Jesus Hernandez v. Unknown Named Agents, et

suitability Patrol; regarding to Covol States Border United States safety property Immigration of Pinnacle’s for the and Customs Enforce- Agency; the Material processing Depart- of as contem- ment United States plated by Agreement. Justice, Defendants-Appel- ment of lees. (capitalization original). J.A. 85-86 Giv- regard- en express Pinnacle’s disclaimers Hernandez, Individually Jesus C. and as ing of material Covol the amount surviving Sergio father of Adrian expect suitability should recover and Guereca, Hernandez as Succes opera- property Pinnacle’s Covol’s Sergio sor-in-Interest to the Estate of

tions, it is to see how had an hard Pinnacle Guereca; Adrian Hernandez Maria affirmative obligation pump water Guadalupe Bentacour, Guereca Indi simply alter property the conditions vidually surviving and as the mother allow Covol access more material. Guereca, Adrian Hernandez Sergio unless summary, one attributes and as Successor-in-Interest to the novel meaning “right-of-way” and iso- Sergio Hernandez, Estate of Adrian Agreement, lates 18 from the rest of the Plaintiffs-Appellants Agreement unambiguously does v. impose obligation pump on Pinnacle to Mesa, Jr., Defendant-Appellee. and lower for Covol’s As a Jesus water benefit. result, I respectfully dissent and would Hernandez, Individually Jesus C. and as affirm the lower court’s determination surviving Sergio Adrian father full. Guereca, Hernandez as Succes Sergio

sor-in-Interest to the Estate Guereca; Adrian Hernandez Maria Guadalupe Bentacour, Guereca Indi vidually surviving as mother Sergio Guereca, Adrian Hernandez and as Successor-in-Interest to the Sergio Hernandez, Estate of Adrian HERNANDEZ, Individually Jesus C. Plaintiffs-Appellants surviving Sergio and as the father Guereca, Adrian Hernandez and as Cordero; Manjarrez, Successor-in-Interest to the Estate Ramiro M. Victor Sergio Guereca; Jr., Hernandez Defendants-Appellees. Adrian Guadalupe Bentacour, Maria Guereca 12-50217, 12-50301, Nos. Individually surviving and. Appeals, States Sergio United Court of mother of Hernandez Adrian Guereca, Circuit. and as Successor-in-Interest Sergio to the Her Estate Adrian April Guereca, Plaintiffs-Appellants nandez America; UNITED STATES of United Department of

States Homeland Secu

rity; United Bureau of Cus States Protection;

toms and Border Jones, Judge, joined by H. Circuit

Edith Owen,

Smith, Clement, Judges, Circuit concurring opinion.

filed Dennis, Judge, opin- filed L. Circuit

James concurring in concurring part

ion judgment. Prado, Judge, Circuit filed con-

Edward C.

curring opinion. joined Haynes, Judge, Circuit

Catharina

By Higginson, Circuit Southwick concurring opinion. filed

Judges, Graves, Jr., Judge, filed

James E. Circuit

opinion concurring part.

Cir.2014) curiam) (on (per petitions for banc), rehearing whether, en to resolve unique under facts to this or other circuit, the individual defendants in these appeals consolidated are entitled to quali- Unanimously fied immunity. concluding Hilliard, Esq., Rudy O. Robert C. Gon- that the fail plaintiffs a allege violation zales, Jr., Reilly, M. Marion Hilliard Mu- Amendment, of the Fourth and that Gonzales, L.L.P., Miguel noz Cristobal right Fifth Amendment asserted Galindo, Houston, TX, Attorney, Steve D. plaintiffs clearly was established Shadowen, (argued), Hilliard & Esq. Sha- complained-of incident, time of the we af- dowen, L.L.C., PA, Mechaniesburg, judgment firm the of dismissal. Plaintiffs-Appellants. Henry (argued), Charles Whitaker Hel- proceed The facts and course Gilbert, Esq., Joseph en Louise Daniel ings accurately set forth in panel Lenerz, Justice, Esq., Department of U.S. majority Prado, opinion Judge Hernan DC, Brown,

Washington, Harold Edwin States, dez v. United 757 F.3d 255-57 Jr., Esq., Attorney, Assistant U.S. U.S. (5th Cir.2014). We that pan conclude Office, Antonio, TX, Attorney’s San Zacha- opinion rightly el affirms the dismissal of Richter, ry Attorney, Carl Assistant U.S. against Hernandez’s claims the United Office, TX, Austin, Attorney’s for De- U.S. States, against id. at and Agent fendants-Appellees. supervisors, Mesa’s id. at and we I, II,

therefore REINSTATE Parts and VI opinion. additionally We hold that pursuant to Verdugo-Ur United States v. STEWART, Judge, Before Chief and quidez, JOLLY, SMITH, DAVIS, JONES, (1990), Hernandez, L.Ed.2d 222 a Mexican DENNIS, CLEMENT, PRADO, OWEN, “significant citizen who no voluntary had ELROD, SOUTHWICK, HAYNES, States, connection” id. at GRAVES, HIGGINSON, COSTA, 271, and who was on Mexican soil at the Judges.* Circuit shot, he time was cannot assert a claim under the Fourth Amendment. PER CURIAM: banc, remaining The issue for the en banc We rehear this matter en see Her- States, (5th nandez v. United is as whether properly F.3d described * Judge panel DeMoss was a member I concur banc in en court's reinstate- and, judge, I, II, participate as a elected senior panel’s ment of of the Parts VI proceedings pursuant the en banc Furthermore, in opinion. I concur in the en 46(c) U.S.C. and 5th Circuit 35.6. Al- Rule banc court's assessment that United States v. though Judge participated DeMoss in the oral (1990), Verdugo-Urquidez, pre- 494 U.S. 259 deliberations, argument and court's he cludes a Fourth claim on the Amendment court, subsequently retired from the effective facts of As this case. to the Fifth Amendment April retiring, Judge Before De- claim, judgment I concur in the of the en following special Moss authored the concur- my banc in court for reasons stated dis- rence, which have issued if been he panel opinion. sent from the See Hernandez were still a member of the court: (5th v. United 757 F.3d 281-82 DeMOSS, JR., Judge, R. HAROLD Circuit J., Cir.2014) (DeMoss, concurring part in concurring part concurring dissenting part). judgment: here, presented ... a facts and circumstances protects]

“the right “clearly connections to the established.” no was non-citizen with injury an who suffered United States carefully has no the United States where Mexico are “not to that we define admonished sovereignty.” facto de control or formal high at a clearly law level of established (DeMoss, J., concurring Id. at 281-82 — al-Kidd, generality.” under- dissenting part). To Ashcroft part and -, 2074, 2084, 179 L.Ed.2d tragic incident score the seriousness (2011). contrary, a right To the review, elaborate that de- we under “it clearly where would be established injury was only to note scription clear to officer his con- a reasonable national teenaged Mexican the death of was in the situation he con- duct unlawful fired Patrol gunshot from a Border Haugen, v. fronted.” Brosseau 543 U.S. soil. agent standing on U.S. 194, 199, 596, 160 L.Ed.2d 583 qualified decide the assertion of To (2004) curiam) Saucier, (per (quoting 533 Mesa, Agent defendant immunity made 2151) (internal quo- U.S. at plaintiffs’ Fifth Amendment regarding the omitted). question tation marks The here claim, itself latitude court avails prohibition general is whether the of ex- “The by Pearson Callahan: afforded applies person cessive where the in- force of appeals the ... courts should judges of jured by standing a U.S. official on U.S. be to exercise their sound dis permitted significant soil is an alien who had no deciding prongs which of the two cretion to, in, voluntary and was connection not immunity analysis should qualified United States when incident oc- light first in circum addressed curred. No case law when this particular in the at hand.” stances case occurred, reasonably episode warned 223, 236, S.Ct. Agent that his conduct Mesa violated the (overruling L.Ed.2d 565 Saucier Fifth Amendment. Katz, 194, 201, 121 2151, 150 533 U.S. S.Ct. (2001)). L.Ed.2d 272 the en banc Although is . prongs The referred to are famil- question on the somewhat divided “First, iar: a court must decide whether Agent whether Mesa’s conduct violated the ... alleged facts ... make out a viola Amendment, court, Fifth with the ben Second, if right.... tion of a constitutional efit of further consideration en banc [so], decide the court must whether supplemental briefing and oral argument, right ‘clearly at at issue was established’ concluding any prop is that unanimous alleged the time of misconduct.” Id. [the] erly not right clearly asserted was estab 232,129 “Qualified immunity S.Ct. requires. lished to the law The the extent prongs is unless are satis applicable [both strongest authority plaintiffs may for the fied].” Bush, which be Boumediene v. addressed whether Clause of Suspension the U.S. opinion correctly panel The describes applied to aliens detained out Constitution “that substantive-due-process claim as side States at the U.S. Naval Agent disregard Mesa showed callous Bay, Base Cuba. 553 by. Guantanamo rights Hernandez’s Fifth Amendment 2229,171 732-33,128 excessive, S.Ct. L.Ed.2d 41 deadly Her- using force when (2008). drew Although the Court on cases presented nandez was unarmed no Hernandez, from than habeas corpus, at 267. contexts other threat.” F.3d (discuss- whether, unique see id. 128 S.Ct. 2229 question under the precedents qualified-immunity test, “the ing the Court’s Consti which we do not address. application,” in tution’s extraterritorial alia, Cases, cluding, inter Insular right The alleged at issue was not clear- Ross, 897, 35

re 140 U.S. S.Ct. 45 ly established, facts, under these in 2010. (1891), Covert, Reid v. 354 U.S. L.Ed. 581 The judgment of dismissal is AF- (1957), S.Ct. L.Ed.2d FIRMED. Verdugo-Urquidez, 1056), expressly holding limited its JONES, EDITH H. Judge, Circuit it, the facts see before id. SMITH, joined CLEMENT, (“Our today decision S.Ct. 2229 holds OWEN, Judges, concurring: Circuit petitioners before us are entitled to unfortunately The court has taken the writ; seek the Treat [Detainee path of least resistance. We hold unani- procedures ment review are an inade Act] mously Agent qualified Mesa im- quate corpus; substitute for habeas and munity from this suit for a Amend- petitioners these cases need not ment process substantive due violation procedures exhaust the review because he clearly did violate es- Appeals proceeding Court of before rights flowing tablished from that Amend- their habeas actions in the District Callahan, ment. Pearson v. Court.”). Accordingly, nothing in that 223, 236, 172 L.Ed.2d opinion presages, with the directness that (2009). compromise simply This de- “clearly established” standard re lays of day reckoning until another quires, whether the Court would extend appellate panel revisits non-citizen tort of the territorial reach a different constitu claims for resting excessive force on ex- provision tional Fifth Amendment— —the application traterritorial United injury and would do where the so occurs Ongoing States Constitution. incursions long not on land controlled across our national borders and our na- soil that indisputably but on tion’s applications force abroad ensure beyond the United States’ ter pursued. other will lawsuits We sovereignty. By deciding ritorial this case discourage should litigation before it . ground aon on which the court is in takes root. consensus, bypass we giving issue is clear Because it that United States allegiance general to “the rule constitu rights constitutional do not extend to Callahan, tional avoidance.” U.S. at (a) aliens who lack connection to. 241, 129 S.Ct. 808. (b) injured United States and on for- in. is plain

