Mesa shot and killed

an alien present in sovereign Mexican territory.

1. Plaintiffs’ Bivens claims fail because the remaining supervisory

defendants, Cordero and Manjarrez, are entitled to qualified immunity.

A Bivens defendant is entitled to qualified immunity unless the

plaintiff can demonstrate that the defendant personally violated clearly

established constitutional law. Plaintiffs in this case have failed to

show that the supervisory defendants personally violated Hernández’s

clearly established Fourth or Fifth Amendment rights. As an initial

matter, it is beyond dispute that those asserted rights were not clearly

established in this context. Indeed, established precedent holds that an

alien present abroad without any substantial connection to the U.S.

generally does not have any such rights. See Zadvydas v. Davis, 533

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U.S. 678, 693 (2001); United States v. Verdugo-Urquidez, 494 U.S. 259,

269 (1990). Plaintiffs are wrong in suggesting that Boumediene v.

Bush, 553 U.S. 723 (2008), which did not mention the Fourth or Fifth

Amendments, sub silentio overruled those controlling precedents.

Plaintiffs have also failed to plead that the supervisory defendants

personally violated any Fourth or Fifth Amendment rights the decedent

possessed. The complaint alleges in only the most cursory fashion that

the supervisory defendants, by unspecified acts and omissions, caused

the shooting in their purported supervision of Agent Mesa. Those

allegations fail to state a claim because they are “bare assertions” that

are “conclusory and not entitled to be assumed true” on a motion to

dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 681 (2009). In any event, the

undisputed summary judgment record showed that none of the

supervisory defendants had supervised Agent Mesa in the months

before the shooting.

2. The district court’s judgment dismissing the Bivens claims may

also be affirmed on an alternative ground. The Bivens claims here are

subject to the judgment-bar of the Federal Tort Claims Act, which

provides that “[t]he judgment in” a Federal Tort Claims action is “a

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complete bar to any action by the claimant, by reason of the same

subject matter, against the employee of the government whose act or

omission gave rise to the claim.” 28 U.S.C. § 2676. The judgment-bar

squarely precludes these Bivens claims because the district court has

already entered final judgment dismissing plaintiffs’ FTCA claims

arising from precisely the same allegations and based on the alleged

conduct of the very same Border Patrol official.

STANDARD OF REVIEW

This Court reviews de novo a district court’s dismissal for failure

to state a claim and decision to grant summary judgment. The district

court’s discovery rulings, to the extent plaintiffs are challenging them,

may be reversed only if “arbitrary or clearly unreasonable.” Moore v.

Willis Independent Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000).

ARGUMENT

I. Plaintiffs’ Bivens Claims Against The SupervisoryAppellees Are Barred By Qualified Immunity.

Plaintiffs seek to hold the supervisory defendants liable under

Bivens for Hernández’s death, which occurred when he was shot in

sovereign Mexican territory assertedly by Agent Mesa. In order to hold

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the supervisory defendants liable under Bivens, however, it is plaintiffs’

burden to overcome the doctrine of qualified immunity, which protects

public officials personally sued for damages “from liability for civil

damages insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person would

have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). That

immunity stems from the “injustice . . . of subjecting to liability an

officer who is required, by the legal obligations of his position, to

exercise discretion” and from “the danger that the threat of such

liability would deter his willingness to execute his office with the

decisiveness and the judgment required by the public good.” Scheuer v.

Rhodes, 416 U.S. 232, 239-40 (1974).

Whether the defendants here are entitled to qualified immunity

depends on two questions: first, whether they personally violated any

Fourth or Fifth Amendment rights Hernández may possess; and second,

whether any such constitutional right they are alleged to have

personally infringed was clearly established. See Morgan v. Swanson,

659 F.3d 359, 371 (5th Cir. 2011) (en banc). Although this Court has

discretion to consider those questions in either order, id., “[c]ourts

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should think carefully before expending ‘scarce judicial resources’ to

resolve difficult and novel questions of constitutional or statutory

interpretation that will ‘have no effect on the outcome of the case.’”

Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (quoting Pearson v.

Callahan, 555 U.S. 223, 236-37 (2009)). As the Supreme Court recently

explained, a “longstanding principle of judicial restraint requires that

courts avoid reaching constitutional questions in advance of the

necessity of deciding them.” Camreta v. Greene, 131 S. Ct. 2020, 2031

(2011) (internal quotation marks omitted).

Here, the supervisory defendants are indisputably entitled to

qualified immunity because under governing precedent Hernández had

no clearly established Fourth or Fifth Amendment constitutional rights

at the time of the alleged shooting. Principles of constitutional

avoidance therefore counsel strongly in favor of affirming without

addressing whether Hernández had any constitutional protections at

all. For this is a case in which “‘it is plain that a constitutional right is

not clearly established.’” Ali v. Rumsfeld, 649 F.3d 762, 771 (D.C. Cir.

