Ziglar v. Abbasi , 137 S. Ct. 1843 ( 2017 )

(Slip Opinion) OCTOBER TERM, 2016 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
ZIGLAR v. ABBASI ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 15–1358. Argued January 18, 2017—Decided June 19, 2017*
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, for-
mer Federal Bureau of Investigation Director Robert Mueller, and
former Immigration and Naturalization Service Commissioner James
Ziglar (Executive Officials). The second group consisted of the facili-
ty’s warden and assistant warden Dennis Hasty and James Sherman
(Wardens). Respondents sought damages for constitutional viola-
tions under the implied cause of action theory adopted in Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U.S. 388, alleging that peti-
tioners detained them in harsh pretrial conditions for a punitive pur-
pose, in violation of the Fifth Amendment; that petitioners did so be-
cause 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
——————
*Together with No. 15–1359, Ashcroft, Former Attorney General,
et al. v. Abbasi et al., and No. 15–1363, Hasty et al. v. Abbasi et al., also
on certiorari to the same court.
2 ZIGLAR v. ABBASI
Syllabus
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 af-
firmed in most respects as to the Wardens but reversed as to the Ex-
ecutive 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 Amend-
ment 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 un-
der 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 “pro-
vide such remedies as are necessary to make effective” a statute’s
purpose. J. I. Case Co. v. Borak, 377 U.S. 426, 433. The Court has
since adopted a far more cautious course, clarifying that, when decid-
ing whether to recognize an implied cause of action, the “determina-
tive” 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
Cite as: 582 U. S. ____ (2017) 3
Syllabus
analysis. The question is whether Congress or the courts should de-
cide 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 rem-
edy 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 mean-
ingful 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 intru-
sion 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 con-
duct 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.
4 ZIGLAR v. ABBASI
Syllabus
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 na-
tional-security issues. National-security policy, however, is the pre-
rogative 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 over-
sight, 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 in-
junctions and habeas petitions.
The proper balance in situations like this, between deterring con-
stitutional violations and freeing high officials to make the lawful de-
cisions 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 alle-
gations against Warden Hasty state a plausible ground to find a con-
stitutional 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 constitu-
tional right is different here: Carlson was predicated on the Eighth
Amendment while this claim was predicated on the Fifth. The judi-
cial guidance available to this warden with respect to his supervisory
duties was less developed. There might have been alternative reme-
dies 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 ex-
pressed caution about extending the Bivens remedy, this context
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Syllabus
must be regarded as a new one. Pp. 23–26.
4. Petitioners are entitled to qualified immunity with respect to re-
spondents’ 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 con-
spiracy. 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 estab-
lished’ 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 confront-
ed,” 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 enti-
tled 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 clear-
ly 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 con-
sensus 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 rea-
sonable 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 ROB-
ERTS, C. J., and ALITO, J., joined. THOMAS, J., filed an opinion concur-
ring in part and concurring in the judgment. BREYER, J., filed a dis-
senting opinion, in which GINSBURG, J., joined. SOTOMAYOR, KAGAN,
and GORSUCH, JJ., took no part in the consideration or decision of the
cases.
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Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 15–1358, 15–1359 and 15–1363
_________________
JAMES W. ZIGLAR, PETITIONER
15–1358 v.
AHMER IQBAL ABBASI, ET AL.
JOHN D. ASHCROFT, FORMER ATTORNEY
GENERAL, ET AL., PETITIONERS
15–1359 v.
AHMER IQBAL ABBASI, ET AL.
DENNIS HASTY, ET AL., PETITIONERS
15–1363 v.
AHMER IQBAL ABBASI, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 19, 2017]
JUSTICE KENNEDY delivered the opinion of the Court,
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 hun-
dreds 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
2 ZIGLAR v. ABBASI
Opinion of the Court
filed suit, leading to the cases now before the Court.
The complaint named as defendants three high execu-
tive 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 viola-
tions, 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 defend-
ants 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 opin-
ion 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 deci-
sion); 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 Ap-
peals, are the petitioners here. The former detainees who
seek relief under the fourth amended complaint are the
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Opinion of the Court
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 sub-
stantiated 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 desig-
nated an alien as not being “of interest” to the investiga-
tion, 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
4 ZIGLAR v. ABBASI
Opinion of the Court
Metropolitan Detention Center (MDC) in Brooklyn, New
York. They were held in the Administrative Maximum
Special Housing Unit (or Unit) of the MDC. The com-
plaint 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 tooth-
brush. 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 im-
posed pursuant to official policy. According to the com-
plaint, 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 de-
scent. Five are Muslims. Each was illegally in this coun-
try, arrested during the course of the September 11 inves-
tigation, 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. Respond-
ents, it seems fair to conclude from the arguments pre-
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Opinion of the Court
sented, acknowledge that in the ordinary course aliens
who are present in the United States without legal author-
ization 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 con-
sisted 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, re-
spondents 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 War-
dens 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.
6 ZIGLAR v. ABBASI
Opinion of the Court
Respondents also brought a claim under 42 U.S. C.
§1985(3), which forbids certain conspiracies to violate
equal protection rights. Respondents alleged that peti-
tioners 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 concur-
ring 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 codi-
fied 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
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Opinion of the Court
100 years leading up to Bivens, Congress did not pro-
vide a specific damages remedy for plaintiffs whose con-
stitutional 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 vio-
lated the prohibition against unreasonable search and sei-
zures. 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 dam-
ages remedy in “explicit” terms and that no “special fac-
tors” 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 assis-
tant 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 Punish-
ments 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.
8 ZIGLAR v. ABBASI
Opinion of the Court
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. Borak, 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 Elec-
tions, 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 consti-
tutional 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., con-
curring) (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
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Opinion of the Court
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, 444 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 considera-
tions than when the question is whether to recognize an
implied cause of action to enforce a provision of the Con-
stitution itself. When Congress enacts a statute, there are
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Opinion of the Court
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 Constitu-
tion, 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 deter-
mining 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 con-
sider. Claims against federal officials often create sub-
stantial costs, in the form of defense and indemnification.
Congress, then, has a substantial responsibility to deter-
mine 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 intru-
sions resulting from the discovery and trial process are
significant factors to be considered. In an analogous con-
text, 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 provi-
sions 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
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the Court’s general approach to recognizing implied dam-
ages 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 guid-
ance 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 rea-
sons 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 Amend-
ment 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-
12 ZIGLAR v. ABBASI
Opinion of the Court
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 prece-
dents now instruct, the Legislature is in the better posi-
tion 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 Judi-
ciary is well suited, absent congressional action or instruc-
tion, to consider and weigh the costs and benefits of allow-
ing a damages action to proceed. Thus, to be a “special
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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 as-
sessment of its impact on governmental operations sys-
temwide. Those matters include the burdens on Govern-
ment 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 formula-
tion and implementation of public policies. These and
other considerations may make it less probable that Con-
gress 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
14 ZIGLAR v. ABBASI
Opinion of the Court
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] inter-
est” 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);
Malesko, 534 U.S., at 73–74 (recognizing that state tort
law provided alternative means for relief); Minneci, supra,
at 127–130 (same).
III
It is appropriate now to turn first to the Bivens claims
challenging the conditions of confinement imposed on
respondents pursuant to the formal policy adopted by the
Executive Officials in the wake of the September 11 at-
tacks. The Court will refer to these claims as the “deten-
tion policy claims.” The detention policy claims allege that
petitioners violated respondents’ due process and equal
protection rights by holding them in restrictive conditions
of confinement; the claims further allege that the Wardens
violated the Fourth and Fifth Amendments by subjecting
respondents to frequent strip searches. The term “deten-
tion policy claims” does not include respondents’ claim
alleging that Warden Hasty allowed guards to abuse the
detainees. That claim will be considered separately, and
further, below. At this point, the question is whether,
having considered the relevant special factors in the whole
context of the detention policy claims, the Court should
extend a Bivens-type remedy to those claims.
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A
Before allowing respondents’ detention policy claims to
proceed under Bivens, the Court of Appeals did not per-
form any special factors analysis at all. 789 F.3d, at 237.
The reason, it said, was that the special factors analysis is
necessary only if a plaintiff asks for a Bivens remedy in a
new context. 789 F.3d, at 234. And in the Court of Ap-
peals’ view, the context here was not new. Id., at 235.
To determine whether the Bivens context was novel, the
Court of Appeals employed a two-part test. First, it asked
whether the asserted constitutional right was at issue in a
previous Bivens case. 789 F.3d, at 234. Second, it asked
whether the mechanism of injury was the same mecha-
nism of injury in a previous Bivens case. 789 F.3d, at 234.
Under the Court of Appeals’ approach, if the answer to
both questions is “yes,” then the context is not new and no
special factors analysis is required. Ibid.
That approach is inconsistent with the analysis in
Malesko. Before the Court decided that case, it had ap-
proved a Bivens action under the Eighth Amendment
against federal prison officials for failure to provide medi-
cal treatment. See Carlson, 446 U.S., at 16, n. 1, 18–19.
In Malesko, the plaintiff sought relief against a private
prison operator in almost parallel circumstances. 534
U.S., at 64. In both cases, the right at issue was the
same: the Eighth Amendment right to be free from cruel
and unusual punishment. And in both cases, the mecha-
nism of injury was the same: failure to provide adequate
medical treatment. Thus, if the approach followed by the
Court of Appeals is the correct one, this Court should have
held that the cases arose in the same context, obviating
any need for a special factors inquiry.