“There are cases which it soil, eign I also this appeal resolve right clearly a constitutional is not estab- immunity on the first prong qualified lished but far from in fact obvious whether analysis. id. at See 129 S.Ct. at 818 (“In right.” cases, there is such a why some a discussion S.Ct. 808. can differ on clearly Reasonable minds relevant do not facts violate estab- may someday may whether Boumediene be ex- apparent lished law make it that in plicitly urge. as the fact plaintiffs extended the relevant facts do not make out a all.”).1 That prong is the chore the first of the constitutional violation at Narcotics, whether, did 1. The en banc court not consider reau 91 S.Ct. stated, (1971). even if a Our en constitutional claim had been 29 L.Ed.2d 619 banc remedy opinion a tort be crafted under assumes nor decides that should Bivens neither Agents question. v. Named Six Unknown Federal Bu- (internal dissenting part) part itl violation oc- Whether omitted). citation inquiry quotation marks and straightforward curred here is First, plain- if the a definite answer. with on the obliged to comment I also feel all, claim a constitutional tiffs have (“ATS”) claim Tort Statute plaintiffs’ Alien Amendment, not Fourth under the arises States, which has been against the United Connor, the Fifth. See Graham unanimous panel, by the' rejected by opinion, banc and indeed compromise en (1989). banc court This en L.Ed.2d 443 A appeals.2 circuit court of by every other however, Fourth re-confirms, arguably supports here concurring opinion “sig- only aliens with protects claims for viola- the assertion of nebulous to this voluntary connection[s]” nificant ” cogens blithely suggests “jus tions of Verdugo-Ur- country. United States immuni- that the United States’ 259, 271, 110 S.Ct. quidez, 494 U.S. in American courts ty may be ineffective (1990). Because 1064, 108 L.Ed.2d Among many against such claims. connections, prior no such Hernandez had separate opin- troubling implications claim fails. the Fourth Amendment ion, head the Supreme it turns process due Additionally, substantive fed- expand reluctance to Court’s obvious not offer Fifth Amendment does under the authority import customary judges’ eral here, claim not least because a fallback law theories into domestic international reach of the limited expressly careful articulation tort law without Bush, Boumediene v. decision in Court’s Congressional action. limitations or severe 2229, 171 L.Ed.2d Alvarez-Machain, 542 U.S. See Sosa v. (2008). DeMoss’s dissent from Judge 2739, 2765-66, 692, 732, 124 aptly expressed incredul- panel opinion claim for (plaintiffs L.Ed.2d 718 application of ity about extraterritorial failed to “arbitrary arrest and detention” Fifth Amendment: a violation of the law of nations state ex- If the fact that the United States acceptance requisite “definite content and powerful exerted influence erts and has nations”); Royal v. among civilized Kiobel Mexico, justifies applica- over northern n —(cid:127) Co., -, 133 Dutch Petroleum strip in a the Fifth Amendment tion of (2013) 1659, 1669, 185 L.Ed.2d 671 S.Ct. border, strip? how wide is that along the extraterritoriality against (presumption applicable all Is the Fifth Amendment Statute). applies to Alien Tort the entire Juarez or even Ciudad Ultimately, of Chihuahua? state Amendment, not I. The Fourth into a line majority’s approach devolves Fifth, Controls entirely unneces- drawing game which is is a border between sary because there characterized their claims plaintiffs The and Mexico. the United States the Fifth or the arising under either facts, States, 249, Fourth Amendment. But on these 757 F.3d Hernandez v. United (5th Cir.2014) (DeMoss, J., Amendment they can have a Fourth concurring 281 965, ama) F.2d 968- Republic Germany, 26 S.A. v. United 967 v. Fed. 2. See Princz Cir.1992) 1166, (4th argu- (D.C.Cir.1994) (rejecting plaintiffs' (rejecting the 69 F.3d 1174 waived the United States’ jus cogens implicitly ment that the ATS argument violations immunity); Sanchez-Espinoza v. Foreign sovereign sovereign immunity under the waive (D.C.Cir.1985) Act); Reagan, F.2d 207 Sovereign de 770 Immunities Siderman itself is (holding that Alien Tort Statute Republic Argentina, "[t]he F.2d Blake v. (same); (Pan- immunity”). (9th Cir.1992) not a waiver of Goldstar 718-19 are not rights process claim. Constitutional inter- five due where passenger of a changeable. litigant When a asserts multi- motorcyclist being pursued by police was killed).3 ple arising constitutional claims from the conduct, “identify! spe- we must the] same Agent undoubtedly Mesa seized Hernan right allegedly cific infring- constitutional dez. A seizure occurs “when there is a ” Graham, .... ed 490 U.S. 109 governmental termination of freedom of apparent S.Ct. at 1870. If becomes through movement intentionally means ap particular ‘provides “a an ex- plied.” Cnty. v. Inyo, Brower plicit textual source of pro- 593, 596-97, 1378, 1381, particular govern- tection’ against sort (1989) omitted). L.Ed.2d (emphasis behavior, Amendment, ‘that ment not the Law shootings enforcement also cov generalized more notion of substantive due ered the Fourth Amendment because process, be the guide analyzing must question “there can no apprehen ” Oliver, Albright these claims.’ sion of deadly the use is a force sei 807, 813, S.Ct. Garner, zure!.]” Tennessee Graham, (quoting L.Ed.2d 114 85 L.Ed.2d 1 1871) (internal U.S. at 109 S.Ct. at (1985). plaintiffs’ complaint alleges The omitted). quotation marks footnote Agent intentionally Mesa shot and essence, specific general. trumps Hernandez, killed terminating thus his especially plaintiff This is true when a “freedom through of movement means in

brings both Fourth and Fifth Amendment Brower, tentionally applied.” 489 U.S. at asserting claims law enforcement miscon- govern at 1381. Under emphatically duct. The Court has stated law, ing if plaintiffs claim have that “all claims that law enforcement offi- all, Fourth, it arises from the the Fifth not cers deadly have used excessive force— Amendment. arrest, not—in the course of an investiga- tory other stop, or ‘seizure’ of free citizen Non-Extraterritoriality II. The analyzed should be under Fourth the Fourth Amendment Amendment and its ‘reasonableness’ stan- Although Fourth dard, Amendment “cov- than rather under a ‘substantive due claim, ers” Graham, plaintiffs’ process’ Hernandez did approach.” 490 U.S. at automatically enjoy protection. (emphasis in origi- nal). does not all Accordingly, protect peo- Constitution process substantive due Covert, ple places. in all analysis appropriate if Reid v. 354 U.S. only plain- is 1, 74, 1222, 1260, by” tiffs’ claim is not “covered the Fourth S.Ct. L.Ed.2d 1148 (1957) (“[T]here (Harlan, J., Cnty. concurring) Amendment. Sacramento v. Lew- is, 1708, 1715, provisions 523 U.S. which S.Ct. Constitution do apply L.Ed.2d 1043 substan- not in all (applying necessarily circumstances plaintiffs argue inappli- Nothing 3. The that Graham is reasonableness Amendment's test. (other only applies quoted cable here because its rule in Graham than the lan- above say guage) “free supports citizens.” Graham does all "sei- such an inference. Taken in context, analyzed free zure[s] of be “free [ ] citizen[s] should Graham's reference to citi- scope distinguish under the Fourth Amendment....” zens” was intended protection rights at S.Ct. But at 1871. the Court "free citizens” from (under give pretrial could not have intended to accorded detainees the Four- non-citizens Amendment) pursue ability claims under more teenth and criminal convicts standard, (under Lewis, Amendment). process” Eighth nebulous "substantive due See limiting while American citizens to Fourth 523 U.S. at 118 S.Ct. at 1715. seemingly pronounce- clear Despite this en banc This foreign place.”). every ment, critics, claim including plaintiffs, that the recognizes court application test connections foreclosed extraterritorial the substantial to aliens where Because of the Fourth law. not—and never was—the soil and the occurs the violation opinion and his Kennedy concurred Justice any prior' substantial lacks plaintiff alien ma- purported differs from the allegedly Verdu- to the United States. connection jus- four skeptics argue, jority, the at at 110 S.Ct. go-Urquidez, Rehn- in Chief Justice tices concurred nonbinding. Even and it is quist’s opinion case, skeptics Rehnquist wrote Verd if that were not the Justice Chief Amend the Fourth ugo-Urquidez continue, substantial Verdugo-Urquidez’s of “the right refers to the ment’s text ma- replaced by the connections test was unreasonable free' from to be people” in Boumediene. This jority opinion turn, “refers people,” in “The searches. disagrees. part of a persons who are to a class Foremost, Kennedy joined the Justice community who have other national full, just judgment. Su- majority connection with developed sufficient