2011) (quoting Pearson, 555 U.S. at 237).

Even if Hernández had any clearly established constitutional

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rights, affirmance would still be appropriate as to supervisory

defendants Cordero and Manjarrez, because plaintiffs have failed to

plead or create a triable issue of fact that Cordero or Manjarrez

personally violated any clearly established rights that Hernández may

possess. See Ashcroft v. Iqbal, 556 U.S. 662, 680-82 (2009).4

A. Hernández Had No Clearly Established Fourth OrFifth Amendment Rights At The Time Of The AllegedIncident

1. a. As an alien without presence in, or any substantial

connection with, the territorial United States when he was killed,

Hernández lacked any Fourth or Fifth Amendment constitutional rights

in this context, let alone any clearly established Fourth or Fifth

Amendment rights that could overcome defendants’ right to qualified

immunity.

“It is well established that certain constitutional protections

available to persons inside the United States are unavailable to aliens

outside of our geographic borders.” Zadvydas v. Davis, 533 U.S. 678,

Principles of constitutional avoidance also counsel in favor of affirming4

on the ground that plaintiffs have failed to plead the supervisorydefendants’ personal involvement in the violation of any constitutionalright. There is no need to decide whether the supervisory defendantsinfringed any constitutional right in the first place.

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693 (2001). In United States v. Verdugo-Urquidez, for example, the

defendant was taken into custody and his property was searched in

Mexico. 494 U.S. 259, 263-64 (1990). The Supreme Court noted that

the defendant, whose property was in Mexico when it was searched,

lacked any “previous significant voluntary connection with the United

States,” id. at 271, and had not accepted “societal obligations” in this

country, id. at 273. The Court held that, in that context, the defendant

could not assert rights under the Fourth Amendment, rejecting the idea

that the Fourth Amendment applies to “aliens in foreign territory or in

international waters.” Id. at 267.

Plaintiffs, however, urge the Court to dismiss what they

characterize as Verdugo-Urquidez’s “formalistic extraterritoriality

analysis” and repeatedly, and mistakenly, attempt to characterize

Verdugo-Urquidez’s holding for the Court as a “plurality opinion.” Pls.’

Br. 56, 52-62. A majority of the Supreme Court joined the Verdugo-

Urquidez opinion in full, see 494 U.S. at 261; id. at 275 (Kennedy, J.,

concurring); see Martinez-Aguero v. Gonzalez, 459 F.3d 618, 624 (5th

Cir. 2006), and the Court in that opinion plainly rejected application of

the Fourth Amendment to aliens abroad.

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As Verdugo-Urquidez noted, the Supreme Court has previously

also “rejected the claim that aliens are entitled to Fifth Amendment

rights outside the sovereign territory of the United States.” 494 U.S. at

269 (citing Johnson v. Eisentrager, 339 U.S. 763 (1950)); see Zadvydas,

533 U.S. at 693 (citing Verdugo-Urquidez and Eisentrager for the

proposition that the “Fifth Amendment’s protections do not extend to

aliens outside the territorial boundaries”). In Eisentrager, the Supreme

Court held that the petitioners, who were held by the U.S. in Germany

in military custody, could not invoke the protections of the Fifth

Amendment because they were aliens “beyond the territorial

jurisdiction of any court of the United States.” 339 U.S. at 778. In

rejecting the claimed constitutional right, the Supreme Court “referred

nine times to the decisive fact that the alien prisoners were, at all

relevant times, outside sovereign U.S. territory.” Rasul v. Myers, 563

F.3d 527, 531 (D.C. Cir. 2009); see also Martinez-Aguero v. Gonzalez,

459 F.3d 618, 622 (5th Cir. 2006) (characterizing Eisentrager as

“reject[ing] extraterritorial application of the Fifth Amendment”);

Kiyemba v. Obama, 555 F.3d 1022, 1026-28 (D.C. Cir. 2009), vacated,

130 S. Ct. 1235, reinstated, 605 F.3d 1046, 1047 (D.C. Cir. 2010) (per

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curiam). Compare Lynch v. Cannatella, 810 F.2d 1363, 1373 (5th Cir.

1987) (holding that aliens have Fifth Amendment protections when

within the territorial jurisdiction of the United States).

Those precedents demonstrate that Hernández did not have

clearly established constitutional rights at the time of the alleged

incident at the border. Hernández was, according to the complaint, in

sovereign Mexican territory at the time of his death. Supp. R. 307. The

only connection the complaint alleges he had with the United States is

that he played a game that involved touching the border fence. Supp.

R. 307. That is not a sufficient voluntary, substantial connection with

the United States that could possibly support the invocation or clear

application of the Fourth and Fifth Amendments in this context.

