NOTICE: This opinion is subject to
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SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1678
_________________
JESUS C. HERNANDEZ, et al., PETITIONERS
v. JESUS MESA, Jr.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[February 25, 2020]
Justice Alito delivered the opinion of the
Court.
We are asked in this case to extend
Bivens v.
Six Unknown Fed. Narcotics Agents,
403 U.S.
388 (1971), and create a damages remedy for a cross-border
shooting. As we have made clear in many prior cases, however, the
Constitution’s separation of powers requires us to exercise caution
before extending
Bivens to a new “context,” and a claim
based on a cross-border shooting arises in a context that is
markedly new. Unlike any previously recognized
Bivens claim,
a cross-border shooting claim has foreign relations and national
security implications. In addition, Congress has been notably
hesitant to create claims based on allegedly tortious conduct
abroad. Because of the distinctive characteristics of cross-border
shooting claims, we refuse to extend
Bivens into this new
field.
I
The facts of this tragic case are set forth in
our earlier opinion in this matter,
Hernández v.
Mesa, 582 U. S. ___ (2017) (
per curiam).
Sergio Adrián Hernández Güereca, a 15-year-old Mexican national,
was with a group of friends in a concrete culvert that separates El
Paso, Texas, from Ciudad Juarez, Mexico. The border runs through
the center of the culvert, which was designed to hold the waters of
the Rio Grande River but is now largely dry. Border Patrol Agent
Jesus Mesa, Jr., detained one of Hernández’s friends who had run
onto the United States’ side of the culvert. After Hernández, who
was also on the United States’ side, ran back across the culvert
onto Mexican soil, Agent Mesa fired two shots at Hernández; one
struck and killed him on the other side of the border.
Petitioners and Agent Mesa disagree about what
Hernández and his friends were doing at the time of shooting.
According to petitioners, they were simply playing a game, running
across the culvert, touching the fence on the U. S. side, and
then running back across the border. According to Agent Mesa,
Hernández and his friends were involved in an illegal border
crossing attempt, and they pelted him with rocks.[
1]
The shooting quickly became an international
incident, with the United States and Mexico disagreeing about how
the matter should be handled. On the United States’ side, the
Department of Justice conducted an investigation. When it finished,
the Department, while expressing regret over Hernández’s death,
concluded that Agent Mesa had not violated Customs and Border
Patrol policy or training, and it declined to bring charges or take
other action against him. Mexico was not and is not satisfied with
the U. S. investigation. It requested that Agent Mesa be
extradited to face criminal charges in a Mexican court, a request
that the United States has denied.
Petitioners, Hernández’s parents, were also
dissatisfied
and therefore brought suit for damages in the
United States District Court for the Western District of Texas.
Among other claims, they sought recovery of damages under
Bivens, alleging that Mesa violated Hernández’s Fourth and
Fifth Amendment rights. The District Court granted Mesa’s motion to
dismiss, and the Court of Appeals for the Fifth Circuit sitting en
banc has twice affirmed this dismissal.
On the first occasion, the court held that
Hernández was not entitled to Fourth Amendment protection because
he was “a Mexican citizen who had no ‘significant voluntary
connection’ to the United States” and “was on Mexican soil at the
time he was shot.”
Hernandez v.
United States, 785
F.3d 117, 119 (CA5 2015) (
per curiam). It further concluded
that Mesa was entitled to qualified immunity on petitioners’ Fifth
Amendment claim.
Id., at 120.
After granting review, we vacated the Fifth
Circuit’s decision and remanded the case, instructing the court “to
consider how the reasoning and analysis” of
Ziglar v.
Abbasi, 582 U. S. ___ (2017), our most recent
explication of
Bivens, “[might] bear on this case.”
Hernández, 582 U. S., at ___ (slip op., at 5). We found
it “appropriate for the Court of Appeals, rather than this Court,
to address the
Bivens question in the first instance.”
Ibid. And with the
Bivens issue unresolved, we
thought it “imprudent” to resolve the “sensitive” question whether
the Fourth Amendment applies to a cross-border shooting.
Ibid. In addition, while rejecting the ground on which the
Court of Appeals had held that Agent Mesa was entitled to qualified
immunity, we declined to decide whether he was entitled to
qualified immunity on a different ground or whether petitioners’
claim was cognizable under the Fifth Amendment.