wise justices know the difference preme Court part of that country to be considered this types joinder. Justice between the Verdugo-Urquidez, community.” by stating: Kennedy began his concurrence Turning at 1061. at my views is “Although explanation some history, the Court the Amendment’s of this appropriate given the difficulties driving force behind explained “[t]he case, they depart in ... was I do not believe adoption of the Amendment funda- hostility among respects opinion the former widespread mental from Court, of writs of assis to the issuance join.” Verdugo-Urquidez, colonists which I (Kenne- at 1061. Id. at tance[.]” at 1066 purpose, pro “was added). The Amendment’s J., If dy, concurring) (emphasis people of the States tect United Kennedy take at his word—as we Justice by their Gov arbitrary action own against undoubtedly joined the ma- must—-he we words, In other Id. ernment[.]” connec- jority opinion, and the substantial Fourth Amendment searches “restrict[s] tions test controls. conducted might and seizures which event, of his con- the substance in domestic matters.” the United States currence does not undermine the substan- Contemporary Id. historical understand opinion rein- tial connections test —his continued, ing, the Court confirmed Kennedy Concededly, it. forces Justice at 1061-62. reading. Id. Fourth Amendment’s rely did not on the result, held, “aliens re As a the Court view, in his people”; to “the reference they protections ceive constitutional when con- is not force of Constitution “[t]he territory of the have come within the brought being into fined because was developed substantial States and their immediate persons gave certain who country.” with this connections 276,110 S.Ct. 271, assent to its terms.”4 Id. at at 1064. 110 S.Ct. 1991) (explaining plurality of the that a "[t]o at one court to 4. This statement has led least Court, people’ sug- phrase the ‘the Rehnquist's reasoning, specifi- the use of to Justice refer the Constitution gested that the Framers of cally the Amendment’s his reliance on Fourth text, apply only to amendment to only adopted by plurality. intended the a See La- n those Woods, (2d part persons who were of or substan- Cir. mont v. 948 835 E.2d

125 Instead, appli- extraterritorially the Constitution’s ment also supports at 1067. the ... on “depend[s] general cation abroad test. Court’s “The absence of judges local in- interpretation, not on an principles or magistrates warrants, available to issue to who the Constitution or quiry as formed differing the perhaps unascertainable men- rights that some construction conceptions privacy reasonableness and ” Id., ‘the being people.’ tioned as those of abroad, prevail that coop- the need to at 1067. such Applying general 110 S.Ct. erate foreign with officials all that indicate Kennedy Justice interpretive principles, Fourth the ... should not noted the Court’s historic reliance on the apply Verdugo-Urquidez, [abroad].” 494 citizens and distinction between aliens 278,110 J., at at (Kennedy, S.Ct. determining the Constitution’s reach. reason, concurring). “For this in addition 110 S.Ct. at “The distinction persuasive justifications other the stated aliens,” citizens he explained, between Court,” Kennedy “agree[d] the Justice proposition “follows from the undoubted that violation no of the Fourth Amendment create, nor that the Constitution does not Id., [] occurred[.]” 110 S.Ct. at 1068. create, general principles of law do Kennedy’s Justice concurrence reinforces juridical country relation between our than rather undermines Chief Justice undefined, some limitless of nonciti- class opinion.5 Rehnquist’s majority Id., beyond territory.” zens who are our at 1066. This traditional distinc- Non-Extraterritoriality III. noted, tion, Kennedy through Justice runs the Fifth Amendment6 Id., the cases. at 1066. Coúrt’s agreeing Verdugo-Urquidez con- After Kennedy, practical For Justice the sequences applying plaintiffs’ the Fourth Amend- the forecloses Fourth Amend- tially community”). to the national connected to the U.S. has no claim under the Fifth Clause); Takings But it does not Chief throw Justice Rehn- Amendment's United States Barona, (9th holding,, quist’s aliens with a sub- v. 56 F.3d 1093-94 Cir. 1995) (explaining regard foreign stantial connection to the United States have that "with rights, involving voluntary into doubt. See searches with Ibrahim aliens 'no Sec., States, Dep't Homeland 669 F.3d the [ ] connection’ (9th Cir.2012). simply inapplicable”). Fourth Amendment is Verdugo-Urquidez, plaintiffs argue Since Court decided 6. The without conviction applied Agent solely courts have the substantial because conduct connec- Mesa's occurred soil, Ibrahim, (ap- require tions test. See 669 F.3d at 997 on U.S. this case does not extra- plying significant voluntary application of the connection territorial Constitution. Sosa, however, Verdugo-Urquidez and test to an alien’s First and Fifth Amendment both Obama, claims); Kiyemba as in- 555 F.3d Court treated cases (D.C.Cir.2009) volving despite (explaining extraterritorial violations apply presence "[D]ue [P]rocess [C]lause does not of actions American soil that property presence preceded aliens without incidents. This case is States”), Indeed, sovereign territory hoary principle of the United va- no different. remanded, ("law injury”) place of the cated and lex delicti loci (2010), historically required application L.Ed.2d reinstated in (D.C.Cir.2010); part, causing place relevant 605 F.3d law at where last act Emmanuel, Hernandez) (here, injury hitting oc- United States v. 565 F.3d the bullet Sosa, (11th Cir.2009) (holding that the Fourth curred. Cf. protect (interpreting Federal Amendment does not Bahamian citi- 2752-2754 foreign country exception, 28 zen with no substantial connections to the Tort Claims Act U.S.); 2680(k), Atamirzayeva apply injury F.3d where v. United U.S.C. occurred, (Fed.Cir.2008) (holding that a for- not where last act or omission occurred). eign causing injury citizen no substantial connections must stem from Boume been Amendment should have claim, court this

ment Fifth and theoretical refram their alternate ’s discussion diene quick to conclude Boumediene, by equally thwarted claim is See ing Amendment of Johnson. 763, Eisentrager. 766, v. at 2259. Boume Johnson 128 S.Ct. U.S. (1950). The Su- 94 L.Ed. admittedly share diene and Johnson Johnson, and has held preme Court aliens incar similarity enemy factual then, general that as a since reiterated the continental United outside cerated sovereign territo- outside the matter aliens corpus petitioning for habeas States were are not entitled to States ry of the United by the of their incarceration United review rights. Id. at Amendment Fifth military. standpoint From the States de- Verdugo-Urquidez at 945-47. however, court, reading tea inferior this unambiguously “re- scribed Johnson far the leaves as to how that aliens are entitled jecting] the claim ultimately press extraterritorial plans rights outside the Fifth Amendment provisions is a application of territory of the States.” exercise. Until the Court over useless 269, 110 U.S. at Verdugo-Urquidez, 494 Johnson, by its rules we remain bound similarly was de- S.Ct. at 1063. Johnson holding. by Zadvydas scribed the Court précise, more Boumediene was To be Davis, 678, 693, 121 S.Ct. holding that the Sus- expressly limited (2001); see also 150 L.Ed.2d 653 Clause, I, 9,§ art. cl. 2 of the pension Cabrera, 595, 599 n. 5 742 F.3d Castro Constitution, applies enemy combatants (5th Cir.2014) “re- (noting Johnson Cuba, Bay, in the Guantanamo detained jected] application of the extraterritorial Boumediene, 553 military facility. U.S. Amendment”). This court is not at Fifth significance at 2262. The 128 S.Ct. liberty Supreme Court deci- to “underrule” and the United both the “Great Writ” explicitly failed sions when the Court control at Guantanamo was Rodriguez plenary States’ precedents. to overrule its own Inc., holding. Exp., critical to the Court’s Quijas equally de v. Shearson/Am. 1917, 1921-22, system “In the con- The Court stated: (1989). Consequently, L.Ed.2d 526 by the Framers the writ had ceived process claim is plaintiffs’ substantive due inter- centrality proper that must inform precedents. barred these Clause,” and pretation Suspension of the Blackstone, who called it the “bul- cited is that plaintiffs’ implicit position Id. at wark of our liberties.” Johnson overruled Boume was defacto Blackstone, (citing 1 W. S.Ct. at diene, *137). held The Court also Commentaries apply Johnson’s refusal separation of regarding that the concerns extraterritorially was re bearing upon the particular “have powers placed by three-part inaugurated test in the cases Suspension question Clause noted, I have Boumediene.7 As us, writ of habeas cor- now before for the rejects argu squarely plaintiffs’ indispensable an mechanism pus is itself Fourth Amendment. regard ment to the separation powers.” monitoring to the Fifth regard The diffidence with "(1) practical place; and requires examine detention took That test courts to citizenship resolving prisoner's detainee and the and status of the obstacles inherent adequacy process through Boumediene, which that to the writ.” entitlement made; (2) the na- status determination was 766, 128 S.Ct. at 2259. U.S. at apprehension ture and then sites where

127 765, 128 respect provision S.Ct. at With al Id. at 2259. than those with we which confronted, Guantana that it unique to the circumstances at did not overrule the mo, variously controlling stated that precedents, the Court it repeating: bears military and may step Government has “total civil this court ahead the Su- (or control”; “complete jurisdiction and preme con Court to hold Johnson Verdu- trol”; sovereignty”; and had go-Urquidez) longer binding. Thus, “de no facto “complete uninterrupted “clearly control of the this is not a where case no estab- 747, 755, bay years.” 100 over Id. at & lished law” plaintiffs’ rights articulates the 764, 128 at & 2258. application to extraterritorial of the Fifth Boumediene, Amendment. Following test