Compare Verdugo-Urquidez, 494 U.S. at 272 (presence in the United

States “for only a matter of days” insufficient to establish voluntary

connections), with Martinez-Aguero, 459 F.3d at 625 (alien who made

“regular and lawful entry of the United States pursuant to a valid

border-crossing card” and was present in the United States at the time

of the alleged beating had sufficient voluntary connections to possess

Fourth Amendment rights).

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b. The district court concluded that Hernández had no Fifth

Amendment rights for the additional reason that the Fourth

Amendment is the exclusive means of bringing claims of

unconstitutionally excessive force against the government. Supp. R.

524. “In Graham v. Connor, 490 U.S. 386, 395 (1989) . . . the [Supreme]

Court held that ‘all claims that law enforcement officers have used

excessive force—deadly or not—in the course of an arrest, investigatory

stop, or other “seizure” of a free citizen should be analyzed under the

Fourth Amendment and its “reasonableness” standard, rather than

under a “substantive due process” approach.’” Martinez-Aguero, 459

F.3d at 623 (emphasis added by the Supreme Court).

This Court has reserved the question whether the Fourth

Amendment is the exclusive means of bringing excessive-force claims

where, as here, “the protection of the Fourth Amendment is

unavailable.” Martinez-Aguero, 459 F.3d at 624 n.5. Plaintiffs argue

that the Fourth Amendment is not the exclusive means of bringing such

claims, Pls.’ Br. 44-52, but this Court’s decision to reserve the question

strongly suggests that plaintiffs’ position is not clearly the law. See,

e.g., House v. Hatch, 527 F.3d 1010, 1022 (10th Cir. 2008) (“The most

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straightforward case [of a lack of clearly established law] is where the

Supreme Court has expressly declined to decide an issue.” (alteration in

original; internal quotation marks omitted)). In view of the fact that

Hernández had no clearly established Fifth Amendment rights under

Eisentrager and its progeny, however, this Court need not reach the

point.

2. Plaintiffs argue that Boumediene v. Bush, 553 U.S. 723 (2008).

clearly established Hernández’s Fourth and Fifth Amendment rights.

Pls.’ Br. 22-37. In Boumediene, the Supreme Court, for the first time,

held that the Constitution’s prohibition on suspensions of the writ of

habeas corpus applied to certain aliens detained outside the United

States. 553 U.S. at 771. In reaching that holding, the Court considered

“three factors . . . relevant in determining the reach of the Suspension

Clause: (1) the citizenship and status of the detainee and the adequacy

of the process through which that status determination was made; (2)

the nature of the sites where apprehension and detention took place;

and (3) the practical obstacles inherent in resolving the prisoner’s

entitlement to the writ.” 553 U.S. at 766. The Court expressly noted

that it was “only” holding “that petitioners before us are entitled to seek

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the writ.” Id. at 795.

Boumediene does not establish that Hernández had Fourth or

Fifth Amendment rights, which would require the case to “have placed”

that “constitutional question beyond debate.” Ashcroft v. Al-Kidd, 131

S. Ct. 2074, 2083 (2011). The Court’s opinion was “‘explicitly confined

. . . “only” to the extraterritorial reach of the Suspension Clause.’” Ali v.

Rumsfeld, 649 F.3d 762, 771 (D.C. Cir. 2011) (quoting Rasul, 563 F.3d

at 529 (in turn quoting Boumediene, 553 U.S. at 795)). Nowhere did

Boumediene suggest it was overruling Verdugo-Urquidez or Eisentrager;

on the contrary, the Court cited both cases without any indication that

their holdings are no longer law. See 553 U.S. at 759-60, 762-63.

The Supreme Court has explicitly instructed lower courts to follow

directly applicable precedents, which in this case are Eisentrager,

Verdugo, and Zadvydas, not Boumediene. See, e.g., Tenet v. Doe, 544

U.S. 1, 10-11 (2005) (if decision “has direct application in a case, yet

appears to rest on reasons rejected in some other line of decisions, the

Court of Appeals should follow the case which directly controls, leaving

to [the Supreme] Court the prerogative of overruling its own decisions”

(internal quotation marks omitted)). The D.C. Circuit, citing the

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limited and focused nature of Boumediene, has held that Boumediene

did not clearly establish any constitutional rights other than the

Suspension Clause. See Ali, 649 F.3d at 771; Rasul, 563 F.3d at 529

(“Boumediene disclaimed any intention to disturb existing law

governing the extraterritorial reach of any constitutional provisions,

other than the Suspension Clause.”). This Court should follow suit.

Plaintiffs urge that Boumediene established a general “practical

and functional test” for determining the reach of constitutional rights,

and ask the Court to apply that test for the first time here to the Fourth

and Fifth Amendments. Pls.’ Br. 22-37. But qualified-immunity

questions must be answered “in light of the specific context of the case,

not as a broad general proposition.” Brosseau v. Haugen, 543 U.S. 194,

198 (2004) (per curiam) (internal quotation marks omitted). The

Supreme Court has thus “repeatedly” admonished courts “not to define

clearly established law at a high level of generality.” Al-Kidd, 131 S.

