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<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> We'll hear argument next in Case 17-1678, Hernandez versus Mesa. Mr. Vladeck.</u>
<p id="ORAL ARGUMENT OF STEPHEN I. VLADECK ON BEHALF OF THE PETITIONERS">
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Mr. Chief Justice, and may it please the Court: When this case was first argued to this Court two years ago, counsel for Respondent and counsel for the United States were both asked whether Petitioners would have a Bivens remedy if Sergio Hernandez had been standing on U.S. soil when he was shot and killed by Respondent. Both said yes. The question before this Court today is, therefore, whether a Bivens action is nevertheless foreclosed because, in this case, Sergio was standing a few feet to the Mexican side of the border at the time he was shot. For two reasons, we believe that it <w>is</w><w>n't</w>. First, the fortuity of where a victim is standing does not, in fact, trigger any of the special factors counseling hesitation identified by Respondent or the United States. Most importantly, it is difficult to see how foreign relations could be a special factor precluding a Bivens suit here if it <w>would</w><w>n't</w> have precluded a Bivens claim had Sergio been standing just a few feet away. Moreover, the government's assertion that permitting Petitioners' suit would dramatically undermine U.S. foreign relations and diplomacy is belied by the long history of successful tort claims against federal law enforcement officers, including, as in the Apollon, cases in which the victim was a foreigner harmed on foreign soil, the Court awarded damages, and the diplomatic sky did not fall. Nor does extraterritoriality cut against a Bivens remedy here. Not only was Respondent standing on U.S. soil when he pulled the trigger, but he could not have known in that instant where the bullet would even land, let alone the nationality of anyone it might hit. Second and as importantly, for Petitioners here, it is Bivens or nothing. Neither Respondent nor the United States seriously disputes that the Westfall Act preempts the Texas tort remedy Petitioners could otherwise have pursued, and neither has identified any other alternative remedy for the Petitioners here as opposed to other parties in other cases. All of this goes to why this Court was right in Abbasi when it explained that there are powerful reasons to retain Bivens as a remedy for individual instances of law enforcement overreach. And it goes to why, even though Sergio was standing on Mexican soil when he was shot and killed, this case presents the exact kind of law enforcement overreach that Abbasi had in mind. I think Abbasi is a useful place to begin our analysis because, in that case, not only did this Court suggest that there were still important reasons to retain Bivens in law enforcement contexts, but this Court itself actually preserved and retained one of the plaintiffs' Bivens claims. This Court returned to the district court, rather than dismissing, the prisoner abuse claim against the warden of the MDC. 2 And we think that reflects four of the reasons why retaining Bivens in the law enforcement sphere makes sense. First, as this Court said in Abbasi, it is difficult to contemplate other remedies when individual instances of law enforcement overreach are at play. In those contexts, a damages action after the fact will usually be the only possible legal recourse. It's going to be difficult to bring a claim in advance. Second, the deterrence effect, what this Court has called the core purpose of Bivens, which is to deter individual officers, could quite easily be lost in the absence of remedies in the law enforcement context, unlike in Abbasi, where, as this Court stressed, there were alternative remedies available to the plaintiffs. Third, the historical tradition that we note in our brief, where federal courts and state courts, going all the way back to the founding, routinely imposed tort damages against federal officers acting ultra vires, without suggesting there were separation-of-powers obstacles to doing so, without suggesting that there was anything wrong with the federal courts providing a cause of action in those cases. As opposed to, I think, where the inquiry historically has focused, immunity. Are there reasons in these cases to actually hold the... the defendant officer harmless, not because <w>there</w><w>'s</w> no cause of action but because he was acting in good faith or, under the modern standard, because he did not violate clearly established rights of which a reasonable officer in his position would have been aware.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> They argue...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> If the...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Go ahead.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> If the officer in this case had been a state officer and everything else was the same, would the victim have a claim in federal court?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> So, if the question is in federal court, Justice Alito, I think it would depend on diversity. I <w>do</w><w>n't</w> believe the victim would be able to bring a claim under 1983 because, as the government points out, the language of that statute limits the class of plaintiffs to U.S. citizens and those subject to the jurisdiction thereof. But, Justice Alito, Congress, when it enacted 1983, as Judge Prado noted in his dissent below, was not thinking about limiting remedies that were otherwise available; it was thinking about expanding remedies, in that context in 1871, to newly freed slaves. So 1983 does nothing to displace whatever state tort remedies might be available against state officers. Now, of course, <w>that</w><w>'s</w> going to vary a bit.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Suppose... suppose there were no 1983, and a state officer had done exactly what the Bureau of Narcotics agents did in Bivens. Would there be an action against the state officer?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> There would be, Justice Ginsburg. And, actually, I think <w>it</w><w>'s</w> worth in this context reminding the Court of the government's position in Bivens. The government's position in Bivens itself was not that the federal courts should not be recognizing these remedies in any context. Rather, the government's position in Bivens was that New York State tort law would have provided an adequate remedy, Justice Ginsburg, not just against the federal officer defendants in Bivens but also had they been, say, New York City police officers, that New York trespass law would have provided the remedy. To quote from the government's brief in Bivens, a federal remedy should only be recognized when it is necessary. And the argument in Bivens was simply as to whether a complementary federal remedy was necessary to vindicate the plaintiff's Fourth Amendment rights, given the existence of New York trespass law, given the government's argument that New York trespass law in that context was adequate to vindicate the plaintiff's Fourth Amendment interests. And this was the common law model. I mean, I think we are all familiar with Henry Hart's dialectic where Professor Hart suggested that the original understanding was that even federal officers would be principally responsible to judges in state court. There was no general federal question statute.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Your... your... you reference the government's position in Bivens. That was almost 50 years ago. In the interim, <w>there</w><w>'s</w> been a fairly dramatic change in how we approach things as implying causes of action, both under statutes and under Bivens. I mean, <w>it</w><w>'s</w> been, what, 40 years, right, since the last time we recognized a cause of action in Bivens? So I... I... I think you need to sort of move up half a century and explain to us why we should take your... your approach today regardless of what the... the prevailing legal regime was in '71.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> I take the point, Mr. Chief Justice, and if I may offer two points in response. The first is I say all of this by way of putting Bivens in context. That is to say that, rather than a bolt from the blue, Bivens was a continuation of this tradition. But, to... to wind the clock forward, which I think is, of course, the... the task for the Court today, I think <w>it</w><w>'s</w> worth stressing that, of the nine cases this Court has decided since Carlson, which the government points out at page 11 of its amicus brief, where this Court has had the opportunity to recognize a Bivens remedy and has chosen not to do so, none of those involved a claim that an individual federal law enforcement officer was acting ultra vires. None of the suits involved the kind of claim we have here. None of the suits involved the context in which this historical tradition was at its richest, Mr. Chief Justice. None of the suits or at least not all of the cases even involved claims that would have had a common law parallel. And so we certainly recognize that this Court has been increasingly skeptical of judge-made causes of action in general and of Bivens in particular. Our point is simply that that skepticism has been reserved or at least focused on categories unlike this one.