Boumediene fashioned a there is at all supporting no law their from past claimed to derive decisions position, and thus no Fifth Amendment considered the extraterritorial reach of claim exists.8 provisions. other constitutional See Boumediene, 760, 553 U.S. at 128 S.Ct. at Significantly, plaintiffs cited no case Ross, 453, (citing 2256 In re 11 140 holding that their Amendment extra- (Fifth 897, L.Ed. 581 and territoriality any viability. claim has To Amendments)); 762, Sixth id. at 128 S.Ct. contrary, light of the Court’s re- Johnson, at (citing 70 peated Suspension references to the (Fifth Amendment)); id., S.Ct. 936 128 Clause, we must assume that the Court (citing S.Ct. at Verdugo-Urquidez, “explicitly ‘only’ confined its holding to the (Fourth 494 U.S. at 110 S.Ct. at reach Suspension extraterritorial of the Amendment)). The Court concluded that any Clause and disclaimed intention to dis- jure sovereignty de does not alone deter- existing turb governing law the extraterri- mine the extraterritorial reach Con- any torial reach provi- instead, stitution; “questions of extraterri- sions, other the Suspension than Clause.” toriality objective on turn factors and Ali v. Rumsfeld, 649 F.3d concerns, practical not formalism.” Id. at (D.C.Cir.2011) (internal quo- citations and at 2258. But the Court ulti- omitted); tation marks see also Al Bahlul mately held its three-factor test relevant (D.C.Cir. States, United F.3d “in determining the reach the Suspen- 2014) (en banc) (Henderson, J., concurring) sion at Clause....” Id. 128 S.Ct. at (“Whether in fact portends Boumediene added). Moreover, 2259 (emphasis change applica- sea in the extraterritorial Court disclaimed intention overrule large, tion of the Constitution writ we are the holdings Verdugo-Ur- of Johnson or bound take the its quidez. holding word when it limits its to the (internal Given applied Suspension that Boumediene citation Clause.” omitted))9; three-factor test to a Igartúa different constitution- (2009) ("This speculate I need not on whether Boume- nonexclusive [three-factor ultimately diene 's rationale will be extended Suspension test] was tailored to the Clause to determine the extraterritorial reach of oth- law, presumably and its case and would need provisions. important er constitutional is It rights."). modification to address other note, however, that even a defender of this prediction acknowledges the need for refine- holding contrary. 9. Al Bahlul's is not to the ments of the three-factor functional test if Bahlul, In Al Government conceded brought Boumediene bear other con- applies the Ex to aliens Post Facto Clause provisions. stitutional See L. Neu- Gerald Bay. man, detained at 767 F.3d at 18. Guantanamo The Extraterritorial Constitution After Bush, without "assume[d] Boumediene v. 82 S. Cal. L.Rev. And the en banc court Cir.2010) (“[T]he (1st prosecuted violations in our Boum- ternational law F.3d inaction, by this own And Con- only concerned with the courts.” was ediene court that the States any gress signaled ... not ... has Suspension Clause text.”). is amenable to ATS suits. other constitutional reasons, plaintiffs For all these the here this concurring opinion The finds cognizable no constitutional plainly have “logical,” concludes that it has reasoning Mesa. Agent claim against force,” posits: some (viola- of category there is a torts [I]f Tort Statute Does not IV. The Alien nations, example) tions law of for Immunity Sovereign Waive ordinary rules change that of sover- damages plaintiffs The seek from these cannot eign immunity because acts ATS, urging under the United States by sovereign, then a be authorized al- Congress enacted the ATS to follows: any would lack such im- country either of violating low to sue for “the law aliens munity not permit- waive or would § 1350. tort al- nations.” 28 U.S.C. one of ted to for its officers. substitute “extrajudicial leged killing,” in this case is J., 141 (Haynes, Post at & jus cogens of norms of alleged an violation concurrence that concurring). The asserts Customary law.10 customary international question by not been has addressed na- international law asserts their panel compro- or the en banc opinion ture, jus cogens apply violations even with- opinion panel mise that reinstates deci- (consent being out a consent nation’s sion. The concurrence believes this issue customary to rules of ordinary prerequisite sug- left “unaddressed” Sosa and was law).11 involving international cases take it gests Supreme up. Court Post foreign jus cogens sued for viola- officials 141,142-43. rights, tions held of human courts have immunity plaintiffs’ theory respect, individual from suit does With due Finally, although yet adopted by not has circuit court exist. the ATS has to be foreign appeals repeatedly reject- been to waive and has been held not states’ sov- ed, it has ereign immunity, Argentine Republic v. and that is because no valid American Shipping Corp., Amerada Hess foundation ATS, (1989), structure, in Supreme or L.Ed.2d 818 plaintiffs precedent. not To effectuate their theo- “Congress assert comprehensive ry breathtaking a expansion enacted a similar scheme would create sovereign immunity authority, abrogate in- of federal court regulating U.S. pattern gross deciding applies Ex Post Facto violations of in- that the Clause consistent (italics original). ternationally recognized rights. human Guantanamo.” (Third) Treaties, According to the Restatement the Law of art. Vienna Conv. on § Foreign Relations Law 702 and cmt. n May 1155 U.N.T.S. 8 I.L.M. (1987), jus cogens a violates a if it state norm (jus "peremptory cogens norm is norm” policy: as a matter of law, accepted "a norm international recognized community international [PJractices, (a) encourages, or condones a no trade, states as a whole as norm from which (b) (c) genocide, slavery or slave derogation permitted which can be causing disappearance or murder individuals, cruel, subsequent gener- (d) only by a norm of modified torture or inhu- other having man, al degrading punish- international law same charac- treatment or ter”)'; (Third) ment, detention, (e) (f) Foreign arbitrary prolonged see also Restatement discrimination, (1987). systematic § (g) 102 and cmt. k racial Relations Law [or] sovereign immunity contrary federal to tions than paradigms the historical familiar law, clearly and would have established when 1350 was enacted.” 542 U.S. at severely consequences for the adverse con- addition, 2765. In “the duct of American affairs. determination whether a norm is suffi- ciently support definite to cause action Taking Court decisions must) (and, indeed, invariably should in- first, Sosa did consider U.S. volve an element of judgment about the immunity for ATS violations because the practical consequences making government federal was sued under cause to litigants available ,542 federal the Tort Federal Claims Act. U.S. at courts.” 542 U.S. at 124 S.Ct. at 698,124 2747. The ATS claim was (footnotes omitted). The Court Sosa, went alleged against only a Mexican na on to 698, 124 deny Alvarez’s claim for tional, arbitrary individually. Id. at S.Ct. at arrest and detention in 2747. of violation of an in- sovereign No issue American im munity treaty ternational presented from ATS claims the Universal Decla- was the Court to decide or comment ration of Human even on. 542 U.S. at Rights. Sosa, moreover, overarching The theme of 124 S.Ct. at 2769. caution, is one of not of expansion federal cautionary What does this opinion imply authority. Inferences that Sosa sovereign about federal immunity? As might open leave an implied waiver of noted, earlier in the decided Amera- sovereign immunity implausible. da Hess “provides that the FSIA the sole First, unanimously the Court Sosa held obtaining jurisdiction basis for over a for- jurisdictional is a strictly ATS eign court,” state in federal 488 U.S. at Sosa, 714,124 statute. 542 U.S. at S.Ct. at 439, 109 at 690. Court flatly It provide does substantive rejected argument Congress, by general basis for aliens’ of assertions cus failing explicitly repeal the ATS when it tomary international law violations. Pure FSIA, amended the had intended for fed- ly jurisdictional statutes do not waive sov juris- eral courts to “continue to exercise Testan, ereign immunity. United v. States foreign diction over states in alleging suits 392, 398, 948, 953, 424 U.S. violations of international law outside the (1976). Second, rejected L.Ed.2d 114 Sosa confines of FSIA.” the view that the ATS “ought cover all rejection S.Ct. at That would have claims, [customary law] international so been even emphatic more had the court long they qualify as also as torts” and considered whether the waives the ATS gave instead “domestic legal force to an sovereign immunity United States’ be- extremely [customary limited subset in cause, out, then-Judge pointed Scalia law] ternational claims ... based on its foreign sovereign immunity only on rests reading specific Congress.” intent comity, international while domestic sover- Obama,

Al-Bihani 619 F.3d eign originates immunity in the constitu- (D.C.Cir.2010) J., (Kavanaugh, concurring separation powers. tional Sanchez-Es- banc) rehearing denial of en (quoting pinoza v. 770 F.2d 207 n. 5 Reagan, Young, Ernest A. Sosa and the Retail (D.C.Cir.1985). The plaintiffs here err Law, Incorporation International asserting twice in abrogation federal (2007)). Harv. L.Rev. F. According sovereign immunity ATS. under the Sosa, claims authorized First, my colleagues’ argument ATS for violations of international law Congress silently negative norms are those with no “less definite reserved —that acceptance immunity content among sovereign against civilized na- the defense of immunity from sovereign law has forfeited of international violations potential violation of any alleged courts, about suit because backward law, cogens or jus whether respect international ATS, the Court held with just as Nevertheless, they ex- in Amerada otherwise. sovereign immunity among alone immunity is the the United pose sovereign Federal Hess. world, liability in federal ex nations of the must be overarching principle, which protec- under ATS without governm federal courts waived plicitly Contrary to sovereign immunity. cannot be tion of United States “[T]he ent.12 assertions, plaintiffs’ all without the consent Con sued circumspect readings of the ATS rel. Bd. Dakota ex Court’s Block North gress.” 273, 287, Lands, (rejecting and Kiobel ATS’s extra- in Sosa & Sch. Univ. application) no basis for L.Ed.2d 840 territorial offer (1983). proposition impli- that the ATS consent, must un the novel Congress To immunity. immunity edly sovereign forfeits federal equivocally waive text; statutory implied. not be waiver will concurring plaintiffs the nor the Neither Pena, 187, 192, 116 S.Ct. Lane v. every circuit opinion mentions that other (1996). As L.Ed.2d po- to hold States court asked the United Sanchez-Espinoza, held Judge Scalia tentially liable under has declined the ATS mockery make a the doctrine “[i]t For in Tobar v. example, the invitation. courts sovereign immunity if federal (9th States, 639 F.3d 1191 Cir. United enjoin, by authorized to or were sanction 2011), Ecuadorian nationals sued Unit- judgments nominally against present under the ATS after the Coast éd States are, officers, that Executive actions former boarded, stopped, and detained Guard concededly jurisdictional and as a neces ship. The Ninth considered a their Circuit sity, official actions of the United States.” might contain number of statutes original).13 at 207 (emphasis 770 F.2d including sovereign immunity, waivers of ATS, the Second, to the they mistakenly respect confuse cases the ATS. With has immunity, an held Tort Statute deriving foreign “[t]he from official Alien interpreted jurisdiction or con- as a statute immunity based officials’ status been (and sovereign imply has not held to separate duct from the been —it sovereign immunity.” Id. at the constitu- immunity), state’s own waiver (internal sovereign quotation principle tional in U.S. citations involved omitted). Samantar, See, e.g., determination is immunity. marks This Yousuf (4th Cir.2012). post-dates has notable particularly 699 F.3d 763 No case because government decision Sosa. ever held United States Court’s fore, pre- exactly Congress anything to point my colleagues fail need do 12. This is sovereign immunity. serve its acknowledge. they explain, because As "Congress appear does not acted in to have that, noting qualified by 13. He statement way [as FSIA] the same it did with the consequences tolerated when "These jurisdiction define federal court over suits con- action is unauthorized because officer’s against the United nationals States statutory prescrip- trary to or constitutional ATS,” ATS, interpreted under as tion, exception no we think can have but Sosa, deny government immunity. can jurisdiction application when the basis for n. States' Post 140-41 12. But the United requires action authorized ATS] [under immunity opposed wrongdo- suit is the sovereign private from in federal courts omitted). rule, (citation subject explicit ing.” exceptions. There- Id. and footnote apply Fourth Circuit reached same constitutionally-footed The to the doc- (Panama) S.A. v. sovereign conclusion Goldstar trine of federal immunity. Giv- (4th 967 F.2d United Cir. en the unanimous decisions of the other 1992). plaintiffs circuits, there The asserted ATS justification there is no for a fed- against govern- United claims States eral abrogation court’s unilateral of our property damage ment for that occurred government’s sovereign immunity under during the U.S. of Panama. invasion Once the ATS. again, government its sover- asserted Sosa, Returning once more to it be- eign immunity, agreed, and the court hold- Court, rejected comes clear that the as it

ing “any party asserting jurisdiction Alvarez’s broad claim a violation of under the Alien Tort must Statute estab- nations,” fully “the law of po- realized statute, lish, independent of that that the tentially consequences untoward of em- suit.” States consented to lower powering to adopt courts a federal