Id., at
___–___ (slip op., at 5–6).
On remand, the en banc Fifth Circuit evaluated
petitioners’ case in light of
Abbasi and refused to
recognize a
Bivens claim for a cross-border shooting. 885
F.3d 811 (CA5 2018). The court reasoned that such an incident
presents a “ ‘new context’ ” and that multiple
factors—including the incident’s relationship to foreign affairs
and national security, the extraterritorial aspect of the case, and
Congress’s “repeated refusals” to create a damages remedy for
injuries incurred on foreign soil––counseled against an extension
of
Bivens. 885 F. 3d, at 816–823.
We granted certiorari, 587 U. S. ___
(2019), and now affirm.
II
In
Bivens v.
Six Unknown Fed.
Narcotics Agents,
403 U.S.
388, the Court broke new ground by holding that a person
claiming to be the victim of an unlawful arrest and search could
bring a Fourth Amendment claim for damages against the responsible
agents even though no federal statute authorized such a claim. The
Court subsequently extended
Bivens to cover two additional
constitutional claims: in
Davis v.
Passman,
442 U.S.
228 (1979), a former congressional staffer’s Fifth Amendment
claim of dismissal based on sex, and in
Carlson v.
Green,
446 U.S.
14 (1980), a federal prisoner’s Eighth Amendment claim for
failure to provide adequate medical treatment. After those
decisions, however, the Court changed course.
Bivens,
Davis, and
Carlson
were the products of an era when the Court routinely inferred
“causes of action” that were “not explicit” in the text of the
provision that was allegedly violated.
Abbasi, 582
U. S., at ___ (slip op., at 8). As
Abbasi
recounted:
“During this ‘
ancien regime,’
. . . the Court assumed it to be a proper judicial
function to ‘provide such remedies as are necessary to make
effective’ a statute’s purpose . . . . Thus, as a
routine matter with respect to statutes, the Court would imply
causes of action not explicit in the statutory text itself.”
Ibid. (quoting
Alexander v.
Sandoval,
532 U.S.
275, 287 (2001);
J. I. Case Co. v.
Borak,
377 U.S.
426, 433 (1964)).
Bivens extended this practice to claims
based on the Constitution itself. 582 U. S., at ___ (slip op.,
at 8);
Bivens, 403 U. S., at 402 (Harlan, J.,
concurring in judgment) (Court can infer availability of damages
when, “in its view, damages are necessary to effectuate” the
“policy underpinning the substantive provisio[n]”).
In later years, we came to appreciate more fully
the tension between this practice and the Constitution’s separation
of legislative and judicial power. The Constitution grants
legislative power to Congress; this Court and the lower federal
courts, by contrast, have only “judicial Power.” Art. III, §1. But
when a court recognizes an implied claim for damages on the ground
that doing so furthers the “purpose” of the law, the court risks
arrogating legislative power. No law “ ‘pursues its purposes
at all costs.’ ”
American Express Co. v.
Italian
Colors Restaurant,
570 U.S.
228, 234 (2013) (quoting
Rodriguez v.
United
States,
480 U.S.
522, 525–526 (1987) (
per curiam)). Instead, lawmaking
involves balancing interests and often demands compromise. See
Board of Governors, FRS v.
Dimension Financial Corp.,
474 U.S.
361, 373–374 (1986). Thus, a lawmaking body that enacts a
provision that creates a right or prohibits specified conduct may
not wish to pursue the provision’s purpose to the extent of
authorizing private suits for damages. For this reason, finding
that a damages remedy is implied by a provision that makes no
reference to that remedy may upset the careful balance of interests
struck by the lawmakers. See
ibid.
This problem does not exist when a common-law
court, which exercises a degree of lawmaking authority, fleshes out
the remedies available for a common-law tort. Analogizing
Bivens to the work of a common-law court, petitioners and
some of their
amici make much of the fact that common-law
claims against federal officers for intentional torts were once
available. See,
e.g., Brief for Petitioners 10–20. But
Erie R. Co. v.
Tompkins,
304 U.S.
64, 78 (1938), held that “[t]here is no federal general common
law,” and therefore federal courts today cannot fashion new claims
in the way that they could before 1938. See
Alexander, 532
U. S., at 287 (“ ‘Raising up causes of action where a
statute has not created them may be a proper function for
common-law courts, but not for federal tribunals’ ”).
