Case: 11-50792          Document: 00513019452              Page: 1      Date Filed: 04/24/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                        Fifth Circuit

                                                                                                    FILED
                                                                                                April 24, 2015
                                            No. 11-50792
                                                                                                Lyle W. Cayce
                                                                                                     Clerk
JESUS C. HERNANDEZ, Individually and as the surviving father of Sergio
Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of
Sergio Adrian Hernandez Guereca; MARIA GUADALUPE GUERECA
BENTACOUR, Individually and as the surviving mother of Sergio Adrian
Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio
Adrian Hernandez Guereca,

                Plaintiffs - Appellants

v.

UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF
HOMELAND SECURITY; UNITED STATES BUREAU OF CUSTOMS AND
BORDER PROTECTION; UNITED STATES BORDER PATROL; UNITED
STATES IMMIGRATION AND CUSTOMS ENFORCEMENT AGENCY;
UNITED STATES DEPARTMENT OF JUSTICE,

                Defendants - Appellees

-------------------------------------------------------------------------------------------------
CONS w/ 12-50217


JESUS C. HERNANDEZ, Individually and as the surviving father of Sergio
Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of
Sergio Adrian Hernandez Guereca; MARIA GUADALUPE GUERECA
BENTACOUR, Individually and as the surviving mother of Sergio Adrian
Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio
Adrian Hernandez,

                Plaintiffs - Appellants

v.

JESUS MESA, JR.,
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                     No. 11-50792 cons/w Nos. 12-50217 & 12-50301


                Defendant - Appellee

-------------------------------------------------------------------------------------------------
CONS w/ 12-50301


JESUS C. HERNANDEZ, Individually and as the surviving father of Sergio
Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of
Sergio Adrian Hernandez Guereca; MARIA GUADALUPE GUERECA
BENTACOUR, Individually and as the surviving mother of Sergio Adrian
Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio
Adrian Hernandez,

                Plaintiffs - Appellants

v.

RAMIRO CORDERO; VICTOR M. MANJARREZ, JR.,

                Defendants - Appellees




                      Appeals from the United States District Court
                            for the Western District of Texas


Before STEWART, Chief Judge, and JOLLY, DAVIS, JONES, SMITH,
DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES,
GRAVES, HIGGINSON, and COSTA, Circuit Judges. *


        * Judge DeMoss was a member of the panel and, as a senior judge, elected to
participate in the en banc proceedings pursuant to 28 U.S.C. § 46(c) and 5th Circuit Rule
35.6. Although Judge DeMoss participated in the oral argument and the court’s
deliberations, he subsequently retired from the court, effective April 16, 2015. Before
retiring, Judge DeMoss authored the following special concurrence, which would have been
issued if he were still a member of the court:


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PER CURIAM:
      We rehear this matter en banc, see Hernandez v. United States, 

(5th Cir. 2014) (per curiam) (on petitions for rehearing en banc), to resolve
whether, under facts unique to this or any other circuit, the individual defen-
dants in these consolidated appeals are entitled to qualified immunity. Unani-
mously concluding that the plaintiffs fail to allege a violation of the Fourth
Amendment, and that the Fifth Amendment right asserted by the plaintiffs
was not clearly established at the time of the complained-of incident, we affirm
the judgment of dismissal.
      The facts and course of proceedings are accurately set forth in the panel
majority opinion of Judge Prado, Hernandez v. United States, 

,
255−57 (5th Cir. 2014). We conclude that the panel opinion rightly affirms the
dismissal of Hernandez’s claims against the United States, 

and
against Agent Mesa’s supervisors, 

and we therefore REINSTATE
Parts I, II, and VI of that opinion. We additionally hold that pursuant to
United States v. Verdugo–Urquidez, 

(1990), Hernandez, a
Mexican citizen who had no “significant voluntary connection” to the United
States, 

and who was on Mexican soil at the time he was shot, cannot
assert a claim under the Fourth Amendment.
      The remaining issue for the en banc court is properly described as
whether “the Fifth Amendment . . . protect[s] a non-citizen with no connections



      HAROLD R. DeMOSS, JR., Circuit Judge, concurring in part and concurring
      in the judgment:
              I concur in the en banc court’s reinstatement of Parts I, II, and VI of the
      panel’s opinion. Furthermore, I concur in the en banc court’s assessment that
      United States v. Verdugo-Urquidez, 

(1990), precludes a Fourth
      Amendment claim on the facts of this case. As to the Fifth Amendment claim,
      I concur in the judgment of the en banc court for the reasons stated in my
      dissent from the panel opinion. See Hernandez v. United States, 

,
      281-82 (5th Cir. 2014) (DeMoss, J., concurring in part and dissenting in part).
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to the United States who suffered an injury in Mexico where the United States
has no formal control or de facto sovereignty.” 

(DeMoss, J., con-
curring in part and dissenting in part). To underscore the seriousness of the
tragic incident under review, we elaborate on that description only to note that
the injury was the death of a teenaged Mexican national from a gunshot fired
by a Border Patrol agent standing on U.S. soil.
      To decide the assertion of qualified immunity made by defendant Agent
Mesa, regarding the plaintiffs’ Fifth Amendment claim, the court avails itself
of the latitude afforded by Pearson v. Callahan: “The judges of the . . . courts
of appeals should be permitted to exercise their sound discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed
first in light of the circumstances in the particular case at hand.” 

,
236 (2009) (overruling Saucier v. Katz, 

, 201 (2001)).
      The prongs referred to are familiar: “First, a court must decide whether
the facts . . . alleged . . . make out a violation of a constitutional right. . . .
Second, if [so], the court must decide whether the right at issue was ‘clearly
established’ at the time of [the] alleged misconduct.” 

“Qualified
immunity is applicable unless [both prongs are satisfied].” 

opinion correctly describes the substantive-due-process claim
as “that Agent Mesa showed callous disregard for Hernandez’s Fifth Amend-
ment rights by using excessive, deadly force when Hernandez was unarmed
and presented no threat.”      

.       The question is
whether, under the unique facts and circumstances presented here, that right
was “clearly established.”
      The Supreme Court has carefully admonished that we are “not to define
clearly established law at a high level of generality.” Ashcroft v. al-Kidd, 

, 2084 (2011). To the contrary, a right is clearly established only
where “it would be clear to a reasonable officer that his conduct was unlawful
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in the situation he confronted.” Brosseau v. Haugen, 

, 199 (2004)
(per curiam) (quoting 

) (internal quotation marks
omitted). The question here is whether the general prohibition of excessive
force applies where the person injured by a U.S. official standing on U.S. soil
is an alien who had no significant voluntary connection to, and was not in, the
United States when the incident occurred. No case law in 2010, when this
episode occurred, reasonably warned Agent Mesa that his conduct violated the
Fifth Amendment.
      Although the en banc court is somewhat divided on the question of
whether Agent Mesa’s conduct violated the Fifth Amendment, the court, with
the benefit of further consideration and en banc supplemental briefing and oral
argument, is unanimous in concluding that any properly asserted right was
not clearly established to the extent the law requires. The strongest authority
for the plaintiffs may be Boumediene v. Bush, which addressed whether the
Suspension Clause of the U.S. Constitution applied to aliens detained outside
the United States at the U.S. Naval Base in Guantanamo Bay, Cuba. 

, 732–33 (2008). Although the Court drew on cases from contexts other
than habeas corpus, see 

(discussing the Court’s precedents on
“the Constitution’s extraterritorial application,” including, inter alia, the
Insular Cases, In re Ross, 

(1891), Reid v. Covert, 

(1957),
and Verdugo–Urquidez, 

), it expressly limited its holding to the
facts before it, see 

(“Our decision today holds only that petitioners
before us are entitled to seek the writ; that the [Detainee Treatment Act]
review procedures are an inadequate substitute for habeas corpus; and that
petitioners in these cases need not exhaust the review procedures in the Court
of Appeals before proceeding with their habeas actions in the District Court.”).
Accordingly, nothing in that opinion presages, with the directness that the
“clearly established” standard requires, whether the Court would extend the
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territorial   reach   of   a   different   constitutional   provision—the    Fifth
Amendment—and would do so where the injury occurs not on land long
controlled by the United States, but on soil that is indisputably foreign and
beyond the United States’ territorial sovereignty. By deciding this case on a
ground on which the court is in consensus, we bypass that issue by giving
allegiance to “the general rule of constitutional avoidance.” 

.
      “There are cases in which it is plain that a constitutional right is not
clearly established but far from obvious whether in fact there is such a right.”

Reasonable minds can differ on whether Boumediene may someday
be explicitly extended as the plaintiffs urge. That is the chore of the first prong
of the qualified-immunity test, which we do not address.
      The alleged right at issue was not clearly established, under these facts,
in 2010.
      The judgment of dismissal is AFFIRMED.