So too for the D.C. Circuit. San common law of international law torts. Reagan, chez-Espinoza 770 F.2d 202 Not only did the limit scope (D.C.Cir.1985), Nicaraguan citizens sued actions, such but explained it also the diffi- injuries the United States for incurred at culties that would adopted ensue had it the hands of the Contras. Id. at facially Alvarez’s appealing claim: government federal asserted its cites authority Alvarez little that a held, Then-Judge immunity. Scalia in no rule so binding broad has the status of a terms, uncertain Alien Tort “[t]he customary today. norm certainly He Statute itself is a sovereign not waiver of nothing justify cites the federal courts 207; immunity.” Id. at see also Canadian in taking his broad rule predicate as States, Transp. Co. v. United 663 F.2d lawsuit, for a federal for its implications (D.C.Cir.1980). 1081, 1092 breathtaking. would be His rule would plaintiffs That these assert a support violation a cause of action in federal court jus cogens arrest, does world, norm not—and for any anywhere should in the change the outcome of by jurisdic- unauthorized law of not— analysis. The immunity plaintiffs argue tion in place, which it took would jus cogens norms occupy high any such create a cause of action for seizure place in international law that their viola- an alien violation of Fourth Amendment, abrogates sovereign immunity. tion Other un- supplanting the actions § circuits to address an Stat. argument such have der Rev. U.S.C. Dichter, ..., rejected it. In provide Matar 563 F.3d and Bivens that now dam- (2d Cir.2009), ages the Second Circuit held remedies for It such violations. jus cogens abrogate norms cannot an create action federal court sovereign immunity Congress when for simply arrests state officers who granted immunity in explicitly such their for authority; exceed the vio- broadly any FSIA. It then lation of any asserted limit that the law “[a] claim premised jus country might place authority on the violation co- on the gens foreign sovereign does withstand its own officers to arrest. all of And 15; Princz, Id. at see immunity.” also this assumes that Alvarez estab- could Siderman, 1174; acting F.3d at at 965 F.2d 718- lish that was on behalf of a Sosa 719; arrest, People’s Libyan government Smith v. Socialist when made he Jamahiriya, Arab 101 F.3d 242-44 for a rule otherwise he would need (2d Cir.1996). principle The same should broader still. (foot- accepts binding custom- civilized world 124 S.Ct. at 2768 at omitted). requires international law a factual ary

note beyond” conclusional pleadings. mere basis said for the broad be may Whatever’ Sosa, 737, 124 at 2769. advances, pres- in the Alvarez principle aggra- claims multiplicity That a could world, an ent, expresses imperfect foreign relations with nations and vate binding cus- exceeds aspiration that Legislative the Executive thwart we having specificity tomary rule in conducting branches’ discretion require. and constitutes addi- affairs seems obvious S,Ct. (footnote 738,124 at 2769 542 U.S. at Sosa, reasons, acknowledged for tional omitted). recognizing caution in claims extreme concerns between these parallels nations” of “the law of actionable breach “extrajudi- attending a claim for and those via the ATS. 542 U.S. plaintiffs’ are obvious. The killing” cial clearly has advocacy of a broad rule here sum, against ATS claim plaintiffs’ law enforce- implications for both domestic foundation, without the United States is use of American lethal ment and for the opinion not be concurring and the should al- Such in.foreign force confrontations. improvidently sup- providing read as them trans- jus cogens could leged violations of port. every deadly by a federal form use of force vio- against litigable an alien into a officer Conclusion of a norm of internation- peremptory

lation Border? A “Lawless” U.S. law, These al Bivens actions. supplanting aliens claims could also asserted necessary point response final One offi- local law enforcement against state or plaintiffs’ to the assertion that enforce- cers, Finally, § 1983 supplanting actions. ment of United States borders will become alleged of action could be assert- cause position if of Her- “lawless” aliens directly against ed lose tort nandez access American civil sovereign im- which contravenes federal must, course, recovery. This court as- im- munity at odds with the FSIA and is sume, the pleadings, based munity every nation en- from suit unpro- Hernandez was the victim of an in joys courts. U.S. plaintiffs’ The assertion shooting. voked official, im- foreign sovereign officially of or existence of condoned lawless- not, however, is, however, munity tragedy eliminate the ness inaccurate. This does has, should, complications opening escaped international of neither nor review. vague agencies, including the American courts to broad and Numerous federal Sosa, FBI, Department in of claims under the ATS. As Homeland Securi- General, support ty’s Inspector rule of plaintiffs’ proffered “would Office Division, Rights any Department’s of in federal Civil cause action court Justice Office, extrajudicial in [alleged killing], anywhere Attorney’s and the United States 736, investigated 124 this incident and the world.” 542 U.S. S.Ct. declined jus grant Although cogens prohibi- Agent certain indict Mesa or extradition tions, § e.g. slavery geno- under There state-sponsored Mexico 18 U.S.C. cide, may self-evidently possible be within were other avenues for evaluation scope Supreme reasoning Agent conduct. Plaintiffs could Court’s Mesa’s Sosa, “[a]ny princi- sought credible invocation of a have federal review of against [extrajudicial Attorney scope employment that the ple killing] General’s

133 Neuman, See (citing under the Westfall Act. Gerald L. certification The Extraterri- Lamagno, de 515 Gutierrez Martinez torial Constitution Boumediene v. After 420, 2227, 2229, Bush, 132 82 S. U.S. 272 L.Rev. Cal. (1995); (2008); Podgor, see also Osborn v. Ellen L.Ed.2d S. Welcome to the 229-30, Side Haley, 549 Other the Railroad A Tracks: (2007). Further, Meaningless Rule, 166 L.Ed.2d Exclusionary 16 Sw. J. may (2010)); L. systems superintend state excesses Azmy, Baher Int’l authority. Detention, Boumediene, federal executive See 28 U.S.C. Executive and the 2679(d)(3). judicially Habeas, A implied tort New Common Law 95 Iowa (2010); remedy under Bivens for constitutional vi- L.Rev. Duffy Christina Burnett, or the Tort not A olations Alien Statute is Convenient Constitution? Ex- not plaintiffs’ only Boumediene, and was source of traterritoriality After tragedy. (2009); review for this Timothy Colum. L.Rev. Zick, Territoriality and the First Amend- I respectfully concur the en banc Speech ment: Free Beyond at —and —Our opinion. Borders, 85 Notre Dame L.Rev. (2010). DENNIS, L. Judge, JAMES Circuit

concurring part concurring in the government The Mexican has indicated judgment: adjudication that our Appellants’ claims, whether under the Fourth or Fifth join I en opinion banc court’s in its Amendment, in particular this case would entirety except denying as to reason for its cause friction with Appellants’ claim, Fourth However, interests. it appears that our agree which I I join result. also judicial entanglement with extraterritorial concurring Prado, opinion Judge except Fourth Amendment excessive-force claims adopts the extent that it the en banc likely be impracticable to involve denying court’s reason for this claim. and anomalous factors. For these rea- v. Verdugo-Urquidez, United States sons, agree opinion I with the of the court 108 L.Ed.2d declining apply the Fourth Amend- (1990), apparently adjudicate Appellants’ ment to claims phrase ruled “the people” do pragmatic but I so out of concern for Fourth Amendment “refers ato class of political questions rather than on a persons part of national who commu in- litigants formal classification nity developed or who have otherwise suf volved. community ficient connection with part community.” considered of that PRADO, Judge, C. Circuit EDWARD 265, 110 Id. at I S.Ct. 1056. am inclined to concurring: however, agree, sug with those who have gested that the Verdugo-Urquidez agree holding view I with the banc en court’s squared cannot be with the later rights Court’s that the constitutional asserted Bush, v. holding in Boumediene U.S. 15-year-old Sergio Hernández and his 723, 2229, (2008), family clearly 128 S.Ct. 171 L.Ed.2d 41 were in not established 2010, turn “questions extraterritoriality Agent when Mesa his fatal fired objective factors, on practical and con shots across the international border. cerns, However, 764, I compelled sepa- not formalism.” am to write 2229; Wayne S.Ct. see in rately response Judge R. LaFave to con- Jones’s al., et 3.1(i) (3d ed.2014) which, view, opinion, my n. 237.1 curring sets Crim. Proc. not—in deadly excessive or analysis and flawed oversimplified forth an force— arrest, investigatory stop, and course of an Supreme Amendment of the Fifth extraterritoriality citizen be precedents. other ‘seizure’ of a free should Court’s concurrence, in- Judge analyzed Jones offers an the Fourth Amendment her under standard, Fifth im- terpretation of the Amendment and its rather ‘reasonableness’ Connor, process’ v. 490 U.S. plications ap- of Graham than under a due ‘substantive 1865, 386, 395, 104 L.Ed.2d 443 proach.” 109 S.Ct. 109 S.Ct. 1865. 490 U.S. Supreme to (1989), contrary that is explained “[b]ecause The Court to precedent is certain sow confusion an provides explicit Fourth Amendment Further, in our concurrence circuit. protection constitutional textual source of reading pivotal rests Court’s on a against physically this sort intrusive extraterritoriality rulings v. Johnson conduct, Amendment, governmental 339 U.S. S.Ct. Eisentrager, notion generalized not the of ‘sub- more (1950), L.Ed. United States v. Verdu- guide stantive must be the process,’ due 494 U.S. go-Urquidez, claims.” M analyzing these (1990), 108 L.Ed.2d Boumediene Judge rightly points concurrence Jones’s Bush, opinion, to these of the Court’s portions (2008), that nuance L.Ed.2d 41 sacrifices limiting phrases key but elides each: certainty. sense of for an unwarranted “explicit “free textual source.” citizen” though The facts in this novel— case— If, as in Verdugo-Urquidez, the Court held recurring, and similar lawsuits have 494 U.S. at begun federal courts percolating Fourth does not shield aliens Amendment Ultimately, it will along the border.1 (viz. citizens”), located abroad non-“free up to Court to wheth- decide explicit then it “an provide cannot textual er its statements Boumediene broad protection” per- source of constitutional to apply to our border Mexico and position, sons in Hernández’s Gra- enforcement, provide clarity to law civil- apply ham ’s Fourth directive ians, courts and the federal tasked with covered Amendment excessive-force interpreting opinions the Court’s seminal claims is simply inapt. reach of constitu- the extraterritorial currently Indeed, tional Because the law is rights. explained as the Court in Unit- unclear, opinion Lanier, en banc join I court’s ed States in full respond (1997), and write 137 L.Ed.2d 432 “Graham separately concurring opinion. Judge Jones’s ... does that all constitutional not hold physically gov- claims relating to abusive Applicability

