JAMES W. ZIGLAR, PETITIONER
AHMER IQBAL ABBASI, ET AL. JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, ET AL., PETITIONERS
AHMER IQBAL ABBASI, ET AL. DENNIS HASTY, ET AL., PETITIONERS
AHMER IQBAL ABBASI, ET AL.
January 18, 2017 [*]
TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
In the immediate aftermath of the September 11 terrorist
attacks, the Federal Government ordered hundreds of illegal
aliens to be taken into custody and held pending a
determination whether a particular detainee had connections
to terrorism. Respondents, six men of Arab or South Asian
descent, were detained for periods of three to six months in
a federal facility in Brooklyn. After their release, they
were removed from the United States. They then filed this
putative class action against petitioners, two groups of
federal officials. The first group consisted of former
Attorney General John Ashcroft, former Federal Bureau of
Investigation Director Robert Mueller, and former Immigration
and Naturalization Service Commissioner James Ziglar
(Executive Officials). The second group consisted of the
facility's warden and assistant warden Dennis Hasty and
James Sherman (Wardens). Respondents sought damages for
constitutional violations under the implied cause of action
theory adopted in Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388, alleging that petitioners detained
them in harsh pretrial conditions for a punitive purpose, in
violation of the Fifth Amendment; that petitioners did so
because of their actual or apparent race, religion, or
national origin, in violation of the Fifth Amendment; that
the Wardens subjected them to punitive strip searches, in
violation of the Fourth and Fifth Amendments; and that the
Wardens knowingly allowed the guards to abuse them, in
violation of the Fifth Amendment. Respondents also brought a
claim under 42 U.S.C. §1985(3), which forbids certain
conspiracies to violate equal protection rights. The District
Court dismissed the claims against the Executive Officials
but allowed the claims against the Wardens to go forward. The
Second Circuit affirmed in most respects as to the Wardens
but reversed as to the Executive Officials, reinstating
The judgment is reversed in part and vacated and remanded in
789 F.3d 218, reversed in part and vacated and remanded in
JUSTICE KENNEDY delivered the opinion of the Court, except as
to Part IV-B, concluding:
1. The limited reach of the Bivens action informs
the decision whether an implied damages remedy should be
recognized here. Pp. 6-14.
(a) In 42 U.S.C. §1983, Congress provided a specific
damages remedy for plaintiffs whose constitutional rights
were violated by state officials, but Congress provided no
corresponding remedy for constitutional violations by agents
of the Federal Government. In 1971, and against this
background, this Court recognized in Bivens an
implied damages action to compensate persons injured by
federal officers who violated the Fourth Amendment's
prohibition against unreasonable searches and seizures. In
the following decade, the Court allowed Bivens-type
remedies twice more, in a Fifth Amendment
gender-discrimination case, Davis v. Passman, 442
U.S. 228, and in an Eighth Amendment Cruel and Unusual
Punishments Clause case, Carlson v. Green, 446 U.S.
14. These are the only cases in which the Court has approved
of an implied damages remedy under the Constitution itself.
(b) Bivens, Davis, and Carlson were decided
at a time when the prevailing law assumed that a proper
judicial function was to "provide such remedies as are
necessary to make effective" a statute's purpose.
J. I. Case Co. v. Borah, 377 U.S. 426, 433. The
Court has since adopted a far more cautious course,
clarifying that, when deciding whether to recognize an
implied cause of action, the "determinative"
question is one of statutory intent. Alexander v.
Sandoval, 532 U.S. 275, 286. If a statute does not
evince Congress' intent "to create the private right
of action asserted, " Touche Ross & Co. v.
Redington, 442 U.S. 560, 568, no such action will be
created through judicial mandate. Similar caution must be
exercised with respect to damages actions implied to enforce
the Constitution itself. Bivens is well-settled law
in its own context, but expanding the Bivens remedy
is now considered a "disfavored" judicial activity.
Ashcroft v. Iqbal, 556 U.S. 662, 675.