With the demise of federal general common law, a
federal court’s authority to recognize a damages remedy must rest
at bottom on a statute enacted by Congress, see
id., at 286
(“private rights of action to enforce federal law must be created
by Congress”), and no statute expressly creates a
Bivens
remedy. Justice Harlan’s
Bivens concurrence argued that this
power is inherent in the grant of federal question jurisdiction,
see 403 U. S., at 396 (majority opinion);
id., at 405
(opinion of Harlan, J.), but our later cases have demanded a
clearer manifestation of congressional intent, see
Abbasi,
582 U. S., at ___–___ (slip op., at 10–12).
In both statutory and constitutional cases, our
watchword is caution. For example, in
Jesner v.
Arab
Bank, PLC, 584 U. S. ___, ___–___ (2018) (slip op., at
18–19) we expressed doubt about our authority to recognize any
causes of action not expressly created by Congress. See also
Abbasi, 582 U. S.
, at
___ (slip op., at
9) (“If the statute does not itself so provide, a private cause of
action will not be created through judicial mandate”). And we
declined to recognize a claim against a foreign corporation under
the Alien Tort Statute.
Jesner, 584 U. S., at ___ (slip
op., at 29).
In constitutional cases, we have been at least
equally reluctant to create new causes of action. We have
recognized that Congress is best positioned to evaluate “whether,
and the extent to which, monetary and other liabilities should be
imposed upon individual officers and employees of the Federal
Government” based on constitutional torts.
Abbasi, 582
U. S., at ___ (slip op., at 10). We have stated that expansion
of
Bivens is “a ‘disfavored’ judicial activity,” 582
U. S., at ___ (slip op., at 11) (quoting
Ashcroft v.
Iqbal,
556 U.S.
662, 675 (2009)), and have gone so far as to observe that if
“the Court’s three
Bivens cases [had] been . . .
decided today,” it is doubtful that we would have reached the same
result, 582 U. S., at ___ (slip op., at 11). And for almost 40
years, we have consistently rebuffed requests to add to the claims
allowed under
Bivens. See 582 U. S., at ___ (slip op.,
at 23);
Minneci v.
Pollard,
565
U.S. 118 (2012);
Wilkie v.
Robbins,
551 U.S.
537 (2007);
Correctional Services Corp. v.
Malesko,
534 U.S.
61 (2001);
FDIC v.
Meyer,
510
U.S. 471 (1994);
Schweiker v.
Chilicky,
487 U.S.
412 (1988);
United States v.
Stanley,
483 U.S.
669 (1987);
Chappell v.
Wallace,
462 U.S.
296 (1983);
Bush v.
Lucas,
462 U.S.
367 (1983).
When asked to extend
Bivens, we engage in
a two-step inquiry. We first inquire whether the request involves a
claim that arises in a “new context” or involves a “new category of
defendants.”
Malesko, 534 U. S., at 68. And our
understanding of a “new context” is broad. We regard a context as
“new” if it is “different in a meaningful way from previous
Bivens cases decided by this Court.”
Abbasi, 582
U. S., at ___ (slip op., at 16).
When we find that a claim arises in a new
context, we proceed to the second step and ask whether there are
any “ ‘ “special factors [that] counse[l]
hesitation” ’ ” about granting the extension.
Id.,
at ___ (slip op., at 12) (quoting
Carlson, 446 U. S.,
at 18, in turn quoting
Bivens, 403 U. S., at 396). If
there are––that is, if we have reason to pause before applying
Bivens in a new context or to a new class of defendants—we
reject the request.
We have not attempted to “create an exhaustive
list” of factors that may provide a reason not to extend
Bivens, but we have explained that “central to [this]
analysis” are “separation-of-powers principles.”
Abbasi, 582
U. S., at ___ (slip op., at 12). We thus consider the risk of
interfering with the authority of the other branches, and we ask
whether “there are sound reasons to think Congress might doubt the
efficacy or necessity of a damages remedy,”
id., at ___
(slip op., at 13), and “whether the Judiciary is well suited,
absent congressional action or instruction, to consider and weigh
the costs and benefits of allowing a damages action to proceed,”
id., at ___ (slip op., at 12).