Ct. at 2084. Plaintiffs’ reliance on Boumediene and its “practical and

functional” balancing test, which applied only to the Suspension Clause,

contradicts this principle.

The manner in which plaintiffs urge the Court to apply that test

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underscores the difficulties with doing so. For instance, plaintiffs and

their amici make the startling claim that United States exercises “de

facto sovereignty” over any part of Mexico within range of small-arms

fire directed from the territorial United States. See Pls.’ Br. 30-31;

Moore Amicus Br. 10-11. In Boumediene, the Court applied the

Suspension Clause to Guantanamo Bay in part because the United

States exercises “complete jurisdiction and control over the base,” which

the Court took to be a form of “de facto sovereignty” supporting

application of the Suspension Clause there. 553 U.S. at 755, 763. The

fact that a border agent has the capacity to fire a weapon onto some

portions of Mexican territory does not remotely approach the type of

“complete jurisdiction and control” that the Court found relevant in

Boumediene.

Similarly, plaintiffs err in contending that the decedent’s

“citizenship and status as a non-enemy” combatant, as well as the

process afforded to him, supports application of the Fourth and Fifth

Amendments here. Pls.’ Br. 28-29. Boumediene held that aliens

detained at Guantanamo Bay have Suspension Clause rights in spite of,

not because of, their alienage and location abroad. See 553 U.S. at 770

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(noting that “before today the Court has never held that noncitizens

detained” abroad “have any rights under our Constitution”). And once

again, Boumediene made Guantanamo Bay detainees’ “enemy” status

and the process afforded to them relevant to determining the reach of

the Suspension Clause—a constitutional provision designed to test the

lawfulness of executive detention. There is no suggestion that

Boumediene reached, let alone clearly established an answer to, the

question whether an alien has Fourth or Fifth Amendment rights in

this context.

Plaintiffs assert that denying them damages under Bivens here

would create “a legal vacuum at the U.S./Mexico border.” Pls.’ Br. 18.

Not so. In this very case, the FBI, the Department of Homeland

Security, and attorneys from the U.S. Attorney’s Office and the Civil

Rights Division of the Department of Justice devoted significant time

and resources in conducting an extensive and thorough criminal

investigation. See http://www.justice.gov/opa/pr/2012

/April/12-crt-553.html. That investigation included review of whether

Agent Mesa had violated federal homicide statutes. Id.; see 18 U.S.C.

§§ 1111, 1112, 3236. Investigators interviewed more than 25 witnesses;

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analyzed evidence from the scene of the shooting; and examined Border

Patrol agent training, use of force materials, and Agent Mesa’s

disciplinary record and shooting history. Id. Prosecutors declined to

bring any charges. Id. The Department of Justice also has indicated

that the United States Government is committed to working with the

Mexican government within existing mechanisms and agreements to

prevent future incidents. Id.5

3. Plaintiffs and their amici contend that Hernández, though an

alien allegedly shot abroad, nonetheless has Fourth and Fifth

Amendment rights in this context because Agent Mesa was standing in

U.S. territory when Mesa allegedly fired his weapon into Mexico. Pls.’

Br. 19-21; see ACLU Amicus Br. 4-7; Moore Amicus Br. 3-6.

The question here, however, is whether Hernández, who was

abroad at the time of the incident, had any clearly established

constitutional rights. The cases cited by plaintiffs are simply

inapposite. They concern not the Constitution, but rather whether

To the extent that Mexican officials would like to bring charges against5

individuals who misuse force near the border as a violation of Mexicanlaw, it may seek extradition of any individuals who do so. In this case,it is our understanding that the United States has declined Mexico’srequest to extradite Agent Mesa.

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federal statutes apply abroad. Pls.’ Br. 20-21. Those decisions apply a

rebuttable presumption “that legislation of Congress, unless a contrary

intent appears, is meant to apply only within the territorial jurisdiction

of the United States.” Morrison v. Nat’l Australia Bank Ltd., 130 S. Ct.

2869, 2877 (2010) (internal quotation marks omitted). The question

whether “extraterritorial” application of a statute is appropriate turns

on congressional intent, and courts have applied statutes to conduct

that occurs within the United States, even if it has effects abroad—or

even conduct wholly occurring abroad that has effects within the United

States. See Pasquantino v. United States, 544 U.S. 349, 371 (2005)

(holding that the wire fraud statute criminalizes a scheme to defraud

Canada of tax revenue executed “inside the United States”); Hartford

Fire Ins. Co. v. California, 509 U.S. 764, 795-96 (1993) (Sherman Act

regulates anticompetitive foreign conduct having effects in the United

States); United States v. Villanueva, 408 F.3d 193, 199 (5th Cir. 2005)

(holding that Congress intended a criminal prohibition on human

smuggling to govern conduct occurring on foreign soil). But the

Supreme Court has never suggested that the same presumption and

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analysis applies to constitutional provisions. No more is required to6

demonstrate entitlement to qualified immunity. See al-Kidd, 131 S. Ct.

at 2084-85.