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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301
EDITH H. JONES, Circuit Judge, joined by SMITH, CLEMENT, and OWEN,
Circuit Judges, concurring:
       The court has unfortunately taken the path of least resistance. We hold
unanimously that Agent Mesa has qualified immunity from this suit for a Fifth
Amendment substantive due process violation because he did not violate any
clearly established rights flowing from that Amendment. Pearson v. Callahan,

, 236, 

, 818 (2009). This compromise simply delays
the day of reckoning until another appellate panel revisits non-citizen tort
claims for excessive force resting on extraterritorial application of the United
States Constitution. Ongoing incursions across our national borders and our
nation’s applications of force abroad ensure that other lawsuits will be
pursued. We should discourage this litigation before it takes root.
       Because it is clear that United States constitutional rights do not extend
to aliens who (a) lack any connection to the United States and (b) are injured
on foreign soil, I would also resolve this appeal on the first prong of qualified
immunity analysis.        See 

129 S. Ct. at 818 (“In some cases, a
discussion of why the relevant facts do not violate clearly established law may
make it apparent that in fact the relevant facts do not make out a
constitutional violation at all.”). 1
       Whether a constitutional violation occurred here is a straightforward
inquiry with a definite answer. First, if the plaintiffs have a constitutional
claim at all, it arises under the Fourth Amendment, not the Fifth. See Graham
v. Connor, 

, 394, 

, 1870-71 (1989). This en banc
court re-confirms, however, that the Fourth Amendment protects only aliens



       1 The en banc court did not consider whether, even if a constitutional claim had been
stated, a tort remedy should be crafted under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 

, 

(1971). Our en banc opinion neither
assumes nor decides that question.
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with “significant voluntary connection[s]” to this country. United States v.
Verdugo-Urquidez, 

, 271, 

, 1064 (1990). Because
Hernandez had no such prior connections, the Fourth Amendment claim fails.
       Additionally, substantive due process under the Fifth Amendment does
not offer a fallback claim here, not least because of the expressly limited reach
of the Supreme Court’s decision in Boumediene v. Bush, 

,

(2008). Judge DeMoss’s dissent from the panel opinion aptly
expressed incredulity about           extraterritorial     application of      the    Fifth
Amendment:
             If the fact that the United States exerts and has exerted
       powerful influence over northern Mexico, justifies application of
       the Fifth Amendment in a strip along the border, how wide is that
       strip? Is the Fifth Amendment applicable in all of Ciudad Juarez
       or even the entire state of Chihuahua? Ultimately, the majority’s
       approach devolves into a line drawing game which is entirely
       unnecessary because there is a border between the United States
       and Mexico.
Hernandez v. United States, 

, 281 (5th Cir. 2014) (DeMoss, J.,
concurring in part and dissenting in part) (internal quotation marks and
citation omitted).
       I also feel obliged to comment on the plaintiffs’ Alien Tort Statute (“ATS”)
claim against the United States, which has been rejected by the panel, by the
unanimous compromise en banc opinion, and indeed by every other circuit
court of appeals. 2 A concurring opinion here arguably supports the assertion


       2   See Princz v. Fed. Republic of Germany, 

, 1174 (D.C. Cir. 1994)
(rejecting the argument that jus cogens violations implicitly waive sovereign immunity under
the Foreign Sovereign Immunities Act); Siderman de Blake v. Republic of Argentina,

, 718-19 (9th Cir. 1992) (same); Goldstar (Panama) S.A. v. United States,

, 968-69 (4th Cir. 1992) (rejecting plaintiffs’ argument that the ATS waived the
United States’ sovereign immunity); Sanchez-Espinoza v. Reagan, 

, 207
(D.C. Cir. 1985) (holding that “[t]he Alien Tort Statute itself is not a waiver of sovereign
immunity”).
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of nebulous claims for violations of “jus cogens” and blithely suggests that the
United States’ sovereign immunity may be ineffective in American courts
against such claims. Among the many troubling implications of the separate
opinion, it turns on its head the Supreme Court’s obvious reluctance to expand
federal judges’ authority to import customary international law theories into
domestic tort law without careful articulation and severe limitations or
Congressional action.     See Sosa v. Alvarez-Machain, 

, 732,

, 2765-66 (2004) (plaintiff’s claim for “arbitrary arrest and
detention” failed to state a violation of the law of nations with requisite
“definite content and acceptance among civilized nations”); Kiobel v. Royal
Dutch Petroleum Co., ___ U.S. ___, 

, 1669 (2013) (presumption
against extraterritoriality applies to Alien Tort Statute).
      I.    The Fourth Amendment, not the Fifth, Controls
      The plaintiffs characterized their claims as arising under either the Fifth
or the Fourth Amendment. But on these facts, they can only have a Fourth
Amendment claim. Constitutional rights are not interchangeable. When a
litigant asserts multiple constitutional claims arising from the same conduct,
we must “identify[] the specific constitutional right allegedly infringed . . . .”

, 109 S. Ct. at 1870. If it becomes apparent that “a
particular Amendment ‘provides an explicit textual source of constitutional
protection’ against a particular sort of government behavior, ‘that Amendment,
not the more generalized notion of substantive due process, must be the guide
for analyzing these claims.’ ”       Albright v. Oliver, 

, 273,

, 813 (1994) (quoting 

, 109 S. Ct. at 1871)
(internal quotation marks and footnote omitted).        In essence, the specific
trumps the general. This is especially true when a plaintiff brings both Fourth
and Fifth Amendment claims asserting law enforcement misconduct. The
Court has emphatically stated that “all claims that law enforcement officers
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have used excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard, rather than under
a ‘substantive due process’ approach.” 

, 109 S. Ct. at
1871 (emphasis in original). Accordingly, substantive due process analysis is
appropriate only if the plaintiffs’ claim is not “covered by” the Fourth
Amendment. Cnty. of Sacramento v. Lewis, 

, 843, 

,
1715 (1998) (applying substantive due process where the passenger of a
motorcyclist being pursued by police was killed). 3
       Agent Mesa undoubtedly seized Hernandez. A seizure occurs “when
there is a governmental termination of freedom of movement through means
intentionally applied.”        Brower v. Cnty. of Inyo, 

, 596-97,

, 1381 (1989) (emphasis omitted). Law enforcement shootings
are also covered by the Fourth Amendment because “there can be no question
that apprehension by the use of deadly force is a seizure[.]” Tennessee v.
Garner, 

, 7, 

, 1699 (1985). The plaintiffs’ complaint
alleges that Agent Mesa intentionally shot and killed Hernandez, thus
terminating his “freedom of movement through means intentionally applied.”

, 109 S. Ct. at 1381. Under governing law, if the
plaintiffs have any claim at all, it arises from the Fourth, not the Fifth
Amendment.


       3  The plaintiffs argue that Graham is inapplicable here because its rule only applies
to “free citizens.” Graham does say all “seizure[s] of [] free citizen[s] should be analyzed
under the Fourth Amendment . . . .” 490 U.S. at 

. But the Court could
not have intended to give non-citizens the ability to pursue claims under the more nebulous
“substantive due process” standard, while limiting American citizens to the Fourth
Amendment’s reasonableness test. Nothing in Graham (other than the above quoted
language) supports such an inference. Taken in context, Graham’s reference to “free citizens”
was intended to distinguish the scope of protection for “free citizens” from the rights accorded
pretrial detainees (under the Fourteenth Amendment) and criminal convicts (under the
Eighth Amendment). See 

, 118 S. Ct. at 1715.
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      II.    The Non-Extraterritoriality of the Fourth Amendment

      Although the Fourth Amendment “covers” the plaintiffs’ claim,
Hernandez did not automatically enjoy its protection. The Constitution does
not protect all people in all places. Reid v. Covert, 

, 74, 

,
1260 (1957) (Harlan, J., concurring) (“[T]here are provisions in the
Constitution which do not necessarily apply in all circumstances in every
foreign place.”). This en banc court recognizes that the Supreme Court has
foreclosed extraterritorial application of the Fourth Amendment to aliens
where the violation occurs on foreign soil and the alien plaintiff lacks any prior
substantial connection to the United States. 

, 110 S. Ct. at 1059.
      Chief Justice Rehnquist wrote in Verdugo-Urquidez that the Fourth
Amendment’s text refers to the right of “the people” to be free from
unreasonable searches. “The people,” in turn, “refers to a class of persons who
are part of a national community or who have otherwise developed sufficient
connection with this country to be considered part of that community.”

, 110 S. Ct. at 1061.             Turning to the
Amendment’s history, the Court explained that “[t]he driving force behind the
adoption of the Amendment . . . was widespread hostility among the former
colonists to the issuance of writs of assistance[.]” 

110 S. Ct. at 1061.
The Amendment’s purpose, “was to protect the people of the United States
against arbitrary action by their own Government[.]” 

words, the
Fourth Amendment “restrict[s] searches and seizures which might be
conducted by the United States in domestic matters.” 

understanding, the Court continued, confirmed this reading. 

110 S. Ct. at 1061-62.       As a result, the Court held, “aliens receive
constitutional protections when they have come within the territory of the


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United States and developed substantial connections with this country.” 

110 S. Ct. at 1064.
       Despite this seemingly clear pronouncement, critics, including the
plaintiffs, claim that the substantial connections test is not—and never was—
the law. Because Justice Kennedy concurred and his opinion allegedly differs
from the purported majority, the skeptics argue, only four justices concurred
in Chief Justice Rehnquist’s opinion and it is nonbinding. Even if that were
not the case, the skeptics continue, Verdugo-Urquidez’s substantial
connections test was replaced by the majority opinion in Boumediene. This
court disagrees.
       Foremost, Justice Kennedy joined the majority in full, not just in
judgment. Supreme Court justices know the difference between the types of
joinder. Justice Kennedy began his concurrence by stating: “Although some
explanation of my views is appropriate given the difficulties of this case, I do
not believe they depart in fundamental respects from the opinion of the Court,
which I join.” 

, 110 S. Ct. at 1066 (Kennedy,
J., concurring) (emphasis added). If we take Justice Kennedy at his word—as
we must—he undoubtedly joined the majority opinion, and the substantial
connections test controls.
       In any event, the substance of his concurrence does not undermine the
substantial connections test—his opinion reinforces it. Concededly, Justice
Kennedy did not rely on the Fourth Amendment’s reference to “the people”; in
his view, “[t]he force of the Constitution is not confined because it was brought
into being by certain persons who gave their immediate assent to its terms.” 4



       4  This statement has led at least one court to refer to Justice Rehnquist’s reasoning,
specifically his reliance on the Fourth Amendment’s text, as only adopted by a plurality. See
Lamont v. Woods, 

, 835 (2d Cir. 1991) (explaining that “[t]o a plurality of the
Court, the use of the phrase ‘the people’ suggested that the Framers of the Constitution
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110 S. Ct. at 1067. Instead, the Constitution’s application abroad
“depend[s] . . . on general principles of interpretation, not on an inquiry as to
who formed the Constitution or a construction that some rights are mentioned
as being those of ‘the people.’ ” 

at 1067. Applying such general
interpretive principles, Justice Kennedy noted the Court’s historic reliance on
the distinction between citizens and aliens in determining the Constitution’s
reach. Id. at 

. “The distinction between citizens and
aliens,” he explained, “follows from the undoubted proposition that the
Constitution does not create, nor do general principles of law create, any
juridical relation between our country and some undefined, limitless class of
noncitizens who are beyond our territory.” 

at 1066. This
traditional distinction, Justice Kennedy noted, runs through the Court’s cases.

at 1066.
       For Justice Kennedy, the practical consequences of applying the Fourth
Amendment extraterritorially also supports the Court’s test. “The absence of
local judges or magistrates available to issue warrants, the differing and
perhaps unascertainable conceptions of reasonableness and privacy that
prevail abroad, and the need to cooperate with foreign officials all indicate that
the Fourth Amendment . . . should not apply [abroad].” 