I. The ernment must arise under either conduct Amendments; Eighth the Fourth or rath- er, requires that simply The that the Fourth Amendment Graham a con- notion if means covered provides specific the exclusive of relief for stitutional claim is in a ... the claim must provision, Hernández is rooted strained and analyzed the standard reading appropri- incorrect of Graham v. Connor. be under specific provision,' held that claims ate to that under Court Graham “all process.” of that enforcement officers have used rubric due law substantive Parties, 29, 2014). See, July Rodriguez e.g., v. Unknown No. filed 4:14-cv-02251, (D.Ariz. WL 3734237 added). 7, (emphasis dismiss, to Agent 272 n. 117 S.Ct. 1219 motion Mesa made no Subsequent cases have affirmed this view. apprehend effort Hernández —he de- Lewis, Cnty. See Sacramento v. one tained companions, Hernández’s U.S. 118 S.Ct. 140 L.Ed.2d then fired weapon Mexico, his service into (“Substantive (1998) process due where Hernández hid behind pillar of a analysis in this inappropriate is therefore bridge, and ultimately he left Hernández’s only respondents’ case claim if is ‘covered body it lay. Under Verdugo-Ur- where not.”); by’' the Fourth Amendment. It is Lewis, quidez the Fourth Amendment Rivera, (5th Petta v. 143 F.3d does “cover” this claim of excessive Cir.1998) (“[A] plaintiff claim not whose I force. would therefore hold that Her- susceptible proper analysis with refer- may nández invoke the Amendment’s may ence to specific right a constitutional prohibition on constitutionally arbitrary of- still state a 1983 for claim under á viola- ficial conduct. tion of her his or Fourteenth Amendment process right, due substantive and have Extraterritoriality II. The by the claim judged the constitutional Fifth Amendment governs right.”).2 standard which Judge paints Jones’s concurrence our Hernández, noncitizen, a fatally was shot extraterritoriality case law in broad a government agent Mexico U.S. strokes, with standing palette a of black Accepting soil. Hernán- and white. true, law, allegations dez’s as as we a must on The state of the as the concurrence Apparently implication (holding passenger troubled being pursued by police Court in Graham excluded the a class vehicle was not during presumptive claims here "seized” at issue from a fatal collision and therefore Amendment, coverage Judge process could assert a due Fourth substantive claim Amendment); Albright under Fourteenth imputes Jones’s concurrence a restrictive Oliver, 266, 273-74, 510 U.S. meaning phrase to the Court’s “free citizens.” concurrence, (declining recog 127 L.Ed.2d 114 According to the the Court process right nize a substantive due to be free permit could not have intended to non-citi- prosecution probable from criminal without zens to assert claims for excessive force under cause because the Fourth Amendment was limiting the Fourteenth while cit- Amendment pretrial deprivations drafted address of lib izens to the Fourth this Amendment. But erty); Cnty. Inyo, Brower v. if, point. misses the Even as the concurrence 596-99, 103 L.Ed.2d 628 suggests, this used term in Gra- (1989) (determining that the fatal use of a centering ham—a case on the use of excessive suspect's flight a roadblock to terminate con citizen, during investigatory stop an force of a a and observing stituted seizure that "a 388-89, 490 U.S. at 109 S.Ct. 1865—to distin- Fourth Amendment seizure does not occur guish protections between governmentally whenever there is a caused civilians, detainees, pretrial afforded to termination of an individual’s freedom of individuals, nothing says incarcerated (the passerby), movement innocent nor even about whether claim that falls outside governmentally whenever there is a caused by” these "covered set boundaries is governmentally desired of an termination Where, here, Fourth Amendment. a non- (the fleeing individual's freedom of movement abroad, alleges excessive force citizen felon), governmental but there is a when there is no indication that the show of author- through termination of freedom movement ity apprehension, was directed at cannot ”); applied intentionally means Tennessee v. the claim arises under the Fourth Garner, not at all. (1985) (analyzing apprehension L.Ed.2d fleeing suspect through deadly cases concurrence cites are not of a the use of Lewis, seizure). contrary. force as Cf. governing application the of it, According principles to gray.3 no permits views concurrence, Constitution cannot provisions abroad. Al- constitutional extraterritorially to the facts of apply though deciding was with the Court tasked held, Court has Supreme case because of aliens question the narrow whether des- Fifth that the Fourth and generally, enemy combatants and detained at ignated to apply do not noncitizens Amendments Bay had the constitutional Guantanamo voluntary to significant no connection with of habeas Justice Kenne- privilege corpus, Citing Eisentrager and States. the United lengthy opinion for the Court dy wrote Verdugo-Urquidez, as- the concurrence with foundations of ex- grappled Court foreclos- serts traterritoriality. first discussed Court our Court. This question before ed extraterritoriality precedents sparse its extraterritoriality of uncomplicated view to “the Govern- and found them undermine regard to exhibit due the Court’s fails that, applied argument at least ment’s Boumediene, opinion in which watershed the Constitution noncitizens, necessarily to authoritatively interpreted these only not jure sovereignty de stops where ends.” cases also announced the bed- earlier but Boumediene, determining the extra- rock standards for added). Rather, the Court (emphasis reach of the Constitution —not territorial holdings beyond read bare these corpus. just Applying the writ habeas (cid:127) standards, I hold they these cases concluded that shared a to the applicable particular questions “the common thread: idea by alleged facts Hernández. extraterritoriality objective turn on fac- concerns, not Boumediene, practical tors and formal- provided In the Court its articulation of ism.” 2229.4 Based clearest most definitive warning implicates analyt- its that this case 3. The absolutism of the concurrence's belie by epitomized phrasing applications ical framework is its force "our nation's abroad.” issue in this "Unit- case: rights do ed States constitutional not extend Critically, explaining reasoning, while its (a) to aliens who lack connection to the repeatedly Kennedy's Justice cited (b) injured United States and on concurring opinion Verdugo-Urquidez, lost, All nuance is one conclu- soil.'.’ analysis which he advocated functional question presented. sion follows from Boumediene, extraterritoriality. 553 U.S. a no question But there is that Hernández had t759-62, Verdugo-Urqui 128 S.Ct. In the United even if some connection to dez, held the Court that the Fourth Amend "significant voluntary not the connection” re- application agents’ DEA ment had no quired protections invoke the the Fourth warrantless search a Mexican citizen's Verdugo-Urquidez, Amendment under in Mexico. U.S. at 274- residences 1056, by 110 S.Ct. virtue of Although agreed 110 S.Ct. 1056. he Agent originated Mesa that acts the Court’s ultimate conclusion that no United States and had their effect in Mexico. Likewise, occurred, Amendment violation had Fourth misguided exclusively it is to focus Kennedy express separately Justice wrote Hernández's within location Mexico when his view that the reach the Constitution is Agent the bullets fired Mesa from United by identity of the class of confined target. States soil found their This not a persons or that ratified the instrument strike, involving a an case drone act of war on subject text used to denominate those battlefield, a distant con- law-enforcement protection (e.g., people”). “the Id. at 275- occurring entirely duct within another na- J., concurring). (Kennedy, territory; shooting by a fatal tion’s it is small- Rather, urged Kennedy Justice a functional separat- arms fire in the short distance which approach extraterritoriality he ing those involved was bisected an interna- —one Ross, far back as re traced as tional border. These distinct facts cast doubt (1891), simplistic on the concurrence's framework L.Ed.