In any event, the Fourth and Fifth Amendments are not, as

plaintiffs and their amici would have it, abstract, free-floating limits on

government action, but rather are personal rights possessed by, and

particular to, individuals. See, e.g., United States v. Pack, 612 F.3d 341,

347 (5th Cir. 2010) (Fourth Amendment); Kolbrenner v. United States,

11 F.2d 754, 756 (5th Cir. 1926) (Fifth Amendment). Whether an

individual is entitled to invoke those personal protections crucially

depends on a number of factors, including the individual’s citizenship

and location, see Eisentrager, 339 U.S. at 778; Verdugo-Urquidez, 494

U.S. at 271-72—a focus that would make no sense were plaintiffs

The ACLU points to the doctrine of personal jurisdiction, which6

protects foreign corporations from being unconstitutionally haled intocourts located in the United States. ACLU Amicus Br. at 6, 16-17. Butthat is because any constitutional injury would occur when “the judicialproceedings (and therefore any government action constituting aconstitutional violation) take place in the United States.” Id. at 6. Anysuch judicial proceedings would necessarily compel the foreigncorporation to be present here in the United States. An alien presentabroad alleging the application of unconstitutional excessive force tohim abroad is in a fundamentally different position.

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correct that those rights apply to everyone in the world so long as the

challenged action of the government official originated in the territorial

United States.

Verdugo-Urquidez, for example, involved a search that occurred in

Mexico, but was planned and ordered from a DEA office in California in

order to obtain evidence for a trial occurring in the United States. 494

U.S. at 262. The Court, however, never once hinted that this domestic

element of the challenged course of conduct was separately subject to

constitutional stricture, and its holding that aliens outside the territory

of the United States have no Fourth Amendment rights shows that the

opposite is true. Id. at 271-72. Just so here. Though Agent Mesa is

alleged to have fired his weapon from U.S. soil, any unreasonable

“seizure” of Hernández within the meaning of the Fourth Amendment

or violation of the Fifth Amendment did not occur until the bullet

allegedly struck Hernández in Mexico. See California v. Hodari D., 499

U.S. 621, 624-26 (1991) (mere “show of authority” without any

“application of physical force to restrain movement” not a seizure); Lytle

v. Bexar County, 560 F.3d 404, 410 (5th Cir. 2009) (seizure in deadly

force case occurred when the “bullet struck” the plaintiff).

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Similarly, in Ali v. Rumsfeld the D.C. Circuit considered a Bivens

action alleging that various federal officials, including former Secretary

of Defense Donald Rumsfeld, violated the plaintiffs’ constitutional

rights by formulating policies that caused them to be mistreated while

detained in Iraq and Afghanistan—mistreatment that included alleged

rape, sexual humiliation, and the intentional infliction of pain after

surgery. 649 F.3d at 765-66. The Court applied Eisentrager and

Verdugo-Urquidez to hold that the detainees, because they were

detained abroad, lacked any clearly established Fifth or Eighth

Amendment rights and therefore that Secretary Rumsfeld and other

defendants were entitled to qualified immunity, id. at 770-72 (citing

Rasul, 563 F.3d at 529-31 (in turn citing Eisentrager and Verdugo-

Urquidez))—even though the challenged policy-making on the part of

former Secretary Rumsfeld occurred in the United States.

Plaintiffs and their amici never confront the troubling

implications of their argument that Fourth and Fifth Amendment

protections apply to the entire world population so long as the official

act originated within the United States. When the United States

government protects the Nation’s security by directing the use of force

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abroad from within the borders of the United States, the mere fact that

actions directing the use of force occur in the United States surely does

not stretch the Fourth and Fifth Amendments to all four corners of the

globe. Virtually any claim of injury in a foreign country can be

“repackaged” as a claim “based on a failure to train, a failure to warn,

the offering of bad advice, or the adoption of a negligent”—or

unconstitutional—“policy” in the United States. Sosa v. Alvarez-

Machain, 542 U.S. 692, 702-03 (2004). Ali, a Bivens suit against the

former Secretary of Defense for allegedly unconstitutional policymaking

having effects in foreign territory, illustrates that the danger is hardly

hypothetical. Plaintiffs’ proposal would “threaten[] to swallow . . .

whole,” Sosa, 542 U.S. at 703, the normal analysis governing the

extraterritorial application of constitutional rights, and “could

significantly disrupt the ability of the political branches to respond to

foreign situations involving our national interest,” Verdugo-Urquidez,

494 U.S. at 273-74.

B. The Supervisory Defendants Were Not PersonallyInvolved In Violating Any Constitutional RightsHernández May Have Possessed

Because Hernández had no clearly established Fourth or Fifth

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Amendment rights in this context, the district court’s judgment in favor

of the supervisory defendants on the Bivens claims should be affirmed.