, 110 S. Ct. at 1068 (Kennedy, J., concurring). “For this reason,
in addition to the other persuasive justifications stated by the Court,” Justice
Kennedy “agree[d] that no violation of the Fourth Amendment [ ] occurred[.]”




intended the amendment to apply only to those persons who were part of or substantially
connected to the national community”). But it does not throw Chief Justice Rehnquist’s
holding, that only aliens with a substantial connection to the United States have
constitutional rights, into doubt. See Ibrahim v. Dep’t of Homeland Sec., 

, 996
(9th Cir. 2012).


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at 1068. Justice Kennedy’s concurrence reinforces rather than
undermines Chief Justice Rehnquist’s majority opinion. 5
       III.    The Non-Extraterritoriality of the Fifth Amendment 6
       After agreeing that Verdugo-Urquidez forecloses the plaintiffs’ Fourth
Amendment claim, this court should have been quick to conclude that their
alternate Fifth Amendment claim is equally thwarted by Johnson v.
Eisentrager. 

, 

(1950). The Supreme Court held in
Johnson, and has reiterated since then, that as a general matter aliens outside
the sovereign territory of the United States are not entitled to Fifth
Amendment rights. 

70 S. Ct. at 945-47. Verdugo-Urquidez
described Johnson as unambiguously “reject[ing] the claim that aliens are
entitled to Fifth Amendment rights outside the sovereign territory of the


       5  Since the Court decided Verdugo-Urquidez, courts have applied the substantial
connections test. See 

(applying the significant voluntary connection
test to an alien’s First and Fifth Amendment claims); Kiyemba v. Obama, 

,
1026 (D.C. Cir. 2009) (explaining that the “[D]ue [P]rocess [C]lause does not apply to aliens
without property or presence in the sovereign territory of the United States”), vacated and
remanded, 

, 

(2010), reinstated in relevant part, 

(D.C. Cir. 2010); United States v. Emmanuel, 

, 1331 (11th Cir. 2009) (holding
that the Fourth Amendment does not protect a Bahamian citizen with no substantial
connections to the U.S.); Atamirzayeva v. United States, 

, 1329 (Fed. Cir. 2008)
(holding that a foreign citizen with no substantial connections to the U.S. has no claim under
the Fifth Amendment’s Takings Clause); United States v. Barona, 

, 1093-94
(9th Cir. 1995) (explaining that “with regard to foreign searches involving aliens with ‘no
voluntary connection’ to the United States, [ ] the Fourth Amendment is simply
inapplicable”).

       6  The plaintiffs argue without conviction that because Agent Mesa’s conduct occurred
solely on U.S. soil, this case does not require extraterritorial application of the Constitution.
In both Verdugo-Urquidez and Sosa, however, the Supreme Court treated the cases as
involving extraterritorial violations despite the presence of actions on American soil that
preceded the foreign incidents. This case is no different. Indeed, the hoary principle of lex
loci delicti (“law of the place of injury”) historically required the application of the law at the
place where the last act causing injury (here, the bullet hitting Hernandez) occurred. Cf.

, 124 S. Ct. at 2752-2754 (interpreting the Federal Tort Claims Act
foreign country exception, 28 U.S.C. § 2680(k), to apply where the injury occurred, not where
the last act or omission causing injury occurred).


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United States.”      

, 110 S. Ct. at 1063.
Johnson was similarly described by the Court in Zadvydas v. Davis,

, 693, 

, 2500 (2001); see also Castro v. Cabrera,

, 599 n.5 (5th Cir. 2014) (noting that Johnson “reject[ed]
extraterritorial application of the Fifth Amendment”). This court is not at
liberty to “underrule” Supreme Court decisions when the Court has explicitly
failed to overrule its own precedents. Rodriguez de Quijas v. Shearson/Am.
Exp., Inc., 

, 484, 

, 1921-22 (1989). Consequently,
the plaintiffs’ substantive due process claim is barred by these precedents.
       The plaintiffs’ implicit position is that Johnson was de facto overruled by
Boumediene, 

, 

, and Johnson’s refusal to apply the
Fifth Amendment extraterritorially was replaced by the three-part test
inaugurated in Boumediene. 7 As I have noted, this court squarely rejects the
plaintiffs’ argument in regard to the Fourth Amendment. The diffidence with
regard to the Fifth Amendment must stem from Boumediene's discussion and
theoretical reframing of Johnson. See 

, 128 S. Ct.
at 2259. Boumediene and Johnson admittedly share the factual similarity that
enemy aliens incarcerated outside the continental United States were
petitioning for habeas corpus review of their incarceration by the United States
military. From the standpoint of this inferior court, however, reading tea
leaves as to how far the Supreme Court plans ultimately to press
extraterritorial application of constitutional provisions is a useless exercise.
Until the Court overrules Johnson, we remain bound by its holding.



       7 That test requires courts to examine “(1) the citizenship and status of the detainee
and the adequacy of the process through which that status determination was made; (2) the
nature of the sites where apprehension and then detention took place; and (3) the practical
obstacles inherent in resolving the prisoner's entitlement to the writ.” 

, 128 S. Ct. at 2259.
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               No. 11-50792 cons/w Nos. 12-50217 & 12-50301
      To be more precise, Boumediene was expressly limited to holding that
the Suspension Clause, art. I, § 9, cl. 2 of the Constitution, applies to enemy
combatants detained in the Guantanamo Bay, Cuba, military facility.

, 128 S. Ct. at 2262. The significance of both the
“Great Writ” and the United States’ plenary control at Guantanamo was
equally critical to the Court’s holding. The Court stated: “In the system
conceived by the Framers the writ had a centrality that must inform proper
interpretation of the Suspension Clause,” and cited Blackstone, who called it
the “bulwark of our liberties.” 

, 2246 (citing
1 W. Blackstone, Commentaries *137). The Court also held that the concerns
regarding separation of powers “have particular bearing upon the Suspension
Clause question in the cases now before us, for the writ of habeas corpus is
itself an indispensable mechanism for monitoring the separation of powers.”

128 S. Ct. at 2259. With respect to the unique circumstances at
Guantanamo, the Court variously stated that the Government has “total
military and civil control”; “complete jurisdiction and control”; “de facto
sovereignty”; and had “complete and uninterrupted control of the bay for over
100 years.” 

755, & 

, 2253, & 2258.
      Boumediene fashioned a test that it claimed to derive from past decisions
that considered the extraterritorial reach of other constitutional provisions.
See 

, 128 S. Ct. at 2256 (citing In re Ross, 

, 

(1891) (Fifth and Sixth Amendments)); 

128 S. Ct.
at 2257 (citing Johnson, 

, 

(Fifth Amendment)); 

at 2257 (citing 

, 110 S. Ct. at 1067
(Fourth Amendment)). The Court concluded that de jure sovereignty does not
alone determine the extraterritorial reach of the Constitution; instead,
“questions of extraterritoriality turn on objective factors and practical
concerns, not formalism.” 

128 S. Ct. at 2258. But the Court
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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301
ultimately held its three-factor test relevant “in determining the reach of the
Suspension Clause . . . .” Id. at 

(emphasis added).
Moreover, the Court disclaimed any intention to overrule the holdings of
Johnson or Verdugo-Urquidez. 

128 S. Ct. at 2275.
       Given that Boumediene applied its three-factor test to a different
constitutional provision than those with which we are confronted, and that it
did not overrule the controlling precedents, it bears repeating: this court may
not step ahead of the Supreme Court to hold Johnson (or Verdugo-Urquidez)
no longer binding. Thus, this is not a case where no “clearly established law”
articulates the plaintiffs’ rights to exterritorial application of the Fifth
Amendment. Following Boumediene, there is no law at all supporting their
position, and thus no Fifth Amendment claim exists. 8
       Significantly, the plaintiffs cited no case holding that their Fifth
Amendment extraterritoriality claim has any viability. To the contrary, in
light of the Court’s repeated references to the Suspension Clause, we must
assume that the Court “explicitly confined its holding ‘only’ to the
extraterritorial reach of the Suspension Clause and disclaimed any intention
to disturb existing law governing the extraterritorial reach of any
constitutional provisions, other than the Suspension Clause.” Ali v. Rumsfeld,

, 771 (D.C. Cir. 2011) (internal citations and quotation marks
omitted); see also Al Bahlul v. United States, 

, 33 (D.C. Cir. 2014)



       8 I need not speculate on whether Boumediene’s rationale will ultimately be extended
to determine the extraterritorial reach of other constitutional provisions. It is important to
note, however, that even a defender of this prediction acknowledges the need for refinements
of the three-factor functional test if Boumediene is brought to bear on other constitutional
provisions. See Gerald L. Neuman, The Extraterritorial Constitution After Boumediene v.
Bush, 82 S. CAL. L. REV. 259, 287 (2009) (“This nonexclusive [three-factor test] was tailored
to the Suspension Clause and its case law, and would presumably need modification to
address other rights.”).


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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301
(en banc) (Henderson, J., concurring) (“Whether Boumediene in fact portends
a sea change in the extraterritorial application of the Constitution writ large,
we are bound to take the Supreme Court at its word when it limits its holding
to the Suspension Clause.” (internal citation omitted)) 9; Igartúa v. United
States, 

, 600 (1st Cir. 2010) (“[T]he Boumediene court was
concerned only with the Suspension Clause . . . not with . . . any other
constitutional text.”).
       For all these reasons, the plaintiffs plainly have no cognizable
constitutional claim against Agent Mesa.
       IV.    The Alien Tort Statute Does not Waive U.S. Sovereign
              Immunity
       The plaintiffs seek damages from the United States under the ATS,
urging as follows: Congress enacted the ATS to allow aliens to sue for violating
“the law of nations.”       28 U.S.C. § 1350.         The tort alleged in this case is
“extrajudicial killing,” an alleged violation of jus cogens norms of customary
international law. 10 Customary international law asserts that by their nature,
jus cogens violations apply even without a nation’s consent (consent being the




       9 Al Bahlul’s holding is not to the contrary. In Al Bahlul, the Government conceded
that the Ex Post Facto Clause applies to aliens detained at Guantanamo 

. And the en banc court “assume[d] without deciding that the Ex Post Facto Clause applies
at Guantanamo.” 

original).