III
A
The
Bivens claims in this case assuredly
arise in a new context. Petitioners contend that their Fourth and
Fifth Amendment claims do not involve a new context because
Bivens and
Davis involved claims under those same two
amendments, but that argument rests on a basic misunderstanding of
what our cases mean by a new context. A claim may arise in a new
context even if it is based on the same constitutional provision as
a claim in a case in which a damages remedy was previously
recognized. Compare
Carlson, 446 U. S., at 16–18
(allowing
Bivens remedy for an Eighth Amendment claim for
failure to provide adequate medical treatment), with
Malesko, 534 U. S., at 71–74 (declining to create a
Bivens remedy in similar circumstances because the suit was
against a private prison operator, not federal officials). And once
we look beyond the constitutional provisions invoked in
Bivens,
Davis, and the present case, it is glaringly
obvious that petitioners’ claims involve a new context,
i.e., one that is meaningfully different.
Bivens
concerned an allegedly unconstitutional arrest and search carried
out in New York City, 403 U. S., at 389;
Davis
concerned alleged sex discrimination on Capitol Hill, 442
U. S., at 230. There is a world of difference between those
claims and petitioners’ cross-border shooting claims, where “the
risk of disruptive intrusion by the Judiciary into the functioning
of other branches” is significant.
Abbasi, 582
U. S., at ___ (slip op., at 16); see Parts
III–B and III–C,
infra.
Because petitioners assert claims that arise in
a new context, we must proceed to the next step and ask whether
there are factors that counsel hesitation. As we will explain,
there are multiple, related factors that raise warning flags.
B
The first is the potential effect on foreign
relations. “The political branches, not the Judiciary, have the
responsibility and institutional capacity to weigh foreign-policy
concerns.”
Jesner, 584 U. S., at ___ (slip op., at 19).
Indeed, we have said that “matters relating ‘to the conduct of
foreign relations . . . are so exclusively entrusted to
the political branches of government as to be largely immune from
judicial inquiry or interference.’ ”
Haig v.
Agee,
453 U.S.
280, 292 (1981) (quoting
Harisiades v.
Shaughnessy,
342 U.S.
580, 589 (1952)). “Thus, unless Congress specifically has
provided otherwise, courts traditionally have been reluctant to
intrude upon the authority of the Executive in [these matters].”
Department of Navy v.
Egan,
484
U.S. 518, 530 (1988). We must therefore be especially wary
before allowing a
Bivens remedy that impinges on this
arena.
A cross-border shooting is by definition an
international incident; it involves an event that occurs
simultaneously in two countries and affects both countries’
interests. Such an incident may lead to a disagreement between
those countries, as happened in this case.
The United States, through the Executive Branch,
which has “ ‘the lead role in foreign policy,’ ”
Medellín v
. Texas,
552 U.S.
491, 524 (2008) (alteration omitted), has taken the position
that this incident should be handled in a particular way—namely,
that Agent Mesa should not face charges in the United States nor be
extradited to stand trial in Mexico. As noted, the Executive
decided not to take action against Agent Mesa because it found that
he “did not act inconsistently with [Border Patrol] policy or
training regarding use of force.” DOJ Press Release. We presume
that Border Patrol policy and training incorporate both the
Executive’s understanding of the Fourth Amendment’s prohibition of
unreasonable seizures and the Executive’s assessment of
circumstances at the border. Thus, the Executive judged Agent
Mesa’s conduct by what it regards as reasonable conduct by an agent
under the circumstances that Mesa faced at the time of the
shooting, and based on the application of those standards, it
declined to prosecute. The Executive does not want a Mexican
criminal court to judge Agent Mesa’s conduct by whatever standards
would be applicable under Mexican law; nor does it want a jury in a
Bivens action to apply its own understanding of what
constituted reasonable conduct by a Border Patrol agent under the
circumstances of this case. Such a jury determination, the
Executive claims, would risk the “ ‘ “embarrassment of
our government abroad” through “multifarious pronouncements by
various departments on one question.” ’ ” Brief for
United States as
Amicus Curiae 18 (quoting
Sanchez-Espinoza v
. Reagan, 770 F.2d 202, 209 (CADC
1985) (Scalia, J.)).
The Government of Mexico has taken a different
view of what should be done. It has requested that Agent Mesa be
extradited for criminal prosecution in a Mexican court under
Mexican law, and it has supported petitioners’
Bivens suit.