That, however, was not the controlling analytic frame-
work in Malesko. Even though the right and the mecha-
nism of injury were the same as they were in Carlson, the
Court held that the contexts were different. 534 U.S., at
16 ZIGLAR v. ABBASI
Opinion of the Court
70, and n. 4. The Court explained that special factors
counseled hesitation and that the Bivens remedy was
therefore unavailable. 534 U.S., at 74.
For similar reasons, the holding of the Court of Appeals
in the instant suit is inconsistent with this Court’s ana-
lytic framework in Chappell. In Davis, decided before the
Court’s cautionary instructions with respect to Bivens
suits, see supra, at 11–12, the Court had held that an
employment-discrimination claim against a Congressman
could proceed as a Bivens-type action. Davis, 442 U.S., at
230–231. In Chappell, however, the cautionary rules were
applicable; and, as a result, a similar discrimination suit
against military officers was not allowed to proceed. It is
the Chappell framework that now controls; and, under it,
the Court of Appeals erred by holding that this suit did
not present a new Bivens context.
The proper test for determining whether a case presents
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. Without endeavor-
ing to create an exhaustive list of differences that are
meaningful enough to make a given context a new one,
some examples might prove instructive. A case might
differ in a meaningful way because of the rank of the
officers involved; the constitutional right at issue; the
generality or specificity of the official action; the extent of
judicial guidance as to how an officer should respond to
the problem or emergency to be confronted; the statutory
or other legal mandate under which the officer was operat-
ing; the risk of disruptive intrusion by the Judiciary into
the functioning of other branches; or the presence of po-
tential special factors that previous Bivens cases did not
consider.
In the present suit, respondents’ detention policy claims
challenge the confinement conditions imposed on illegal
aliens pursuant to a high-level executive policy created in
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the wake of a major terrorist attack on American soil.
Those claims bear little resemblance to the three Bivens
claims the Court has approved in the past: a claim against
FBI agents for handcuffing a man in his own home with-
out a warrant; a claim against a Congressman for firing
his female secretary; and a claim against prison officials
for failure to treat an inmate’s asthma. See Bivens, 403
U.S. 388; Davis, 442 U.S. 228; Chappell, 462 U.S. 296.
The Court of Appeals therefore should have held that this
was a new Bivens context. Had it done so, it would have
recognized that a special factors analysis was required
before allowing this damages suit to proceed.
B
After considering the special factors necessarily impli-
cated by the detention policy claims, the Court now holds
that those factors show that whether a damages action
should be allowed is a decision for the Congress to make,
not the courts.
With respect to the claims against the Executive Offi-
cials, it must be noted that a Bivens action is not “a proper
vehicle for altering an entity’s policy.” Malesko, supra, at
74. Furthermore, a Bivens claim is brought against the
individual official for his or her own acts, not the acts of
others. “The purpose of Bivens is to deter the officer.”
Meyer, 510 U.S., at 485. Bivens is not designed to hold
officers responsible for acts of their subordinates. See
Iqbal, 556 U.S., at 676 (“Government officials may not be
held liable for the unconstitutional conduct of their subor-
dinates under a theory of respondeat superior ”).
Even if the action is confined to the conduct of a particu-
lar Executive Officer in a discrete instance, these claims
would call into question the formulation and implementa-
tion of a general policy. This, in turn, would necessarily
require inquiry and discovery into the whole course of the
discussions and deliberations that led to the policies and
18 ZIGLAR v. ABBASI
Opinion of the Court
governmental acts being challenged. These consequences
counsel against allowing a Bivens action against the Exec-
utive Officials, for the burden and demand of litigation
might well prevent them—or, to be more precise, future
officials like them—from devoting the time and effort
required for the proper discharge of their duties. See
Cheney v. United States Dist. Court for D. C., 542 U.S.
367, 382 (2004) (noting “the paramount necessity of pro-
tecting the Executive Branch from vexatious litigation
that might distract it from the energetic performance of its
constitutional duties”).
A closely related problem, as just noted, is that the
discovery and litigation process would either border upon
or directly implicate the discussion and deliberations that
led to the formation of the policy in question. See Federal
Open Market Comm. v. Merrill, 443 U.S. 340, 360 (1979)
(noting that disclosure of Executive Branch documents
“could inhibit the free flow of advice, including analysis,
reports, and expression of opinion within an agency”).
Allowing a damages suit in this context, or in a like con-
text in other circumstances, would require courts to inter-
fere in an intrusive way with sensitive functions of the
Executive Branch. See Clinton v. Jones, 520 U.S. 681,
701 (1997) (recognizing that “ ‘[e]ven when a branch does
not arrogate power to itself . . . the separation-of-powers
doctrine requires that a branch not impair another in the
performance of its constitutional duties’ ” (quoting Loving
v. United States, 517 U.S. 748, 757 (1996))). These con-
siderations also counsel against allowing a damages claim
to proceed against the Executive Officials. See Cheney,
supra, at 385 (noting that “special considerations control”
when a case implicates “the Executive Branch’s interests
in maintaining the autonomy of its office and safeguarding
the confidentiality of its communications”).
In addition to this special factor, which applies to the
claims against the Executive Officials, there are three
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other special factors that apply as well to the detention
policy claims against all of the petitioners. First, respond-
ents’ detention policy claims challenge more than standard
“law enforcement operations.” United States v. Verdugo-
Urquidez, 494 U.S. 259, 273 (1990). They challenge as
well major elements of the Government’s whole response
to the September 11 attacks, thus of necessity requiring
an inquiry into sensitive issues of national security. Were
this inquiry to be allowed in a private suit for damages,
the Bivens action would assume dimensions far greater
than those present in Bivens itself, or in either of its two
follow-on cases, or indeed in any putative Bivens case yet
to come before the Court.
National-security policy is the prerogative of the Con-
gress and President. See U. S. Const., Art. I, §8; Art. II,
§1, §2. Judicial inquiry into the national-security realm
raises “concerns for the separation of powers in trenching
on matters committed to the other branches.” Christopher
v. Harbury, 536 U.S. 403, 417 (2002). These concerns are
even more pronounced when the judicial inquiry comes in
the context of a claim seeking money damages rather than
a claim seeking injunctive or other equitable relief. The
risk of personal damages liability is more likely to cause
an official to second-guess difficult but necessary decisions
concerning national-security policy.
For these and other reasons, courts have shown defer-
ence to what the Executive Branch “has determined . . . is
‘essential to national security.’ ” Winter v. Natural Re-
sources Defense Council, Inc., 555 U.S. 7, 24, 26 (2008).
Indeed, “courts traditionally have been reluctant to in-
trude upon the authority of the Executive in military and
national security affairs” unless “Congress specifically has
provided otherwise.” Department of Navy v. Egan, 484
U.S. 518, 530 (1988). Congress has not provided other-
wise here.
There are limitations, of course, on the power of the
20 ZIGLAR v. ABBASI
Opinion of the Court
Executive under Article II of the Constitution and in the
powers authorized by congressional enactments, even with
respect to matters of national security. See, e.g., Hamdi v.
Rumsfeld, 542 U.S. 507, 527, 532–537 (2004) (plurality
opinion) (“Whatever power the United States Constitution
envisions for the Executive . . . in times of conflict, it most
assuredly envisions a role for all three branches when
individual liberties are at stake”); Boumediene v. Bush,
553 U.S. 723, 798 (2008) (“Liberty and security can be
reconciled; and in our system they are reconciled within
the framework of the law”). And national-security con-
cerns must not become a talisman used to ward off incon-
venient claims—a “label” used to “cover a multitude of
sins.” Mitchell v. Forsyth, 472 U.S. 511, 523 (1985). This
“ ‘danger of abuse’ ” is even more heightened given “ ‘the
difficulty of defining’ ” the “ ‘security interest’ ” in domestic
cases. Ibid. (quoting United States v. United States Dist.
Court for Eastern Dist. of Mich., 407 U.S. 297, 313–314
(1972)).
Even so, the question is only whether “congressionally
uninvited intrusion” is “inappropriate” action for the
Judiciary to take. Stanley, 483 U.S., at 683. The factors
discussed above all suggest that Congress’ failure to pro-
vide a damages remedy might be more than mere over-
sight, and that congressional silence might be more than
“inadvertent.” Schweiker, 487 U.S., at 423. This possibil-
ity counsels hesitation “in the absence of affirmative ac-
tion by Congress.” Bivens, 403 U.S., at 396.
Furthermore, in any inquiry respecting the likely or
probable intent of Congress, the silence of Congress is
relevant; and here that silence is telling. In the almost 16
years since September 11, the Federal Government’s
responses to that terrorist attack have been well docu-
mented. Congressional interest has been “frequent and
intense,” Schweiker, supra, at 425, and some of that inter-
est has been directed to the conditions of confinement at
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issue here. Indeed, at Congress’ behest, the Department
of Justice’s Office of the Inspector General compiled a 300-
page report documenting the conditions in the MDC in
great detail. See 789 F.3d, at 279 (opinion of Raggi, J.)
(noting that the USA PATRIOT Act required “the De-
partment’s Inspector General to review and report semi-
annually to Congress on any identified abuses of civil
rights and civil liberties in fighting terrorism”). Neverthe-
less, “[a]t no point did Congress choose to extend to any
person the kind of remedies that respondents seek in this
lawsuit.” Schweiker, 487 U.S., at 426.
This silence is notable because it is likely that high-level
policies will attract the attention of Congress. Thus, when
Congress fails to provide a damages remedy in circum-
stances like these, it is much more difficult to believe that
“congressional inaction” was “inadvertent.” Id., at 423.