       10  According to the Restatement (Third) of Foreign Relations Law § 702 and cmt. n
(1987), a state violates a jus cogens norm if it as a matter of policy:

               [P]ractices, encourages, or condones (a) genocide, (b) slavery or slave
       trade, (c) the murder or causing the disappearance of individuals, (d) torture
       or other cruel, inhuman, or degrading treatment or punishment, (e) prolonged
       arbitrary detention, (f) systematic racial discrimination, [or] (g) a consistent
       pattern of gross violations of internationally recognized human rights.


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                 No. 11-50792 cons/w Nos. 12-50217 & 12-50301
ordinary prerequisite to rules of customary international law). 11 In cases
involving foreign officials sued for jus cogens violations of human rights, courts
have held that individual immunity from suit does not exist. Finally, although
the ATS has been held not to waive foreign states’ sovereign immunity,
Argentine Republic v. Amerada Hess Shipping Corp., 

, 

(1989), the plaintiffs assert that “Congress has not enacted a similar
comprehensive scheme regulating U.S. sovereign immunity for international
law violations prosecuted in our own courts.” And by this inaction, Congress
has signaled that the United States is amenable to ATS suits.
      The concurring opinion here finds this reasoning “logical,” concludes that
it has some force,” and posits:
            [I]f there is a category of torts (violations of the law of
      nations, for example) that change the ordinary rules of sovereign
      immunity because these acts cannot be authorized by the
      sovereign, then a country either would lack any such immunity to
      waive or would not be permitted to substitute for one of its officers.
Post at 44, 46, & 42 (Haynes, J., concurring). The concurrence asserts that this
question has not been addressed by the panel opinion or the en banc
compromise opinion that reinstates the panel decision.                The concurrence
believes this issue was left “unaddressed” in Sosa and suggests the Supreme
Court take it up. Post at 42, 46.
      With due respect, the plaintiffs’ theory has yet to be adopted by any
circuit court of appeals and has been repeatedly rejected, and that is because
it has no valid foundation in the American constitutional structure, in the ATS,



      11  Vienna Conv. on the Law of Treaties, art. 53, May 23, 1969, 1155 U.N.T.S. 332,
8 I.L.M. 679 (jus cogens norm is “peremptory norm” of international law, “a norm accepted
and recognized by the international community of states as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character”); see also Restatement (Third) of Foreign
Relations Law § 102 and cmt. k (1987).
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               No. 11-50792 cons/w Nos. 12-50217 & 12-50301
or in Supreme Court precedent. To effectuate their theory would create a
breathtaking expansion of federal court authority, would abrogate federal
sovereign immunity contrary to clearly established law, and would have
severely adverse consequences for the conduct of American foreign affairs.
      Taking the Supreme Court decisions first, Sosa did not consider U.S.
sovereign immunity for ATS violations because the federal government was
sued only under the Federal Tort Claims 

, 124 S. Ct. at
2747. The ATS claim was alleged only against Sosa, a Mexican national,
individually. Id. at 

. No issue of American sovereign
immunity from ATS claims was presented for the Court to decide or even
comment on. The overarching theme of Sosa, moreover, is one of caution, not
expansion of federal court authority. Inferences that Sosa might leave open
an implied waiver of sovereign immunity are implausible. First, the Court in
Sosa held unanimously that the ATS is a strictly jurisdictional statute. 

, 124 S. Ct. at 2755. It does not provide a substantive basis for
aliens’ general assertions of customary international law violations. Purely
jurisdictional statutes do not waive sovereign immunity. United States v.
Testan, 

, 398, 

, 953 (1976). Second, Sosa rejected the
view that the ATS “ought to cover all [customary international law] claims, so
long as they also qualify as torts” and instead gave “domestic legal force to an
extremely limited subset of [customary international law] claims . . . based on
its reading of the specific intent of Congress.” Al-Bihani v. Obama, 

,
19 (D.C. Cir. 2010) (Kavanaugh, J., concurring in denial of rehearing en banc)
(quoting Ernest A. Young, Sosa and the Retail Incorporation of International
Law, 120 HARV. L. REV. F. 28, 29 (2007)). According to Sosa, the only claims
authorized by the ATS for violations of international law norms are those with
no “less definite content and acceptance among civilized nations than the
historical paradigms familiar when § 1350 was 

,
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                 No. 11-50792 cons/w Nos. 12-50217 & 

.     In addition, “the determination whether a norm is
sufficiently definite to support a cause of action should (and, indeed, invariably
must) involve an element of judgment about the practical consequences of
making that cause available to litigants in the federal 

-

(footnotes omitted). The Court went on to deny Alvarez's
claim for arbitrary arrest and detention in violation of an international treaty
and the Universal Declaration of Human 

, 124 S. Ct.
at 2769.
      What does this cautionary opinion imply about federal sovereign
immunity? As earlier noted, the Court decided in Amerada Hess that the FSIA
“provides the sole basis for obtaining jurisdiction over a foreign state in federal

, 109 S. Ct. at 690.       The Court flatly rejected the
argument that Congress, by failing explicitly to repeal the ATS when it
amended the FSIA, had intended for federal courts to “continue to exercise
jurisdiction over foreign states in suits alleging violations of international law
outside the confines of the 

, 109 S. Ct. at 689. That
rejection would have been even more emphatic had the court considered
whether the ATS waives the United States’ sovereign immunity because, as
then-Judge Scalia pointed out, foreign sovereign immunity rests only on
international comity, while domestic sovereign immunity originates in the
constitutional   separation   of   powers.      Sanchez-Espinoza      v.   Reagan,

, 207 n.5 (D.C. Cir. 1985). The plaintiffs here err twice in asserting
the abrogation of federal sovereign immunity under the ATS.
      First, my colleagues’ argument in the negative—that Congress silently
reserved the defense of sovereign immunity against potential violations of
international law in U.S. courts, has it backward about the ATS, just as the
Court held with respect to foreign sovereign immunity in Amerada Hess.
Federal sovereign immunity is the overarching principle, which must be
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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301
explicitly waived by the federal government. 12 “[T]he United States cannot be
sued at all without the consent of Congress.” Block v. North Dakota ex rel. Bd.
of Univ. & Sch. Lands, 

, 287, 

, 1819 (1983). To
consent, Congress must unequivocally waive sovereign immunity in statutory
text; waiver will not be implied.                Lane v. Pena, 

, 192,

, 2096 (1996). As Judge Scalia held in Sanchez-Espinoza, “[i]t
would make a mockery of the doctrine of sovereign immunity if federal courts
were authorized to sanction or enjoin, by judgments nominally against present
or former Executive officers, actions that are, concededly and as a
jurisdictional necessity, official actions of the United 

(emphasis in original). 13
       Second, they mistakenly confuse cases deriving from foreign official
immunity, an immunity based on officials’ status or conduct (and separate from
the sovereign state’s own immunity), with the constitutional principle involved
in U.S. sovereign immunity. See, e.g., Yousuf v. Samantar, 

(4th Cir. 2012). No case has ever held the United States government has
forfeited its sovereign immunity from suit because of any alleged violation of
international law, whether jus cogens or otherwise. Nevertheless, they would
expose the United States, alone among the nations of the world, to liability in


       12   This is exactly the point my colleagues fail to acknowledge. As they explain,
because “Congress does not appear to have acted in the same way [as it did with the FSIA]
to define federal court jurisdiction over suits against the United States by foreign nationals
under the ATS,” the ATS, as interpreted in Sosa, can deny the government its immunity.
Post at 41 n.4. But the United States’ immunity from suit in federal courts is the rule, subject
to explicit exceptions. Therefore, Congress need not do anything to preserve its sovereign
immunity.

       13 He qualified this statement by noting that, “These consequences are tolerated when
the officer’s action is unauthorized because contrary to statutory or constitutional
prescription, but we think that exception can have no application when the basis for
jurisdiction [under the ATS] requires action authorized by the sovereign as opposed to private
wrongdoing.” 

footnote omitted).
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               No. 11-50792 cons/w Nos. 12-50217 & 12-50301
federal courts under the ATS without the protection of sovereign immunity.
Contrary to the plaintiffs’ assertions, the Supreme Court’s circumspect
readings of the ATS in Sosa and Kiobel (rejecting ATS’s extraterritorial
application) offer no basis for the novel proposition that the ATS impliedly
forfeits federal sovereign immunity.
      Neither the plaintiffs nor the concurring opinion mentions that every
other circuit court asked to hold the United States potentially liable under the
ATS has declined the invitation. For example, in Tobar v. United States,

(9th Cir. 2011), Ecuadorian nationals sued the United States
under the ATS after the Coast Guard stopped, boarded, and detained their
ship. The Ninth Circuit considered a number of statutes that might contain
waivers of sovereign immunity, including the ATS. With respect to the ATS,
the court held “[t]he Alien Tort Statute has been interpreted as a jurisdiction
statute only—it has not been held to imply any waiver of sovereign immunity.”

(internal citations and quotation marks omitted).              This
determination is particularly notable because it post-dates the Supreme
Court’s decision in Sosa.
      The Fourth Circuit reached the same conclusion in Goldstar (Panama)
S.A. v. United States, 

, 968 (4th Cir. 1992). The plaintiffs there
asserted ATS claims against the United States government for property
damage that occurred during the U.S. invasion of Panama. Once again, the
government asserted its sovereign immunity, and the court agreed, holding
that “any party asserting jurisdiction under the Alien Tort Statute must
establish, independent of that statute, that the United States has consented to
suit.” 

for the D.C. Circuit. In Sanchez-Espinoza v. Reagan, 

(D.C. Cir. 1985), Nicaraguan citizens sued the United States for injuries
incurred at the hands of the Contras. 