When a party seeks to assert an implied cause of action under
the Constitution, separation-of-powers principles should be
central to the analysis. The question is whether Congress or
the courts should decide to authorize a damages suit.
Bush v. Lucas, 462 U.S. 367, 380. Most often it will
be Congress, for Bivens will not be extended to a
new context if there are " 'special factors
counselling hesitation in the absence of affirmative action
by Congress.' " Carlson, supra, at 18. If
there are sound reasons to think Congress might doubt the
efficacy or necessity of a damages remedy as part of the
system for enforcing the law and correcting a wrong, courts
must refrain from creating that kind of remedy. An
alternative remedial structure may also limit the
Judiciary's power to infer a new Bivens cause of
action. Pp. 8-14.
2. Considering the relevant special factors here, a
Bivens-type remedy should not be extended to the
claims challenging the confinement conditions imposed on
respondents pursuant to the formal policy adopted by the
Executive Officials in the wake of the September 11 attacks.
These "detention policy claims" include the
allegations that petitioners violated respondents' due
process and equal protection rights by holding them in
restrictive conditions of confinement, and the allegations
that the Wardens violated the Fourth and Fifth Amendments by
subjecting respondents to frequent strip searches. The
detention policy claims do not include the guard-abuse claim
against Warden Hasty. Pp. 14-23.
(a) The proper test for determining whether a claim arises in
a new Bivens context is as follows. If the case is
different in a meaningful way from previous Bivens
cases decided by this Court, then the context is new.
Meaningful differences may include, e.g., the rank
of the officers involved; the constitutional right at issue;
the extent of judicial guidance for the official conduct; the
risk of disruptive intrusion by the Judiciary into the
functioning of other branches; or the presence of potential
special factors not considered in previous Bivens
cases. Respondents' detention policy claims bear little
resemblance to the three Bivens claims the Court has
approved in previous cases. The Second Circuit thus should
have held that this was a new Bivens context and
then performed a special factors analysis before allowing
this damages suit to proceed. Pp. 15-17.
(b) The special factors here indicate that Congress, not the
courts, should decide whether a damages action should be
With regard to the Executive Officials, a Bivens
action is not "a proper vehicle for altering an
entity's policy, " Correctional Services Corp.
v. Malesko, 534 U.S. 61, 74, and is not designed to hold
officers responsible for acts of their subordinates, see
Iqbal, supra, at 676. Even an action confined to the
Executive Officers' own discrete conduct would call into
question the formulation and implementation of a high-level
executive policy, and the burdens of that litigation could
prevent officials from properly discharging their duties, see
Cheney v. United States Dist. Court for D. C, 542
U.S. 367, 382. The litigation process might also implicate
the discussion and deliberations that led to the formation of
the particular policy, requiring courts to interfere with
sensitive Executive Branch functions. See Clinton v.
Jones, 520 U.S. 681, 701.
Other special factors counsel against extending
Bivens to cover the detention policy claims against
any of the petitioners. Because those claims challenge major
elements of the Government's response to the September 11
attacks, they necessarily require an inquiry into
national-security issues. National-security policy, however,
is the prerogative of Congress and the President, and courts
are "reluctant to intrude upon" that authority
absent congressional authorization. Department of Navy v.
Egan, 484 U.S. 518, 530. Thus, Congress' failure to
provide a damages remedy might be more than mere oversight,
and its silence might be more than "inadvertent."
Schweiker v. Chilicky, 487 U.S. 412, 423. That
silence is also relevant and telling here, where Congress has
had nearly 16 years to extend "the kind of remedies
[sought by] respondents, " id., at 426, but has
not done so. Respondents also may have had available "
'other alternative forms of judicial relief, '"
Minneci v. Pollard, 565 U.S. 118, 124, including
injunctions and habeas petitions.
The proper balance in situations like this, between deterring
constitutional violations and freeing high officials to make
the lawful decisions necessary to protect the Nation in times
of great peril, is one for the Congress to undertake, not the
Judiciary. The Second Circuit thus erred in allowing
respondents' detention policy claims to proceed under
Bivens. Pp. 17-23.