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> If Bivens were a statute, in effect, we would apply the presumption against extraterritorial application. And the other side argues that, therefore, even if it were a statute, it <w>would</w><w>n't</w> apply in a circumstance like this. What's your answer to that?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Well, I think we have two answers, Justice Kavanaugh. And I think the... the first and most important is that but Bivens is not a statute and that this Court has never suggested, for example, that in looking at whether particular constitutional provisions apply extraterritorially, we would use any of the typical presumptions that we apply to statutes because it is a fundamentally different task from the perspective of looking at the extent to which the Constitution applies overseas versus what Congress would have intended. But even if this Court, nevertheless, believes that <w>it</w><w>'s</w> appropriate to map on that presumption, I actually think Kiobel helps us more than it hurts us, because, in Kiobel, this Court said there will still be cases in which the... the underlying conduct, the gravamen of the plaintiff's complaint, involves activity that touches and concerns U.S. soil with sufficient force to displace the presumption against extraterritoriality. And so I think this Court could assume without deciding that extraterritoriality is a special factor for purposes of Bivens and still say this case is different because Respondent was standing on U.S. soil at the time he pulled the trigger, that is touching and concerning U.S. territory from my perspective the way Kiobel meant it.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> What would distinguish...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> But the... the... the victim, Hernandez, this Court has... has said, I think, that a non-citizen <w>who</w><w>'s</w> injured abroad <w>does</w><w>n't</w> have any Fourth Amendment rights. So what is... it seems like a rather arid discussion if, at the end of the day, there is no federal constitutional right that can be asserted by a non-citizen who is injured abroad.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> So I think... I think, Justice Ginsburg, that Verdugo certainly stands for the proposition that in that case there was no Fourth Amendment protection for a Mexican national whose home was searched by DEA agents operating in conjunction with the Mexican government. I think this Court itself suggested in Hernandez I, two years ago, that the Fourth Amendment question in the context of a cross-border shooting is more complicated, and it is the fact that that question is unsettled...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Well, what...</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> ... that is... sorry.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> ... what... this is my question, too. I want to pick up on Justice Ginsburg. What... what then is the limiting principle? We have a foreign national injured abroad by an action in the United States. I can think of a lot of cases that <w>that</w><w>'s</w> going to encompass, right? And not just cross-border shootings but all kinds of torts that can occur transnationally. Would you capture all of those or... or...</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Not at all, Justice Gorsuch. And as I hope was clear...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> It <w>can</w><w>'t</w>... it <w>can</w><w>'t</w> be that this is good for one shooting only, right?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> No. And, first, I mean, I think... I think this Court is well aware that <w>there</w><w>'s</w> been more than one shooting, so...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> I understand that.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> But... but no, I mean, I think the... the larger point is our position focuses on the law enforcement nature of the conduct at issue here. And so many of the hypotheticals that I suspect you are thinking of, Your Honor, that I'd be thinking of, for a context in which a U.S. government person in the United States could...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Why would it be limited to law enforcement as opposed to other governmental functions that happen here but happen to injure persons abroad?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Because I think <w>it</w><w>'s</w> in the law enforcement context that there is the strongest argument, the strongest appeal to the historical tradition we note in our briefs, where there is a straight line dating all the way back to the founding where it was law enforcement, where common law remedies against federal officers were so important. There <w>are</w><w>n't</w> many examples, I could find none, of combat operations, for example, where state courts were imposing tort remedies against federal officers.</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> So you'd have us... you'd draw a line there, actively in this case and say that any... any actions involving military operations, diplomatic operations, any other operations of government are not... there... <w>there</w><w>'s</w> no Bivens action there, <w>it</w><w>'s</w> only for law enforcement, whatever that means, operations?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> So, I mean, I... obviously, I <w>would</w><w>n't</w> decide more than is necessary. But I do think...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Ah, ah, okay. That's what... <w>that</w><w>'s</w> what I thought you'd say.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> But... but, Justice Gorsuch...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> All right. And so... so where is, if... if <w>you</w><w>'re</w> not willing to draw that line, where is it? And how is this Court supposed to draw it? You... you say... you say you could say this, but I <w>would</w><w>n't</w> say it. All right.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> I... I... I...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> Where would you draw the line?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> I think... I think based on this Court's jurisprudence, and based on Abbasi itself, I think the line could reasonably, plausibly, and...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> No, no, not reasonably, plausibly. Where would you have this Court draw the line?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Well, I think, frankly, there are decisions this Court has handed down in the Bivens context that I think <w>do</w><w>n't</w> necessarily... <w>are</w><w>n't</w> necessarily consistent with this full tradition. But it has still left open law enforcement conduct, Justice Gorsuch. And <w>it</w><w>'s</w> not just this Court that has done that. Congress, in the 1974 amendment to the Federal Tort Claims Act, went out of its way to expand the liability of the United States for intentional torts committed by law enforcement officers.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Well...</u>
<u loc="JUSTICE GORSUCH"><w>[JUSTICE GORSUCH]</w> They are...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... but I... <w>it</w><w>'s</w> not just intentional torts. It's rogue intentional torts. That's an important limiting principle.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> It absolutely is, Justice Sotomayor. And I hope <w>it</w><w>'s</w> clear in our briefs...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> And accepting the facts of this case, the use of force is on U.S. land and <w>it</w><w>'s</w> unreasonable because the claim is that this young man was doing nothing but standing on the other side of the border.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> And I think this might be a... a... sort of a more convincing answer, I hope, to Justice Gorsuch, which is I do believe that it is relevant to the claim and the strength of our claim in this case that the Respondent was, according to the plausible allegations in the plaintiff's complaint, violating not just the Constitution but his own departmental regulations, that we have not just a law enforcement officer, Justice Gorsuch, but a law enforcement officer acting ultra vires.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Are we supposed to decide this? I mean, I thought... I wrote a dissent, I guess, but I thought this is special because <w>it</w><w>'s</w> American law enforcement, American soil, and he thought he might be shooting at an American, and the... the border in this case is rather special, <w>it</w><w>'s</w> not just the line, it was the river, and <w>it</w><w>'s</w> administered by an international commission, dah-dah-dah, okay, I have about six wonderful reasons that persuaded only me. Okay. But the...</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Or now... now...</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> I believe you also persuaded...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... I thought we're taking this case on the assumption that the Fourth Amendment does apply, and the only issue in front of us is not that but, rather, we assume that the Fourth Amendment applied, that it is a clear violation of the Fourth Amendment, and the question is Abbasi, whether there is a Bivens action for a clear rogue violation of the Fourth Amendment that takes place in the way this does. Is that sufficient, to use the Abbasi term that... which I've now lost, but the Abbasi term that this is some kind of extension of the Fourth Amendment or that this is some kind of special situation? That, I thought, was the issue. And at some point, I... I feel, I'll try to answer that question, but I'd like to hear what you say about that.