See Doe v. Covington County Sch. District, 675 F.3d 849, 869 n.13 (5th

Cir. 2012) (supervisory liability requires “the violation of an underlying

constitutional right”). But even if Hernández had any such clearly

established rights, the supervisory defendants would still not be liable

under Bivens because there is no plausible allegation in the complaint

or summary judgment evidence that the supervisory defendants

personally participated in any violation of those rights.

1. The Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662

(2009), compels dismissal of the claims against the supervisory

defendants. In Iqbal, the Court held that allegations that the former

Attorney General and the former FBI Director had established and

implemented policies that led to the detention of the plaintiff under

harsh conditions—allegedly because of race, religion or national

origin—did not state a claim. Id. at 680-81. Iqbal concluded that these

allegations were “bare assertions” because they “amount[ed] to nothing

more than a ‘formulaic recitation of the elements’” of a cause of action

and were accordingly “conclusory and not entitled to be assumed true.”

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Id. at 681 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55

(2007)).

As the district court observed, Supp. R. 534 n.3, there is some

question whether Iqbal “eliminat[ed] Bivens supervisory liability

entirely,” Iqbal, 556 U.S. at 693 (Souter, J., dissenting), but the Court

need not decide that question because the allegations against the

supervisory defendants in this case are even more bare-bones and

conclusory than the allegations the Supreme Court held insufficient in

Iqbal. Here, there is no allegation that any of the supervisory

defendants was personally involved in the single shooting incident

alleged in the complaint. Instead, plaintiffs allege that the supervisory

defendants “tolerated, condoned, and encouraged” an unspecified

“pattern of brutality and use of excessive force.” Supp. R. 308. The

complaint further alleges that the supervisory defendants, in

unspecified ways, “created an environment and culture in which officers

and agents are encouraged to shield the misconduct of fellow officers,”

and failed, in unspecified ways, to train and monitor agents adequately.

Supp. R. 309. Finally, plaintiffs allege that the supervisory defendants

adopted unknown “policies” and made unspecified “decisions” that

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assertedly caused the shooting. Supp. R. 309-10.

No facts are alleged to support these bare conclusions. The

complaint does not specify any incident of alleged excessive force other

than the Agent Mesa shooting; specify a single act, policy, or decision

that any of the supervisory defendants took, or should have taken; or

explain how any such actions or omissions were a plausible proximate

cause of the single shooting alleged in the complaint—even though the

operative pleading was plaintiffs’ Third Amended Complaint, their

fourth of the litigation. A plaintiff cannot, in conclusory fashion, plead

a supervisory liability claim for acting or failing to act without

specifying the acts or omissions challenged. See Carnaby v. City of

Houston, 636 F.3d 183, 189 (5th Cir. 2011) (rejecting the idea that “one

incident” can establish “any sort of policy” for a supervisory liability

claim); Roberts v. City of Shreveport, 397 F.3d 287, 293 (5th Cir. 2005)

(liability for failure to train requires “a plaintiff [to] allege with

specificity how a particular training program is defective”); Cronn v.

Buffington, 150 F.3d 538, 544 (5th Cir. 1998) (rejecting supervisory

liability claim because the “record fails to reveal the existence” of any

“policy”). Even assuming plaintiffs’ unadorned allegations state a

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violation of clearly established Fourth or Fifth Amendment

principles—and they do not—those allegations are exactly the kind of

“bare assertions”—devoid of any factual elaboration whatsoever—that

amount to “nothing more than a “‘formulaic recitation of the elements’”

of plaintiffs’ supposed cause of action that the Supreme Court has

repeatedly rejected as inadequate pleading. Iqbal, 556 U.S. at 681

(quoting Twombly, 550 U.S. at 554-55).

2. Quite apart from plaintiffs’ inadequate pleading, the district

court properly concluded that plaintiffs had failed to create a triable

issue of material fact on plaintiffs’ supervisory liability claim and

therefore properly granted the supervisory defendants summary

judgment.

The district court observed that the undisputed summary

judgment record showed that the only two remaining supervisory

defendants—Cordero and Manjarrez—were not Agent Mesa’s

supervisors in the months preceding the June 7, 2010 shooting alleged

in the complaint. Supp. R. 537. At that time, Agent Mesa was a Border

Patrol Agent working in the Border Patrol’s El Paso Sector, and

reported through a chain of supervision to the Chief Patrol Agent of

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that sector. Supp. R. 447, 469. Since November 2009, however,

Cordero had been a supervisor in the El Paso Sector’s Communications

Division, which had no supervisory duties whatsoever over law

enforcement agents such as Agent Mesa. Supp. R. 449, 463-64.