3. The Second Circuit also erred in allowing the prisoner
abuse claim against Warden Hasty to go forward without
conducting the required special factors analysis.
Respondents' prisoner abuse allegations against Warden
Hasty state a plausible ground to find a constitutional
violation should a Bivens remedy be implied. But the
first question is whether the claim arises in a new
Bivens context. This claim has significant parallels
to Carlson, which extended Bivens to cover
a failure to provide medical care to a prisoner, but this
claim nevertheless seeks to extend Carlson to a new
context. The constitutional right is different here:
Carlson was predicated on the Eighth Amendment while
this claim was predicated on the Fifth. The judicial guidance
available to this warden with respect to his supervisory
duties was less developed. There might have been alternative
remedies available. And Congress did not provide a standalone
damages remedy against federal jailers when it enacted the
Prison Litigation Reform Act some 15 years after
Carlson. Given this Court's expressed caution
about extending the Bivens remedy, this context must
be regarded as a new one. Pp. 23-26.
4. Petitioners are entitled to qualified immunity with
respect to respondents' claims under 42 U.S.C.
§1985(3). Pp. 26-32.
(a) Assuming that respondents' allegations are true and
well pleaded, the question is whether a reasonable officer in
petitioners' position would have known the alleged
conduct was an unlawful conspiracy. The qualified-immunity
inquiry turns on the "objective legal
reasonableness" of the official's acts, Harlow
v. Fitzgerald, 457 U.S. 800, 819, "assessed in
light of the legal rules that were 'clearly established
at the time [the action] was taken, " Anderson v.
Creighton, 483 U.S. 635, 639. If it would have been
clear to a reasonable officer that the alleged conduct
"was unlawful in the situation he confronted, "
Saucier v. Katz, 533 U.S. 194, 202, the defendant
officer is not entitled to qualified immunity. But if a
reasonable officer might not have known that the conduct was
unlawful, then the officer is entitled to qualified immunity.
(b) Here, reasonable officials in petitioners' positions
would not have known with sufficient certainty that
§1985(3) prohibited their joint consultations and the
resulting policies. There are two reasons. First, the
conspiracy is alleged to have been among officers in the same
Department of the Federal Government. And there is no clearly
established law on the issue whether agents of the same
executive department are distinct enough to
"conspire" with one another within the meaning of
42 U.S.C. §1985(3). Second, open discussion among
federal officers should be encouraged to help those officials
reach consensus on department policies, so there is a
reasonable argument that §1985(3) liability should not
extend to cases like this one. As these considerations
indicate, the question whether federal officials can be said
to "conspire" in these kinds of situations is
sufficiently open that the officials in this suit would not
have known that §1985(3) applied to their discussions
and actions. It follows that reasonable officers in
petitioners' positions would not have known with any
certainty that the alleged agreements were forbidden by that
statute. Pp. 29-32.
KENNEDY, J., delivered the opinion of the Court with respect
to Parts I, II, III, IV-A, and V, in which ROBERTS, C. J.,
and THOMAS and Alito, JJ., joined, and an opinion with
respect to Part IV-B, in which ROBERTS, C. J., and ALITO, J.,
joined. THOMAS, J., filed an opinion concurring in part and
concurring in the judgment. BREYER, J., filed a dissenting
opinion, in which GlNSBURG, J., joined. SOTOMAYOR, Kagan, and
GORSUCH, JJ., took no part in the consideration or decision
of the cases.
as to Part IV-B.
the September 11 terrorist attacks in this country, and in
response to the deaths, destruction, and dangers they caused,
the United States Government ordered hundreds of illegal
aliens to be taken into custody and held. Pending a
determination whether a particular detainee had connections
to terrorism, the custody, under harsh conditions to be
described, continued. In many instances custody lasted for
days and weeks, then stretching into months. Later, some of
the aliens who had been detained filed suit, leading to the
cases now before the Court.
complaint named as defendants three high executive officers
in the Department of Justice and two of the wardens at the
facility where the detainees had been held. Most of the
claims, alleging various constitutional violations, sought
damages under the implied cause of action theory adopted by
this Court in Bivens v. Six Unknown Fed. Narcotics
Agents, 403 U.S. 388 (1971). Another claim in the
complaint was based upon the statutory cause of action
authorized and created by Congress under Rev. Stat.