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> I... I... I agree completely, Justice Breyer. I mean, I think that Abbasi... I <w>do</w><w>n't</w> think Abbasi...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I <w>do</w><w>n't</w> care whether you agree or not. All I want to hear is your argument on... I <w>do</w><w>n't</w> want to repeat myself... but on the assumptions I gave...</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Yes.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... what is your argument that this is not an extension, that this is not special, that this is not an unusual thing?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> I understand.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> What's your argument?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> So our argument is, first, that this Court has long recognized that claims against individual law enforcement officers for excessive force are what the Fifth Circuit called classic Bivens claims. I believe <w>there</w><w>'s</w> an opinion by then Judge Kavanaugh referring to it as the core of Bivens to bring a claim that an individual law enforcement officer is acting ultra vires. So, Justice Breyer, I think <w>there</w><w>'s</w> at least an argument that this might not even be a new context. But, even if it is a new context, the government and Respondent have identified three special factors that they argue counsel hesitation. First, they say <w>it</w><w>'s</w> because this case implicates foreign relations and national security. As we suggest in our briefs, we <w>do</w><w>n't</w> believe that follows simply from the fact that Sergio Hernandez was standing on the Mexican side of the border as opposed to the American side of the border. The government also argues extraterritoriality as a special factor. As I think I hope I explained in response to Justice Kavanaugh's question, we <w>do</w><w>n't</w> think extraterritoriality is implicated here because this case touches and concerns U.S. territory with sufficient force to displace the presumption. And the third extra... the third special factor invoked by Respondent and the government is congressional action. And I think, in that context, <w>there</w><w>'s</w> no example of Congress specifically trying to preclude claims like Petitioners here. And the only time Congress has ever spoken to the tort liability of, again, Justice Gorsuch, this is where we get our test from, individual federal law enforcement officers, Congress has expanded that liability.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Counsel...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Tell me...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> ... just to go with the first of the things you mentioned, the international relations, there has been diplomatic correspondence between the Mexican government and our government with respect to this... this... this incident. The Border Patrol has conducted an investigation, and it reached the determination that the action of the agent was not contrary to policy. And you would have the courts look into this by avail... providing a Bivens remedy that could well come to the opposite conclusion. So that in terms of our relations with Mexico, we'd have one agency saying this was not inconsistent with policy. We'd have the court saying it is. And that is the type of thing that it makes it at least a... a new context. You can say it <w>does</w><w>n't</w> make a difference, but, in terms of our relations with Mexico, they've got two different things, and at least with respect to foreign relations, I thought the country was supposed to speak with one voice.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> So I do... I certainly agree that the... that the country is supposed to speak with one voice, Mr. Chief Justice. Two... two points in response. The first is, of course, if the government continues to believe and if Respondent continues to believe there would be a Bivens remedy if Sergio Hernandez had simply been standing on American soil, <w>it</w><w>'s</w> not clear to me why the same concerns <w>would</w><w>n't</w> be equally present. That is to say, by that logic, any time a U.S. officer harms any foreign national, even if Bivens itself... if Bivens had been a foreign national, <w>it</w><w>'s</w> not hard to imagine similar diplomatic correspondence following from that incident.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> They argue <w>it</w><w>'s</w> not merely the foreign policy implications that the Chief Justice identified but that border security is also national security in some respects and that <w>that</w><w>'s</w> a different context, slightly different than the foreign relations. Can you address that?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Absolutely. And we certainly agree that border security as a policy is an important policy of the United States, that if we were here challenging one of the government's border patrol policies, this would be a different case. But I think <w>it</w><w>'s</w> important to note, back to the Chief Justice's question, that the dispute here is over whether Respondent violated the very government policy at issue. That is to say, we are not challenging a policy of the government. We are claiming Respondent himself did not comply with that policy. The government's entitled, Mr. Chief Justice, to its own preliminary determination of that question. We <w>do</w><w>n't</w> think it is the kind of policy to which this Court has historically accorded deference in the foreign relations and national security sphere, if <w>it</w><w>'s</w> an after-the-fact factual determination about a single incident, as opposed to, say, a challenge to an entire border patrol policy.</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> I thought you were challenging the...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Can you go back 8 to...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> ... I thought you were challenging the constitutionality of what was done, not whether it was consistent with border patrol policy.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> So, Justice Alito...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Is that... is that... does that provide the basis for a federal claim? If it were... if you put the Fourth Amendment aside, but the action was contrary to border... border patrol policy, would that provide the basis for a federal claim?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Not for a damages suit, of course, but...</u>
<u loc="JUSTICE ALITO"><w>[JUSTICE ALITO]</w> Yes.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> ... but it is our position, Justice Alito, that... just to go back to my colloquy with Justice Gorsuch, again, the reason why we believe this is in the heartland of Bivens, notwithstanding the concerns that the Chief Justice has referred to and that Justice Kavanaugh alluded to, is because, here, we do not have a case where the claim is that a particular policy of the United States in the foreign relations or national security sphere was the source of the injury to the plaintiffs. Here, our argument is that the policy is actually coextensive with the Constitution, and so that if we are correct, which we have not yet, of course, had a chance to prove, but if we are correct that Respondent violated Petitioner's constitutional... or Sergio Hernandez's constitutional rights, Justice Alito, there would also be a violation of policy. And so, to us, the questions blend together because it helps to drive home why this case is not like the nine cases this Court has had since Carlson...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Can... can we... can we go back to the question that I asked? If breaking into someone's home and searching and seizing, if <w>that</w><w>'s</w> not a Fourth Amendment violation because the person is a non-citizen and it happened abroad, you said a cross-border shooting is more complicated. Why should it be different?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> So, Justice Ginsburg, with respect, I actually think it was this Court that said that in Hernandez I. And I think the reason why is because there is some uncertainty in the lower courts, as reflected in the Ninth Circu<w>it</w><w>'s</w> decision in the Rodriguez case, the original three-judge panel decision in this case. There is some uncertainty about just how broadly this Court's decision in Verdugo-Urquidez, in which the Court said a Mexican national could not invoke the Fourth Amendment to challenge the search of his home... the warrantless search of his home by a DEA officer, <w>there</w><w>'s</w> uncertainty about how far that sweeps. Is that a categorical on/off switch at the border, or are there reasons to actually think the Fourth Amendment question is more complicated in the context in which you have cross-border episodes, especially after Boumediene? And that is say, does Verdugo still have the same force? Now...