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Ziglar v. Abbasi

United States Supreme Court

June 19, 2017

JAMES W. ZIGLAR, PETITIONER
v.
AHMER IQBAL ABBASI, ET AL. JOHN D. ASHCROFT, FORMER ATTORNEY GENERAL, ET AL., PETITIONERS
v.
AHMER IQBAL ABBASI, ET AL. DENNIS HASTY, ET AL., PETITIONERS
v.
AHMER IQBAL ABBASI, ET AL.

          Argued January 18, 2017 [*]

         CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 15-1358.

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 respondents' claims.

         Held:

The judgment is reversed in part and vacated and remanded in part.

789 F.3d 218, reversed in part and vacated and remanded in part.

          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. Pp. 6-7.
(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 allowed.
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. Pp. 27-29.
(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.

          OPINION

          Kennedy, Justice

         Except as to Part IV-B.

         After 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.

         The 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.

         The 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).

         The 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.

         I

         Given 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.

         A

         In the 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.

         While 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.

         Respondents 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.

         Some of 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.

         B

         Respondents 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.

         Respondents 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.

         As 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."

         Seeking 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 Fifth Amendment.

         Respondents 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 origin.

         C

         The 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).

         II

         The 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 precedent.

         A

         In 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.

         In 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)).

         In the 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 Constitution itself.

         B

         To 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").

         These 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).

         C

         Later, 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.

         Following 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, at 24.

         The 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 interpret.

         Even 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").

         For 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.

         Given 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.

         For 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, 120 (2012).

         When a 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.

         The 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).

         This 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.

         It is 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.

         Sometimes 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.

         In a 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 ...


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