§1980, 42 U.S.C. §1985(3). This statutory cause of
action allows damages to persons injured by conspiracies to
deprive them of the equal protection of the laws.
suit was commenced in the United States District Court for
the Eastern District of New York. After this Court's
decision in Ashcroft v. Iqbal, 556 U.S. 662 (2009),
a fourth amended complaint was filed; and that is the
complaint to be considered here. Motions to dismiss the
fourth amended complaint were denied as to some defendants
and granted as to others. These rulings were the subject of
interlocutory appeals to the United States Court of Appeals
for the Second Circuit. Over a dissenting opinion by Judge
Raggi with respect to the decision of the three-judge
panel-and a second unsigned dissent from the court's
declining to rehear the suit en banc, joined by Judge Raggi
and five other judges-the Court of Appeals ruled that the
complaint was sufficient for the action to proceed against
the named officials who are now before us. See Turkmen v.
Hasty, 789 F.3d 218 (2015) (panel decision); Turkmen
v. Hasty, 808 F.3d 197 (2015) (en banc decision).
Court granted certiorari to consider these rulings. 580 U.S.
__(2016). The officials who must defend the suit on the
merits, under the ruling of the Court of Appeals, are the
petitioners here. The former detainees who seek relief under
the fourth amended complaint are the respondents. The various
claims and theories advanced for recovery, and the grounds
asserted for their dismissal as insufficient as a matter of
law, will be addressed in turn.
the present procedural posture of the suit, the Court accepts
as true the facts alleged in the complaint. See
Iqbal, 556 U.S., at 678.
weeks following the September 11, 2001, terrorist attacks-the
worst in American history-the Federal Bureau of Investigation
(FBI) received more than 96, 000 tips from members of the
public. See id., at 667. Some tips were based on
well-grounded suspicion of terrorist activity, but many
others may have been based on fear of Arabs and Muslims. FBI
agents "questioned more than 1, 000 people with
suspected links to the [September 11] attacks in particular
or to terrorism in general." Ibid.
investigating the tips-including the less substantiated
ones-the FBI encountered many aliens who were present in this
country without legal authorization. As a result, more than
700 individuals were arrested and detained on immigration
charges. Ibid. If the FBI designated an alien as not
being "of interest" to the investigation, then he
or she was processed according to normal procedures. In other
words the alien was treated just as if, for example, he or
she had been arrested at the border after an illegal entry.
If, however, the FBI designated an alien as "of
interest" to the investigation, or if it had doubts
about the proper designation in a particular case, the alien
was detained subject to a "hold-until-cleared
policy." The aliens were held without bail.
were among some 84 aliens who were subject to the
hold-until-cleared policy and detained at the Metropolitan
Detention Center (MDC) in Brooklyn, New York. They were held
in the Administrative Maximum Special Housing Unit (or Unit)
of the MDC. The complaint includes these allegations:
Conditions in the Unit were harsh. Pursuant to official
Bureau of Prisons policy, detainees were held in
"'tiny cells for over 23 hours a day.'" 789
F.3d, at 228. Lights in the cells were left on 24 hours.
Detainees had little opportunity for exercise or recreation.
They were forbidden to keep anything in their cells, even
basic hygiene products such as soap or a toothbrush. When
removed from the cells for any reason, they were shackled and
escorted by four guards. They were denied access to most
forms of communication with the outside world. And they were
strip searched often-any time they were moved, as well as at
random in their cells.
the harsh conditions in the Unit were not imposed pursuant to
official policy. According to the complaint, prison guards
engaged in a pattern of "physical and verbal
abuse." Ibid. Guards allegedly slammed
detainees into walls; twisted their arms, wrists, and
fingers; broke their bones; referred to them as terrorists;
threatened them with violence; subjected them to humiliating
sexual comments; and insulted their religion.
are six men of Arab or South Asian descent. Five are Muslims.
