"In 2010, a border patrol agent, standing in the United States, shot and killed a 15-year old Mexican boy standing across the border in Mexico. The Hernandez's parents sued. Last June, the Supreme Court returned the case to the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit) for further legal proceedings. Hernandez v. Mesa. The Fifth Circuit has now ruled that the Hernandez family may not sue the border patrol agent under an implied-cause-of-action Bivens theory. Bivens refers to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, a 1971 case in which the Supreme Court held that a victim of an unconstitutional search and seizure enjoyed an implied cause of action against the offending agents for damages in the absence of any other legal remedy. In later cases, the Supreme Court has hesitated to recognize an implied cause of action for other constitutional violations. Whether the Court will recognize an implied cause of action in these new-context cases turns on the existence of any special factors suggesting that the existence of any remedy for the constitutional violation should be left to Congress. The Court returned Hernandez to the Fifth Circuit for this 'special factor' analysis. The Fifth Circuit identified special factors that it held precluded recognition of an implied cause of action."
CRS Legal Sidebar, LSB10135
Federation of American Scientists: http://www.fas.org/sgp/crs/index.html