Alleged violation of a jus cogens norm doesn't waive federal soveriegn immunity for purposes of a claim under the Alien Tort Statute under a theory of extra-constitutional wrongdoing.
Equitable tolling not available for second cause of action, which under the law at time of filing would bar recovery under any other cause of action, since this judgment bar would prohibit subsequent recoveries, but did not address claims filed in the same suit, either one of which might have prevailed.
Extension of Bivvens unavailable, as an action against the agency head would be an inappropriate attempt to change government policy, and the claim against the agent who actually shot the Mexican citizen on the border fence has national security implications.
CONCURRENCE IN THE JUDGMENT AND PARTIAL CONCURRENCE
No need to reach sovereign immunity, as the elements of the ATS claim aren't met.
https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/16/17-56610.pdf