The federal government
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                No. 11-50792 cons/w Nos. 12-50217 & 12-50301
asserted its sovereign immunity. Then-Judge Scalia held, in no uncertain
terms, that “[t]he Alien Tort Statute itself is not a waiver of sovereign
immunity.”    

see also Canadian Transp. Co. v. United States,

, 1092 (D.C. Cir. 1980).
      That these plaintiffs assert a violation of a jus cogens norm does not—
and should not—change the outcome of the sovereign immunity analysis. The
plaintiffs argue that jus cogens norms occupy such a high place in international
law that their violation abrogates sovereign immunity.         Other circuits to
address such an argument have rejected it. In Matar v. Dichter, 

, 14
(2d Cir. 2009), the Second Circuit held that jus cogens norms cannot abrogate
sovereign immunity when Congress has explicitly granted such immunity in
the FSIA. It then broadly asserted that “[a] claim premised on the violation of
jus cogens does not withstand foreign sovereign immunity.” 

see also

; 

; Smith v. Socialist
People’s Libyan Arab Jamahiriya, 

, 242-44 (2d Cir. 1996). The
same principle should apply to the constitutionally-footed doctrine of federal
sovereign immunity. Given the unanimous decisions of the other circuits,
there is no justification for a federal court’s unilateral abrogation of our
government’s sovereign immunity under the ATS.
      Returning once more to Sosa, it becomes clear that the Court, as it
rejected Alvarez's broad claim for a violation of “the law of nations,” fully
realized the potentially untoward consequences of empowering lower courts to
adopt a federal common law of international law torts. Not only did the Court
limit the scope of such actions, but it also explained the difficulties that would
ensue had it adopted Alvarez's facially appealing claim:
            Alvarez cites little authority that a rule so broad has the
      status of a binding customary norm today. He certainly cites
      nothing to justify the federal courts in taking his broad rule as the
      predicate for a federal lawsuit, for its implications would be
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                No. 11-50792 cons/w Nos. 12-50217 & 12-50301
      breathtaking. His rule would support a cause of action in federal
      court for any arrest, anywhere in the world, unauthorized by the
      law of the jurisdiction in which it took place, and would create a
      cause of action for any seizure of an alien in violation of the Fourth
      Amendment, supplanting the actions under Rev. Stat. § 1979,
      42 U.S.C. § 1983, and Bivens . . . , that now provide damages
      remedies for such violations. It would create an action in federal
      court for arrests by state officers who simply exceed their
      authority; and for the violation of any limit that the law of any
      country might place on the authority of its own officers to arrest.
      And all of this assumes that Alvarez could establish that Sosa was
      acting on behalf of a government when he made the arrest, for
      otherwise he would need a rule broader 

, 124 S. Ct. at 2768 (footnote omitted).
      Whatever may be said for the broad principle Alvarez advances, in
      the present, imperfect world, it expresses an aspiration that
      exceeds any binding customary rule having the specificity we
      require.
542 U.S. at 

(footnote omitted).
      The parallels between these concerns and those attending a claim for
“extrajudicial killing” are obvious. The plaintiffs’ advocacy here of a broad rule
clearly has implications for both domestic law enforcement and for the use of
American lethal force in foreign confrontations. Such alleged violations of jus
cogens could transform every use of deadly force by a federal officer against an
alien into a litigable violation of a peremptory norm of international law,
supplanting Bivens actions. These claims could also be asserted by aliens
against state or local law enforcement officers, supplanting § 1983 actions.
Finally, this alleged cause of action could be asserted directly against the
United States, which contravenes federal sovereign immunity and is at odds
with the FSIA immunity from suit every foreign nation enjoys in U.S. courts.
      The existence of foreign sovereign immunity does not, however,
eliminate the international complications of opening American courts to broad


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                No. 11-50792 cons/w Nos. 12-50217 & 12-50301
and vague claims under the ATS. As in Sosa, the plaintiffs’ proffered rule
“would support a cause of action in federal court for any [alleged extrajudicial
killing], anywhere in the 

, 124 S. Ct. at 2768. Although
certain jus cogens prohibitions, e.g. state-sponsored slavery or genocide, may
be self-evidently within the scope of the Supreme Court’s reasoning in Sosa,
“[a]ny credible invocation of a principle against [extrajudicial killing] that the
civilized world accepts as binding customary international law requires a
factual basis beyond” mere conclusional pleadings. 

,
124 S. Ct. at 2769. That a multiplicity of claims could aggravate relations with
foreign nations and thwart the Executive and Legislative branches’ discretion
in conducting foreign affairs seems obvious and constitutes additional reasons,
acknowledged in Sosa, for extreme caution in recognizing claims for breach of
“the law of nations” actionable via the 

, 124 S. Ct. at 2763.
      In sum, the plaintiffs’ ATS claim against the United States is without
foundation, and the concurring opinion should not be read as improvidently
providing them support.
                                     Conclusion
      A “Lawless” U.S. Border?
      One final point is necessary in response to the plaintiffs’ assertion that
enforcement of United States borders will become “lawless” if aliens in the
position of Hernandez lose access to American civil tort recovery. This court
must, of course, assume, based only on the pleadings, that Hernandez was the
victim of an unprovoked shooting.       The plaintiffs’ assertion of official, or
officially condoned lawlessness is, however, inaccurate. This tragedy neither
should, nor has, escaped review. Numerous federal agencies, including the
FBI, the Department of Homeland Security’s Office of the Inspector General,
the Justice Department’s Civil Rights Division, and the United States
Attorney’s Office, investigated this incident and declined to indict Agent Mesa
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                No. 11-50792 cons/w Nos. 12-50217 & 12-50301
or grant extradition to Mexico under 18 U.S.C. § 3184. There were other
possible avenues for evaluation of Agent Mesa’s conduct. Plaintiffs could have
sought federal court review of the Attorney General’s scope of employment
certification under the Westfall Act. See Gutierrez de Martinez v. Lamagno,

, 420, 

, 2229 (1995); see also Osborn v. Haley,

, 229-30, 

, 887-88 (2007). Further, state systems
may      superintend      excesses     of     federal   executive      authority.
See 28 U.S.C. § 2679(d)(3). A judicially implied tort remedy under Bivens for
constitutional violations or the Alien Tort Statute is not and was not the
plaintiffs’ only source of review for this tragedy.
      I respectfully concur in the en banc opinion.




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                No. 11-50792 cons/w Nos. 12-50217 & 12-50301
JAMES L. DENNIS, Circuit Judge, concurring in part and concurring in the
judgment:

      I join the en banc court’s opinion in its entirety except as to its reason for
denying Appellants’ Fourth Amendment claim, with which I agree in result. I
also join the concurring opinion of Judge Prado, except to the extent that it
adopts the en banc court’s reason for denying this claim. In United States v.
Verdugo-Urquidez, 

(1990), the Supreme Court apparently ruled
that the phrase “the people” in the Fourth Amendment “refers to a class of
persons who are part of a national community or who have otherwise developed
sufficient connection with this community to be considered part of that
community.” 

I am inclined to agree, however, with those who have
suggested that the Verdugo-Urquidez view cannot be squared with the Court’s
later holding in Boumediene v. Bush, 

(2008), that “questions of
extraterritoriality turn on objective factors, and practical concerns, not
formalism.” 

see WAYNE R. LAFAVE ET AL., 2 CRIM. PROC. § 3.1(i)
n.237.1 (3d ed. 2014) (citing Gerald L. Neuman, The Extraterritorial
Constitution After Boumediene v. Bush, 82 S. CAL. L. REV. 259, 259, 272 (2008);
Ellen S. Podgor, Welcome to the Other Side of the Railroad Tracks: A
Meaningless Exclusionary Rule, 16 SW. J. INT’L L. 299, 310 (2010)); Baher
Azmy, Executive Detention, Boumediene, and the New Common Law of Habeas,
95 IOWA L. REV. 445, 465 (2010); Christina Duffy Burnett, A Convenient
Constitution? Extraterritoriality After Boumediene, 109 COLUM. L. REV. 973,
1044 (2009); Timothy Zick, Territoriality and the First Amendment: Free
Speech at—and Beyond—Our Borders, 85 NOTRE DAME L. REV. 1543, 1614
(2010).
      The Mexican government has indicated that our adjudication of the
Appellants’ claims, whether under the Fourth or Fifth Amendment, in this

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               No. 11-50792 cons/w Nos. 12-50217 & 12-50301
particular case would not cause any friction with its sovereign interests.
However, it appears that our judicial entanglement with extraterritorial
Fourth Amendment excessive-force claims would be likely to involve
impracticable and anomalous factors. For these reasons, I agree with the
opinion of the court in declining to apply the Fourth Amendment to adjudicate
the Appellants’ claims but I do so out of concern for pragmatic and political
questions rather than on a formal classification of the litigants involved.




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                      No. 11-50792 cons/w Nos. 12-50217 & 12-50301

EDWARD C. PRADO, Circuit Judge, concurring:
         I agree with the en banc court’s holding that the constitutional rights
asserted by 15-year-old Sergio Hernández and his family were not clearly
established in 2010, when Agent Mesa fired his fatal shots across the
international border. However, I am compelled to write separately in response
to Judge Jones’s concurring opinion, which, in my view, sets forth an
oversimplified and flawed analysis of the Fifth Amendment and the Supreme
Court’s extraterritoriality precedents. In her concurrence, Judge Jones offers
an interpretation of the Fifth Amendment implications of Graham v. Connor,

(1989), that is contrary to Supreme Court precedent and is certain
to sow confusion in our circuit. Further, the concurrence rests on a reading of
the Court’s pivotal extraterritoriality rulings in Johnson v. Eisentrager, 

(1950), United States v. Verdugo–Urquidez, 

(1990), and
Boumediene v. Bush, 

(2008), that sacrifices nuance for an
unwarranted sense of certainty.
         The facts in this case—though novel—are recurring, and similar lawsuits
have begun percolating in the federal courts along the border. 1 Ultimately, it
will be up to the Supreme Court to decide whether its broad statements in
Boumediene apply to our border with Mexico and to provide clarity to law
enforcement, civilians, and the federal courts tasked with interpreting the
Court’s seminal opinions on the extraterritorial reach of constitutional rights.
Because the law is currently unclear, I join the en banc court’s opinion in full
and write separately only to respond to Judge Jones’s concurring opinion.