It is of central importance, too, that this is not a case
like Bivens or Davis in which “it is damages or nothing.”
Bivens, supra, at 410 (Harlan, J., concurring in judgment);
Davis, 442 U.S., at 245. Unlike the plaintiffs in those
cases, respondents do not challenge individual instances of
discrimination or law enforcement overreach, which due to
their very nature are difficult to address except by way of
damages actions after the fact. Respondents instead
challenge large-scale policy decisions concerning the con-
ditions of confinement imposed on hundreds of prisoners.
To address those kinds of decisions, detainees may seek
injunctive relief. And in addition to that, we have left
open the question whether they might be able to challenge
their confinement conditions via a petition for a writ of
habeas corpus. See Bell v. Wolfish, 441 U.S. 520, 526, n. 6
(1979) (“[W]e leave to another day the question of the
propriety of using a writ of habeas corpus to obtain review
of the conditions of confinement”); Preiser v. Rodriguez,
411 U.S. 475, 499 (1973) (“When a prisoner is put under
additional and unconstitutional restraints during his
22 ZIGLAR v. ABBASI
Opinion of the Court
lawful custody, it is arguable that habeas corpus will lie to
remove the restraints making custody illegal”).
Indeed, the habeas remedy, if necessity required its use,
would have provided a faster and more direct route to
relief than a suit for money damages. A successful habeas
petition would have required officials to place respondents
in less-restrictive conditions immediately; yet this dam-
ages suit remains unresolved some 15 years later. (As in
Bell and Preiser, the Court need not determine the scope
or availability of the habeas corpus remedy, a question
that is not before the Court and has not been briefed or
argued.) In sum, respondents had available to them “ ‘other
alternative forms of judicial relief.’ ” Minneci, 565 U.S.,
at 124. And when alternative methods of relief are avail-
able, a Bivens remedy usually is not. See Bush, 462 U.S.,
at 386–388; Schweiker, supra, at 425–426; Malesko, 534
U.S., at 73–74; Minneci, supra, at 125–126.
There is a persisting concern, of course, that absent a
Bivens remedy there will be insufficient deterrence to
prevent officers from violating the Constitution. In cir-
cumstances like those presented here, however, the stakes
on both sides of the argument are far higher than in past
cases the Court has considered. If Bivens liability were to
be imposed, high officers who face personal liability for
damages might refrain from taking urgent and lawful
action in a time of crisis. And, as already noted, the costs
and difficulties of later litigation might intrude upon and
interfere with the proper exercise of their office.
On the other side of the balance, the very fact that some
executive actions have the sweeping potential to affect the
liberty of so many is a reason to consider proper means to
impose restraint and to provide some redress from injury.
There is therefore a balance to be struck, in situations like
this one, between deterring constitutional violations and
freeing high officials to make the lawful decisions neces-
sary to protect the Nation in times of great peril. Cf.
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Stanley, supra, at 681 (noting that the special-factors
analysis in that case turned on “how much occasional,
unintended impairment of military discipline one is will-
ing to tolerate”). The proper balance is one for the Con-
gress, not the Judiciary, to undertake. For all of these
reasons, the Court of Appeals erred by allowing respond-
ents’ detention policy claims to proceed under Bivens.
IV
A
One of respondents’ claims under Bivens requires a
different analysis: the prisoner abuse claim against the
MDC’s warden, Dennis Hasty. The allegation is that
Warden Hasty violated the Fifth Amendment by allowing
prison guards to abuse respondents.
The warden argues, as an initial matter, that the com-
plaint does not “ ‘state a claim to relief that is plausible on
its face.’ ” Iqbal, 556 U.S., at 678 (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Applying its
precedents, the Court of Appeals held that the substantive
standard for the sufficiency of the claim is whether the
warden showed “deliberate indifference” to prisoner abuse.
789 F.3d, at 249–250. The parties appear to agree on this
standard, and, for purposes of this case, the Court as-
sumes it to be correct.
The complaint alleges that guards routinely abused
respondents; that the warden encouraged the abuse by
referring to respondents as “terrorists”; that he prevented
respondents from using normal grievance procedures; that
he stayed away from the Unit to avoid seeing the abuse;
that he was made aware of the abuse via “inmate com-
plaints, staff complaints, hunger strikes, and suicide
attempts”; that he ignored other “direct evidence of [the]
abuse, including logs and other official [records]”; that he
took no action “to rectify or address the situation”; and
that the abuse resulted in the injuries described above, see
24 ZIGLAR v. ABBASI
Opinion of the Court
supra, at 4. These allegations—assumed here to be true,
subject to proof at a later stage—plausibly show the war-
den’s deliberate indifference to the abuse. Consistent with
the opinion of every judge in this case to have considered
the question, including the dissenters in the Court of
Appeals, the Court concludes that the prisoner abuse
allegations against Warden Hasty state a plausible ground
to find a constitutional violation if a Bivens remedy is to be
implied.
Warden Hasty argues, however, that Bivens ought not
to be extended to this instance of alleged prisoner abuse.
As noted above, the first question a court must ask in a
case like this one is whether the claim arises in a new
Bivens context, i.e., whether “the case is different in a
meaningful way from previous Bivens cases decided by
this Court.” Supra, at 16.
It is true that this case has significant parallels to one of
the Court’s previous Bivens cases, Carlson v. Green, 446
U.S. 14. There, the Court did allow a Bivens claim for
prisoner mistreatment—specifically, for failure to provide
medical care. And the allegations of injury here are just
as compelling as those at issue in Carlson. This is espe-
cially true given that the complaint alleges serious viola-
tions of Bureau of Prisons policy. See 28 CFR §552.20
(2016) (providing that prison staff may use force “only as a
last alternative after all other reasonable efforts to resolve
a situation have failed” and that staff may “use only that
amount of force necessary to [ensure prison safety and
security]”); §552.22(j) (“All incidents involving the use of
force . . . must be carefully documented”); §542.11 (requir-
ing the warden to investigate certain complaints of inmate
abuse).
Yet even a modest extension is still an extension. And
this case does seek to extend Carlson to a new context. As
noted above, a case can present a new context for Bivens
purposes if it implicates a different constitutional right; if
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judicial precedents provide a less meaningful guide for
official conduct; or if there are potential special factors
that were not considered in previous Bivens cases. See
supra, at 13.
The constitutional right is different here, since Carlson
was predicated on the Eighth Amendment and this claim
is predicated on the Fifth. See 446 U.S., at 16. And the
judicial guidance available to this warden, with respect to
his supervisory duties, was less developed. The Court has
long made clear the standard for claims alleging failure to
provide medical treatment to a prisoner—“deliberate
indifference to serious medical needs.” Estelle v. Gamble,
429 U.S. 97, 104 (1976). The standard for a claim alleging
that a warden allowed guards to abuse pre-trial detainees
is less clear under the Court’s precedents.
This case also has certain features that were not consid-
ered in the Court’s previous Bivens cases and that might
discourage a court from authorizing a Bivens remedy. As
noted above, the existence of alternative remedies usually
precludes a court from authorizing a Bivens action. Su-
pra, at 14. And there might have been alternative reme-
dies available here, for example, a writ of habeas corpus,
Wolfish, 441 U.S., at 526, n. 6; an injunction requiring the
warden to bring his prison into compliance with the regu-
lations discussed above; or some other form of equitable
relief.
Furthermore, legislative action suggesting that Con-
gress does not want a damages remedy is itself a factor
counseling hesitation. See supra, at 14. Some 15 years
after Carlson was decided, Congress passed the Prison
Litigation Reform Act of 1995, which made comprehensive
changes to the way prisoner abuse claims must be brought
in federal court. See 42 U.S. C. §1997e. So it seems clear
that Congress had specific occasion to consider the matter
of prisoner abuse and to consider the proper way to rem-
edy those wrongs. This Court has said in dicta that the
26 ZIGLAR v. ABBASI
Opinion of the Court
Act’s exhaustion provisions would apply to Bivens suits.
See Porter v. Nussle, 534 U.S. 516, 524 (2002). But the
Act itself does not provide for a standalone damages rem-
edy against federal jailers. It could be argued that this
suggests Congress chose not to extend the Carlson dam-
ages remedy to cases involving other types of prisoner
mistreatment.
The differences between this claim and the one in Carl-
son are perhaps small, at least in practical terms. Given
this Court’s expressed caution about extending the Bivens
remedy, however, the new-context inquiry is easily satis-
fied. Some differences, of course, will be so trivial that
they will not suffice to create a new Bivens context. But
here the differences identified above are at the very least
meaningful ones. Thus, before allowing this claim to
proceed under Bivens, the Court of Appeals should have
performed a special factors analysis. It should have ana-
lyzed whether there were alternative remedies available
or other “sound reasons to think Congress might doubt the
efficacy or necessity of a damages remedy” in a suit like
this one. Supra, at 15.
B
Although the Court could perform that analysis in the
first instance, the briefs have concentrated almost all of
their efforts elsewhere. Given the absence of a compre-
hensive presentation by the parties, and the fact that the
Court of Appeals did not conduct the analysis, the Court
declines to perform the special factors analysis itself. The
better course is to vacate the judgment below, allowing the
Court of Appeals or the District Court to do so on remand.