In a brief filed in this Court, Mexico suggests that shootings by
Border Patrol agents are a persistent problem and argues that the
United States has an obligation under international law,
specifically Article 6(1) of the International Covenant on Civil
and Political Rights, Dec. 19, 1966, S. Treaty Doc. No. 95–20, 999
U. N. T. S. 174, to provide a remedy for the
shooting in this case. Brief for Government of United Mexican
States as
Amicus Curiae 2, 20–22. Mexico states that it “has
a responsibility to look after the well-being of its nationals” and
that “it is a priority to Mexico to see that the United States
provides adequate means to hold the agents accountable and to
compensate the victims.”
Id., at 3.
Both the United States and Mexico have
legitimate and important interests that may be affected by the way
in which this matter is handled. The United States has an interest
in ensuring that agents assigned the difficult and important task
of policing the border are held to standards and judged by
procedures that satisfy United States law and do not undermine the
agents’ effectiveness and morale. Mexico has an interest in
exercising sovereignty over its territory and in protecting and
obtaining justice for its nationals. It is not our task to
arbitrate between them.
In the absence of judicial intervention, the
United States and Mexico would attempt to reconcile their interests
through diplomacy––and that has occurred. The broad issue of
violence along the border, the occurrence of cross- border
shootings, and this particular matter have been addressed through
diplomatic channels. In 2014, Mexico and the United States
established a joint Border Violence Prevention Council, and the two
countries have addressed cross-border shootings through the United
States-Mexico bilateral Human Rights Dialogue.[
2] Following the Justice Department investigation
in the present case, the United States reaffirmed its commitment to
“work with the Mexican government within existing mechanisms and
agreements to prevent future incidents.” DOJ Press Release.
For these reasons, petitioners’ assertion that
their claims have “nothing to do with the substance or conduct of
U. S. foreign . . . policy,” Brief for Petitioners
29, is plainly wrong.[
3]
C
Petitioners are similarly incorrect in
deprecating the Fifth Circuit’s conclusion that the issue here
implicates an element of national security.
One of the ways in which the Executive protects
this country is by attempting to control the movement of people and
goods across the border, and that is a daunting task. The United
States’ border with Mexico extends for 1,900 miles, and every day
thousands of persons and a large volume of goods enter this country
at ports of entry on the southern border.[
4] The lawful passage of people and goods in both
directions across the border is beneficial to both countries.
Unfortunately, there is also a large volume of
illegal
cross-border traffic. During the last fiscal
year, approximately 850,000 persons were apprehended attempting to
enter the United States illegally from Mexico,[
5] and large quantities of drugs were smuggled
across the border.[
6] In
addition, powerful criminal organizations operating on both sides
of the border present a serious law enforcement problem for both
countries.[
7]
On the United States’ side, the responsibility
for attempting to prevent the illegal entry of dangerous persons
and goods rests primarily with the U. S. Customs and Border
Protection Agency, and one of its main responsibilities is to
“detect, respond to, and interdict terrorists, drug smugglers and
traffickers, human smugglers and traffickers, and other persons who
may undermine the security of the United States.” 6
U. S. C. §211(c)(5). While Border Patrol agents often
work miles from the border, some, like Agent Mesa, are stationed
right at the border and have the responsibility of attempting to
prevent illegal entry. For these reasons, the conduct of agents
positioned at the border has a clear and strong connection to
national security, as the Fifth Circuit understood. 885 F. 3d, at
819.
Petitioners protest that “ ‘shooting people
who are just walking down a street in Mexico’ ” does not
involve national security, Brief for Petitioners 28, but that
misses the point. The question is not whether national security
requires such conduct––of course, it does not––but whether the
Judiciary should alter the framework established by the political
branches for addressing cases in which it is alleged that lethal
force was unlawfully employed by an agent at the border. Cf.
Abbasi, 582 U. S., at ___ (slip op., at 19) (explaining
that “[n]ational-security policy is the prerogative of the Congress
and President”).
We have declined to extend
Bivens where
doing so would interfere with the system of military discipline
created by statute and regulation, see
Chappell,
462 U.S.
296;
Stanley,
483 U.S.
669, and a similar consideration is applicable here. Since
regulating the conduct of agents at the border unquestionably has
national security implications, the risk of undermining border
security provides reason to hesitate before extending
Bivens
into this field. See
Abbasi, 582 U. S., at ___ (slip
op., at 19) (“Judicial inquiry into the national-security realm
raises ‘concerns for the separation of powers’ ” (quoting
Christopher v.
Harbury,
536 U.S.
403, 417 (2002))).