Each was illegally in this country, arrested during the
course of the September 11 investigation, and detained in the
Administrative Maximum Special Housing Unit for periods
ranging from three to eight months. After being released
respondents were removed from the United States.
then sued on their own behalf, and on behalf of a putative
class, seeking compensatory and punitive damages,
attorney's fees, and costs. Respondents, it seems fair to
conclude from the arguments pre- sented, acknowledge that in
the ordinary course aliens who are present in the United
States without legal authorization can be detained for some
period of time. But here the challenge is to the conditions
of their confinement and the reasons or motives for imposing
those conditions. The gravamen of their claims was that the
Government had no reason to suspect them of any connection to
terrorism, and thus had no legitimate reason to hold them for
so long in these harsh conditions.
relevant here, respondents sued two groups of federal
officials in their official capacities. The first group
consisted of former Attorney General John Ashcroft, former
FBI Director Robert Mueller, and former Immigration and
Naturalization Service Commissioner James Ziglar. This
opinion refers to these three petitioners as the
"Executive Officials." The other petitioners named
in the complaint were the MDC's warden, Dennis Hasty, and
associate warden, James Sherman. This opinion refers to these
two petitioners as the "Wardens."
to invoke the Court's decision in Bivens,
respondents brought four claims under the Constitution
itself. First, respondents alleged that petitioners detained
them in harsh pretrial conditions for a punitive purpose, in
violation of the substantive due process component of the
Fifth Amendment. Second, respondents alleged that petitioners
detained them in harsh conditions because of their actual or
apparent race, religion, or national origin, in violation of
the equal protection component of the Fifth Amendment. Third,
respondents alleged that the Wardens subjected them to
punitive strip searches unrelated to any legitimate
penological interest, in violation of the Fourth Amendment
and the substantive due process component of the Fifth
Amendment. Fourth, respondents alleged that the Wardens
knowingly allowed the guards to abuse respondents, in
violation of the substantive due process component of the
also brought a claim under 42 U.S.C. §1985(3), which
forbids certain conspiracies to violate equal protection
rights. Respondents alleged that petitioners conspired with
one another to hold respondents in harsh conditions because
of their actual or apparent race, religion, or national
District Court dismissed the claims against the Executive
Officials but allowed the claims against the Wardens to go
forward. The Court of Appeals affirmed in most respects as to
the Wardens, though it held that the prisoner abuse claim
against Sherman (the associate warden) should have been
dismissed. 789 F.3d, at 264-265. As to the Executive
Officials, however, the Court of Appeals reversed,
reinstating respondents' claims. Ibid. As noted
above, Judge Raggi dissented. She would have held that only
the prisoner abuse claim against Hasty should go forward.
Id., at 295, n. 41, 302 (opinion concurring in part
in judgment and dissenting in part). The Court of Appeals
declined to rehear the suit en banc, 808 F.3d, at 197; and,
again as noted above, Judge Raggi joined a second dissent
along with five other judges, id., at 198. This
Court granted certiorari. 580 U.S. (2016).
first question to be discussed is whether petitioners can be
sued for damages under Bivens and the ensuing cases
in this Court defining the reach and the limits of that
1871, Congress passed a statute that was later codified at
Rev. Stat. §1979, 42 U.S.C. §1983. It entitles an
injured person to money damages if a state official violates
his or her constitutional rights. Congress did not create an
analogous statute for federal officials. Indeed, in the 100
years leading up to Bivens, Congress did not provide
a specific damages remedy for plaintiffs whose constitutional
rights were violated by agents of the Federal Government.