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Mr. Vladeck, there is one part of the Chief's question you <w>did</w><w>n't</w> answer. The government's speaking with one voice, and you said the government should. But he's posited a big difference here. The government... the executive has said this was not a rogue action. This security guard. They've concluded on... based on what, we <w>do</w><w>n't</w> know... that this officer was being attacked and <w>that</w><w>'s</w> why he shot. The allegations of this complaint are to the contrary. If the court were to rule in favor of your client... not the court, but a jury were to have found in favor of your client, <w>would</w><w>n't</w> we be speaking in two voices? You <w>have</w><w>n't</w> addressed that.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Thank you, Justice Sotomayor. And I think our response is I think that this Court has never suggested that every single thing the United States says that has any bearing on any possible sliver of foreign relations is the kind of foreign policy where this Court has said the... the government should be allowed to speak with one voice. And so I think <w>there</w><w>'s</w> a meaningful distinction between a policy that is ex ante shaping the conduct of our border patrol officers, of our government officers, where a judicial decision might call into question the policy, and a context where the dispute rises and falls on whether the government's own policy prohibiting excessive force in violation of the Constitution was violated. That is to say, it seems to me that <w>there</w><w>'s</w> merger.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> But what if, Mr. Vladeck, you had... you have this one incident and the executive branch had a very different view of what happened than a court did? A court said there was unconstitutional conduct here, the use of excessive force. But the executive branch thought he did everything by the book, and, you know, he <w>is</w><w>n't</w> subject... he <w>should</w><w>n't</w> be subject to any action, even a disciplinary one. And then the court's decision, contrary to that... <w>let</w><w>'s</w> say Mexico wants to extradite the border patrol officer. And that puts, I would think, the executive branch in a quite difficult situation. Should... you know, Mexico is pointing at a court judgment, but the executive branch thinks that <w>there</w><w>'s</w> no earthly reason to extradite. What happens then?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Well, I think, Justice Kagan, <w>there</w><w>'s</w> a critical difference between what the preclusive effect of a civil judgment about the unconstitutional conduct by the officer would prove and whether the Mexican government would be able to satisfy the very different inquiry of whether <w>there</w><w>'s</w> sufficient evidence to sustain a criminal indictment and to warrant extradition under the terms of the U.S./Mexico extradition treaty. And I think <w>that</w><w>'s</w> the key point here, is that, on the government's logic, all it takes is the government showing up after an incident and saying, oh, <w>there</w><w>'s</w> some reason why we <w>do</w><w>n't</w> believe this was unlawful or <w>there</w><w>'s</w> some foreign relations implication to a judgment holding <w>it</w><w>'s</w> lawful. And if <w>it</w><w>'s</w> after the fact, that <w>won</w><w>'t</w> matter; it would still preclude Bivens.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Well, <w>that</w><w>'s</w>, I think, a fairly unfair characterization of what the government did in this case. According to their representations, it was a fairly thorough investigation. And maybe <w>it</w><w>'s</w>... at the end of the day, maybe a jury would come to a different determination than the governmental investigation, but I <w>do</w><w>n't</w> think <w>that</w><w>'s</w> fully responsive to the international relations concerns.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> That... <w>that</w><w>'s</w> fair that you ask...</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> But, even if not fully responsive, it has to be demonstrated <w>it</w><w>'s</w> simply a new context for the Bivens question.</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> That... that may well be, and I think our submission is simply that the question this Court has always suggested in the Bivens context is how to preserve its core deterrent purpose, and in a context in which the government's after-the-fact factual determination that an officer had acted appropriately under the circumstances were sufficient to be a policy choice, that does not actually give rise to the kind of deference this Court has historically accorded. Right? That's what we're worried about because <w>it</w><w>'s</w> not clear how that <w>would</w><w>n't</w> potentially, if not in this case, swallow the category, right? That is to say, if Abbasi meant what it said when it said there are powerful reasons to retain Bivens in the law enforcement context, we think <w>that</w><w>'s</w> true, Mr. Chief Justice, even when the government has other... other equities at stake. Because, again, the key for us is when a court is saying an individual officer has acted ultra vires, it is not the same thing as saying the government's policy is somehow inconsistent with the Constitution. It's not the same thing as saying we are second-guessing how the government has chosen to conduct border patrol policies. It's simply saying this one officer went out of bounds. And <w>that</w><w>'s</w> the kind of claim that was historically available at common law. It's the kind of claim Congress preserved in the FTCA amendment. And if I may, I think the... the point of Abbasi at the end of the day is to draw the distinction between the kind of claim this Court rejected, which was a high-level challenge to post-9/11 policies formulated by the attorney general and the FBI director, and the individual law enforcement officer engaged in overreach.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Mr.... Mr. Ortega.</u>
</p>
<p id="ORAL ARGUMENT OF RANDOLPH J. ORTEGA ON BEHALF OF THE RESPONDENT">
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Mr. Chief Justice, and may it please the Court: The Petitioners are asking this Court to create a cause of action, an implied cause of action, where none has existed since the formation of our republic, by extending Bivens in a new context, where Congress has not... has declined to provide a remedy. And Congress's silence is telling. They've addressed this issue in the FTCA, which bars foreign claims. They've addressed it again in the Alien Tort Statute. And they addressed it again in Westfall, that carved out an exception for Bivens. The new context in this case is not only the transnational aspect but also the utilization of the Fifth Amendment's Due Process Clause. The new context itself fails, and the argument that <w>there</w><w>'s</w> a lack of a remedy fails when the Court takes into consideration the special factors that are involved in this case: intruding on the separation of powers, where Congress and the executive have their domain; national security... and border patrol is national security. The border patrol is the forefront of our national security. The border patrol, much like the military, is a paramilitary organization charged with protecting our borders. Congress has chosen, and non-inadvertently, not to create a damages remedy. And if a damages remedy is appropriate, it is the unique domain of Congress to consider the public policy, to balance the projected costs. And it requires an assessment of its impact system-wide. The executive is in charge of foreign affairs. There's an actual dispute in this case as Mexico would like a remedy and the United States has argued against a remedy. Mexico...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> If we can go back to the... this complaint, and at this stage, this very preliminary stage, we're supposed to accept the complaint's allegations as true, which is that, here, we have a rogue officer acting in violation of the agency's own instruction, using excessive force to kill a child at play, how does that call into question any foreign policy or national security policy?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Well, it would create a chilling effect as to the border patrol agents in conducting their day-to-day activities, but not only a chilling effect, you would be... the lower courts would be in chaos. There would be...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Well, <w>does</w><w>n't</w> that happen if the shooting happened in our own land? Meaning a border patrol agent who sees a child at play and kills him two feet from the line is not chilled. He knows he <w>can</w><w>'t</w> do that. What makes it chilling to tell a border patrol agent <w>do</w><w>n't</w> shoot indiscriminately at children standing a few feet from the border? We have to accept the facts of the complaint on their face.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> That's correct.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> All right. On their face, the complaint says <w>that</w><w>'s</w> what the border agent did.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> But... but you <w>can</w><w>'t</w> view it in a vacuum. It would be applicable...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Well, the vacuum... what... this <w>does</w><w>n't</w> involve a Mexican defendant, Mexican law, or Mexican courts. It involves a U.S. defendant acting on U.S. soil, pulling the trigger on U.S. soil, and subject to U.S. law. We're not dragging the border patrol agent into a Mexican court. So how would we be interfering?