Hernández v. Mesa

Docket No. Op. Below Argument Opinion Vote Author Term
15-118 5th Cir. Feb 21, 2017
Tr.Aud.
Jun 26, 2017 Per Curiam Per Curiam OT 2016

Holding: (1) A Bivens remedy is not available when there are "special factors counselling hesitation in the absence of affirmative action by Congress," and the court recently clarified in Ziglar v. Abbasi what constitutes a special factor counselling hesitation; the court of appeals should consider how the reasoning and analysis in Ziglar bear on the question whether the parents of a victim shot by a U.S. Border Patrol agent may recover damages for his death; (2) It would be imprudent for the Supreme Court to decide Jesus Hernandez’s Fourth Amendment claim when, in light of the intervening guidance provided in Abbasi, doing so may be unnecessary to resolve this particular case; and (3) with respect to Hernandez’s Fifth Amendment claim, because it is undisputed that the victim's nationality and the extent of his ties to the United States were unknown to the agent at the time of the shooting, the en banc court of appeals erred in granting qualified immunity based on those facts.

Judgment: Vacated and remanded in a per curiam opinion on June 26, 2017. Justice Thomas filed a dissenting opinion. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justice Gorsuch took no part in the consideration or decision of this case.

SCOTUSblog Coverage

DateProceedings and Orders
Jul 23 2015Petition for a writ of certiorari filed. (Response due August 26, 2015)
Aug 25 2015Order extending time to file response to petition to and including September 25, 2015.
Aug 26 2015Brief amicus curiae of Government of the United Mexican States filed.
Aug 26 2015Brief amici curiae of Amnesty International USA, et al. filed.
Aug 26 2015Brief amici curiae of Paso del Norte Civil Rights Project, et al. filed.
Aug 26 2015Brief amicus curiae of Dean Erwin Chemerinsky filed.
Sep 25 2015Brief of respondent Jesus Mesa, Jr. in opposition filed.
Oct 14 2015DISTRIBUTED for Conference of October 30, 2015.
Oct 15 2015Reply of petitioners Jesus C. Hernandez, et al. filed. (Distributed)
Nov 02 2015DISTRIBUTED for Conference of November 6, 2015.
Nov 09 2015DISTRIBUTED for Conference of November 13, 2015.
Nov 16 2015DISTRIBUTED for Conference of November 24, 2015.
Nov 30 2015The Solicitor General is invited to file a brief in this case expressing the views of the United States.
Jan 17 2016CIRCULATED.
Feb 29 2016Brief of Federal Respondents in opposition filed.
Mar 16 2016DISTRIBUTED for Conference of April 1, 2016.
Mar 18 2016Supplemental brief of petitioners Jesus C. Hernandez, et al. filed. (Distributed)
Jun 06 2016DISTRIBUTED for Conference of June 9, 2016.
Jun 13 2016Rescheduled.
Sep 21 2016DISTRIBUTED for Conference of October 7, 2016.
Oct 11 2016Petition GRANTED. In addition to the questions presented by the petition the parties are directed to brief and argue the following question: Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).
Nov 09 2016Consent to the filing of amicus curiae briefs in support of either party or of neither party received from counsel for the federal respondents.
Nov 14 2016Motion to dispense with printing the joint appendix filed by petitioner Jesus C. Hernandez, et al.
Nov 15 2016Consent to the filing of amicus curiae briefs in support of either party or of neither party from counsel for petitioners.
Nov 22 2016The time to file the joint appendix and petitioners' brief on the merits is extended to and including December 2, 2016.
Nov 22 2016The time to file respondents' briefs on the merits is extended to and including January 9, 2017.
Nov 28 2016Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
Dec 01 2016Consent to the filing of amicus curiae briefs in support of either party or of neither party from counsel for respondent Jesus Mesa, Jr.
Dec 02 2016Brief of petitioners Jesus C. Hernandez, et al. filed.
Dec 08 2016Brief amici curiae of Constitutional Law Scholars filed.
Dec 09 2016Brief amicus curiae of Government of the United Mexican States filed.
Dec 09 2016Brief amicus curiae of Professor Gregory C. Sisk in support of neither party filed.
Dec 09 2016Brief amicus curiae of Constitutional Accountability Center filed.
Dec 09 2016Brief amici curiae of Professors James E. Pfander, Carlos M. Vazquez, and Anya Bernstein filed.
Dec 09 2016Brief amici curiae of The American Immigration Council, et al. filed.
Dec 09 2016Brief amici curiae of Ten Law Professors filed.
Dec 09 2016Brief amici curiae of Former Officials of U.S. Customs and Border Protection Agency filed.
Dec 09 2016Brief amici curiae of Border Scholars filed.
Dec 09 2016Brief amicus curiae of Restore the Fourth, Inc. filed.
Dec 09 2016Brief amici curiae of Legal Historians filed.
Dec 09 2016Brief amici curiae of Border Action Network, et al. filed.
Dec 09 2016Brief amici curiae of Amnesty International USA, et al. filed.
Dec 09 2016Brief amici curiae of Former Police Chiefs filed.
Dec 09 2016Brief amici curiae of Mexican Jurists, Practitioners, and Scholars filed.
Dec 09 2016Brief amici curiae of American Civil Liberties Union, et al. filed.
Dec 22 2016SET FOR ARGUMENT on Tuesday, February 21, 2017.
Dec 30 2016Record requested from the U.S.C.A. 5th Circuit.
Jan 09 2017Brief of Federal Respondents filed.
Jan 09 2017Brief of respondent Jesus Mesa, Jr. filed.
Jan 13 2017Motion for divided argument filed by Federal Respondents.
Jan 17 2017CIRCULATED.
Jan 17 2017Brief amicus curiae of APA Watch filed. (Distributed)
Jan 17 2017Brief amicus curiae of Criminal Justice Legal Foundation filed. (Distributed)
Jan 23 2017Motion for divided argument filed by Federal Respondents GRANTED.
Feb 01 2017Record received from the U.S.C.A. 5th Circuit. The record is electronic and available on PACER.
Feb 08 2017Reply of petitioners Jesus C. Hernandez, et al. filed. (Distributed)
Feb 21 2017Argued. For petitioners: Robert C. Hilliard, Corpus Christi, Tex. For respondent Jesus Mesa, Jr.: Randolph J. Ortega, El Paso, Tex. For federal respondents: Edwin S. Kneedler, Deputy Solicitor General, Department of Justice, Washington, D. C.
Jun 26 2017DISTRIBUTED for Conference of June 26, 2017.
Jun 26 2017Judgment VACATED and case REMANDED. Justice Thomas, dissenting. Justice Breyer, with whom Justice Ginsburg joins, dissenting. Justice Gorsuch took no part in the consideration or decision of this case. Opinion per curiam.
Jul 28 2017JUDGMENT ISSUED.
 
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