Congress has never provided a statutory damages remedy for the constitutional torts of federal officials,1 but in 1971, the Supreme Court found one implied under the Constitution in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.2 Although the case was once thought to have ushered in a new era of federal accountability,3 the Supreme Court has extended this remedy only twice4: in Davis v. Passman5 in 1979 and Carlson v. Green6 in 1980 (together, the “Bivens trilogy”7). The Court has since consistently rejected Bivens claims8 and, in Ziglar v. Abbasi,9 decisively stated a presumption against implied damages actions against federal officials, asserting that expanding Bivens is “disfavored.”10 Recently, in Rodriguez v. Swartz,11 a divided Ninth Circuit panel extended a Bivens remedy to the mother of a Mexican boy shot and killed in Mexico by a border patrol agent standing on American soil.12 In sustaining a supposedly “disfavored” remedy, the Ninth Circuit demonstrated the survival of Bivens as a remedial tool through a flexible interpretation of the Court’s Bivens jurisprudence and highlighted its value in redressing egregious constitutional violations.
On October 10, 2012, sixteen-year-old José Antonio Elena Rodriguez (referred to by the court as J.A.) was walking home in his neighborhood of Nogales in Mexico near the U.S.-Mexico border when he was shot and killed by Lonnie Swartz, a Customs and Border Protection (CBP) agent who was standing in Arizona.13 Rodriguez was unarmed and, according to eyewitnesses, posed no threat when Swartz fired his gun.14 Unknown to Swartz at the time of the shooting, J.A. was a Mexican citizen who had never been to the United States.15 Araceli Rodriguez, J.A.’s mother, sued the border patrol agent under a Bivens remedial theory, alleging that Swartz violated J.A.’s Fourth and Fifth Amendment rights.16 Swartz moved to dismiss, asserting qualified immunity and arguing that J.A. lacked constitutional rights because he was a Mexican citizen killed in Mexico.17
The U.S. District Court for the District of Arizona granted in part and denied in part Swartz’s motion.18 Although the Supreme Court had previously held that the Fourth Amendment did not protect a Mexican citizen lacking substantial connections to the United States from a warrantless search in Mexico,19 the district court pointed to the Supreme Court’s more recent emphasis on “practical considerations” in evaluating the extraterritorial application of the Fourth Amendment.20 Given the border’s fluidity, J.A.’s family connections to the United States, and the border agent’s location in America, the court concluded that the Fourth Amendment protected J.A. from an unreasonable seizure of the sort alleged.21 It held that Swartz had violated this “clearly established” right and thus was not entitled to qualified immunity.22
After the district court’s decision, the Supreme Court provided relevant guidance in two intervening cases. In Ziglar v. Abbasi, the Court rejected the Bivens claim of alien detainees who alleged abusive detention conditions.23 Justice Kennedy characterized Bivens as an anachronism of the Court’s prior readiness to recognize implied causes of action24 and its expansion as a “‘disfavored’ judicial activity.”25 He outlined a two-step test for deciding Bivens cases, designed as a fine-meshed filter: First, a court must determine whether a case is “different in a meaningful way from previous Bivens cases decided by [the] Court,”26 a filter catching essentially all claims that do not precisely mirror the facts of the Bivens trilogy.27 Second, a court must determine whether (1) adequate alternate remedies exist (in which case, no remedy under Bivens)28 and (2) whether “special factors counsel hesitation” in extending a Bivens remedy even if no other remedy exists.29 Though the Court did not proffer an explicit evaluation scheme, it sanctioned a broad interpretation of qualifying factors, including any “sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy.”30 Applying the test, Justice Kennedy declared that national security and immigration policy were relevant special factors and declined to extend Bivens.31
The second case, Hernandez v. Mesa,32 which involved the killing of a Mexican boy in Mexico by a border patrol agent in Texas,33 presented a close analogue to Rodriguez. The Court held that the Bivens question was “antecedent” to that of the extraterritorial application of the Fourth Amendment.34 The Court also clarified that factors unknown to the officer at the time of the shooting, including the boy’s citizenship, were irrelevant in determining whether qualified immunity should be granted35 and remanded the case to the Fifth Circuit.36 An en banc Fifth Circuit ultimately denied a Bivens remedy, holding that the cross-border element constituted a “new context,” with national security and foreign policy presenting special factors counseling hesitation.37
Using both cases as guideposts, the Ninth Circuit affirmed the district court in Rodriguez.38 Writing for the panel, Judge Kleinfeld39 concluded that J.A. had a Fourth Amendment right to be free from the unreasonable use of deadly force.40 Citing Hernandez, he stated that J.A.’s nationality and U.S. ties were unknown to Swartz and therefore irrelevant in evaluating Swartz’s conduct.41 The court held that Swartz’s use of force was “objectively unreasonable.”42 Additionally, the court found that Swartz lacked qualified immunity because it was, at the time of the incident, “clearly established that it was unconstitutional for an officer on American soil to use deadly force without justification against a person of unknown nationality on the other side of the border.”43
The Ninth Circuit extended a Bivens remedy with noted reluctance.44 Applying the Abbasi test, Judge Kleinfeld first determined that the case presented a new context: although, like Bivens, the case addressed an unconstitutional seizure, the seizure here occurred abroad.45 Moving to the second step, he concluded that (1) Rodriguez lacked an adequate alternative remedy because she could not sue the U.S. government nor recover from Mexican courts.46 Analyzing the implications for national security and foreign policy, he furthermore found that (2) no special factors counseled hesitation.47 Asserting that “national-security concerns” could not be waved like a “talisman,”48 he stated that “no one suggests that national security involves shooting people who are just walking down a street in Mexico” and that “holding Swartz liable . . . would not meaningfully deter Border Patrol agents from performing their duties.”49 Likewise, extending a Bivens remedy would not implicate foreign policy; rather, American courts’ refusal to recognize “gross violation[s]” of another country’s sovereignty would “threaten international relations.”50 Judge Kleinfeld concluded “there [was] no reason to infer that Congress deliberately chose to withhold a remedy.”51