V
One issue remains to be addressed: the claim that
petitioners are subject to liability for civil conspiracy
under 42 U.S. C. §1985(3). Unlike the prisoner abuse
claim just discussed, this claim implicates the activities of
Cite as: 582 U. S. ____ (2017) 27
Opinion of the Court
all the petitioners—the Executive Officials as well as the
Wardens—in creating the conditions of confinement at
issue here.
The civil-conspiracy prohibition contained in §1985(3)
was enacted as a significant part of the civil rights legisla-
tion passed in the aftermath of the Civil War. See Car-
penters v. Scott, 463 U.S. 825, 834–837 (1983) (detailing
the legislative history of §1985(3)); Griffin v. Breckenridge,
403 U.S. 88, 99–101 (1971) (same); Great American Fed.
Sav. & Loan Assn. v. Novotny, 442 U.S. 366, 379 (1979)
(Powell, J., concurring) (describing §1985(3) as a “Civil
War Era remedial statute”). The statute imposes liability
on two or more persons who “conspire . . . for the purpose
of depriving . . . any person or class of persons of the equal
protection of the laws.” §1985(3). In the instant suit,
respondents allege that petitioners violated the statute by
“agreeing to implement a policy” under which respondents
would be detained in harsh conditions “because of their
race, religion, ethnicity, and national origin.” Assuming
these allegations to be true and well pleaded, the question
is whether petitioners are entitled to qualified immunity.
A
The qualified immunity rule seeks a proper balance
between two competing interests. On one hand, damages
suits “may offer the only realistic avenue for vindication of
constitutional guarantees.” Harlow v. Fitzgerald, 457
U.S. 800, 814 (1982). “On the other hand, permitting
damages suits against government officials can entail
substantial social costs, including the risk that fear of
personal monetary liability and harassing litigation will
unduly inhibit officials in the discharge of their duties.”
Anderson v. Creighton, 483 U.S. 635, 638 (1987). As one
means to accommodate these two objectives, the Court has
held that Government officials are entitled to qualified
immunity with respect to “discretionary functions” per-
28 ZIGLAR v. ABBASI
Opinion of the Court
formed in their official capacities. Ibid. The doctrine of
qualified immunity gives officials “breathing room to make
reasonable but mistaken judgments about open legal
questions.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011).
The Court’s cases provide additional instruction to
define and implement that immunity. Whether qualified
immunity can be invoked turns on the “objective legal
reasonableness” of the official’s acts. Harlow, supra, at
819. And reasonableness of official action, in turn, must
be “assessed in light of the legal rules that were clearly
established at the time [the action] was taken.” Anderson,
supra, at 639 (internal quotation marks omitted); see also
Mitchell, 472 U.S., at 528. This requirement—that an
official loses qualified immunity only for violating clearly
established law—protects officials accused of violating
“extremely abstract rights.” Anderson, supra, at 639.
The Fourth Amendment provides an example of how
qualified immunity functions with respect to abstract
rights. By its plain terms, the Amendment forbids unrea-
sonable searches and seizures, yet it may be difficult for
an officer to know whether a search or seizure will be
deemed reasonable given the precise situation encoun-
tered. See Saucier v. Katz, 533 U.S. 194, 205 (2001) (“It is
sometimes difficult for an officer to determine how the
relevant legal doctrine, here excessive force, will apply to
the factual situation the officer confronts”). For this rea-
son, “[t]he dispositive question is ‘whether the violative
nature of particular conduct is clearly established.’ ”
Mullenix v. Luna, 577 U. S. ___, ___ (2015) ( per curiam)
(slip op., at 5) (quoting Ashcroft, supra, at 742).
It is not necessary, of course, that “the very action in
question has previously been held unlawful.” Anderson,
supra, at 640. That is, an officer might lose qualified
immunity even if there is no reported case “directly on
point.” Ashcroft, supra, at 741. But “in the light of pre-
existing law,” the unlawfulness of the officer’s conduct
Cite as: 582 U. S. ____ (2017) 29
Opinion of the Court
“must be apparent.” Anderson, supra, at 640. To subject
officers to any broader liability would be to “disrupt the
balance that our cases strike between the interests in
vindication of citizens’ constitutional rights and in public
officials’ effective performance of their duties.” Davis v.
Scherer, 468 U.S. 183, 195 (1984). For then, both as a
practical and legal matter, it would be difficult for officials
“reasonably [to] anticipate when their conduct may give
rise to liability for damages.” Ibid.
In light of these concerns, the Court has held that quali-
fied immunity protects “all but the plainly incompetent or
those who knowingly violate the law.” Malley v. Briggs,
475 U.S. 335, 341 (1986). To determine whether a given
officer falls into either of those two categories, a court
must ask whether it would have been clear to a reasonable
officer that the alleged conduct “was unlawful in the situa-
tion he confronted.” Saucier, supra, at 202. If so, then the
defendant officer must have been either incompetent or
else a knowing violator of the law, and thus not entitled to
qualified immunity. If not, however—i.e., if a reasonable
officer might not have known for certain that the conduct
was unlawful—then the officer is immune from liability.
B
Under these principles, it must be concluded that rea-
sonable officials in petitioners’ positions would not have
known, and could not have predicted, that §1985(3) pro-
hibited their joint consultations and the resulting policies
that caused the injuries alleged.
At least two aspects of the complaint indicate that peti-
tioners’ potential liability for this statutory offense would
not have been known or anticipated by reasonable officials
in their position. First, the conspiracy recited in the com-
plaint is alleged to have been between or among officers in
the same branch of the Government (the Executive
Branch) and in the same Department (the Department of
30 ZIGLAR v. ABBASI
Opinion of the Court
Justice). Second, the discussions were the preface to, and
the outline of, a general and far-reaching policy.
As to the fact that these officers were in the same De-
partment, an analogous principle discussed in the context
of antitrust law is instructive. The Court’s precedent
indicates that there is no unlawful conspiracy when offic-
ers within a single corporate entity consult among them-
selves and then adopt a policy for the entity. See Copper-
weld Corp v. Independence Tube Corp., 467 U.S. 752,
769–771 (1984). Under this principle—sometimes called the
intracorporate-conspiracy doctrine—an agreement be-
tween or among agents of the same legal entity, when the
agents act in their official capacities, is not an unlawful
conspiracy. Ibid. The rule is derived from the nature of
the conspiracy prohibition. Conspiracy requires an
agreement—and in particular an agreement to do an
unlawful act—between or among two or more separate
persons. When two agents of the same legal entity make
an agreement in the course of their official duties, how-
ever, as a practical and legal matter their acts are attributed
to their principal. And it then follows that there has not
been an agreement between two or more separate people.
See id., at 771 (analogizing to “a multiple team of horses
drawing a vehicle under the control of a single driver”).
To be sure, this Court has not given its approval to this
doctrine in the specific context of §1985(3). See Great
American, 442 U.S., at 372, n. 11. There is a division in
the courts of appeals, moreover, respecting the validity or
correctness of the intracorporate-conspiracy doctrine with
reference to §1985 conspiracies. See Hull v. Shuck, 501
U.S. 1261, 1261–1262 (1991) (White, J., dissenting from
denial of certiorari) (discussing the Circuit split); Bowie v.
Maddox, 642 F.3d 1122, 1130–1131 (CADC 2011) (detail-
ing a longstanding split about whether the intracorporate-
conspiracy doctrine applies to civil rights conspiracies).
Nothing in this opinion should be interpreted as either
Cite as: 582 U. S. ____ (2017) 31
Opinion of the Court
approving or disapproving the intracorporate-conspiracy
doctrine’s application in the context of an alleged §1985(3)
violation. The Court might determine, in some later case,
that different considerations apply to a conspiracy respect-
ing equal protection guarantees, as distinct from a con-
spiracy in the antitrust context. Yet the fact that the
courts are divided as to whether or not a §1985(3) conspir-
acy can arise from official discussions between or among
agents of the same entity demonstrates that the law on
the point is not well established. When the courts are
divided on an issue so central to the cause of action al-
leged, a reasonable official lacks the notice required before
imposing liability. See Wilson v. Layne, 526 U.S. 603, 618
(1999) (noting that it would be “unfair” to subject officers
to damages liability when even “judges . . . disagree”);
Reichle v. Howards, 566 U.S. 658, 669–670 (2012) (same).
In addition to the concern that agents of the same legal
entity are not distinct enough to conspire with one another,
there are other sound reasons to conclude that conver-
sations and agreements between and among federal offi-
cials in the same Department should not be the subject of
a private cause of action for damages under §1985(3). To
state a claim under §1985(3), a plaintiff must first show
that the defendants conspired—that is, reached an agree-
ment—with one another. See Carpenters, 463 U.S., at
828 (stating that the elements of a §1985(3) claim include
“a conspiracy”). Thus, a §1985(3) claim against federal
officials by necessity implicates the substance of their
official discussions.
As indicated above with respect to other claims in this
suit, open discussion among federal officers is to be en-
couraged, so that they can reach consensus on the policies
a department of the Federal Government should pursue.
See supra, at 17–18. Close and frequent consultations to
facilitate the adoption and implementation of policies are
essential to the orderly conduct of governmental affairs.
32 ZIGLAR v. ABBASI
Opinion of the Court
Were those discussions, and the resulting policies, to be
the basis for private suits seeking damages against the
officials as individuals, the result would be to chill the
interchange and discourse that is necessary for the adop-
tion and implementation of governmental policies. See
Cheney, 542 U.S., at 383 (discussing the need for confi-
dential communications among Executive Branch offi-
cials); Merrill, 443 U.S., at 360 (same).