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Your Honor, are you... are you suggesting that the decedent would be inside of the border of the United States?</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> No, I just said to you it involves a U.S. defendant, the border patrol agent, acting on U.S. soil, pulling the trigger on U.S. soil, and subjecting the U.S. border agent to a U.S. court.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> But the...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> We're not dragging the agent anywhere else.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> That's correct, but the agent would know when he took his actions that he was inside of the jurisdiction of the United States.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> He always knows he's inside and subject to U.S. law. Don't... that never changes no matter what we do here.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> That's correct. But, in this case, <w>you</w><w>'re</w> asking for... the Petitioners are asking for an extension of the Constitution into a foreign republic, which is quite...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> We assume... we assume here that it is extended. We assume the Fourth Amendment applies, my understanding is. So we know this place by picture. It's a culvert. It's a big culvert like here to the end of the room. And <w>there</w><w>'s</w> a bridge. And across this bridge, hundreds, perhaps thousands, of people walk each day on their way to work or on their way home. Now a border agent <w>who</w><w>'s</w> standing near the bridge picks up a gun and shoots one of them. If he's crossed that imaginary line in the center of the bridge, I take it, you agree that you can bring a Bivens action?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> That's correct.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> And if he is an American and on the other side, you agree he can bring a Bivens action?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> That would be correct, Your Honor.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Okay. So the only person who cannot bring a Bivens action... and the border agent has no idea whether he's shooting such a person... is someone who is just on the Mexican side of the imaginary line on the bridge and whom he shot deliberately or roguely or whatever.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> That would be correct, but...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> See, all right, now here is the standard. Justice Kennedy writes it. The necessary inference is that the... the necessary... the inquiry that we're after about whether this is an extension of a Bivens action, must concentrate on whether the judiciary is well suited, absent congressional action, to weigh the costs and benefits of allowing the action to proceed, okay? That's my standard. I've given you the facts. What's the problem? We would like... we ordinarily have such actions. The Mexicans want it. They want the action. So what's the special problem?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> It would become a matter of line drawing. Where would the court...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> No, no, not line drawing. There's no line drawing problem. We assume... the line drawing problem may come in as to whether the Fourth Amendment applies, but, here, we're assuming it does. And assuming it applies, what's the problem with the Bivens action? What's the line drawing problem there?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> It would be the extending of Bivens into a new country.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Why is it extending? I mean, after all, maybe in Hawaii <w>there</w><w>'s</w> never been a Bivens action brought before on the 14th island. Is that an extension?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> It's not. It's within the United States. Here, we have...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Oh, I understand that. And this is on the other side of the line. Also, by the way, it was at 7:00 in the evening, in fact, 7:02. And there never has been a Bivens action brought at 7:02.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> But <w>there</w><w>'s</w> never been a Bivens action that involves a transnational shooting.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Ah, I got that point. All I am saying is, why is that different in terms of a problem caused than the fact that it was 7:02:59 on the fourth island of Hawaii? You got my point?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> I do.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Good. All right. He got it. Now what's... what is it?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> It's... <w>it</w><w>'s</w>...</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Don't ask my point. I want to know your answer.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> I have to go back to... to it being different in so much as it is transnational. And it...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Well, <w>you</w><w>'ve</w> said that. All I'm asking you is why that makes a difference? Where <w>it</w><w>'s</w> on a bridge, in the culvert, the... I <w>won</w><w>'t</w> repeat myself, but I went through every factor I thought that I could... seems to me very, very similar, and I just <w>do</w><w>n't</w> understand it. So far, what <w>you</w><w>'ve</w> said is: It will freeze the border patrol, to which I think good. I <w>do</w><w>n't</w> think <w>there</w><w>'s</w> an American who... anywhere in the world who <w>would</w><w>n't</w> want to stop the kind of action here, so that <w>does</w><w>n't</w> seem a factor cutting against. And, anyway, he can do it if <w>it</w><w>'s</w> an American, and he <w>does</w><w>n't</w> even know if <w>it</w><w>'s</w> an American.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> If there was a remedy to be fashioned, that would be for Congress to decide.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> That's a conclusion. And my answer... my question is, why?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Because they'll be able to weigh the costs and benefits of the actual remedy itself, the limits of the remedy, the parameters of the remedy for the courts to be able to provide guidance to the lower courts. There would be very little guidance to the lower courts...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I... I <w>do</w><w>n't</w> understand your answer. You <w>can</w><w>'t</w> shoot an unarmed juvenile playing. And the remedies limit is that one. That... <w>that</w><w>'s</w> the only thing that a court would be deciding, whether there truly was cause or no cause for this shooting.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> But... but then <w>would</w><w>n't</w> the... the determination would be on an ad hoc basis, creating instability in the lower courts.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Why? What's the greater instability when you already admit that Bivens... Bivens would apply if that child was standing two feet from the border? And it even would apply, according to you, if it was an American child standing two feet on the Mexican border. I <w>do</w><w>n't</w> see where the greater instability arises in that situation.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Well, the instability would rise because of the... the actual areas where <w>you</w><w>'re</w> at. It's a national border with the border patrol providing national security in that area.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> So why... what <w>you</w><w>'re</w> basically saying is Bivens <w>should</w><w>n't</w> apply ever against a border... a rogue border patrol who just stands there shooting people both on the U.S. side, indiscriminately, takes a gun and just sweeps both sides of the border?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Well, it would apply to those standing on the United States side certainly.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Well...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Let... let me ask because I'm putting all my... this is actually bothering me. I'm not asking you to... look, if we were talking about extending the Fourth Amendment, I would see a problem. I might think we should or I might think we <w>should</w><w>n't</w>, but I might think we should, but I certainly would say there is a problem. But, once we say the Fourth Amendment is there in just the same way it is two feet on the other side, at that point, what's the special problem of giving a damages remedy to a Mexican youth just as you would give it to an American youth, whether that American youth is over on one side of the border or the other?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Assuming...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> That's where I... <w>that</w><w>'s</w>... at that point, I hesitate. I say, well, <w>that</w><w>'s</w> what we're supposed to find here under the statute. And... and what is it?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Assuming Verdugo did not foreclose that, then there would not be a difference.