Although Cordero had been a law-enforcement supervisor for six

months from October 2006 to March 2007—four years before the

shooting alleged here—the district court was quite right that “four

years is too remote a time period to raise a genuine issue of material

fact that Cordero’s acts or omissions proximately caused Plaintiffs’

harms.” Supp. R. 537.

Similarly, Manjarrez had not been a law enforcement supervisor

in Agent Mesa’s sector since September 2009; at the time of the

incident, he was a supervisor in an entirely different sector. Supp. R.

468, 537-38. It is simply not plausible that Manjarrez’s acts or

omissions taken more than eight months before the alleged incident

were the cause of the shooting, particularly given that plaintiffs are

unable to allege, let alone provide evidence of at summary judgment, a

single specific wrongful act or omission on the part of Cordero or

Manjarrez.

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3. Plaintiffs object that they “were denied the opportunity to

conduct any discovery to verify the accuracy, or inaccuracy, of

Defendants’ assertions regarding Cordero and Manjarrez’s dates of

service or the precise nature of their involvement in failing to adopt

constitutionally sound policies, procedures, and practices.” Pls.’ Br. 67.

But that objection would not overcome plaintiffs’ failure to plead a

plausible claim under Iqbal, which supports dismissal without any

discovery. See 556 U.S. at 684-85.

In any event, plaintiffs’ objection does not fit the facts. In

opposing summary judgment, plaintiffs did not ask the district court for

any discovery with regard to Cordero and Manjarrez’s supervisory

activities and did not challenge the accuracy of the government’s

summary judgment evidence. Instead, plaintiffs contended they were

entitled to discovery for the “limited purpose” of “acertain[ing] the

names of Agent Mesa’s other supervising agents,” Supp. R. 497-98, so

that plaintiffs could amend their complaint a fourth time to name new

defendants, see id. at 498 n.2.

The district court did not abuse its discretion in denying plaintiffs

such discovery. Because plaintiffs included no unnamed federal officials

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as defendants in their Third Amended Complaint, Supp. R. 302-03,

every defendant before the district court had been dismissed after the

district court granted summary judgment to the supervisory

defendants. The district court denied plaintiffs leave to amend their

complaint a fourth time to add any new defendants, Supp. R. 538-39,

and on appeal, plaintiffs do not claim the district court abused its

discretion in doing so. It was not an abuse of discretion for the district

court to grant summary judgment without granting discovery regarding

the potential liability of defendants not before the Court. As the

government pointed out, moreover, Supp. R. 515, if plaintiffs wished to

proceed against new defendants at that point, nothing prevented them

from simply filing another lawsuit. Plaintiffs chose not to do so.

Even as to the discovery plaintiffs request for the first time in

their appellate brief concerning Cordero and Manjarrez, plaintiffs “do

not state what relevant evidence they expect[] to uncover with

additional discovery.” Moore v. Willis Independent Sch. Dist., 233 F.3d

871, 876 (5th Cir. 2000). In opposing summary judgment, however,

plaintiffs “may not simply rely on vague assertions that additional

discovery will produce needed, but unspecified facts.” Krim v.

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BancTexas Group, Inc., 989 F.2d 1435, 1442 (5th Cir. 1993) (internal

quotation marks and citation omitted). Plaintiffs have made no such

showing.

II. The District Court’s Judgment May Be Affirmed On TheAlternative Ground That The Federal Tort Claims Act’sJudgment Bar Precludes This Bivens Suit

The district court’s judgment may also be affirmed on the ground

that the judgment-bar of the Federal Tort Claims Act categorically

precludes plaintiffs’ Bivens suit.

1. The Federal Tort Claims Act provides that “[t]he judgment in

an action under section 1346(b) of this title shall constitute a complete

bar to any action by the claimant, by reason of the same subject-matter,

against the employee of the government whose act or omission gave rise

to this claim.” 28 U.S.C. § 2676. Title 28 § 1346(b) is the provision of

the Federal Tort Claims Act that authorizes tort claims against the

United States for actions of government officials acting within the scope

of their employment.

In this case, plaintiffs’ first three complaints asserted tort claims

under § 1346(b) arising from the very same alleged shooting that is the

basis of their Bivens claims against the defendants here. See Supp. R.

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51-67, 170-186, 219-236. The district court dismissed those claims

against the United States with prejudice on the ground that the Federal

Tort Claims Act’s “foreign country” exception, 28 U.S.C. § 2680(k),

precluded plaintiffs’ tort claims because they arose in Mexico. Supp. R.

26-32. It was only after the dismissal of the FTCA claims that plaintiffs

amended their complaint to state Bivens claims against the defendants

in their personal capacities arising from the same incident. Supp. R.

302-14.