These considerations suggest that officials employed by
the same governmental department do not conspire when
they speak to one another and work together in their
official capacities. Whether that contention should prevail
need not be decided here. It suffices to say that the ques-
tion is sufficiently open so that the officials in this suit
could not be certain that §1985(3) was applicable to their
discussions and actions. Thus, the law respondents seek
to invoke cannot be clearly established. It follows that
reasonable officers in petitioners’ positions would not have
known with any certainty that the alleged agreements
were forbidden by law. See Saucier, 533 U.S., at 202.
Petitioners are entitled to qualified immunity with respect
to the claims under 42 U.S. C. §1985(3).
* * *
If the facts alleged in the complaint are true, then what
happened to respondents in the days following September
11 was tragic. Nothing in this opinion should be read to
condone the treatment to which they contend they were
subjected. The question before the Court, however, is not
whether petitioners’ alleged conduct was proper, nor
whether it gave decent respect to respondents’ dignity and
well-being, nor whether it was in keeping with the idea of
the rule of law that must inspire us even in times of crisis.
Instead, the question with respect to the Bivens claims
is whether to allow an action for money damages in the
absence of congressional authorization. For the reasons
Cite as: 582 U. S. ____ (2017) 33
Opinion of the Court
given above, the Court answers that question in the nega-
tive as to the detention policy claims. As to the prisoner
abuse claim, because the briefs have not concentrated on
that issue, the Court remands to allow the Court of Ap-
peals to consider the claim in light of the Bivens analysis
set forth above.
The question with respect to the §1985(3) claim is
whether a reasonable officer in petitioners’ position would
have known the alleged conduct was an unlawful conspir-
acy. For the reasons given above, the Court answers that
question, too, in the negative.
The judgment of the Court of Appeals is reversed as to
all of the claims except the prisoner abuse claim against
Warden Hasty. The judgment of the Court of Appeals
with respect to that claim is vacated, and that case is
remanded for further proceedings.
It is so ordered.
JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE
GORSUCH took no part in the consideration or decision of
these cases.
Cite as: 582 U. S. ____ (2017) 1
Opinion of THOMAS, J.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 15–1358, 15–1359 and 15–1363
_________________
JAMES W. ZIGLAR, PETITIONER
15–1358 v.
AHMER IQBAL ABBASI, ET AL.
JOHN D. ASHCROFT, FORMER ATTORNEY
GENERAL, ET AL., PETITIONERS
15–1359 v.
AHMER IQBAL ABBASI, ET AL.
DENNIS HASTY, ET AL., PETITIONERS
15–1363 v.
AHMER IQBAL ABBASI, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 19, 2017]
JUSTICE THOMAS, concurring in part and concurring in
the judgment.
I join the Court’s opinion except for Part IV–B. I write
separately to express my view on the Court’s decision to
remand some of respondents’ claims under Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), and
my concerns about our qualified immunity precedents.
I
With respect to respondents’ Bivens claims, I join the
opinion of the Court to the extent it reverses the Second
Circuit’s ruling. The Court correctly applies our prece-
dents to hold that Bivens does not supply a cause of action
against petitioners for most of the alleged Fourth and
2 ZIGLAR v. ABBASI
Opinion of THOMAS, J.
Fifth Amendment violations. It also correctly recognizes
that respondents’ claims against petitioner Dennis Hasty
seek to extend Bivens to a new context. See ante, at 24.
I concur in the judgment of the Court vacating the Court
of Appeals’ judgment with regard to claims against Hasty.
Ante, at 29. I have previously noted that “ ‘Bivens is a relic
of the heady days in which this Court assumed common-
law powers to create causes of action.’ ” Wilkie v. Robbins,
551 U.S. 537, 568 (2007) (concurring opinion) (quoting
Correctional Services Corp. v. Malesko, 534 U.S. 61, 75
(2001) (Scalia, J., concurring)). I have thus declined to
“extend Bivens even [where] its reasoning logically ap-
plied,” thereby limiting “Bivens and its progeny . . . to the
precise circumstances that they involved.” Ibid. (internal
quotation marks omitted). This would, in most cases,
mean a reversal of the judgment of the Court of Appeals is
in order. However, in order for there to be a controlling
judgment in this suit, I concur in the judgment vacating
and remanding the claims against petitioner Hasty as that
disposition is closest to my preferred approach.
II
As for respondents’ claims under 42 U.S. C. §1985(3),
I join Part V of the Court’s opinion, which holds that
respondents are entitled to qualified immunity. The
Court correctly applies our precedents, which no party has
asked us to reconsider. I write separately, however, to
note my growing concern with our qualified immunity
jurisprudence.
The Civil Rights Act of 1871, of which §1985(3) and the
more frequently litigated §1983 were originally a part,
established causes of action for plaintiffs to seek money
damages from Government officers who violated federal
law. See §§1, 2, 17 Stat. 13. Although the Act made no
mention of defenses or immunities, “we have read it in
harmony with general principles of tort immunities and
Cite as: 582 U. S. ____ (2017) 3
Opinion of THOMAS, J.
defenses rather than in derogation of them.” Malley v.
Briggs, 475 U.S. 335, 339 (1986) (internal quotation
marks omitted). We have done so because “[c]ertain im-
munities were so well established in 1871 . . . that ‘we
presume that Congress would have specifically so provided
had it wished to abolish’ them.” Buckley v. Fitzsimmons,
509 U.S. 259, 268 (1993); accord, Briscoe v. LaHue, 460
U.S. 325, 330 (1983). Immunity is thus available under
the statute if it was “historically accorded the relevant
official” in an analogous situation “at common law,” Imbler
v. Pachtman, 424 U.S. 409, 421 (1976), unless the statute
provides some reason to think that Congress did not pre-
serve the defense, see Tower v. Glover, 467 U.S. 914, 920
(1984).
In some contexts, we have conducted the common-law
inquiry that the statute requires. See Wyatt v. Cole, 504
U.S. 158, 170 (1992) (KENNEDY, J., concurring). For
example, we have concluded that legislators and judges
are absolutely immune from liability under §1983 for their
official acts because that immunity was well established at
common law in 1871. See Tenney v. Brandhove, 341 U.S.
367, 372–376 (1951) (legislators); Pierson v. Ray, 386 U.S.
547, 553–555 (1967) (judges). We have similarly looked to
the common law in holding that a prosecutor is immune
from suits relating to the “judicial phase of the criminal
process,” Imbler, supra, at 430; Burns v. Reed, 500 U.S.
478, 489–492 (1991); but see Kalina v. Fletcher, 522 U.S.
118, 131–134 (1997) (Scalia, J., joined by THOMAS, J.,
concurring) (arguing that the Court in Imbler misunder-
stood 1871 common-law rules), although not from suits
relating to the prosecutor’s advice to police officers, Burns,
supra, at 493.
In developing immunity doctrine for other executive
officers, we also started off by applying common-law rules.
In Pierson, we held that police officers are not absolutely
immune from a §1983 claim arising from an arrest made
4 ZIGLAR v. ABBASI
Opinion of THOMAS, J.
pursuant to an unconstitutional statute because the com-
mon law never granted arresting officers that sort of
immunity. 386 U.S., at 555. Rather, we concluded that
police officers could assert “the defense of good faith and
probable cause” against the claim for an unconstitutional
arrest because that defense was available against the
analogous torts of “false arrest and imprisonment” at
common law. Id., at 557.
In further elaborating the doctrine of qualified immun-
ity for executive officials, however, we have diverged from
the historical inquiry mandated by the statute. See Wyatt,
supra, at 170 (KENNEDY, J., concurring); accord, Crawford-
El v. Britton, 523 U.S. 574, 611 (1998) (Scalia, J.,
joined by THOMAS, J., dissenting). In the decisions follow-
ing Pierson, we have “completely reformulated qualified
immunity along principles not at all embodied in the
common law.” Anderson v. Creighton, 483 U.S. 635, 645
(1987) (discussing Harlow v. Fitzgerald, 457 U.S. 800
(1982)). Instead of asking whether the common law in
1871 would have accorded immunity to an officer for a tort
analogous to the plaintiff ’s claim under §1983, we instead
grant immunity to any officer whose conduct “does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Mullenix v. Luna, 577 U. S. ___, ___–___ (2015) ( per cu-
riam) (slip op., at 4–5) (internal quotation marks omitted);
Taylor v. Barkes, 575 U. S. ___, ___ (2015) (slip op., at 4) (a
Government official is liable under the 1871 Act only if
“ ‘existing precedent . . . placed the statutory or constitu-
tional question beyond debate’ ” (quoting Ashcroft v. al-
Kidd, 563 U.S. 731, 741 (2011))). We apply this “clearly
established” standard “across the board” and without
regard to “the precise nature of the various officials’ duties
or the precise character of the particular rights alleged to
Cite as: 582 U. S. ____ (2017) 5
Opinion of THOMAS, J.
have been violated.” Anderson, supra, at 641–643 (internal
quotation marks omitted).* We have not attempted to
locate that standard in the common law as it existed in
1871, however, and some evidence supports the conclusion
that common-law immunity as it existed in 1871 looked
quite different from our current doctrine. See generally
Baude, Is Qualified Immunity Unlawful? 106 Cal. L. Rev.
(forthcoming 2018) (manuscript, at 7–17), online at
https://papers.ssrn.com/abstract=2896508 (as last visited
June 15, 2017).