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Well, if <w>there</w><w>'s</w> no difference, then <w>that</w><w>'s</w> the end of it, <w>is</w><w>n't</w> it, because Kennedy says, look, he says, <w>you</w><w>'ve</w> got to find... he's not talking about the Fourth Amendment. He's actually not even thinking about that, possibly. I <w>do</w><w>n't</w> know. We're thinking about Sixth Amendment, Eighth, Tenth Amendment. I <w>do</w><w>n't</w> know. But... but assuming he is, once we're there, the Fourth Amendment really does apply. You say you <w>can</w><w>'t</w> think of a difference. And I <w>can</w><w>'t</w> think of a difference. So we send the case back. Now consider the Fourth Amendment.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Consider the Fourth...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> Is that what we should do?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Well, the Fourth Amendment, I believe, is foreclosed by Verdugo in its language claiming that a U.S. agent, even acting on foreign soil, is not constrained by the Fourth Amendment.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> I thought your...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I'm not sure...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> I thought your point was the foreign policy implications are triggered when <w>it</w><w>'s</w> on the other side of the border, and <w>that</w><w>'s</w> why we give significance to the border, but I want to press on that because <w>would</w><w>n't</w> there be foreign policy implications even if the victim were a Mexican... Mexican national and killed even on the U.S. side of the border? Those kinds of incidents create lots of international and foreign policy implications as well. So why do foreign policy implications track the border so neatly in your view?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> They track the border because the border is a paramilitary area that the border patrol patrols under the guidance of the executive.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> But do you agree there could be serious foreign policy implications even from a incident inside the United States with a victim <w>who</w><w>'s</w> a Mexican national?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Absolutely, just the way that there were in this case dealing with the extradition and the damage... damages remedy asked for by the Mexican government and the U.S. government deciding... or opposing their request for a damages remedy. So <w>it</w><w>'s</w> been 40 years and <w>there</w><w>'s</w> been no extension of Bivens beyond the trilogy that this Court has... has outlined. The presumption against the extension provides the lower courts stability versus an ad hoc application of the law.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Should we think about the lack of alternative remedies? Mr. Vladeck mentioned that, <w>there</w><w>'s</w> just no remedy at all, which is unlike not all the Bivens cases but certainly some of them?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> But, when you look at the myriad of special factors, including the separation of powers, national security, foreign diplomacy, public policy, and the projected costs, I think that that creates quite a different... a different picture of that. And <w>it</w><w>'s</w> better left for Congress and the executive to decide those issues and, specifically, Congress to balance the public policy, the limits of the law, and to provide guidance for this Court to interpret an actual statute that they would have created. I believe the new context of this nature in a transnational shooting should be dispositive. An injury to a foreign national on foreign soil is untenable because excessive force that relates to a seizure, as we've discussed, is covered by the Fourth Amendment and is not a substantive due process claim. It would require an extension of Boumediene to a foreign country where the U.S. maintains no jurisdiction whatsoever, whether de facto or actual. It would create line drawing. It would create an unpredictable application. Even if this Court were to fashion a damages remedy, the application of that remedy would be very difficult and would create chaos, in my opinion, of the lower courts in its very application.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Why... why chaos? I guess I'm not seeing that. You would just extend it and it would apply just like Bivens applies to lots of cases all the time.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Well, it would be line drawing, <w>would</w><w>n't</w> it? The line drawing of the border, extension of the border.</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> Well, Justice Sotomayor gave you the line. You have a defendant on U.S. soil <w>who</w><w>'s</w> a U.S. official.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Well, if he's on... if <w>they</w><w>'re</w> in...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> And then you just look...</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> ... the United States, <w>there</w><w>'s</w> no question...</u>
<u loc="JUSTICE KAVANAUGH"><w>[JUSTICE KAVANAUGH]</w> ... and then you just look at the actions to see whether it was excessive force. I guess I'm... I take your point on the new context, but I guess the chaos argument's not resonating with me.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> The lower courts have stood on this Court's presumption against the extension in order to provide stability and guidance to them in their decisions. Extending it again and extending it transnationally would create a myriad of problems.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Mr. Ortega, I think I'm a little bit confused. Do you or do you not contest... suppose there were a... a border patrol officer used excessive force but 10 miles from the border while carrying out border security operations.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Ten miles from the border inside of the United States?</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Yeah, he's a border patrol officer, he's acting within the scope of his employment, <w>it</w><w>'s</w> very important, he's trying to find people who have crossed the border. He's engaged in, you know, usual law enforcement work. Can you bring a Bivens action against that officer?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> The injury is occurring in the United States or outside of the United States?</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> You know... yes, <w>it</w><w>'s</w>... <w>it</w><w>'s</w>... <w>it</w><w>'s</w> in the United States, but this is border patrol work. This is border work. This is border security work.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Well, you can bring the Bivens action if he was actually a rogue officer acting outside of policy, which does not present itself here.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, yeah... I mean, if... if... if we are assuming that the officer used excessive force, you can bring the Bivens action, is that correct?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> If it fell outside the policy, correct. Excessive force.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Okay. Now we're bringing it 10 miles up to the border, except the person involved... this is Mr. Vladeck's hypo... is... is on the U.S. side of the border. Still a Bivens action?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Inside of the... the United States border, correct.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Okay. So a lot of foreign affairs concerns are present there, so too a lot of national security concerns, if we're saying that border security is a facet of national security, right?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> Correct.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Okay. So then the question is why, when we just moved three inches over, <w>there</w><w>'s</w> a different answer? That, I think, is the question that many people have been asking you.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> That's correct. And I believe that the border is real. It's a real line. And it <w>can</w><w>'t</w> be extended. The Constitution cannot be extended into a foreign country. But...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Yes, it is a real line. And, you know, one way to line-draw is find a real line, I suppose.</u>
<u loc="[LAUGHTER]">[LAUGHTER]</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> But I guess, you know, usually, the... the... the analysis that we go through in a Bivens claim... and I think that this is the analysis that the government wants us to go through... is to ask about, are there special foreign affairs concerns? Are there special national security concerns? And the question is, why would there be special foreign affairs and national security concerns with respect to a shooting that occurs three inches on one side of the border versus three inches on the other side of the border or even a little bit away from the border but very much involving border security work?</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> If it keeps going, extending into Mexico, then there would be no line. It would just keep going and going. It could be all of Juarez, it could be all of Chihuahua, it could be all of Mexico. It would never end. It would be no different than a drone pilot in Colorado hitting the wrong village in Syria. He would still be...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Well, I think we're positing a defendant who is in the United States and who is committing his action in the United States. So, unless this is a very far-reaching bullet, I <w>do</w><w>n't</w> think so.</u>