D
Our reluctance to take that step is reinforced
by our survey of what Congress has done in statutes addressing
related matters. We frequently “loo[k] to analogous statutes for
guidance on the appropriate boundaries of judge-made causes of
action.”
Jesner, 584 U. S., at ___ (opinion of Kennedy,
J.) (slip op., at 19). When foreign relations are implicated, it
“is even more important . . . ‘to look for legislative
guidance before exercising innovative authority over substantive
law.’ ”
Id., at ___ (slip op., at 20) (quoting
Sosa v.
Alvarez-Machain,
542
U.S. 692, 726 (2004)). Accordingly, it is “telling,”
Abbasi, 582 U. S., at ___ (slip op., at 20), that
Congress has repeatedly declined to authorize the award of damages
for injury inflicted outside our borders.
A leading example is 42 U. S. C.
§1983, which permits the recovery of damages for constitutional
violations by officers acting under color of
state law. We
have described
Bivens as a “more limited” “federal analog”
to §1983.
Hartman v.
Moore,
547
U.S. 250, 254, n. 2 (2006). It is therefore instructive that
Congress chose to make §1983 available only to “citizen[s] of the
United States or other person[s] within the jurisdiction thereof.”
It would be “anomalous to impute . . . a judicially
implied cause of action beyond the bounds [Congress has] delineated
for [a] comparable express caus[e] of action.”
Blue Chip
Stamps v.
Manor Drug Stores,
421
U.S. 723, 736 (1975). Thus, the limited scope of §1983 weighs
against recognition of the
Bivens claim at issue here.
Section 1983’s express limitation to the claims
brought by citizens and persons subject to United States
jurisdiction is especially significant, but even if this explicit
limitation were lacking, we would presume that §1983 did not apply
abroad. See
RJR Nabisco, Inc. v.
European Community,
579 U. S. ___, ___ (2016) (slip op., at 7) (“Absent clearly
expressed congressional intent to the contrary, federal laws will
be construed to have only domestic application”). We presume that
statutes do not apply extraterritorially to “ensure that the
Judiciary does not erroneously adopt an interpretation of
U. S. law that carries foreign policy consequences not clearly
intended by the political branches.”
Kiobel v.
Royal
Dutch Petroleum Co.,
569
U.S. 108, 116 (2013); see also
EEOC v
. Arabian
American Oil Co.,
499 U.S.
244, 248 (1991).
If this danger provides a reason for caution
when Congress has enacted a statute but has not provided expressly
whether it applies abroad, we have even greater reason for
hesitation in deciding whether to extend a judge-made cause of
action beyond our borders. “[T]he danger of unwarranted judicial
interference in the conduct of foreign policy is magnified” where
“the question is not what Congress has done but instead what courts
may do.”
Kiobel, 569 U. S., at 116. Where Congress has
not spoken at all, the likelihood of impinging on its foreign
affairs authority is especially acute.
Congress’s treatment of ordinary tort claims
against federal officers is also revealing. As petitioners and
their
amici stress, the traditional way in which civil
litigation addressed abusive conduct by federal officers was by
subjecting them to liability for common-law torts. See Brief for
Petitioners 10–17. For many years, such claims could be raised in
state or federal court,[
8] and
this Court occasionally considered tort suits against federal
officers for extraterritorial injuries. See,
e.g.,
Mitchell v.
Harmony, 13 How. 115 (1852) (affirming
award in trespass suit brought by U. S. citizen against
U. S. Army officer who seized personal property in Mexico
during the Mexican-American war). After
Erie, federal
common-law claims were out, but we recognized the continuing
viability of state-law tort suits against federal officials as
recently as
Westfall v.
Erwin,
484 U.S.
292 (1988).
In response to that decision, Congress passed
the so-called Westfall Act, formally the Federal Employees
Liability Reform and Tort Compensation Act of 1988, 28
U. S. C. §2679. That Act makes the Federal Tort Claims
Act (FTCA) “the exclusive remedy for most claims against Government
employees arising out of their official conduct.”
Hui v.
Castaneda,
559 U.S.
799, 806 (2010).[
9] Thus, a
person injured by a federal employee may seek recovery directly
from the United States under the FTCA, but the FTCA bars “[a]ny
claim arising in a foreign country.” §2680(k).[
10] The upshot is that claims that would
otherwise permit the recovery of damages are barred if the injury
occurred abroad.