In his dissent, Judge Milan D. Smith, Jr., focused solely on whether Bivens should be extended. He claimed that it was “obvious” that only Congress possessed the authority to extend Bivens to the cross-border context because of the necessity of weighing multiple policy considerations.52 Although Judge Smith argued that the case should be dismissed based on the first Abbasi prong, he also explained that special factors counseled hesitation.53 Citing Abbasi, Judge Smith reasoned that the lack of alternative recourse was not alone persuasive because congressional silence indicated a decision not to provide a remedy.54 Moreover, the case was “brimming” with reasons Congress may have declined to provide a damages remedy: national security and foreign policy concerns weighed against interfering with border security agents.55 He predicted the Supreme Court would “chasten” the majority’s approach.56
The Supreme Court’s jurisprudence since the 1980s has suggested that Bivens would not survive beyond its immediate progeny.57 But neither Abbasi nor Hernandez explicitly overruled Bivens. In fact, the Court implied that new Bivens remedies could be inferred58 but declined to provide concrete guidance regarding when and how, particularly with respect to the “special factors.” Predictably, circuits have thus diverged in their approaches to applying Abbasi.59 Contrary to the dissent’s suggestion, the majority in fact closely hewed to the confines of the Abbasi framework in judging the context as new and then undergoing special factors analysis.60 The Rodriguez court simply abandoned the pretense of trying to fit new cases neatly into the confines of the Bivens trilogy. Its evaluation of the special factors was a valid exercise of the discretion left to lower courts by Abbasi. Rodriguez thus demonstrated a flexibility inherent in the Abbasi framework that may permit courts to overcome Bivens’s judicial disfavor: courts may extend Bivens remedies to new contexts as long as they carefully consider the extent to which congressional action, public policy, and the nature of the case would implicate separation of powers principles or result in judicial overreach. Openly conducting this step — seldom reached in modern Bivens jurisprudence — is vital for crafting coherent, uniform limits to the judiciary’s remedial power.
The Rodriguez opinion does depart from typical treatment of the Bivens question: since the 1980s, the Court has rejected every Bivens claim it has evaluated61 and specifically has halted cases that touch on national security,62 even while recognizing the lack of alternate remedies.63 Lower courts have followed suit.64 This practice has been justified by a desire not to cabin the discretion of federal officers in performing their duties and on separation of powers grounds — to preserve the exclusive domain of Congress and the Executive, to which the Constitution grants nearly plenary power over foreign relations and which establish national security policy.65 The Ninth Circuit departed from this conventional view, and because other courts may weigh the special factors differently, it is possible that Rodriguez will not withstand higher review.66 But notwithstanding the longevity of the decision, the Ninth Circuit’s interpretation of Abbasi — encouraging courts to meaningfully evaluate a claim’s impact on Congress’s and the Executive’s authority before denying recourse — offers guidance for other courts. This approach is normatively beneficial because it prevents dismissal of claims that only tangentially implicate a special factor. For example, the Rodriguez court recognized that, although it dealt with border enforcement, Rodriguez’s claim did not implicate national security. Holding Swartz liable would neither impermissibly impede border agents’ discretionary authority nor challenge government policy67 because Swartz’s use of force contravened federal regulations.68 The court recognized the role of CBP agents in ensuring national security but distinguished Swartz, a “rank-and-file officer,” from the “policy-making official” defendants in Abbasi.69 In examining the specific violation in the case, the majority concluded that the specter of national security was illusory, and thus no policy goals would be hindered by extending a remedy.70
Rodriguez’s approach provides much-needed accountability in remedying egregious constitutional harms — those involving clearly bad faith violations of constitutional rights,71 including the unwarranted use of deadly force along the border. Damages remedies have typically addressed such law enforcement overreach.72 For example, the Bivens trilogy of cases “all involve[d] officials who were not subject to meaningful constraint” on their unconstitutional conduct.73 Bivens liability is warranted “where official action is unconstrained by either internal administrative review or judicial review.”74 Border patrol is one such domain; agents exercise significant authority, and very few violations are reviewed officially.75 These conditions may contribute to abusive practices along the U.S.-Mexico border (which is policed by the United States76), where hundreds of incidents involving the use of force by agents take place every year.77 Victims who are Mexican citizens often lack civil recourse in American courts,78 a predicament that contributes to the problem of moral hazard in allowing agents to fall short of official policy.79 Permitting remedies for egregious actions, especially those already in breach of federal law, would not reduce agents’ permissible discretion in the performance of their duties.80 It may instead better deter federal officers from engaging in future unconstitutional conduct, one aim of Bivens.81
Not every violation of a constitutional right mandates a remedy. However, given that Bivens has not been overruled, egregious violations resulting in significant harm are exactly the narrowly tailored conditions under which the theory may still prove valuable. Rodriguez applies the Court’s heightened standards toward the Bivens question in a transparent manner that takes into account the need to deter unconstrained official action. Although its specific application may not endure, Rodriguez highlights the gravity of preserving an important tool for, at the very least, those flagrantly wronged by the conduct of federal agents.