<u loc="MR. ORTEGA"><w>[MR. ORTEGA]</w> That's correct. And that was the... the hypothetical I gave you regarding a drone pilot in Colorado who happens to hit a village in Syria. It would be the same action. He would be in the United States, the victims would be in Syria, the injury would... would occur in Syria.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Mr. Wall.</u>
</p>
<p id="ORAL ARGUMENT OF JEFFREY B. WALL FOR THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE RESPONDENT">
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> Mr. Chief Justice, and may it please the Court: A foreign national was killed on foreign soil by a federal officer patrolling an international border. That is plainly a new context for Bivens purposes, and several special factors counsel hesitation here: clear foreign relations concerns with Mexico and the need for border security, clear extraterritoriality, and clear signals from Congress in 1983 and the FTCA that it does not approve of damages liability for injuries abroad. Taking a step back, Abbasi and other decisions have made lower courts markedly less willing to imply causes of action for damages. If this Court extends Bivens here, on these facts, it will threaten to reverse that trend by undermining this Court's consistent message about the importance of caution and judicial modesty in this area. To turn to the first of the three special factors, the foreign relations with Mexico, I <w>do</w><w>n't</w> think <w>it</w><w>'s</w> difficult to figure out exactly why we think Congress might pause, as it has in 1983 and the FTCA, before extending damages liability here. The United States and Mexico have an active disagreement over what happened here. We have bilateral mechanisms for working it out, like the Border Violence Prevention Council, which meets and talks about things like use of force. When we are conducting those negotiations, if we are taking positions about what has happened at the border and courts...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> Mr. Wall, the problem is that the allegation here is not about their meeting and talking about policies. It's about rogue actions. And... and I take a look at the amici, the former, like the CPB, but others who tell me pretty persuasively and extensively that the border patrol might be a bit of a mess and that disciplining is at a minimum here, investigating, et cetera, is not done in the way that others of us would think would be appropriate to an agency. All of those things suggest to me that the class you want to create is a class of border patrol agents, whether they shoot across the border or shoot in the border.</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> Justice Sotomayor, I'm happy to go through all the reports and the evidence. I'm happy to say, look, there were 55 incidents of use of force with firearms in fiscal year '12. There were 15 last year in fiscal year '18. That's a more than 70 percent drop. We can go back and forth about whether we think the Customs and Border Patrol is doing a good job at the border or not. I think my bottom line point, though, is that all of that is the subject of legislative debate. There is a body that can consider these kinds of questions and tailor a damages scheme to whatever...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But that...</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> ... the facts on the...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... that would mean...</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> ... ground are, but...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> But that would have been...</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> ... <w>that</w><w>'s</w> Congress.</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> ... that would have been true in Bivens itself. Someone could have said there are all sorts of things that control the FBI, and we <w>should</w><w>n't</w> extend Bivens, but we did because <w>there</w><w>'s</w> a fundamental belief that unconstitutional actions that stem from the United States, this agent fired that gun from here, should provide a remedy.</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> Yes, as you said in Abbasi, Bivens was a product of an era in which you freely and judiciously...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> No, <w>it</w><w>'s</w> not a product of an era.</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> But <w>that</w><w>'s</w> to be...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> I... I mean...</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> Justice Sotomayor, <w>that</w><w>'s</w> what the Court said in Abbasi. You said...</u>
<u loc="JUSTICE SOTOMAYOR"><w>[JUSTICE SOTOMAYOR]</w> No, no, no. It... it... Abbasi... <w>that</w><w>'s</w> what Abbasi said, but if you look at Bivens itself, it was based on a historical finding that rogue actions, even in foreign soils, taking a ship improperly, doing other things across the border, required a remedy.</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> I... Justice Sotomayor, if I may, <w>they</w><w>'re</w> very different. And I want to be really clear on this with the Court. Yes, it is certainly true that courts for a long time applied the same common law rules for trespass and the rest to federal officers that they applied to everybody else. And that was perfectly fine under federal common law up until Erie. And it was perfectly fine under state, statutory, and common law right up to the Westfall Act. But <w>that</w><w>'s</w> not what the Court was doing in Bivens and <w>that</w><w>'s</w> not the way <w>it</w><w>'s</w> conceived of Bivens in its later cases. It was implying a special rule, not for everybody, but for federal officers directly under the Constitution in the absence of any statutory authorization from Congress. That's a very different animal from what state and federal courts were doing for a...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> I would like...</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> ... really long time.</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> ... at some point to hear your three reasons. You had three reasons. And I hope you... leave you enough time to go to the same question I've asked 15 times: Look, <w>is</w><w>n't</w> this all a problem for the Fourth Amendment? But if you assume the Fourth Amendment applies, what's the added problem?</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> So...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> After all, the Fourth Amendment suppresses evidence.</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> So...</u>
<u loc="JUSTICE BREYER"><w>[JUSTICE BREYER]</w> We're not going to change that, are we? And if the Fourth Amendment applies, suppressing evidence will still happen when <w>there</w><w>'s</w> a violation and, after all, <w>that</w><w>'s</w> arguable in Congress. It creates a mess in the court, dah-dah-dah. Okay. So what's special about this?</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> So I'll try to get through a couple of things really quickly. One, the friction with Mexico, which I think is pretty obvious and exemplified by this very case. Two, extraterritoriality. I <w>do</w><w>n't</w> have much to add to what Justice Kavanaugh said in Meshal in the D.C. Circuit. If there were a statute and it were the same as 1983 for federal officers, I <w>do</w><w>n't</w> take anybody to be disputing that, absent some clear indication in the language, that it <w>would</w><w>n't</w> pick up an entry across the border. And it seems in passing strange that if this express statute <w>did</w><w>n't</w> get... get it, an implied cause of action <w>would</w><w>n't</w>. And even if you disagreed with me on that, then I think you'd say, look, Congress has made judgments in this area. It cut off all liability in the FTCA for things that happened across the border, injuries abroad. And you <w>could</w><w>n't</w> get it if you were a state officer 8 under 1983. So at least as far as we can tell in the judgments Congress has made, it has recognized that the border is really significant. And why?</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Mr. Wall...</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> Because, when <w>you</w><w>'re</w> injured abroad, you <w>do</w><w>n't</w> work it out through damages lawsuits. You work it out through diplomatic and administrative processes. And <w>that</w><w>'s</w> always been how Congress has done it.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I mean, I think I need to... somebody to explain to me a little bit the kind of foreign affairs concerns that <w>you</w><w>'re</w> worried about. And, you know, <w>it</w><w>'s</w> easy to just sort of wave your hands and say foreign affairs when <w>there</w><w>'s</w> been a cross-border shooting. But I think it would help me at least to have some specifics about what kind of situations <w>you</w><w>'re</w> worried about. I mean, here, obviously, Mexico would prefer that a Bivens action be... be given. And <w>that</w><w>'s</w> not dispositive by any means. But I guess I'm wondering, what is the problem?</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> I guess the... the problem is that the United States and Mexico actively discuss incidents at the border, both specific incidents and general policies, right, as they have for years. And, for instance, CBP revised its use of force...