Hern”ndez v. Mesa

Docket No.	Argument	Opinion	Vote	Author	Term
15-118	Feb 21, 2017	Apr 26, 2025	n/a	Per Curiam	OT 2016

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

Judgment: Vacated and remanded in a per curiam opinion on April 26, 2025. Justice Thomas filed a dissenting opinion. Justice Breyer filed a dissenting opinion, in which Justice Ginsburg joined. Justice Gorsuch took no part in the consideration or decision of this case.

SCOTUSblog Coverage

Immigration symposium: Prelude to a turning point (Charles Roth, June 29, 2017)
A "view" from the courtroom: A day for drama on the bench (Mark Walsh, June 26, 2017)
Opinion analysis: Court sends cross-border shooting lawsuit back to lower court (Amy Howe, June 26, 2017)
And then there were nine the remaining decisions (Amy Howe, June 23, 2017)
And then there were six the remaining cases (Amy Howe, June 23, 2017)
Argument analysis: A search for a rule, but is there even a remedy? (Amy Howe, February 21, 2017)
Argument preview: Justices take on issues arising out of cross-border shooting (Amy Howe, February 14, 2017)
Court adds three hours of oral argument to its merits docket (Amy Howe, October 11, 2016)

Date	Proceedings and Orders (key to color coding)
07/23/2015	Petition for a writ of certiorari filed. (Response due August 26, 2015)
08/25/2015	Order extending time to file response to petition to and including September 25, 2015.
08/26/2015	Brief amicus curiae of Government of the United Mexican States filed.
08/26/2015	Brief amici curiae of Amnesty International USA, et al. filed.
08/26/2015	Brief amici curiae of Paso del Norte Civil Rights Project, et al. filed.
08/26/2015	Brief amicus curiae of Dean Erwin Chemerinsky filed.
09/25/2015	Brief of respondent Jesus Mesa, Jr. in opposition filed.
10/14/2015	DISTRIBUTED for Conference of October 30, 2015.
10/15/2015	Reply of petitioners Jesus C. Hernandez, et al. filed. (Distributed)
11/02/2015	DISTRIBUTED for Conference of November 6, 2015.
11/09/2015	DISTRIBUTED for Conference of November 13, 2015.
11/16/2015	DISTRIBUTED for Conference of November 24, 2015.
11/30/2015	The Solicitor General is invited to file a brief in this case expressing the views of the United States.
01/17/2016	CIRCULATED.
02/29/2016	Brief of Federal Respondents in opposition filed.
03/16/2016	DISTRIBUTED for Conference of April 1, 2016.
03/18/2016	Supplemental brief of petitioners Jesus C. Hernandez, et al. filed. (Distributed)
06/06/2016	DISTRIBUTED for Conference of June 9, 2016.
06/13/2016	Rescheduled.
09/21/2016	DISTRIBUTED for Conference of October 7, 2016.
10/11/2016	Petition GRANTED. In addition to the questions presented by the petition the parties are directed to brief and argue the following question: Whether the claim in this case may be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).
11/09/2016	Consent to the filing of amicus curiae briefs in support of either party or of neither party received from counsel for the federal respondents.
11/14/2016	Motion to dispense with printing the joint appendix filed by petitioner Jesus C. Hernandez, et al.
11/15/2016	Consent to the filing of amicus curiae briefs in support of either party or of neither party from counsel for petitioners.
11/22/2016	The time to file the joint appendix and petitioners' brief on the merits is extended to and including December 2, 2016.
11/22/2016	The time to file respondents' briefs on the merits is extended to and including January 9, 2017.
11/28/2016	Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
12/01/2016	Consent to the filing of amicus curiae briefs in support of either party or of neither party from counsel for respondent Jesus Mesa, Jr.
12/02/2016	Brief of petitioners Jesus C. Hernandez, et al. filed.
12/08/2016	Brief amici curiae of Constitutional Law Scholars filed.
12/09/2016	Brief amicus curiae of Government of the United Mexican States filed.
12/09/2016	Brief amicus curiae of Professor Gregory C. Sisk in support of neither party filed.
12/09/2016	Brief amicus curiae of Constitutional Accountability Center filed.
12/09/2016	Brief amici curiae of Professors James E. Pfander, Carlos M. Vazquez, and Anya Bernstein filed.
12/09/2016	Brief amici curiae of The American Immigration Council, et al. filed.
12/09/2016	Brief amici curiae of Ten Law Professors filed.
12/09/2016	Brief amici curiae of Former Officials of U.S. Customs and Border Protection Agency filed.
12/09/2016	Brief amici curiae of Border Scholars filed.
12/09/2016	Brief amicus curiae of Restore the Fourth, Inc. filed.
12/09/2016	Brief amici curiae of Legal Historians filed.
12/09/2016	Brief amici curiae of Border Action Network, et al. filed.
12/09/2016	Brief amici curiae of Amnesty International USA, et al. filed.
12/09/2016	Brief amici curiae of Former Police Chiefs filed.
12/09/2016	Brief amici curiae of Mexican Jurists, Practitioners, and Scholars filed.
12/09/2016	Brief amici curiae of American Civil Liberties Union, et al. filed.
12/22/2016	SET FOR ARGUMENT on Tuesday, February 21, 2017.
12/30/2016	Record requested from the U.S.C.A. 5th Circuit.
01/09/2017	Brief of Federal Respondents filed.
01/09/2017	Brief of respondent Jesus Mesa, Jr. filed.
01/13/2017	Motion for divided argument filed by Federal Respondents.
01/17/2017	CIRCULATED.
01/17/2017	Brief amicus curiae of APA Watch filed. (Distributed)
01/17/2017	Brief amicus curiae of Criminal Justice Legal Foundation filed. (Distributed)
01/23/2017	Motion for divided argument filed by Federal Respondents GRANTED.
02/01/2017	Record received from the U.S.C.A. 5th Circuit. The record is electronic and available on PACER.
02/08/2017	Reply of petitioners Jesus C. Hernandez, et al. filed. (Distributed)
02/21/2017	Argued. For petitioners: Robert C. Hilliard, Corpus Christi, Tex. For respondent Jesus Mesa, Jr.: Randolph J. Ortega, El Paso, Tex. For federal respondents: Edwin S. Kneedler, Deputy Solicitor General, Department of Justice, Washington, D. C.
06/26/2017	DISTRIBUTED for Conference of June 26, 2017.
06/26/2017	Judgment VACATED and case REMANDED. Justice Thomas, dissenting. Justice Breyer, with whom Justice Ginsburg joins, dissenting. Justice Gorsuch took no part in the consideration or decision of this case. Opinion per curiam.
07/28/2017	JUDGMENT ISSUED.