1971, and against this background, this Court decided
Bivens. The Court held that, even absent statutory
authorization, it would enforce a damages remedy to
compensate persons injured by federal officers who violated
the prohibition against unreasonable search and seizures. See
403 U.S., at 397. The Court acknowledged that the Fourth
Amendment does not provide for money damages "in so many
words." Id., at 396. The Court noted, however,
that Congress had not foreclosed a damages remedy in
"explicit" terms and that no "special
factors" suggested that the Judiciary should
"hesitat[e]" in the face of congressional silence.
Id., at 396-397. The Court, accordingly, held that
it could authorize a remedy under general principles of
federal jurisdiction. See id., at 392 (citing
Bell v. Hood, 327 U.S. 678, 684 (1946)).
decade that followed, the Court recognized what has come to
be called an implied cause of action in two cases involving
other constitutional violations. In Davis v.
Passman, 442 U.S. 228 (1979), an administrative
assistant sued a Congressman for firing her because she was a
woman. The Court held that the Fifth Amendment Due Process
Clause gave her a damages remedy for gender discrimination.
Id., at 248-249. And in Carlson v. Green,
446 U.S. 14 (1980), a prisoner's estate sued federal
jailers for failing to treat the prisoner's asthma. The
Court held that the Eighth Amendment Cruel and Unusual
Punishments Clause gave him a damages remedy for failure to
provide adequate medical treatment. See id., at 19.
These three cases-Bivens, Davis, and
Carlson-represent the only instances in which the
Court has approved of an implied damages remedy under the
understand Bivens and the two other cases implying a
damages remedy under the Constitution, it is necessary to
understand the prevailing law when they were decided. In the
mid-20th century, the Court followed a different approach to
recognizing implied causes of action than it follows now.
During this "ancien regime, " Alexander v.
Sandoval, 532 U.S. 275, 287 (2001), the Court assumed it
to be a proper judicial function to "provide such
remedies as are necessary to make effective" a
statute's purpose, J. I. Case Co. v. Borah, 377
U.S. 426, 433 (1964). Thus, as a routine matter with respect
to statutes, the Court would imply causes of action not
explicit in the statutory text itself. See, e.g.,
id., at 430-432; Allen v. State Bd. of
Elections, 393 U.S. 544, 557 (1969); Sullivan v.
Little Hunting Park, Inc., 396 U.S. 229, 239 (1969)
("The existence of a statutory right implies the
existence of all necessary and appropriate remedies").
statutory decisions were in place when Bivens
recognized an implied cause of action to remedy a
constitutional violation. Against that background, the
Bivens decision held that courts must "adjust
their remedies so as to grant the necessary relief" when
"federally protected rights have been invaded." 403
U.S., at 392 (quoting Bell, supra, at 678); see also
403 U.S., at 402 (Harlan, J., concurring) (discussing cases
recognizing implied causes of action under federal statutes).
In light of this interpretive framework, there was a
possibility that "the Court would keep expanding
Bivens until it became the substantial equivalent of
42 U.S.C. §1983." Kent, Are Damages Different?:
Bivens and National Security, 87 S. Cal. L. Rev.
1123, 1139-1140 (2014).
the arguments for recognizing implied causes of action for
damages began to lose their force. In cases decided after
Bivens, and after the statutory implied
cause-of-action cases that Bivens itself relied
upon, the Court adopted a far more cautious course before
finding implied causes of action. In two principal cases
under other statutes, it declined to find an implied cause of
action. See Piper v. Chris-Craft Industries, Inc.,
430 U.S. 1, 42, 45-46 (1977); Cort v. Ash, 422 U.S.
66, 68-69 (1975). Later, in Cannon v. University of
Chicago, 441 U.S. 677 (1979), the Court did allow an
implied cause of action; but it cautioned that, where
Congress "intends private litigants to have a cause of
action, " the "far better course" is for
Congress to confer that remedy in explicit terms.
Id., at 717.
this expressed caution, the Court clarified in a series of
cases that, when deciding whether to recognize an implied
cause of action, the "determinative" question is
one of statutory intent. Sandoval, 532 U.S., at 286.