The district court’s judgment of dismissal triggered the FTCA’s

judgment bar, and precludes plaintiffs’ Bivens action. Plaintiffs’ FTCA

claim was “an action under section 1346(b).” 28 U.S.C. § 2676; see

Supp. R. 207 (Second Amended Complaint stating that “[p]laintiffs

bring this action under 28 U.S.C. § 1346(b)”). The district court entered

final “judgment” on that action dismissing it with prejudice. 28 U.S.C.

§ 2676; see R. 593. And plaintiffs’ Bivens action is based on “the same

subject matter”—the alleged Agent Mesa shooting on June 7,

2010—against “the employee[s] of the government whose act or

omission gave rise to the claim” according to plaintiffs’ complaints. 28

U.S.C. § 2676. The district court’s FTCA dismissal thus created a

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“complete bar to any action by the claimant,” id.—language that

comfortably encompasses plaintiffs’ Bivens action. See Rodriguez v.

Handy, 873 F.2d 814, 816 (5th Cir. 1989) (noting the “broad and

sweeping phrases” used in § 2676).

The sweeping language of the judgment bar does not depend on

the basis of the FTCA dismissal, or whether the judgment awarded the

plaintiff damages under the FTCA. “Section 2676 makes no distinction

between favorable and unfavorable judgments—it simply refers to ‘[t]he

judgment in an action under section 1346(b).’” Farmer v. Perrill, 275

F.3d 958, 963 (10th Cir. 2001); accord Harris v. United States, 422 F.3d

322, 335 (6th Cir. 2005). For the same reason, the judgment bar applies

even though the district court reached its judgment without a trial on

the merits. “[A]ny FTCA judgment, regardless of its outcome, bars a

subsequent Bivens action on the same conduct that was at issue in the

prior judgment.” Gasho v. United States, 39 F.3d 1420, 1437 (9th Cir.

1994); see also Hoosier Bancorp of Indiana, Inc. v. Rasmussen, 90 F.3d

180, 184-85 (7th Cir. 1996).

2. We note that the government has not yet in district court

argued that the judgment bar precludes plaintiffs’ Bivens claims. Still,

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the government respectfully suggests that, should this Court need to

reach the issue as an alternative ground for affirmance, the Court can

and should exercise its “discretion” to affirm the district court’s

judgment based on the judgment bar. Bustamante-Barrera v. Gonzales,

447 F.3d 388, 392 n.10 (5th Cir. 2006).

If the Court reverses without reaching the issue of the judgment

bar, the government will be free on remand to raise it as a defense in

district court. None of the Bivens defendants have answered the

complaint and asserted affirmative defenses, see Fed. R. Civ. P. 12(b),

and, regardless, a Bivens defendant may raise defenses to liability at

summary judgment if they do not unfairly surprise the plaintiff before

trial. See Pasco v. Knoblauch, 566 F.3d 572, 577 (5th Cir. 2009). The

judgment-bar question is a pure issue of law that is reviewed by this

Court de novo, without deference to district court. The propriety of the

district court’s FTCA dismissal has been separately briefed before this

Court. There is little reason to permit the failure to raise the judgment

bar in district court to prolong this litigation if, as argued above, the

judgment bar unequivocally precludes it.

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CONCLUSION

For the foregoing reasons, the judgment of the district court

should be affirmed.

Respectfully submitted,

STUART F. DELERY Acting Assistant Attorney General

ROBERT PITMAN United States Attorney

ROBERT M. LOEB (202) 514-4332

s/ Henry C. Whitaker HENRY C. WHITAKER (202) 514-3180 Attorneys, Appellate Staff Civil Division, Room 7228 Department of Justice 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001

AUGUST 2012

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CERTIFICATE OF SERVICEI hereby certify that on September 14, 2012, I filed and served theforegoing Brief by using the CM/ECF system, which will effect serviceon counsel registered to receive electronic service. I also certify that Iwill file seven paper copies with the Court via Federal Express withinfive days after the Court requests them. s/ Henry C. Whitaker Henry C. Whitaker Attorney for Defendants-Appellees


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CERTIFICATE OF COMPLIANCEI hereby certify that:1. Pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C),this brief has been prepared in a proportionately spaced typeface, 14point Century Schoolbook font, and contains 8,782 words, excluding theparts of the brief exempted by Rule 32(a)(7)(B)(iii).2. Pursuant to Fifth Circuit Rule 25.2.13, I have complied withthis Court’s privacy redaction requirements.3. Pursuant to Fifth Circuit Rule 25.2.1, the electronic version ofthis brief is an exact copy of the paper document.4. The electronic version of this brief has been scanned forviruses using Microsoft Forefront Endpoint Protection 2010, version2.0.657.0, which was updated on September 14, 2012, and is free ofviruses. s/ Henry C. Whitaker Henry C. Whitaker Attorney for Defendants-Appellees


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case: 12-50301 document: 00511988175 page: 1 date filed ...€¦ · certificate of interested...

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