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Jesus C. Hernández, et al. v. Jesus Mesa, Jr.

Paid petition · United States Court of Appeals for the Fifth Circuit, No. 12-50217 · judgment March 20, 2018

Decided · February 25, 2020
Pre-decision estimate: 6% cert probability (95% interval 4%–9%)

Before the decision, modestly above the 4.1% base rate. The model weighted this up for a Fifth Circuit decision below, a dissent in the court below (flagged in the petition), and a petition filed soon after the judgment below.

Questions presented

Granted limited to question 1 presented by the petition.

  1. Whether, when plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established Fourth and Fifth Amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971)?

  2. If not, whether the Westfall Act violates the Due Process Clause of the Fifth Amendment insofar as it preempts state-law tort suits for damages against rogue federal law enforcement officers acting within the scope of their employment for which there is no alternative legal remedy.

Counsel of record

For petitioner
Stephen I. Vladeck

For respondent
Randolph Joseph Ortega
Ellis & Ortega

Case

Conference history
Distributed for 3 conferences

Amicus briefs
3 cert-stage · 19 merits
(16 supporting pet./neither, 3 respondent)

Argument & decision

Argued November 12, 2019 — Stephen I. Vladeck · Randolph J. Ortega. Audio and transcript

Decided February 25, 2020. Opinion by Alito.

Proceedings

  1. Mar 30 2020
    JUDGMENT ISSUED.
  2. Feb 25 2020
    Adjudged to be AFFIRMED. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Gorsuch, and Kavanaugh, JJ., joined. Thomas, J., filed a concurring opinion, in which Gorsuch, J., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer, Sotomayor, and Kagan, JJ., joined.
  3. Nov 12 2019
    Argued. For petitioners: Stephen I. Vladeck, Austin, Tex. For respondent: Randolph J. Ortega, El Paso, Tex.; and Jeffrey B. Wall, Principal Deputy Solicitor General, Department of Justice, Washington, D. C. (for United States, as amicus curiae.)
  4. Oct 23 2019
    Reply of petitioners Jesus C. Hernández, et al. filed. (Distributed)
  5. Oct 15 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument GRANTED.
  6. Sep 30 2019
    Brief amicus curiae of United States filed. (Distributed)
  7. Sep 30 2019
    Brief amicus curiae of APA Watch filed. (Distributed)
  8. Sep 30 2019
    Brief amicus curiae of Criminal Justice Legal Foundation filed. (Distributed)
  9. Sep 30 2019
    Motion of the Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  10. Sep 23 2019
    Brief of respondent Jesus Mesa, Jr. filed. (Distributed)
  11. Sep 16 2019
    Record requested from the U.S.C.A. 5th Circuit.
  12. Sep 16 2019
    The record from the U.S.C.A. 5th Circuit is electronic and located on PACER.
  13. Sep 03 2019
    CIRCULATED
  14. Aug 09 2019
    Brief amicus curiae of Government of the United Mexican States filed.
  15. Aug 09 2019
    Brief amicus curiae of Constitutional Accountability Center filed.
  16. Aug 09 2019
    Brief amici curiae of Immigrant and Civil Rights Organizations filed.
  17. Aug 09 2019
    Brief amicus curiae of Professor Gregory C. Sisk filed.
  18. Aug 09 2019
    Brief amici curiae of Tahirih Justice Center, et al. filed.
  19. Aug 09 2019
    Brief amicus curiae of Brady filed.
  20. Aug 09 2019
    Brief amici curiae of Carlos M. Vazquez and Anya Bernstein filed.
  21. Aug 09 2019
    Brief amici curiae of Border Network for Human Rights, et al. filed.
  22. Aug 09 2019
    Brief amicus curiae of Institute for Justice filed.
  23. Aug 09 2019
    Brief amici curiae of American Civil Liberties Union, et al. filed.
  24. Aug 09 2019
    Brief amici curiae of Douglas Laycock, et al. filed.
  25. Aug 09 2019
    Brief amici curiae of Council on American-Islamic Relations and Anas Elhady in support of neither party filed.
  26. Aug 09 2019
    Brief amici curiae of Former Officials of U.S. Customs and Border Protection Agency filed.
  27. Aug 08 2019
    Brief amici curiae of Border Scholars filed.
  28. Aug 08 2019
    Brief amici curiae of Amnesty International USA, et al. filed.
  29. Aug 02 2019
    Brief of petitioners Jesus C. Hernández, et al. filed.
  30. Aug 02 2019
    Brief amicus curiae of Alan Mygatt-Tauber filed.
  31. Jul 29 2019
    Blanket Consent filed by Respondent, Jesus Mesa, Jr.
  32. Jul 15 2019
    Blanket Consent filed by Petitioners, Jesus C. Hernández, et al.
  33. Jul 08 2019
    SET FOR ARGUMENT on Tuesday, November 12, 2019.
  34. Jun 24 2019
    Motion to dispense with printing the joint appendix filed by petitioners GRANTED.
  35. Jun 06 2019
    Joint motion to extend the time to file the briefs on the merits granted. The time to file petitioners' brief on the merits is extended to and including August 2, 2019. The time to file respondent's brief on the merits is extended to and including September 23, 2019.
  36. Jun 06 2019
    Motion to dispense with printing the joint appendix filed by petitioners Jesus C. Hernández, et al.
  37. May 29 2019
    Joint motion for an extension of time to file the briefs on the merits filed.
  38. May 28 2019
    Petition GRANTED limited to Question 1 presented by the petition.
  39. May 20 2019
    DISTRIBUTED for Conference of 5/23/2019.
  40. Apr 30 2019
    DISTRIBUTED for Conference of 5/16/2019.
  41. Apr 17 2019
    Supplemental brief of petitioners Jesus C. Hernández, et al. filed.
  42. Apr 11 2019
    Brief amicus curiae of United States filed.
  43. Oct 01 2018
    The Solicitor General is invited to file a brief in this case expressing the views of the United States.
  44. Aug 22 2018
    DISTRIBUTED for Conference of 9/24/2018.
  45. Aug 17 2018
    Reply of petitioner Jesus C. Hernández, et al. filed. VIDED.
  46. Aug 06 2018
    Response to petition from respondent Jesus Mesa, Jr. filed.
  47. Jul 23 2018
    Motion to extend the time to file a response is granted and the time is extended to and including August 6, 2018.
  48. Jul 20 2018
    Brief amicus curiae of Government of the United Mexican States filed.
  49. Jul 20 2018
    Brief amicus curiae of Professor Gregory C. Sisk filed.
  50. Jul 18 2018
    Motion to extend the time to file a response from July 20, 2018 to August 4, 2018, submitted to The Clerk.
  51. Jun 15 2018
    Petition for a writ of certiorari filed. (Response due July 20, 2018)