         1   See, e.g., Rodriguez v. Unknown Parties, No. 4:14-cv-02251 (D. Ariz. filed July 29,
2014).
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               No. 11-50792 cons/w Nos. 12-50217 & 12-50301

      I.    The Applicability of the Fifth Amendment
      The notion that the Fourth Amendment provides the exclusive means of
relief for Hernández is rooted in a strained and incorrect reading of Graham v.
Connor. The Court in Graham held that “all claims that law enforcement
officers have used excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard, rather than under
a ‘substantive due process’ approach

. The Court explained
that “[b]ecause the Fourth Amendment provides an explicit textual source of
constitutional protection against this sort of physically intrusive governmental
conduct, that Amendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these claims.” 

concurrence rightly points to these portions of the Court’s
opinion, but it elides key limiting phrases in each: “free citizen” and “explicit
textual source.” If, as the Court held in 

–
75, the Fourth Amendment does not shield aliens located abroad (viz. non-“free
citizens”), then it cannot provide “an explicit textual source of constitutional
protection” to persons in Hernández’s position, and Graham’s directive to apply
the Fourth Amendment to covered excessive-force claims is simply inapt.
      Indeed, as the Court explained in United States v. Lanier, 

(1997), “Graham . . . does not hold that all constitutional claims relating to
physically abusive government conduct must arise under either the Fourth or
Eighth Amendments; rather, Graham simply requires that if a constitutional
claim is covered by a specific constitutional provision, . . . the claim must be
analyzed under the standard appropriate to that specific provision, not under
the rubric of substantive due process.” 

n.7 (emphasis added).
Subsequent cases have affirmed this view. See Cnty. of Sacramento v. Lewis,

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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301

, 843 (1998) (“Substantive due process analysis is therefore
inappropriate in this case only if respondents’ claim is ‘covered by’ the Fourth
Amendment. It is not.”); Petta v. Rivera, 

, 901 (5th Cir. 1998) (“[A]
plaintiff whose claim is not susceptible to proper analysis with reference to a
specific constitutional right may still state a claim under § 1983 for a violation
of his or her Fourteenth Amendment substantive due process right, and have
the claim judged by the constitutional standard which governs that right.”). 2
       Hernández, a noncitizen, was fatally shot in Mexico by a U.S.
government agent standing on U.S. soil. Accepting Hernández’s allegations as
true, as we must on a motion to dismiss, Agent Mesa made no effort to


       2 Apparently troubled by the implication that the Court in Graham excluded the class
of claims at issue here from the presumptive coverage of the Fourth Amendment, Judge
Jones’s concurrence imputes a restrictive meaning to the Court’s phrase “free citizens.”
According to the concurrence, the Court could not have intended to permit non-citizens to
assert claims for excessive force under the Fourteenth Amendment while limiting citizens to
the Fourth Amendment. But this misses the point. Even if, as the concurrence suggests, the
Court used this term in Graham—a case centering on the use of excessive force during an
investigatory stop of a 

–89—to distinguish between the constitutional
protections afforded to civilians, pretrial detainees, and incarcerated individuals, this says
nothing about whether a claim that falls outside of these set boundaries is “covered by” the
Fourth Amendment. Where, as here, a noncitizen alleges excessive force abroad, and there is
no indication that the show of authority was directed at apprehension, it cannot be that the
claim arises under the Fourth Amendment or not at all.
        The cases the concurrence cites are not to the contrary. Cf. 

–44
(holding that the passenger of a vehicle being pursued by police was not “seized” during a
fatal collision and therefore could assert a substantive due process claim under the
Fourteenth Amendment); Albright v. Oliver, 

, 273–74 (1994) (declining to
recognize a substantive due process right to be free from criminal prosecution without
probable cause because the Fourth Amendment was drafted to address pretrial deprivations
of liberty); Brower v. Cnty. of Inyo, 

, 596–99 (1989) (determining that the fatal
use of a roadblock to terminate a suspect’s flight constituted a seizure and observing that “a
Fourth Amendment seizure does not occur whenever there is a governmentally caused
termination of an individual’s freedom of movement (the innocent passerby), nor even
whenever there is a governmentally caused and governmentally desired termination of an
individual’s freedom of movement (the fleeing felon), but only when there is a governmental
termination of freedom of movement through means intentionally applied”); Tennessee v.
Garner, 

, 3, 7 (1985) (analyzing the apprehension of a fleeing suspect through the
use of deadly force as a seizure).
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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301

apprehend Hernández—he detained one of Hernández’s companions, then
fired his service weapon into Mexico, where Hernández hid behind the pillar
of a bridge, and he ultimately left Hernández’s body where it lay. Under
Verdugo–Urquidez and Lewis, the Fourth Amendment does not “cover” this
claim of excessive force. I would therefore hold that Hernández may invoke the
Fifth Amendment’s prohibition on constitutionally arbitrary official conduct.
       II.    The Extraterritoriality of the Fifth Amendment
       Judge Jones’s concurrence paints our extraterritoriality case law in
broad strokes, with a palette of black and white. The state of the law, as the
concurrence views it, permits no gray. 3 According to the concurrence, the
Constitution cannot apply extraterritorially to the facts of this case because
the Supreme Court has held, generally, that the Fourth and Fifth Amendments
do not apply to noncitizens with no significant voluntary connection to the
United States. Citing Eisentrager and Verdugo–Urquidez, the concurrence
asserts that the Supreme Court has foreclosed the question before our Court.
This uncomplicated view of extraterritoriality fails to exhibit due regard for
the Court’s watershed opinion in Boumediene, which not only authoritatively



       3  The absolutism of the concurrence’s analytical framework is epitomized by its
phrasing of the constitutional issue in this case: “United States constitutional rights do not
extend to aliens who (a) lack any connection to the United States and (b) are injured on
foreign soil.” All nuance is lost, and only one conclusion follows from the question presented.
But there is no question that Hernández had some connection to the United States, even if
not the “significant voluntary connection” required to invoke the protections of the Fourth
Amendment under 

, by virtue of the acts of Agent Mesa
that originated in the United States and had their effect in Mexico. Likewise, it is misguided
to focus exclusively on Hernández’s location within Mexico when the bullets Agent Mesa fired
from United States soil found their target. This is not a case involving a drone strike, an act
of war on a distant battlefield, or law-enforcement conduct occurring entirely within another
nation’s territory; it is a fatal shooting by small-arms fire in which the short distance
separating those involved was bisected by an international border. These distinct facts cast
doubt on the concurrence’s simplistic framework and belie its warning that this case
implicates “our nation’s applications of force abroad.”
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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301

interpreted these earlier cases but also announced the bedrock standards for
determining the extraterritorial reach of the Constitution—not just the writ of
habeas corpus. Applying these standards, I would hold the Fifth Amendment
applicable to the particular facts alleged by Hernández.
       In Boumediene, the Court provided its clearest and most definitive
articulation of the principles governing the application of constitutional
provisions abroad. Although the Court was tasked with deciding the narrow
question of whether aliens designated enemy combatants and detained at
Guantanamo Bay had the constitutional privilege of habeas corpus, Justice
Kennedy wrote a lengthy opinion for the Court that grappled with the
foundations of extraterritoriality. The Court first discussed its sparse
extraterritoriality precedents and found them to undermine “the Government’s
argument that, at least as applied to noncitizens, the Constitution necessarily
stops where de jure sovereignty ends.” 

(emphasis
added). Rather, the Court read beyond the bare holdings of these cases and
concluded that they shared a common thread: “the idea that questions of
extraterritoriality turn on objective factors and practical concerns, not
formalism.” 

4 Based on these considerations, the Court identified at


       4  Critically, while explaining its reasoning, the Court repeatedly cited Justice
Kennedy’s concurring opinion in Verdugo–Urquidez, in which he advocated a functional
analysis of extraterritoriality. 

–62. In Verdugo–Urquidez, the
Court held that the Fourth Amendment had no application to DEA agents’ warrantless
search of a Mexican citizen’s residences in 

, 274–75. Although he
agreed with the Court’s ultimate conclusion that no Fourth Amendment violation had occurred,
Justice Kennedy wrote separately to express his view that the reach of the Constitution is not
confined by the identity of the class of persons that ratified the instrument or by the text used
to denominate those subject to its protection (e.g., “the people”). 

(Kennedy, J.,
concurring). Rather, Justice Kennedy urged a functional approach to extraterritoriality—one
that he traced as far back as In re Ross, 

(1891), the Insular Cases (e.g., Downes v.
Bidwell, 

(1901), Hawaii v. Mankichi, 

(1903), Dorr v. United States,

(1904), and Balzac v. Porto Rico, 

(1922)), and Reid v. Covert, 

, 74 (1957) (Harlan, J., concurring). See 

(“These [extraterritoriality]
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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301

least three factors that were relevant in determining the reach of the
Suspension Clause: (1) the citizenship and status of the detainee and the
quality of the process underlying this finding; (2) the nature of the sites where
the apprehension and detention occurred; and (3) the practical obstacles
inherent in determining the detainee’s entitlement to the writ. 

After
analyzing these factors, the Court held that the Suspension Clause “has full
effect at Guantanamo Bay.” 