Because our analysis is no longer grounded in the
common-law backdrop against which Congress enacted the
1871 Act, we are no longer engaged in “interpret[ing] the
intent of Congress in enacting” the Act. Malley, supra, at
342; see Burns, supra, at 493. Our qualified immunity
precedents instead represent precisely the sort of “free-
wheeling policy choice[s]” that we have previously dis-
claimed the power to make. Rehberg v. Paulk, 566 U.S.
356, 363 (2012) (internal quotation marks omitted); see
also Tower, supra, at 922–923 (“We do not have a license
to establish immunities from” suits brought under the Act
“in the interests of what we judge to be sound public pol-
icy”). We have acknowledged, in fact, that the “clearly
established” standard is designed to “protec[t] the balance
between vindication of constitutional rights and govern-
ment officials’ effective performance of their duties.”
Reichle v. Howards, 566 U.S. 658, 664 (2012) (internal
quotation marks omitted); Harlow, supra, at 807 (explain-
ing that “the recognition of a qualified immunity defense
. . . reflected an attempt to balance competing values”).
——————
* Although we first formulated the “clearly established” standard in
Bivens cases like Harlow and Anderson, we have imported that stand-
ard directly into our 1871 Act cases. See, e.g., Pearson v. Callahan, 555
U.S. 223, 243–244 (2009) (applying the clearly established standard to
a §1983 claim).
6 ZIGLAR v. ABBASI
Opinion of THOMAS, J.
The Constitution assigns this kind of balancing to Con-
gress, not the Courts.
In today’s decision, we continue down the path our
precedents have marked. We ask “whether it would have
been clear to a reasonable officer that the alleged conduct
was unlawful in the situation he confronted,” ante, at 29
(internal quotation marks omitted), rather than whether
officers in petitioners’ positions would have been accorded
immunity at common law in 1871 from claims analogous
to respondents’. Even if we ultimately reach a conclusion
consistent with the common-law rules prevailing in 1871,
it is mere fortuity. Until we shift the focus of our inquiry
to whether immunity existed at common law, we will
continue to substitute our own policy preferences for the
mandates of Congress. In an appropriate case, we should
reconsider our qualified immunity jurisprudence.
Cite as: 582 U. S. ____ (2017) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 15–1358, 15–1359 and 15–1363
_________________
JAMES W. ZIGLAR, PETITIONER
15–1358 v.
AHMER IQBAL ABBASI, ET AL.
JOHN D. ASHCROFT, FORMER ATTORNEY
GENERAL, ET AL., PETITIONERS
15–1359 v.
AHMER IQBAL ABBASI, ET AL.
DENNIS HASTY, ET AL., PETITIONERS
15–1363 v.
AHMER IQBAL ABBASI, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 19, 2017]
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
In Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1971), this Court held that the Fourth Amend-
ment provides a damages remedy for those whom federal
officials have injured as a result of an unconstitutional
search or seizure. In Davis v. Passman, 442 U.S. 228
(1979), the Court held that the Fifth Amendment provides
a damages remedy to an individual dismissed by her
employer (a Member of Congress) on the basis of her sex in
violation of the equal protection component of that
Amendment’s Due Process Clause. And in Carlson v.
Green, 446 U.S. 14 (1980), the Court held that the Eighth
Amendment provides a damages remedy to a prisoner who
2 ZIGLAR v. ABBASI
BREYER, J., dissenting
died as a result of prison official’s deliberate indifference
to his medical needs, in violation of the Amendment’s
prohibition against cruel and unusual punishment.
It is by now well established that federal law provides
damages actions at least in similar contexts, where claims
of constitutional violation arise. Congress has ratified
Bivens actions, plaintiffs frequently bring them, courts
accept them, and scholars defend their importance. See J.
Pfander, Constitutional Torts and the War on Terror
(2017) (canvassing the history of Bivens and cataloguing
cases). Moreover, the courts, in order to avoid deterring
federal officials from properly performing their work, have
developed safeguards for defendants, including the re-
quirement that plaintiffs plead “plausible” claims, Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009), as well as the defense
of “qualified immunity,” which frees federal officials from
both threat of liability and involvement in the lawsuit,
unless the plaintiffs establish that officials have violated
“ ‘clearly established . . . constitutional rights,’ ” id., at 672
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
“[This] Court has been reluctant to extend Bivens liability
‘to any new context or new category of defendants.’ ” Iqbal,
supra, at 675 (quoting Correctional Services Corp. v.
Malesko, 534 U.S. 61, 68 (2001)). But the Court has made
clear that it would not narrow Bivens’ existing scope. See
FDIC v. Meyer, 510 U.S. 471, 485 (1994) (guarding
against “the evisceration of the Bivens remedy” so that its
“deterrent effects . . . would [not] be lost”).
The plaintiffs before us today seek damages for uncon-
stitutional conditions of confinement. They alleged that
federal officials slammed them against walls, shackled
them, exposed them to nonstop lighting, lack of hygiene,
and the like, all based upon invidious discrimination and
without penological justification. See ante, at 4–5. In my
view, these claims are well-pleaded, state violations of
clearly established law, and fall within the scope of
Cite as: 582 U. S. ____ (2017) 3
BREYER, J., dissenting
longstanding Bivens law. For those reasons, I would
affirm the judgment of the Court of Appeals. I shall dis-
cuss at some length what I believe is the most important
point of disagreement. The Court, in my view, is wrong to
hold that permitting a constitutional tort action here
would “extend” Bivens, applying it in a new context. To
the contrary, I fear that the Court’s holding would signifi-
cantly shrink the existing Bivens contexts, diminishing
the compensatory remedy constitutional tort law now
offers to harmed individuals.
I shall explain why I believe this suit falls well within
the scope of traditional constitutional tort law and why I
cannot agree with the Court’s arguments to the contrary.
I recognize, and write separately about, the strongest of
the Court’s arguments, namely, the fact that plaintiffs’
claims concern detention that took place soon after a
serious attack on the United States and some of them
concern actions of high-level Government officials. While
these facts may affect the substantive constitutional
questions (e.g., were any of the conditions “legitimate”?) or
the scope of the qualified-immunity defense, they do not
extinguish the Bivens action itself. If I may paraphrase
Justice Harlan, concurring in Bivens: In wartime as well
as in peacetime, “it is important, in a civilized society, that
the judicial branch of the Nation’s government stand
ready to afford a remedy” “for the most flagrant and pat-
ently unjustified,” unconstitutional “abuses of official
power.” 403 U.S., at 410–411 (opinion concurring in
judgment); cf. Boumediene v. Bush, 553 U.S. 723, 798
(2008).
I
The majority opinion well summarizes the particular
claims that the plaintiffs make in this suit. All concern
the conditions of their confinement, which began soon
after the September 11, 2001, attacks and “lasted for days
4 ZIGLAR v. ABBASI
BREYER, J., dissenting
and weeks, then stretching into months.” Ante, at 1. At
some point, the plaintiffs allege, all the defendants knew
that they had nothing to do with the September 11 attacks
but continued to detain them anyway in harsh conditions.
Official Government policy, both before and after the
defendants became aware of the plaintiffs’ innocence, led
to the plaintiffs being held in “tiny cells for over 23 hours a
day” with lights continuously left on, “shackled” when
moved, often “strip searched,” and “denied access to most
forms of communication with the outside world.” Ante, at
4 (internal quotation marks omitted). The defendants
detained the plaintiffs in these conditions on the basis of
their race or religion and without justification.
Moreover, the prison wardens were aware of, but delib-
erately indifferent to, certain unofficial activities of prison
guards involving a pattern of “physical and verbal abuse,”
such as “slam[ming] detainees into walls; twist[ing] their
arms, wrists, and fingers; [breaking] their bones;” and
subjecting them to verbal taunts. Ibid. (internal quotation
marks omitted).
The plaintiffs’ complaint alleges that all the defend-
ants—high-level Department of Justice officials and prison
wardens alike—were directly responsible for the official
confinement policy, which, in some or all of the aspects
mentioned, violated the due process and equal protection
components of the Fifth Amendment. The complaint adds
that, insofar as the prison wardens were deliberately
indifferent to the unofficial conduct of the guards, they
violated the Fourth and the Fifth Amendments.
I would hold that the complaint properly alleges consti-
tutional torts, i.e., Bivens actions for damages.
A
The Court’s holdings in Bivens, Carlson, and Davis rest
upon four basic legal considerations. First, the Bivens
Court referred to longstanding Supreme Court precedent
Cite as: 582 U. S. ____ (2017) 5
BREYER, J., dissenting
stating or suggesting that the Constitution provides fed-
eral courts with considerable legal authority to use tradi-
tional remedies to right constitutional wrongs. That
precedent begins with Marbury v. Madison, 1 Cranch 137
(1803), which effectively placed upon those who would
deny the existence of an effective legal remedy the burden
of showing why their case was special. Chief Justice John
Marshall wrote for the Court that
“[t]he very essence of civil liberty [lies] in the right of
every individual to claim the protection of the laws,
whenever he receives an injury.” Id., at 163.
The Chief Justice referred to Blackstone’s Commentaries
stating that there
“ ‘is a general and indisputable rule, that where there
is a legal right, there is also a legal remedy . . . [and
that] it is a settled and invariable principle in the
laws of England, that every right, when withheld,
must have a remedy, and every injury its proper re-
dress.’ ” 1 Cranch, at 163.
The Chief Justice then wrote:
“The government of the United States has been em-
phatically termed a government of laws, and not of
men. It will [not] deserve this high appellation, if the
laws furnish no remedy for the violation of a vested
legal right.” Ibid.