If the statute itself does not "displa[y] an
intent" to create "a private remedy, " then
"a cause of action does not exist and courts may not
create one, no matter how desirable that might be as a policy
matter, or how compatible with the statute."
Id., at 286-287; see also Transamerica Mortgage
Advisors, Inc. v. Lewis, AAA U.S. 11, 15-16, 23-24
(1979); Karahalios v. Federal Employees, 489 U.S.
527, 536-537 (1989). The Court held that the judicial task
was instead "limited solely to determining whether
Congress intended to create the private right of action
asserted." Touche Ross & Co. v. Redington,
442 U.S. 560, 568 (1979). If the statute does not itself so
provide, a private cause of action will not be created
through judicial mandate. See Transamerica, supra,
decision to recognize an implied cause of action under a
statute involves somewhat different considerations than when
the question is whether to recognize an implied cause of
action to enforce a provision of the Constitution itself.
When Congress enacts a statute, there are specific procedures
and times for considering its terms and the proper means for
its enforcement. It is logical, then, to assume that Congress
will be explicit if it intends to create a private cause of
action. With respect to the Constitution, however, there is
no single, specific congressional action to consider and
so, it is a significant step under separation-of-powers
principles for a court to determine that it has the
authority, under the judicial power, to create and enforce a
cause of action for damages against federal officials in
order to remedy a constitutional violation. When determining
whether traditional equitable powers suffice to give
necessary constitutional protection-or whether, in addition,
a damages remedy is necessary-there are a number of economic
and governmental concerns to consider. Claims against federal
officials often create substantial costs, in the form of
defense and indemnification. Congress, then, has a
substantial responsibility to determine whether, and the
extent to which, monetary and other liabilities should be
imposed upon individual officers and employees of the Federal
Government. In addition, the time and administrative costs
attendant upon intrusions resulting from the discovery and
trial process are significant factors to be considered. In an
analogous context, Congress, it is fair to assume, weighed
those concerns in deciding not to substitute the Government
as defendant in suits seeking damages for constitutional
violations. See 28 U.S.C. §2679(b)(2)(A) (providing that
certain provisions of the Federal Tort Claims Act do not
apply to any claim against a federal employee "which is
brought for a violation of the Constitution").
these and other reasons, the Court's expressed caution as
to implied causes of actions under congressional statutes led
to similar caution with respect to actions in the
Bivens context, where the action is implied to
enforce the Constitution itself. Indeed, in light of the
changes to the Court's general approach to recognizing
implied damages remedies, it is possible that the analysis in
the Court's three Bivens cases might have been
different if they were decided today. To be sure, no
congressional enactment has disapproved of these decisions.
And it must be understood that this opinion is not intended
to cast doubt on the continued force, or even the necessity,
of Bivens in the search-and-seizure context in which
it arose. Bivens does vindicate the Constitution by
allowing some redress for injuries, and it provides
instruction and guidance to federal law enforcement officers
going forward. The settled law of Bivens in this
common and recurrent sphere of law enforcement, and the
undoubted reliance upon it as a fixed principle in the law,
are powerful reasons to retain it in that sphere.
the notable change in the Court's approach to recognizing
implied causes of action, however, the Court has made clear
that expanding the Bivens remedy is now a
"disfavored" judicial activity. Iqbal, 556
U.S., at 675. This is in accord with the Court's
observation that it has "consistently refused to extend
Bivens to any new context or new category of
defendants." Correctional Services Corp. v.
Malesko, 534 U.S. 61, 68 (2001). Indeed, the Court has
refused to do so for the past 30 years.
example, the Court declined to create an implied damages
remedy in the following cases: a First Amendment suit against
a federal employer, Bush v. Lucas, 462 U.S. 367, 390
(1983); a race-discrimination suit against military officers,
Chappell v. Wallace, 462 U.S. 296, 297, 304-305
(1983); a substantive due process suit against military
officers, United States v. Stanley, 483 U.S. 669,
671-672, 683-684 (1987); a procedural due process suit
against Social Security officials, Schweiker v.