       This holding may have been limited to the Suspension Clause, but the
Court’s reasoning was decidedly not so constricted. Justice Kennedy’s opinion
drew from the analysis of numerous rights in numerous contexts other than
habeas, 

, framing its review of the case law as a survey of the
Court’s discussions of “the Constitution’s extraterritorial application,” 

(emphasis added). More importantly, when the Court rejected the
Government’s proffered reading of Eisentrager—the case that Judge Jones’s
concurrence cites as facially foreclosing Hernández’s Fifth Amendment
claim 5—it announced in no uncertain terms that “[n]othing in Eisentrager says



authorities . . . stand for the proposition that we must interpret constitutional protections in
light of the undoubted power of the United States to take actions to assert its legitimate power
and authority abroad.”); 

(analyzing the extraterritorial reach of the Fourth
Amendment by determining whether “[t]he conditions and considerations of this case would
make adherence to the [Amendment] . . . impracticable and anomalous”).
        The significance of this opinion, which evinces Justice Kennedy’s dedication to applying
a functional approach to extraterritoriality even in a U.S.–Mexico cross-border law-
enforcement context, cannot be understated. And it hardly bears repeating here that Justice
Kennedy cast the deciding vote in both Verdugo–Urquidez and Boumediene.
        5 As Boumediene recognized, the ruling in Eisentrager cannot reasonably be divorced

from its idiosyncratic facts: the extension of Fifth Amendment rights and the writ of habeas
corpus to alleged members of the German armed forces who were captured in China,
convicted of violating the laws of war, and imprisoned in occupied, post-World War II
Germany. See 

–64. If the enemy combatants at Guantanamo
Bay were not sufficiently similar to the petitioners in Eisentrager to be bound by that case,
then Hernández—an unarmed fifteen-year-old boy with the misfortune of standing on the
wrong side of an international border—certainly is not.
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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301

that de jure sovereignty is or has ever been the only relevant consideration in
determining the geographic reach of the Constitution or of habeas corpus.” 

(emphasis added). 6
       Boumediene, and its functionality-focused reading of the Court’s previous
extraterritoriality decisions, is instructive here. Confronted with a novel
extraterritoriality question, we must apply the only appropriate analytical
framework the Court has given us: the Boumediene factors. Adapted to the
present context, three objective factors and practical concerns are relevant to
our extraterritoriality determination: (1) the citizenship and status of the
claimant, (2) the nature of the location where the constitutional violation
occurred, and (3) the practical obstacles inherent in enforcing the claimed right.
Cf. 

7 The relevant practical obstacles include the consequences for


        Furthermore, while Judge Jones’s concurrence is quick to emphasize Boumediene’s
limited holding, it is conspicuously silent as to the significance of Eisentrager’s equally
narrow ruling. See 

(“We hold that the Constitution does not
confer a right of personal security or an immunity from military trial and punishment upon
an alien enemy engaged in the hostile service of a government at war with the United
States.”). In any event, my point is not that Boumediene overruled Eisentrager, but that the
2008 case offers us the Court’s authoritative reading of the 1950 case—one that eschews a
formalistic approach to extraterritoriality. It is this interpretation of Eisentrager—according
to which the case must be understood as consistent with the functional approach endorsed in
Boumediene—that must guide our analysis.
        6 Even if these statements were mere dicta, we and our fellow circuits have long

recognized that the Supreme Court’s words carry special weight. See Schwab v. Crosby, 

, 1325–26 (11th Cir. 2006) (noting that the court has “previously recognized that
dicta from the Supreme Court is not something to be lightly cast aside” and citing cases from
eleven circuits expressing the deference owed to Supreme Court dicta (citation and internal
quotation marks omitted)); United States v. Becton, 

, 1296 n.3 (5th Cir. 1980)
(“We are not bound by dicta, even of our own court. . . . Dicta of the Supreme Court are, of
course, another matter.”).
        7 Judge Jones’s concurrence is of course correct that Professor Neuman, “a defender of

th[e] prediction” that Boumediene may be extended to other constitutional provisions, has
acknowledged “the need for refinements of the three-factor functional test.” But that is
exactly what the panel majority’s original opinion suggested, see Hernández v. United States,

, 262 (5th Cir. 2014), vacated in part and reinstated in part on reh’g en banc, ---
F.3d --- (5th Cir. 2015), and what federal courts of appeals are uniquely well-equipped to
propound—refinements that are faithful to the Court’s opinion, which described the factors
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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301

U.S. actions abroad, the substantive rules that would govern the claim, and the
likelihood that a favorable ruling would lead to friction with another country’s
government. See id.; 

–74; 

(Kennedy, J., concurring). As the panel majority’s original opinion explained,
the Boumediene factors, coupled with an analysis of the operation, text, and
history of the Fifth Amendment, militate in favor of the extraterritorial
application of substantive due process protections on these facts. See Hernández
v. United States, 

, 259–63, 267–72 (5th Cir. 2014), vacated in part
and reinstated in part on reh’g en banc, --- F.3d --- (5th Cir. 2015).
       In sum, were we to reach the constitutional merits, I would hold, as the
vacated panel majority’s opinion did, 

, that a
noncitizen situated immediately beyond our nation’s borders may invoke the
protection of the Fifth Amendment against the arbitrary use of lethal small-
arms force by a U.S. government official standing on U.S. soil. To hold
otherwise would enshrine an unsustainably strict, territorial approach to
constitutional rights—one the Supreme Court rejected in Boumediene. 8


as non-exclusive and derived them from contexts in addition to habeas, see 

. Moreover, Professor Neuman also reads Boumediene as a case with implications
beyond habeas corpus, and he has expressed optimism about the expansion of Justice
Kennedy’s functional approach. See Gerald L. Neuman, Essay, Extraterritoriality and the
Interest of the United States in Regulating its Own, 99 Cornell L. Rev. 1441, 1458, 1470 (2014)
(observing that “[a]lthough the holding of Boumediene concerned the Suspension Clause,
Justice Kennedy described his functional approach as an overall framework derived from
precedents involving a variety of constitutional rights,” and concluding that “[t]he selective
functional approach of Boumediene v. Bush should be developed and strengthened to
reconcile commitment to constitutional values with the extraterritorial exercise of power”).
        8 Disturbingly, such a narrow approach could also create zones of lawlessness where

the fortuity of one’s location at the time of a gunshot would mark the boundary between
liability and impunity. This would result, in turn, in perverse and disturbing incentives for
government agents confronted with noncitizen migrants near the border. Because directing
lethal force into Mexico would violate no constitutional norms, a government agent resorting
to deadly force would have every reason to fire his weapon before the migrant reaches the
U.S. border, or after the migrant crosses back into Mexico, to avoid possible civil liability. By
contrast, if the agent shoots while the migrant is in U.S. territory, then the Constitution is
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                  No. 11-50792 cons/w Nos. 12-50217 & 12-50301

       III.   Conclusion
       Contrary to Judge Jones’s concurrence, I believe that the “path of least
resistance” presents a prudent course for the en banc court. The depth of our
disagreement about the meaning of Boumediene, Verdugo–Urquidez, and
Eisentrager is compelling evidence that the law was not clearly established at
the time of the tragic events giving rise to this suit. But to affirmatively find
no constitutional violation on these facts—which are without parallel in our
precedents—requires a troublingly uncomplicated reading of the governing
law. Just as Graham cannot be understood without Lanier and Lewis,
Verdugo–Urquidez and Eisentrager cannot be understood without Boumediene.
Reading these cases in context and with due regard for the novel facts
presented here, it is evident that Agent Mesa’s fatal cross-border shooting of
Sergio Hernández cannot be painted in the simple black and white prevalent
in Judge Jones’s concurrence. It requires a shade of gray that only a careful
engagement with our precedents and the record in this case can produce.
       Were we in a position to reach the constitutional merits, I would hold
that Agent Mesa’s actions violated Hernández’s Fifth Amendment right to be
free from constitutionally arbitrary government conduct. But until the
Supreme Court intervenes to clarify the reach of Boumediene and apply Justice
Kennedy’s functional test to these distinct facts, I remain satisfied that the en
banc court has wisely resolved this appeal on clearly-established-law grounds.



suddenly—and undesirably—implicated. And it goes without saying that if the scenario were
reversed, and Mexican government agents were firing weapons across the border into the
United States, unyielding conceptions of territoriality would likely fall by the wayside.
       Judge Jones’s concurrence disputes the characterization of the border region as
“lawless,” citing the governmental investigations into Hernández’s fatal shooting. But the
fact that the United States “declined to indict Agent Mesa or grant extradition to Mexico”
speaks not to the promise of accountability but to the practical obstacles associated with the
criminal and political processes that exist to regulate official conduct.
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           No. 11-50792 cons/w Nos. 12-50217 & 12-50301

  I respectfully concur in the en banc opinion.




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                   No. 11-50792 Cons/w Nos. 12-50217 & 12-50301
CATHARINA HAYNES, Circuit Judge, joined by SOUTHWICK and
HIGGINSON, Circuit Judges, concurring:
       I concur in the judgment of the court. 1 I write separately to address the
question of sovereign immunity for the United States in more detail. As the
reinstated panel opinion correctly notes, the Alien Tort Statute (“ATS”) is a
jurisdictional statute but is not “stillborn.” 

; Sosa
v. Alvarez-Machain, 

, 714 (2004). It provides a forum in United
States courts for tort claims by aliens alleging a violation of “the law of
nations.” 2     28 U.S.C. § 1350.          The panel majority opinion nonetheless
determines that Congress must explicitly waive sovereign immunity to make
such torts committed in violation of the “law of nations” actionable against the
United States (substituted for one of its officers)—as eloquently described in
the special concurrence filed by Judge Jones (“Special Concurrence”). 3 That
may be a fair understanding of the current state of the law in this area. But I




       1   I also concur in the reasoning of the en banc opinion as supplemented herein.
       2  The parties and panel majority opinion focus on whether sovereign immunity bars
an ATS suit, rather than on whether killing an unarmed civilian without any provocation or
just cause would violate the types of international norms contemplated by the ATS in the
phrase “law of nations.” See, e.g., 

(assuming arguendo that
Plaintiffs averred a violation of the “law of nations” the ATS would recognize by alleging “that
the United States violated the international prohibition against ‘extrajudicial killings’”). For
purposes of this discussion, I will assume that killing a civilian without any provocation or
just cause would violate the law of nations, as did the panel majority opinion. 