He concluded for the Court that there must be something
“peculiar” (i.e., special) about a case that warrants “ex-
clu[ding] the injured party from legal redress . . . [and
placing it within] that class of cases which come under the
description of damnum absque injuria—a loss without an
injury.” Id., at 163–164; but cf. id., at 164 (placing “politi-
cal” questions in the latter, special category).
Much later, in Bell v. Hood, 327 U.S. 678, 684 (1946),
6 ZIGLAR v. ABBASI
BREYER, J., dissenting
the Court wrote that,
“where federally protected rights have been invaded,
it has been the rule from the beginning that courts
will be alert to adjust their remedies so as to grant the
necessary relief.”
See also Bivens, 403 U.S., at 392 (citing opinions of Jus-
tices Cardozo and Holmes to similar effect).
The Bivens Court reiterated these principles and con-
firmed that the appropriate remedial “adjust[ment]” in the
case before it was an award of money damages, the “reme-
dial mechanism normally available in the federal courts.”
Id., at 392, 397. Justice Harlan agreed, adding that, since
Congress’ “general” statutory “grant of jurisdiction” au-
thorized courts to grant equitable relief in cases arising
under federal jurisdiction, courts likewise had the author-
ity to award damages—the “traditional remedy at law”—in
order to “vindicate the interests of the individual” protected
by the Bill of Rights. Id., at 405–407 (opinion concur-
ring in judgment).
Second, our cases have recognized that Congress’ silence
on the subject indicates a willingness to leave this matter
to the courts. In Bivens, the Court noted, as an argument
favoring its conclusion, the absence of an “explicit congres-
sional declaration that persons injured by a federal of-
ficer’s violation of the Fourth Amendment may not recover
money damages from the agents.” Id., at 397. Similarly,
in Davis v. Passman, the Court stressed that there was
“no evidence . . . that Congress meant . . . to foreclose” a
damages remedy. 442 U.S., at 247. In Carlson, the Court
went further, observing that not only was there no sign
“that Congress meant to pre-empt a Bivens remedy,” but
there was also “clear” evidence that Congress intended to
preserve it. 446 U.S., at 19–20.
Third, our Bivens cases acknowledge that a constitu-
tional tort may not lie when “special factors counse[l]
Cite as: 582 U. S. ____ (2017) 7
BREYER, J., dissenting
hesitation” and when Congress has provided an adequate
alternative remedy. 446 U.S., at 18–19. The relevant
special factors in those cases included whether the court
was faced “with a question of ‘federal fiscal policy,’ ”
Bivens, supra, at 396, or a risk of “deluging federal courts
with claims,” Davis, supra, at 248 (internal quotation
marks omitted). Carlson acknowledged an additional
factor—that damages suits “might inhibit [federal offi-
cials’] efforts to perform their official duties”—but con-
cluded that “the qualified immunity accorded [federal
officials] under [existing law] provides adequate protec-
tion.” 446 U.S., at 19.
Fourth, as the Court recognized later in Carlson, a
Bivens remedy was needed to cure what would, without it,
amount to a constitutional anomaly. Long before this
Court incorporated many of the Bill of Rights’ guarantees
against the States, see Amar, The Bill of Rights and the
Fourteenth Amendment, 101 Yale L. J. 1193 (1992), fed-
eral civil rights statutes afforded a damages remedy to
any person whom a state official deprived of a federal
constitutional right, see 42 U.S. C. §1983; Monroe v. Pape,
365 U.S. 167, 171–187 (1961) (describing this history).
But federal statutory law did not provide a damages rem-
edy to a person whom a federal official had deprived of
that same right, even though the Bill of Rights was at the
time of the founding primarily aimed at constraining the
Federal Government. Thus, a person harmed by an un-
constitutional search or seizure might sue a city mayor, a
state legislator, or even a Governor. But that person could
not sue a federal agent, a national legislator, or a Justice
Department official for an identical offense. “[Our] ‘consti-
tutional design,’ ” the Court wrote, “would be stood on its
head if federal officials did not face at least the same
liability as state officials guilty of the same constitutional
transgression.” Carlson, supra, at 22 (quoting Butz v.
Economou, 438 U.S. 478, 504 (1978)).
8 ZIGLAR v. ABBASI
BREYER, J., dissenting
The Bivens Court also recognized that the Court had
previously inferred damages remedies caused by violations
of certain federal statutes that themselves did not explic-
itly authorize damages remedies. 403 U.S., at 395–396. At
the same time, Bivens, Davis, and Carlson treat the
courts’ power to derive a damages remedy from a constitu-
tional provision not as included within a power to find a
statute-based damages remedy but as flowing from those
statutory cases a fortiori.
As the majority opinion points out, this Court in more
recent years has indicated that “expanding the Bivens
remedy is now a ‘disfavored’ judicial activity.” Ante, at 11
(quoting Iqbal, 556 U.S., at 675; emphasis added). Thus,
it has held that the remedy is not available in the context
of suits against military officers, see Chappell v. Wallace,
462 U.S. 296, 298–300 (1983); United States v. Stanley,
483 U.S. 669, 683–684 (1987); in the context of suits
against privately operated prisons and their employees,
see Minneci v. Pollard, 565 U.S. 118, 120 (2012); Malesko,
534 U.S., at 70–73; in the context of suits seeking to
vindicate procedural, rather than substantive, constitu-
tional protections, see Schweiker v. Chilicky, 487 U.S.
412, 423 (1988); and in the context of suits seeking to
vindicate two quite different forms of important substan-
tive protection, one involving free speech, see Bush v.
Lucas, 462 U.S. 367, 368 (1983), and the other involving
protection of land rights, see Wilkie v. Robbins, 551 U.S.
537, 551 (2007). Each of these cases involved a context
that differed from that of Bivens, Davis, and Carlson with
respect to the kind of defendant, the basic nature of the
right, or the kind of harm suffered. That is to say, as we
have explicitly stated, these cases were “fundamentally
different from anything recognized in Bivens or subse-
quent cases.” Malesko, supra, at 70 (emphasis added). In
each of them, the plaintiffs were asking the Court to “ ‘au-
thoriz[e] a new kind of federal litigation.’ ” Wilkie, supra,
Cite as: 582 U. S. ____ (2017) 9
BREYER, J., dissenting
at 550 (emphasis added).
Thus the Court, as the majority opinion says, repeatedly
wrote that it was not “expanding” the scope of the Bivens
remedy. Ante, at 11. But the Court nowhere suggested
that it would narrow Bivens’ existing scope. In fact, to
diminish any ambiguity about its holdings, the Court set
out a framework for determining whether a claim of con-
stitutional violation calls for a Bivens remedy. See Wilkie,
supra, at 549–550. At Step One, the court must determine
whether the case before it arises in a “new context,” that
is, whether it involves a “new category of defendants,”
Malesko, supra, at 68, or (presumably) a significantly
different kind of constitutional harm, such as a purely
procedural harm, a harm to speech, or a harm caused to
physical property. If the context is new, then the court
proceeds to Step Two and asks “whether any alternative,
existing process for protecting the interest amounts to a
convincing reason for the Judicial Branch to refrain from
providing a new and freestanding remedy in damages.”
Wilkie, 551 U.S., at 550. If there is none, then the court
proceeds to Step Three and asks whether there are “ ‘any
special factors counselling hesitation before authorizing a
new kind of federal litigation.’ ” Ibid.
Precedent makes this framework applicable here. I
would apply it. And, doing so, I cannot get past Step One.
This suit, it seems to me, arises in a context similar to
those in which this Court has previously permitted Bivens
actions.
B
1
The context here is not “new,” Wilkie, supra, at 550, or
“fundamentally different” than our previous Bivens cases,
Malesko, supra, at 70. First, the plaintiffs are civilians,
not members of the military. They are not citizens, but
the Constitution protects noncitizens against serious
10 ZIGLAR v. ABBASI
BREYER, J., dissenting
mistreatment, as it protects citizens. See United States v.
Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (“[A]liens
receive constitutional protections when they have come
within the territory of the United States and developed
substantial connections with this country”). Some or all of
the plaintiffs here may have been illegally present in the
United States. But that fact cannot justify physical mis-
treatment. Nor does anyone claim that that fact deprives
them of a Bivens right available to other persons, citizens
and noncitizens alike.
Second, the defendants are Government officials. They
are not members of the military or private persons. Two
are prison wardens. Three others are high-ranking De-
partment of Justice officials. Prison wardens have been
defendants in Bivens actions, as have other high-level
Government officials. One of the defendants in Carlson
was the Director of the Bureau of Prisons; the defendant
in Davis was a Member of Congress. We have also held
that the Attorney General of the United States is not
entitled to absolute immunity in a damages suit arising
out of his actions related to national security. See Mitchell
v. Forsyth, 472 U.S. 511, 520 (1985).
Third, from a Bivens perspective, the injuries that the
plaintiffs claim they suffered are familiar ones. They
focus upon the conditions of confinement. The plaintiffs
say that they were unnecessarily shackled, confined in
small unhygienic cells, subjected to continuous lighting
(presumably preventing sleep), unnecessarily and fre-
quently strip searched, slammed against walls, injured
physically, and subject to verbal abuse. They allege that
they suffered these harms because of their race or religion,
the defendants having either turned a blind eye to what
was happening or themselves introduced policies that they
knew would lead to these harms even though the defend-
ants knew the plaintiffs had no connections to terrorism.