137 considerations, Kennedy’s the Court identi- Justice opinion on these drew from the analysis of rights numerous in numerous rele- at three factors that were fied least habeas, contexts other than 755-64, at id. the of determining vant in reach the Sus- 2229, framing 128 S.Ct. its the review of (1) citizenship the and pension Clause: a survey case law as of the Court’s discus- quality detainee and the of status of the “the Constitution’s extraterritorial of sions (2) process underlying finding; the this the application,” id. at 755,128 (em- S.Ct. 2229 apprehension nature of the sites where the added). phasis importantly, More when occurred; prac- and detention and the rejected the Court the prof- Government’s in the determining tical obstacles inherent reading fered of Eisentrager case —the to writ. at detainee’s entitlement the that Judge Jones’s concurrence cites as 766, After analyzing 128 S.Ct. 2229. these facially foreclosing Hernández’s factors, Suspension that the held claim5 —it announced in no uncertain in Eisen- “[njothing Clause “has full effect at Guantanamo terms that trager says that jure sovereignty de or is 771,128 Id. Bay.” S.Ct. ever been the relevant consider- holding may This have to been limited ation in determining geographic reach Clause, Suspension but the Court’s of the Constitution corpus.” or habeas 761p, Id. decidedly added).6 (emphasis 70 S.Ct. 936 reasoning was not so constricted. Bidwell, (e.g., Insular rights Cases Downes v. 182 Fifth Amendment and the writ of habe- 244, 770, U.S. 21 corpus alleged S.Ct. 45 L.Ed. 1088 to members of the German Mankichi, (1901), China, Hawaii v. 23 captured armed forces who were in (1903), S.Ct. 47 1016 L.Ed. Dorr v. war, violating convicted of laws and imprisoned States. post-World in occupied, War II (1904), Rico, L.Ed. and Porto Balzac Boumediene, Germany. See 553 U.S. at 762- 66 L.Ed. 627 enemy 128 S.Ct. 2229. If the combatants (1922)), Covert, and Reid v. Bay sufficiently at Guantanamo were not sim- (1957) (Har- 1 L.Ed.2d 1148 petitioners Eisentrager ilar lan, J., concurring). See id. at case, bound then un- Hernández —an ("These [extraterritoriality] S.Ct. 1056 au- fifteen-year-old boy armed with the misfor- proposition thorities ... stand for .the standing wrong tune of on the side an interpret protections we must certainly international is not. border'— light power undoubted of the Unit- Furthermore, Judge while Jones's concur- legiti- ed States to take actions to assert emphasize abroad.”); quick rence is Boumediene's power authority mate id. holding, conspicuously limited silent as to (analyzing 110 S.Ct. 1056 the extraterri- significance Eisentrager's equally torial reach of the de- nar- 785, Fourth Amendment Eisentrager, termining ruling. row See "[t]he whether 339 U.S. at conditions ("We considerations of this case make hold the Constitution impracti- right personal adherence ... security [Amendment] does not confer a anomalous”). cable immunity military punish- an from trial upon enemy engaged an ment alien significance of opinion, which government hostile service of a at war with Kennedy’s apply- evinces Justice dedication to event, States.”). my point the United ing approach extraterritoriality a functional Eisentrager, is not that Boumediene overruled even in a U.S.-Mexico cross-border law-en- but case offers us Court's context, forcement cannot be understated. reading authoritative case—one hardly repeating it And bears here that Justice approach that eschews a formalistic to extra- deciding Kennedy cast vote both Verdu- territoriality. interpretation It is this of Ei- go-Urquidez and Boumediene. sentrager according to which the case must — recognized, be understood as consistent with function- ruling 5. As Boumediene approach Eisentrager al reasonably cannot be divorced endorsed Boumediene—-that idiosyncratic guide analysis. from its facts: must our the extension J., concurring). panel majority’s theAs Boumediene, functionality-fo- and its Boume- original opinion explained, previous Court’s ex- reading cused factors, coupled analysis an diene decisions, is instructive traterritoriality text, history of the and the operation, novel extraterri- with a here. Confronted Amendment, of militate in favor the extra- the apply must toriality question, we application of substantive due territorial analytical framework the appropriate process protections on these facts. See fac- us: the Boumediene has given Court States, 757 F.3d Hernández United context, the present to Adapted tors. (5th Cir.2014), 259-63, vacated in 267-72 practical con- objective factors and three part part reh’g reinstated in on en and extraterritoriality to our are cerns relevant Cir.2015). banc, (5th F.3d (1) citizenship and sta- determination: (2) claimant, the nature of the tus of sum, reach constitu- were we to the constitutional violation location where merits, hold, I vacated tional occurred, obstacles practical and Hernández, did, panel majority’s opinion claimed enforcing right. inherent 757 F.3d at that a noncitizen situated 766-71, 2229.7 The at Qf. id. beyond immediately our nation’s borders include the practical obstacles relevant may of the Fifth protection invoke abroad, the consequences for U.S. actions against arbitrary use of Amendment govern that would rules substantive govern- lethal a small-arms force claim, a and likelihood that favorable standing ment official on U.S. soil. To to friction with another ruling would lead hold enshrine an unsus- otherwise would id.; strict, country’s government. Verdugo- approach See con- tainably territorial to rights Supreme stitutional Court Urquidez, 494 —one Boumediene,8 1056; (Kennedy, rejected in id. 110 S.Ct. 1056 dicta, banc, (5th Cir.2015), what if were mere 785 F.3d 117 and 6. Even these statements long recog appeals uniquely have well- we and our fellow circuits federal courts Supreme carry propound words equipped nized that the Court's that are —refinements Crosby, special weight. opinion, See Schwab v. faithful to the Court’s which de- (11th Cir.2006) (noting F.3d 1325-26 and de- scribed the factors as non-exclusive recognized "previously that the has from habe- rived them contexts addition to as, Boumediene, Supreme dicta Court is not some from the see Moreover, citing thing lightly cast and to be aside” cases Professor Neuman also expressing the from eleven circuits deference implications reads Boumediene as a case (citation Supreme beyond Court dicta corpus, expressed owed he habeas has omitted)); quotation optimism internal marks expansion about the Ken- Justice Becton, (5th n. States v. 632 F.2d nedy's approach. L. functional See Gerald Cir.1980) dicta, ("We Neuman, are not even Essay, Extraterritoriality bound In- and the Supreme of our own court.... Dicta Regulating the United terest States are, course, matter.”). Own, Court another Cornell L.Rev. (2014) (observing "[a]lthough holding Suspension Boumediene concerned Judge concurrence is of course cor- Jones's Clause, Neuman, Kennedy func- Justice described his rect that "a defender of Professor approach de- tional as an overall framework prediction” may that Boumediene be ex- th[e] involving variety precedents rived from provisions, tended to other constitutional rights,” concluding that acknowledged “the need for refinements of approach of Boum- "[t]he selective functional functional test.” But is three-factor developed and exactly panel majority’s ediene v. Bush should be original what to con- opinion suggested, strengthened to reconcile commitment see v. United Hernández (5th Cir.2014), ex- values with the extraterritorial 757 F.3d va- stitutional part part reh’g power”). cated in and reinstated in on en ercise of III. Conclusion Mesa’s actions violated Hernández’s Fifth right free from constitu- concurrence, Contrary Judge Jones’s tionally arbitrary government conduct. “path I that the least resistance” believe But until the intervenes course for the en banc presents prudent clarify the reach of Boumediene and apply depth disagreement our court. The Kennedy’s Justice functional test to these Boumediene, meaning about the Verdu- facts, I distinct remain satisfied the en go-Urquidez, Eisentrager compel- wisely banc court has appeal resolved this ling clearly evidence that the law was not elearly-established-law grounds. tragic at the time of the events established giving rise to this suit. But to affirmative- respectfully I in concur the en banc ly find no constitutional violation on these opinion. parallel facts—which without our precedents requires troublingly a uncom- — HAYNES, CATHARINA Judge, Circuit plicated reading the governing of law. joined by and SOUTHWICK as Just Graham cannot be understood HIGGINSON, Judges, Circuit concurring: Lewis, Verdugo-Ur- without Lanier and quidez Eisentrager and cannot be under- judgment I concur in the of the court.9 Reading stood without Boumediene. separately I write question to address the regard these cases in context and with due sovereign immunity of for the United here, for the novel facts it is presented States in more detail. As the reinstated Agent that evident Mesa’s fatal cross-bor- panel correctly notes, opinion the Alien shooting Sergio der Hernández cannot (“ATS”) jurisdictional Tort Statute is a simple painted be in the black and white Hernandez, statute but is not “stillborn.” Judge It prevalent Jones’s concurrence. 258; 757 F.3d at Sosa Alvarez-Ma a requires gray shade of a care- chain, engagement precedents ful with our (2004). provides 159 L.Ed.2d 718 a It produce. the record in this case can forum in United States courts for tort a position

Were we in to reach the claims alleging con- aliens a violation of merits, Agent stitutional I would hold that law of “the nations.”10 28 U.S.C. 8.Disturbingly, approach unyielding such a narrow could the border into the United conceptions territoriality likely also create zones of lawlessness where the would fall fortuity of time a wayside. one’s location the gunshot boundary would between mark Judge disputes Jones’s concurrence result, liability impunity. This would region characterization of the border as "law- turn, perverse disturbing incentives for less,” citing governmental investigations government agents confronted with nonciti- shooting. into Hernández’s But the fatal fact migrants zen near the border. Because di- the United States "declined to indict recting lethal force into Mexico violate Agent grant Mesa or to Mexico” extradition norms, government agent no constitutional promise accountability speaks not to the resorting deadly every to force would have practical but obstacles associated with weapon migrant reason to fire his before political processes the criminal and that exist border, migrant reaches the after regulate official conduct. Mexico, possible into crosses back to avoid contrast, By agent liability. civil if reasoning shoots en I also concur in the of the territory, migrant while is in then the opinion supplemented banc herein. suddenly undesirably— Constitution —and implicated. goes saying parties majority opinion panel And it without that if 10. The reversed, sovereign immunity gov- were an scenario and Mexican focus on whether bars suit, agents firing weapons killing ernment were than on whether an across ATS rather pressly waived in order for a lawsuit such opinion nonetheless majority The panel But if there is a explicitly as this one be viable. Congress must determines (violations of the law of category torts immunity make such sovereign waive nations, change ordi- example) in violation of “law torts committed immunity nary rules of because against the United actionable nations” acts cannot be authorized by these (substituted for one of its offi- States lack sovereign, country then a either would cers) spe- eloquently described —as immunity to or would not such waive by Judge filed Jones cial concurrence substitute for one of its permitted be Concurrence”).11 may That (“Special officers. the current state of understanding fair this But I wish to ad- area. law recently The Fourth Circuit discussed undeveloped implications of

dress some noting in the possibility, context held, far what the Court has so immunity: official . foreign all in its extended treatment above private acts that do not come Unlike ATS in Sosa. officialimmu- scope within may nity, jus cogens violations well be notes, majority opinion panel