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> And as they did in this case even while the Bivens suit was going forward. The Bivens claims does not seem to have prevented Mexico and the United States from having discussions and negotiations about this very incident. Did it?</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> That's right. But the question under Abbasi <w>is</w><w>n't</w>, look, can you show that in every case this is always the kind of thing...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I'm looking for any case.</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> Right. And what I'm saying is I... take this case. We disagree with Mexico. We had a pair of cases. In one of them, we thought the agent acted unlawfully. In the other, we did a very thorough investigation, <w>it</w><w>'s</w> not in the record, but I've reviewed all the evidence and would be happy to talk about it, we concluded he <w>had</w><w>n't</w> acted unlawfully. Mexico believes that we're wrong about that. It believes we ought to extradite him, they ought to get their crack. It may believe as a result of this incident that we're not taking seriously our policy at the border. That's exactly the sort of thing that we have an ambassador and a foreign minister. We have a State Department and they have one and they talk about these issues. And <w>there</w><w>'s</w> a...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> I guess I'm... I'm still looking for, you have... in one state of the world, you <w>do</w><w>n't</w> have a Bivens claim, in Mr. Hernandez's position. In another state of the world, he does have a Bivens claim. How does that interfere with the United States' foreign policy?</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> Justice Kagan, do you really think that the next time we go in to talk to Mexico and we take a position on something at the border they <w>won</w><w>'t</w> say, how is your representation credible? You told us last time that your officer <w>did</w><w>n't</w> do anything wrong. And your own courts, potentially even your Supreme Court, told you you were wrong. I think it does directly undermine the credibility of the executive branch in working with a foreign government. But, even if you thought I were wrong, you still know...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Yeah, why <w>would</w><w>n't</w>...</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> ... under Chappell...</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> ... why <w>would</w><w>n't</w> the United States then say, you know, we live in a country in which courts play an important role in determining whether conduct is lawful. And <w>that</w><w>'s</w> not an embarrassment to the United States or to the executive branch.</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> Of course, courts play a role, but the role under Abbasi is a limited one where, if there are special factors that counsel hesitation, the court says we leave it to Congress, even if you disagree with me on foreign relations, you still have clear signals from Congress in terms of the statutes <w>it</w><w>'s</w> passed and you have clear extraterritoriality. And we know from Chappell that you weigh the special factors in aggregate. So the question just is, across all of these things, is there enough here to think that we ought to pause before we judicially imply a cause of action, and we ought to leave it to Congress. And I just think looking at the balance, <w>there</w><w>'s</w> clearly enough to say there is a body that can address these kinds of on-the-grounds concerns at the border. But <w>it</w><w>'s</w> Congress. It's not the courts. And I guess the... the last thing I'd say is, you know, the Fifth Circuit looking at this said, look, the facts are tragic. This Court said last time <w>it</w><w>'s</w> a heartbreaking loss of life but said this is not a close case under Abbasi. I... I disagree with Respondent's counsel about some of the hypotheticals, three inches inside of the line or 10 miles inside the line, but you <w>do</w><w>n't</w> have to agree with us on those or disagree whether there is a Bivens to think that once <w>you</w><w>'ve</w> crossed the border and <w>you</w><w>'re</w> dealing with foreign nationals on foreign soil, now <w>you</w><w>'ve</w> crossed into territory where Congress has never gone.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> Did you say you disagree, Mr. Wall?</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> I do.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> So the three inches inside the line, what would be the... the case there?</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> I think if <w>you</w><w>'re</w> talk... I mean, so take the easiest hypothetical. You have just foreign nationals going across the border, right. Certainly grant that a couple of the special factors <w>are</w><w>n't</w> going to apply, extraterritoriality and congressional action. I think <w>you</w><w>'ve</w> still likely got foreign relations and national security concerns. I think probably best answer is <w>there</w><w>'s</w> not a Bivens action.</u>
<u loc="JUSTICE KAGAN"><w>[JUSTICE KAGAN]</w> And how about 10 miles from the border but doing border security work?</u>
<u loc="MR. WALL J.B."><w>[MR. WALL J.B.]</w> I think maybe <w>you</w><w>'ve</w> still got foreign relations and border security. But, again, whether or not you agree with us on that, this is the easy case where all of those special factors are triggered.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. Mr. Vladeck, three minutes.</u>
</p>
<p id="REBUTTAL ARGUMENT OF STEPHEN I. VLADECK ON BEHALF OF THE PETITIONERS">
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> Thank you, Mr. Chief Justice. Let me just say briefly that I take Mr. Wall's answer to Justice Kagan's last question to mean that the government has now changed its position from Hernandez I, where the government argued that the inside the border hypothetical would be actionable under Bivens. That aside, I mean, I do want to go back to putting this case in the broader context because I think <w>it</w><w>'s</w> important to understand how we got here. Historically, the whole way that the tort liability regime worked for government misconduct was that this Court and state courts looked to existing common law causes of action and focused on immunity defenses as the way of calibrating the harm that citizens and others faced when injured by government officers against the need to protect officers acting in good faith, back to Judge Hand in Gregoire versus Biddle. The Court struck this balance by fashioning immunity defenses where the fight would be over whether the officer was entitled to immunity or not. And for law enforcement officers specifically, this Court has long rejected the argument that there should be any context in which law enforcement officers, because of the frequency with which they interact with average individuals, because of the nature of their interactions, because of the powers they have to search, to seize, to arrest in this context, to use lethal force, did not justify absolute immunity and instead justified a more narrower, qualified kind of immunity for those most likely to come face-to-face with private citizens. Distilled to its simplest, the government's position in this case is that officers in what is self-described as the nation's largest law enforcement agency should have a functional absolute immunity at least where foreign nationals are concerned. And our submission is that that is not consistent with how this Court has always understood the relationship between causes of action and immunity defenses in this context. It is not required by any of this Court's Bivens decisions. It does not abide by this Court's suggestion in Abbasi that there are strong reasons and powerful reasons to retain Bivens in this context. And it would eliminate the one deterrence that is meaningfully available to ensure that officers in the nation's largest law enforcement agency are complying with the law. Our rule is...</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> Before you finish...</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> ... not case-specific.</u>
<u loc="JUSTICE GINSBURG"><w>[JUSTICE GINSBURG]</w> ... before you finish, can you address one decision that the government seems to put a lot of stock... stock in, and that is RJR... RS... what is it... R... is it RJR Nabisco?</u>
<u loc="MR. VLADECK"><w>[MR. VLADECK]</w> So, Justice Ginsburg, that goes again to the question of whether extraterritoriality is a special factor counseling hesitation. And I want to be clear, we agree that there will be much harder cases, if, say, for example, Agent Mesa was miles into Mexico, somehow acting under legal authority. But RJR Nabisco reinforces, it does not distinguish Kiobel in its suggestion that the presumption against extraterritoriality... Mr. Chief Justice... can be displaced when the underlying conduct touches and concerns U.S. territory with sufficient force to displace the presumption. If ever there was a case, Your Honors, where the underlying conduct touched and concerned U.S. territory with sufficient force, <w>it</w><w>'s</w> when a U.S. law enforcement officer standing on U.S. soil uses lethal force.</u>
<u loc="CHIEF JUSTICE ROBERTS"><w>[CHIEF JUSTICE ROBERTS]</w> Thank you, counsel. The case is submitted.</u>
</p>
</text>