Chilicky, 487 U.S. 412, 414 (1988); a procedural due
process suit against a federal agency for wrongful
termination, FDIC v. Meyer, 510 U.S. 471, 473-474
(1994); an Eighth Amend- ment suit against a private prison
operator, Malesko, supra, at 63; a due process suit
against officials from the Bureau of Land Management,
Wilkie v. Robbins, 551 U.S. 537, 547-548, 562
(2007); and an Eighth Amendment suit against prison guards at
a private prison, Minneci v. Pollard, 565 U.S. 118,
party seeks to assert an implied cause of action under the
Constitution itself, just as when a party seeks to assert an
implied cause of action under a federal statute,
separation-of-powers principles are or should be central to
the analysis. The question is "who should decide"
whether to provide for a damages remedy, Congress or the
courts? Bush, 462 U.S., at 380.
answer most often will be Congress. When an issue
"'involves a host of considerations that must be
weighed and appraised, '" it should be committed to
"'those who write the laws'" rather than
"'those who interpret them.'"
Ibid, (quoting United States v. Gilman, 347
U.S. 507, 512-513 (1954)). In most instances, the Court's
precedents now instruct, the Legislature is in the better
position to consider if "'the public interest would
be served'" by imposing a '"new substantive
legal liability.'" Schweiker, supra, at
426-427 (quoting Bush, supra, at 390). As a result,
the Court has urged "caution" before
"extending Bivens remedies into any new
context." Malesko, supra, at 74. The
Court's precedents now make clear that a Bivens
remedy will not be available if there are "'special
factors counselling hesitation in the absence of affirmative
action by Congress.'" Carlson, 446 U.S., at
18 (quoting Bivens, 403 U.S., at 396).
Court has not defined the phrase "special factors
counselling hesitation." The necessary inference,
though, is that the inquiry must concentrate on whether the
Judiciary is well suited, absent congressional action or
instruction, to consider and weigh the costs and benefits of
allowing a damages action to proceed. Thus, to be a
"special factor counselling hesitation, " a factor
must cause a court to hesitate before answering that question
in the affirmative.
not necessarily a judicial function to establish whole
categories of cases in which federal officers must defend
against personal liability claims in the complex sphere of
litigation, with all of its burdens on some and benefits to
others. It is true that, if equitable remedies prove
insufficient, a damages remedy might be necessary to redress
past harm and deter future violations. Yet the decision to
recognize a damages remedy requires an assessment of its
impact on governmental operations sys-temwide. Those matters
include the burdens on Government employees who are sued
personally, as well as the projected costs and consequences
to the Government itself when the tort and monetary liability
mechanisms of the legal system are used to bring about the
proper formulation and implementation of public policies.
These and other considerations may make it less probable that
Congress would want the Judiciary to entertain a damages suit
in a given case.
there will be doubt because the case arises in a context in
which Congress has designed its regulatory authority in a
guarded way, making it less likely that Congress would want
the Judiciary to interfere. See Chappell, supra, at
302 (military); Stanley, supra, at 679 (same);
Meyer, supra, at 486 (public purse); Wilkie,
supra, at 561-562 (federal land). And sometimes there
will be doubt because some other feature of a case-difficult
to predict in advance-causes a court to pause before acting
without express congressional authorization. In sum, if there
are sound reasons to think Congress might doubt the efficacy
or necessity of a damages remedy as part of the system for
enforcing the law and correcting a wrong, the courts must
refrain from creating the remedy in order to respect the role
of Congress in determining the nature and extent of
federal-court jurisdiction under Article III.
related way, if there is an alternative remedial structure
present in a certain case, that alone may limit the power of
the Judiciary to infer a new Bivens cause of action.
For if Congress has created "any alternative, existing
process for protecting the [injured party's]
interest" that itself may "amoun[t] to a convincing
reason for the Judicial Branch to refrain from providing a
new and freestanding remedy in damages." Wilkie,
supra, at 550; see also Bush, supra, at 385-388
(recognizing that civil-service regulations provided
alternative means for relief); Mal ...