As the and, in under color of law committed recog- can holds that federal courts Sosa sense, performed acts that constitute number of international nize a “limited” the foreign the course of official’s em- ru- law torts that fall within the common However, ployment by Sovereign. Sosa, 712, U.S. at bric the ATS. See 542 as a matter of international and domes- 124 2739. Left unaddressed is the law, are, jus cogens by tic violations any common question of whether such law definition, au- officially acts that are not immunity sovereign torts would make the by Sovereign. thorized States unavailable. Put an- the United Samantar, 763, way, if States has sover- other the United 699 F.3d 775-76 Yousuf (4th Cir.2012) eign immunity Special (citing as Concurrence Siderman de Blake v. asserts, Republic I that must F.2d agree Argentina,12 then it be ex- 718 any provocation unarmed civilian without or United States forum for the tort international case); just types cause would violate the of interna- claimed in that see also id. at 1670 J., (Alito, ("[A] contemplated by concurring) putative norms the ATS in the ATS tional Hernandez, See, phrase e.g., scope “law of will fall within the nations.” cause of action (assuming arguendo presumption against extraterritoriality 757 F.3d at 259 ... a the "law of Plaintiffs averred violation of unless domestic conduct sufficient recognize by alleging nations” the ATS would violate an international law norm that satis- requirements United States violated the "that interna- fies Sosa's of definiteness nations.”). prohibition against 'extrajudicial acceptance among tional kill- civilized discussion, ”). ings' purposes of For I killing foreign a issue a will assume civilian without At in Sideman was state's provocation just immunity Foreign or cause would violate the from suit under the Sover- nations, ("FSIA”), panel majority opin- eign did the Act law of as Immunities U.S.C. seq. ion. Id. 1602 et 965 F.2d at 718-19. The jus cogens sup- Siderman court's discussion of concurrence; ports expressed 11. Because Mesa’s conduct occurred in the the views in this Royal yet, ultimately do not view Kiobel v. that it had no I found Co.,-U.S.-, jurisdiction (Argentina) Dutch Petroleum over a state (2013), Argentine Re- 185 L.Ed.2d 671 cited because the Court in here, government public Corporation, barring Shipping action Hess as an under Amerada ("[A]ll See at 1669 the relevant L.Ed.2d ATS. id. (1989), interpreted the a place conduct took outside the United FSIA as States,” provide governing complete ATS for- such that the did not a exclusive scheme Cir.1992) (“International (9th binding law does not laws considered all nations and] consent, cogens recognize jus exemplified by an act that violates as transcend such as act.”)). underlying judgments the theories Nuremberg following tribunals World turn, cogens a form of jus norms are II”); spinoza War Sanchez-E v. Reagan, law, customary international a term often (D.C.Cir.1985) (Sca 770 F.2d 206-07 “law phrase used instead na- J.) lia, Circuit (describing law “the of na Skinner, Gwynne L. generally tions.” See customary [as] tions so-called international Recently Roadblocks to Remedies: Devel- law, arising from and usages the customs oped Injured Barriers to Aliens Relief for (citation of civilized nations” and internal Officials, Contrary to the Found- omitted)). quotation marks Intent, ers’ U. Rich. L.Rev. (“The (2013) gives ju- ATS federal courts Although cogens may not all jus norms brought by over tort claims risdiction within fall category international nations, aliens violations of the law of common law torts that federal courts can term now synonymous seen cus- recognize Sosa, logical under seems tomary law.”); international Ernest A. cognizable jus cogens may preclude norms Young, Sorting Out the Debate over Cus- a sovereign immunity defense. Thom- Cf. Law, tomary International Va. J. Int’l Lee, as H. Theory Safe-Conduct (2002) (“[M]ost L. Statute, courts [inter- Alien Tort 106 Colum. L.Rev. preting the 879-82, 890-95, ATS] seem have limited the (analyzing 901-08 scope customary Sosa, actionable international history, legislative documents jus cogens law fundamental' founding postulate from the era about ”); Cummins, norms.... Justin D. Invigo- which international common law torts are A rating Rights Labor: Human Approach ATS); cognizable under Sarah H. Emory 19 Cleveland, United Presumption The Kiobel and Int’l . (2005) (“Jus 1, 12 cogens 5 n. ‘is Extraterritoriality, 52 Colum. J. Trans- L.Rev. ... widely accepted (2013) now as a principle (similar, nat’l L. argu- 17-19 but ” (albeit status).’ customary of higher law for ing expansive a more of which view Foreign (quoting in cognizable, especially torts are the ex- (Third) Restatement 6)); Siderman, 102 n. context); traterritorial also The Pa- Relations cf. cf. (noting jus Habana, at 715 that cogens F.2d differs 700-01, quete 175 U.S. (“Interna- customary from law in that international 44 L.Ed. S.Ct. “customary solely law, international law part derives law is of our and must be tional states, from the consent of by [while] ascertained and administered justice jurisdic- fundamental and universal norms consti- courts of of appropriate ...”); tuting jus cogens customary Amergi from Estate rel. [derive tion. ex Amer- (citations eign immunity quotation and state in courts. See Sider- our courts” internal man, 718-19; omitted)). 965 F.2d at see also Amerada Congress appear marks not does Hess, 433-34, (not- 488 U.S. at S.Ct. way have acted in the define same feder- ing prop- from settled Court "start[ed] against jurisdiction al over suits subject-matter jurisdiction osition that by foreign United States nationals under the by the lower federal courts is determined ATS, through except ATS itself. There- Congress degrees in exact and character fore, imperative jus cogens it is to consider Congress may proper seem which to for the impact on the United States's immuni- good” and'holding public that “the text and light painstaking ty interpre- Court’s Congress' the FSIA demonstrate structure of of the ATS in and the common tation Sosa intention that the FSIA be the sole basis for recognized law torts therein. obtaining jurisdiction foreign over a state (1995); Haley, 549 Auth., see also Osborn v. F.3d gi Palestinian (2007). Cir.2010) L.Ed.2d 819 (11th (describing the 127 S.Ct. 1363-64 Indeed, argument jus that given Plaintiffs’ that federal international tort type of official legitimate are not cogens ATS and violations may recognize under the courts acts, strong had a ba- Sosa). may Plaintiffs have argument— Plaintiffs raise this See, raising challenge.13 e.g., such a unavail for sovereign immunity may be sis (distinguishing Yousuf, 699 F.3d at 776 torts category jus cogens a able for immu- status- and conduct-based of nations —but between law other violations Moreover, Special I note that nity). the en panel reinstated nor neither the issue with the does not take Concurrence addresses it. opinion banc chose not to Plaintiffs observation im- sovereign also did address Sosa option challenging this viable for pursue case, the In that munity vis-a-vis ATS. conduct. Mesa’s a for- claims of Court considered the argument named I that Plaintiffs’ on eign national Alvarez-Machain conclude na- the ATS has kidnapped sovereign immunity he another some was tional, Sosa, Drug great delicacy at the behest of the U.S. But in force. this area (“DEA”). Administration involving diplomacy Enforcement international immunity, I States be- in- ultimately alleged held that the this issue to the it is best to leave lieve in question norm was insuffi- ternational to a court more Supreme Court or at least the common support cient to claim under positioned to address these appropriately 712, 124 underlying the Id. at Sosa, law ATS. intricate issues. See however, language, 2739. Sosa’s (“[Tjhere good reasons contemplat- at the idea the ATS hints conception a restrained discre- for merely giving something ed broader than exercise con- tion a federal court should jurisdiction Congress for an author- action sidering a new of action cause “[Tjhere every suppose reason izes: (similar); kind.”); id. at 124 S.Ct. 2739 Congress pass First did not that the (Scalia, id. at see also jurisdictional to be as a convenience ATS J., concurring part concurring future placed the shelf use judgment) (decrying the notion that 2739. Congress....” determining federal courts will be lower norms”). international Accord- “perceived Sosa, here was the United States Unlike judgment I in ingly, concur the en for Mesa under the Westfall substituted (but court. banc sought could did Act. Plaintiffs have seek) Attor- review of the not federal-court JR., GRAVES, E. Circuit JAMES certifi- ney scope-of-employment General’s concurring part: Judge, Act. cation under Westfall See Gutier- agree majority I with the Lamagno, rez de Martinez clearly right estab- L.Ed.2d 375 Amendment was Thus, diplomatic people in channels. See 18 U.S.C. can Plaintiffs' concern processes may § also be avail- wrongful can acts 3184. State situation commit Mesa’s 2679(d)(3). Finally, § ac- See 28 U.S.C. impunity is not accurate. A Bivens able. establishing Congress exemplars both for Plaintiffs’ last does not stand alone as tion compensation system tragedy. addi- for victims United seek review of resort to this torts, government see 21 challenging States overseas tion to the substitution waiving foreign § and also for may be able to seek U.S.C. United Plaintiffs 1605(a). § sovereign immunity, 28 U.S.C. through see in Mexican redress courts Mexi- time of the incident. But I lished join, in part, concurring opinion

also Prado, except to the extent that it

Judge the en banc court’s

adopts reasons the Fourth Amendment claim.

denying join,

Additionally, Judges I Dennis part, Haynes concluding plain-

tiffs’ claims under the Fourth Amendment (ATS)

and the Alien Tort Statute have However, I

force. with the con- disagree Judges and Haynes

clusions Dennis forego adjudication should Instead, I

such claims.14 would conclude carefully adjudicate

that this court should

the ATS and Fourth Amendment claims. Sosa, 712-13, 724-26,

See 542 U.S. at 2739; and 28 For U.S.C. reasons, I respectfully

these concur with majority opinion part join Dennis,

separate opinions Judges Prado Haynes part.

In the Matter of AMERICAN FOUNDATION,

HOUSING

Debtor. Templeton, Appellant

Robert L.

Cross-Appellee O’Cheskey, Appellee

Walter Trustee

Cross-Appellant.

No. 14-10563. Appeals, Court of States

Fifth Circuit.

April 2015.

As Revised June unavailable, ineffective, Judge disagree Haynes' part, I also concur- most or do not lists rence the extent various other provide the same relief as a Bivens action. are, forms of review or which for the redress

Case Details

Case Name: Jesus Hernandez v. Unknown Named Agents, et

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Apr 24, 2015

Citation: 785 F.3d 117

Docket Number: 11-50792, 12-50217, 12-50301

Court Abbreviation: 5th Cir.