Mesa’s conduct occurred in the United States, I do not view Kiobel v. Royal
Dutch Petroleum Co., 

(2013), cited by the government here, as barring an
action under the ATS. See 

(“[A]ll the relevant conduct took place outside the
United States,” such that the ATS did not provide a United States forum for the international
tort claimed in that case); see also 

(Alito, J., concurring) (“[A] putative ATS cause
of action will fall within the scope of the presumption against extraterritoriality . . . unless
the domestic conduct is sufficient to violate an international law norm that satisfies Sosa’s
requirements of definiteness and acceptance among civilized nations.”).
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                   No. 11-50792 Cons/w Nos. 12-50217 & 12-50301
wish to address some undeveloped implications of what the Supreme Court has
so far held, above all in its extended treatment of the ATS in Sosa.
       As the panel majority opinion notes, Sosa holds that federal courts can
recognize a “limited” number of international common law torts that fall within
the rubric of the ATS. See 

. Left unaddressed is the
question of whether any such common law torts would make the sovereign
immunity of the United States unavailable. Put another way, if the United
States has sovereign immunity as the Special Concurrence asserts, then I
agree that it must be expressly waived in order for a lawsuit such as this one
to be viable. But if there is a category of torts (violations of the law of nations,
for example) that change the ordinary rules of sovereign immunity because
these acts cannot be authorized by the sovereign, then a country either would
lack any such immunity to waive or would not be permitted to substitute for
one of its officers.
       The Fourth Circuit recently discussed this possibility, noting in the
context of foreign official immunity:
           Unlike private acts that do not come within the scope of foreign
           official immunity, jus cogens violations may well be committed
           under color of law and, in that sense, constitute acts performed in
           the course of the foreign official’s employment by the Sovereign.
           However, as a matter of international and domestic law, jus
           cogens violations are, by definition, acts that are not officially
           authorized by the Sovereign.
Yousuf v. Samantar, 

, 775–76 (4th Cir. 2012) (citing Siderman de
Blake v. Republic of Argentina, 4 

, 718 (9th Cir. 1992)


       4  At issue in Siderman was a foreign state’s immunity from suit under the Foreign
Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1602 et 

–19. The
Siderman court’s discussion of jus cogens supports the views expressed in this concurrence;
yet, that court ultimately found that it had no jurisdiction over a foreign state (Argentina)
because the Supreme Court in Argentine Republic v. Amerada Hess Shipping Corporation,

, 433 (1989), has interpreted the FSIA as a complete and exclusive scheme
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                  No. 11-50792 Cons/w Nos. 12-50217 & 12-50301
(“International law does not recognize an act that violates jus cogens as a
sovereign act.”)).
       In turn, jus cogens norms are a form of customary international law, a
term often used instead of the phrase “law of nations.” See generally Gwynne
L. Skinner, Roadblocks to Remedies: Recently Developed Barriers to Relief for
Aliens Injured by U.S. Officials, Contrary to the Founders’ Intent, 47 U. RICH.
L. REV. 555, 565 (2013) (“The ATS gives federal courts jurisdiction over tort
claims brought by aliens for violations of the law of nations, a term now seen
as synonymous with customary international law.”); Ernest A. Young, Sorting
Out the Debate over Customary International Law, 42 VA. J. INT’L L. 365, 448
(2002) (“[M]ost courts [interpreting the ATS] seem to have limited the scope of
actionable customary international law to fundamental or jus cogens
norms . . . .”); Justin D. Cummins, Invigorating Labor: A Human Rights
Approach in the United States, 19 EMORY INT’L L. REV. 1, 5 n.12 (2005) (“Jus
cogens ‘is now widely accepted . . . as a principle of customary law (albeit of
higher status).’” (quoting RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 102
n.6)); cf. 

(noting that jus cogens differs from
customary international law in that “customary international law derives
solely from the consent of states, [while] the fundamental and universal norms
constituting jus cogens [derive from customary laws considered binding on all



governing foreign state immunity in U.S. courts. See 

–19; see also
Amerada 

–34 (noting the Court “start[ed] from the settled proposition
that the subject-matter jurisdiction of the lower federal courts is determined by Congress in
the exact degrees and character which to Congress may seem proper for the public good” and
holding that “the text and structure of the FSIA demonstrate Congress’ intention that the
FSIA be the sole basis for obtaining jurisdiction over a foreign state in our courts” (citations
and internal quotation marks omitted)). Congress does not appear to have acted in the same
way to define federal court jurisdiction over suits against the United States by foreign
nationals under the ATS, except through the ATS itself. Therefore, it is imperative to
consider jus cogens and its impact on the United States’s immunity in light of the Court’s
painstaking interpretation of the ATS in Sosa and the common law torts recognized therein.
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               No. 11-50792 Cons/w Nos. 12-50217 & 12-50301
nations and] transcend such consent, as exemplified by the theories underlying
the judgments of the Nuremberg tribunals following World War II”); Sanchez-
Espinoza v. Reagan, 

, 206–07 (D.C. Cir. 1985) (Scalia, Circuit J.)
(describing “the law of nations [as] so-called customary international law,
arising from the customs and usages of civilized nations” (citation and internal
quotation marks omitted)).
      Although not all jus cogens norms may fall within the category of
international common law torts that federal courts can recognize under Sosa,
it seems logical that cognizable jus cogens norms may preclude a sovereign
immunity defense. Cf. Thomas H. Lee, The Safe-Conduct Theory of the Alien
Tort Statute, 106 COLUM. L. REV. 830, 879–82, 890–95, 901–08 (2006)
(analyzing history, Sosa, and legislative documents from the founding era to
postulate about which international common law torts are cognizable under
the ATS); Sarah H. Cleveland, The Kiobel Presumption and Extraterritoriality,
52 COLUM. J. TRANSNAT’L L. 8, 17–19 (2013) (similar, but arguing for a more
expansive view of which torts are cognizable, especially in the extraterritorial
context); cf. also The Paquete Habana, 

, 700–01 (1900)
(“International law is part of our law, and must be ascertained and
administered by the courts of justice of appropriate jurisdiction . . . .”); Estate
of Amergi ex rel. Amergi v. Palestinian Auth., 

, 1363–64 (11th
Cir. 2010) (describing the type of international tort that federal courts may
recognize under the ATS and Sosa).           Plaintiffs raise this argument—that
sovereign immunity may be unavailable for a category of jus cogens torts or
other violations of the law of nations—but neither the reinstated panel nor the
en banc opinion addresses it.
      Sosa also did not address sovereign immunity vis-à-vis the ATS. In that
case, the Court only considered the claims of a foreign national named Alvarez-


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                  No. 11-50792 Cons/w Nos. 12-50217 & 12-50301
Machain that he was kidnapped by another foreign national, Sosa, at the
behest of the U.S. Drug Enforcement Administration 

–99. The Court ultimately held that the alleged international norm in
question was insufficient to support a claim under the common law underlying
the ATS. 

Sosa’s language, however, hints at the idea that the ATS
contemplated something broader than merely giving jurisdiction for an action
Congress authorizes:        “[T]here is every reason to suppose that the First
Congress did not pass the ATS as a jurisdictional convenience to be placed on
the shelf for use by a future Congress . . . .” 

       Unlike Sosa, here the United States was substituted for Mesa under the
Westfall Act. Plaintiffs could have sought (but did not seek) federal-court
review of the Attorney General’s scope-of-employment certification under the
Westfall Act. See Gutierrez de Martinez v. Lamagno, 

, 420 (1995);
see also Osborn v. Haley, 

(2007). Indeed, given Plaintiffs’
argument that jus cogens violations are not legitimate official acts, Plaintiffs
may have had a strong basis for raising such a challenge. 5 See, e.g., 

(distinguishing between status- and conduct-based immunity).
Moreover, I note that the Special Concurrence does not take issue with the
observation that Plaintiffs chose not to pursue this viable option for
challenging Mesa’s conduct.




       5  Thus, Plaintiffs’ concern that people in Mesa’s situation can commit wrongful acts
with impunity is not accurate. A Bivens action does not stand alone as Plaintiffs’ last resort
to seek review of this tragedy. In addition to challenging the substitution by the United
States, Plaintiffs may be able to seek redress in Mexican courts or through Mexican
diplomatic channels. See 18 U.S.C. § 3184. State processes may also be available. See 28
U.S.C. § 2679(d)(3). Finally, Congress has exemplars both for establishing a compensation
system for victims of United States government overseas torts, see 21 U.S.C. § 904, and also
for waiving foreign sovereign immunity, see 28 U.S.C. § 1605(a).


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   Case: 11-50792     Document: 00513019452     Page: 45   Date Filed: 04/24/2015



               No. 11-50792 Cons/w Nos. 12-50217 & 12-50301
      I conclude that Plaintiffs’ argument on sovereign immunity and the ATS
has some force. But in this area of great delicacy involving international
diplomacy and United States sovereign immunity, I believe it is best to leave
this issue to the Supreme Court or at least to a court more appropriately
positioned to address these intricate issues. See 

(“[T]here
are good reasons for a restrained conception of the discretion a federal court
should exercise in considering a new cause of action of this kind.”); 

(similar); see also 

(Scalia, J., concurring in part and concurring in
the judgment) (decrying the notion that lower federal courts will be
determining “perceived international norms”). Accordingly, I concur in the
judgment of the en banc court.




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    Case: 11-50792       Document: 00513019452          Page: 46     Date Filed: 04/24/2015



                  No. 11-50792 Cons/w Nos. 12-50217 & 12-50301
JAMES E. GRAVES, JR., Circuit Judge, concurring in part:
       I agree with the majority that the Fifth Amendment right was not clearly
established at the time of the incident. But I also join, in part, the concurring
opinion of Judge Prado, except to the extent that it adopts the en banc court’s
reasons for denying the Fourth Amendment claim. Additionally, I join, in part,
Judges Dennis and Haynes in concluding that the plaintiffs’ claims under the
Fourth Amendment and the Alien Tort Statute (ATS) have force. However, I
disagree with the conclusions of Judges Dennis and Haynes that this court
should forego the adjudication of such claims. 1 Instead, I would conclude that
this court should carefully adjudicate the ATS and Fourth Amendment claims.
See Sosa 

, 724-26; and 28 U.S.C. § 1350. For these reasons, I
respectfully concur with the majority opinion in part and join the separate
opinions of Judges Dennis, Prado and Haynes in part.




       1 I also disagree with Judge Haynes’ concurrence to the extent that it lists various
other forms of review or redress which are, for the most part, unavailable, ineffective, or do
not provide the same relief as a Bivens action.
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