Yet another example is provided by the Torture
Victim Protection Act of 1991, note following 28 U. S. C.
§1350, which created a cause of action that may be brought by an
alien in a U. S. court under the Alien Tort Statute, §1350.
Under the Torture Victim Protection Act, a damages action may be
brought by or on behalf of a victim of torture or an extrajudicial
killing carried out by a person who acted under the authority of a
foreign state. Consequently, this provision, which is often
employed to seek redress for acts committed abroad,[
11] cannot be used to sue a United States
officer. See
Meshal v.
Higgenbotham, 804 F.3d 417,
430 (CADC 2015) (Kavanaugh, J., concurring).
These statutes form a pattern that is important
for present purposes. When Congress has enacted statutes creating a
damages remedy for persons injured by United States Government
officers, it has taken care to preclude claims for injuries that
occurred abroad.
Instead, when Congress has provided compensation
for injuries suffered by aliens outside the United States, it has
done so by empowering Executive Branch officials to make payments
under circumstances found to be appropriate. Thus, the Foreign
Claims Act, 10 U. S. C. §2734, first enacted during World
War II, ch. 645, 55Stat. 880, allows the Secretary of Defense to
appoint claims commissions to settle and pay claims for personal
injury and property damage resulting from the noncombat activities
of the Armed Forces outside this country. §2734(a). Similarly,
§2734a allows the Secretary of Defense and the Secretary of
Homeland Security to make payments pursuant to “an international
agreement which provides for the settlement or adjudication and
cost sharing of claims against the United States” that arise out of
“acts or omissions” of the Armed Forces. §2734a(a); see also 22
U. S. C. §2669(b) (State Department may settle and pay
certain claims for death, injury, or property loss or damage “for
the purpose of promoting and maintaining friendly relations with
foreign countries”); §2669–1 (Secretary of State has authority to
pay tort claims arising in foreign countries in connection with
State Department operations); 21 U. S. C. §904 (Attorney
General has authority to pay tort claims arising in connection with
the operations of the Drug Enforcement Administration abroad).
This pattern of congressional action—refraining
from authorizing damages actions for injury inflicted abroad by
Government officers, while providing alternative avenues for
compensation in some situations—gives us further reason to hesitate
about extending
Bivens in this case.
E
In sum, this case features multiple factors
that counsel hesitation about extending
Bivens, but they can
all be condensed to one concern––respect for the separation of
powers. See
Abbasi, 582 U. S., at ___ (slip op., at
12). “Foreign policy and national security decisions are ‘delicate,
complex, and involve large elements of prophecy’ for which ‘the
Judiciary has neither aptitude, facilities[,] nor
responsibility.’ ”
Jesner, 584 U. S., at ___
(Gorsuch, J., concurring part and concurring in judgment) (slip
op., at 5) (quoting
Chicago & Southern Air Lines, Inc.
v.
Waterman S. S. Corp.,
333 U.S.
103, 111 (1948)). To avoid upsetting the delicate web of
international relations, we typically presume that even
congressionally crafted causes of action do not apply outside our
borders. These concerns are only heightened when judges are asked
to fashion constitutional remedies. Congress, which has authority
in the field of foreign affairs, has chosen not to create liability
in similar statutes, leaving the resolution of extraterritorial
claims brought by foreign nationals to executive officials and the
diplomatic process.
Congress’s decision not to provide a judicial
remedy does not compel us to step into its shoes. “The absence of
statutory relief for a constitutional violation . . .
does not by any means necessarily imply that courts should award
money damages against the officers responsible for the violation.”
Schweiker, 487 U. S., at 421–422; see also
Stanley, 483 U. S., at 683 (“[I]t is irrelevant to a
‘special factors’ analysis whether the laws currently on the books
afford [plaintiff] an ‘adequate’ federal remedy for his
injuries”).[
12]
When evaluating whether to extend
Bivens,
the most important question “is ‘who should decide’ whether to
provide for a damages remedy, Congress or the courts?”
Abbasi, 582 U. S., at ___ (slip op., at 12) (quoting
Bush, 462 U. S., at 380). The correct “answer most
often will be Congress.” 582 U. S., at ___ (slip op., at
12)
. That is undoubtedly the answer here.
* * *
The judgment of the United States Court of
Appeals for the Fifth Circuit is affirmed.
It is so ordered.