These claimed harms are similar to, or even worse than,
Cite as: 582 U. S. ____ (2017) 11
BREYER, J., dissenting
the harms the plaintiffs suffered in Bivens (unreasonable
search and seizure in violation of the Fourth Amendment),
Davis (unlawful discrimination in violation of the Fifth
Amendment), and Carlson (deliberate indifference to
medical need in violation of the Eighth Amend-
ment). Indeed, we have said that, “[i]f a federal prisoner
in a [Bureau of Prisons] facility alleges a constitutional
deprivation, he may bring a Bivens claim against the
offending individual officer, subject to the defense of quali-
fied immunity.” Malesko, 534 U.S., at 72; see also Farmer
v. Brennan, 511 U.S. 825, 832 (1994) (Bivens case about
prisoner abuse). The claims in this suit would seem to fill
the Bivens’ bill. See Sell v. United States, 539 U.S. 166,
193 (2003) (Scalia, J., dissenting) (“[A] [Bivens] action . . .
is available to federal pretrial detainees challenging the
conditions of their confinement”).
It is true that the plaintiffs bring their “deliberate indif-
ference” claim against Warden Hasty under the Fifth
Amendment’s Due Process Clause, not the Eighth
Amendment’s Cruel and Unusual Punishment Clause, as
in Carlson. But that is because the latter applies to con-
victed criminals while the former applies to pretrial and
immigration detainees. Where the harm is the same,
where this Court has held that both the Fifth and Eighth
Amendments give rise to Bivens’ remedies, and where the
only difference in constitutional scope consists of a circum-
stance (the absence of a conviction) that makes the viola-
tion here worse, it cannot be maintained that the differ-
ence between the use of the two Amendments is
“fundamental.” See City of Revere v. Massachusetts Gen.
Hospital, 463 U.S. 239, 244 (1983) (“due process rights” of
an unconvicted person “are at least as great as the Eighth
Amendment protections available to a convicted pris-
oner”); Kingsley v. Hendrickson, 576 U. S. ___, ___–___ (2015)
(slip op., at 10–11) (“pretrial detainees (unlike convicted
prisoners) cannot be punished at all”); Zadvydas v. Davis,
12 ZIGLAR v. ABBASI
BREYER, J., dissenting
533 U.S. 678, 721 (2001) (KENNEDY, J., dissenting) (de-
tention “incident to removal . . . cannot be justified as
punishment nor can the confinement or its conditions be
designed in order to punish”). See also Bistrian v. Levi,
696 F.3d 352, 372 (CA3 2012) (permitting Bivens action
brought by detainee in administrative segregation);
Thomas v. Ashcroft, 470 F.3d 491, 493, 496–497 (CA2
2006) (detainee alleging failure to provide adequate medi-
cal care); Magluta v. Samples, 375 F.3d 1269, 1271, 1275–
1276 (CA11 2004) (detainee in solitary confinement); Papa
v. United States, 281 F.3d 1004, 1010–1011 (CA9 2002)
(due process claims arising from death of immigration
detainee); Loe v. Armistead, 582 F.2d 1291, 1293–1296
(CA4 1978) (detainee’s claim of deliberate indifference to
medical need). If an arrestee can bring a claim of exces-
sive force (Bivens itself), and a convicted prisoner can
bring a claim for denying medical care (Carlson), someone
who has neither been charged nor convicted with a crime
should also be able to challenge abuse that causes him to
need medical care.
Nor has Congress suggested that it wants to withdraw a
damages remedy in circumstances like these. By its ex-
press terms, the Prison Litigation Reform Act of 1995
(PLRA) does not apply to immigration detainees. See 42
U.S. C. §1997e(h) (“[T]he term ‘prisoner’ means any per-
son incarcerated or detained in any facility who is accused
of, convicted of, sentenced for, or adjudicated delinquent
for, violations of criminal law . . . ”); see also Agyeman v.
INS, 296 F.3d 871, 886 (CA9 2002) (“[W]e hold that an
alien detained by the INS pending deportation is not a
‘prisoner’ within the meaning of the PLRA”); LaFontant v.
INS, 135 F.3d 158, 165 (CADC 1998) (same); Ojo v. INS,
106 F.3d 680, 683 (CA5 1997) (same). And, in fact, there
is strong evidence that Congress assumed that Bivens
remedies would be available to prisoners when it enacted
the PLRA—e.g., Congress continued to permit prisoners to
Cite as: 582 U. S. ____ (2017) 13
BREYER, J., dissenting
recover for physical injuries, the typical kinds of Bivens
injuries. See 28 U.S. C. §1346(b)(2); Pfander, Constitu-
tional Torts, at 105–106.
If there were any lingering doubt that the claim against
Warden Hasty arises in a familiar Bivens context, the
Court has made clear that conditions-of-confinement
claims and medical-care claims are subject to the same
substantive standard. See Hudson v. McMillian, 503 U.S.
1, 8 (1992) (“[Wilson v. Seiter, 501 U.S. 294, 303 (1991)]
extended the deliberate indifference standard applied to
Eighth Amendment claims involving medical care to
claims about conditions of confinement”). Indeed, the
Court made this very point in a Bivens case alleging that
prison wardens were deliberately indifferent to an in-
mate’s safety. See Farmer, supra, at 830, 834.
I recognize that the Court finds a significant difference
in the fact that the confinement here arose soon after a
national-security emergency, namely, the September 11
attacks. The short answer to this argument, in respect to
at least some of the claimed harms, is that some plaintiffs
continued to suffer those harms up to eight months after
the September 11 attacks took place and after the defend-
ants knew the plaintiffs had no connection to terrorism.
See App. to Pet. for Cert. in No. 15–1359, p. 280a. But
because I believe the Court’s argument here is its strong-
est, I will consider it at greater length below. See Part
III–C, infra.
Because the context here is not new, I would allow the
plaintiffs’ constitutional claims to proceed. The plaintiffs
have adequately alleged that the defendants were person-
ally involved in imposing the conditions of confinement
and did so with knowledge that the plaintiffs bore no ties
to terrorism, thus satisfying Iqbal’s pleading standard.
See 556 U.S., at 679 (claims must be “plausible”); see also
id., at 699–700 (BREYER, J., dissenting). And because it is
clearly established that it is unconstitutional to subject
14 ZIGLAR v. ABBASI
BREYER, J., dissenting
detainees to punitive conditions of confinement and to
target them based solely on their race, religion, or national
origin, the defendants are not entitled to qualified immun-
ity on the constitutional claims. See Bell v. Wolfish, 441
U.S. 520, 535–539, and n. 20 (1979); Davis, 442 U.S., at
236 (“It is equally clear . . . that the Fifth Amendment
confers on petitioner a constitutional right to be free from
illegal discrimination”). (Similarly, I would affirm the
judgment of the Court of Appeals with respect to the
plaintiffs’ statutory claim, namely, that the defendants
conspired to deprive the plaintiffs of equal protection of
the laws in violation of 42 U.S. C. §1985(3). See Turkmen
v. Hasty, 789 F.3d 218, 262–264 (CA2 2015). I agree with
the Court of Appeals that the defendants are not entitled
to qualified immunity on this claim. See ibid.)
2
Even were I wrong and were the context here “funda-
mentally different,” Malesko, 534 U.S., at 70, the plain-
tiffs’ claims would nonetheless survive Step Two and Step
Three of the Court’s framework for determining whether
Bivens applies, see supra, at 9. Step Two consists of ask-
ing whether “any alternative, existing process for protect-
ing the interest amounts to a convincing reason for the
Judicial Branch to refrain from providing a new and free-
standing remedy in damages.” Wilkie, 551 U.S., at 550. I
can find no such “alternative, existing process” here.
The Court does not claim that the PLRA provides plain-
tiffs with a remedy. Ante, at 25–26. Rather, it says that
the plaintiffs may have “had available to them” relief in
the form of a prospective injunction or an application for a
writ of habeas corpus. Ante, at 22. Neither a prospective
injunction nor a writ of habeas corpus, however, will nor-
mally provide plaintiffs with redress for harms they have
already suffered. And here plaintiffs make a strong claim
that neither was available to them—at least not for a
Cite as: 582 U. S. ____ (2017) 15
BREYER, J., dissenting
considerable time. Some of the plaintiffs allege that for
two or three months they were subject to a “communica-
tions blackout”; that the prison “staff did not permit them
visitors, legal or social telephone calls, or mail”; that their
families and attorneys did not know where they were
being held; that they could not receive visits from their
attorneys; that subsequently their lawyers could call them
only once a week; and that some or all of the defendants
“interfered with the detainees’ effective access to legal
counsel.” Office of Inspector General (OIG) Report, App.
223, 293, 251, 391; see App. to Pet. for Cert. in No. 15–
1359, at 253a (incorporating the OIG report into the com-
plaint). These claims make it virtually impossible to say
that here there is an “elaborate, comprehensive” alterna-
tive remedial scheme similar to schemes that, in the past,
we have found block the application of Bivens to new
contexts. Bush, 462 U.S., at 385. If these allegations
are proved, then in this suit, it is “damages or noth-
ing.” Bivens, 403 U.S., at 410 (Harlan, J., concurring in
judgment).
There being no “alternative, existing process” that pro-
vides a “convincing reason” for not applying Bivens, we
must proceed to Step Three. Wilkie, supra, at 550. Doing
so, I can find no “special factors [that] counse[l] hesitation
before authorizing” this Bivens action. 551 U.S., at 550. I
turn to this matter next.
II
A
The Court describes two general considerations that it
believes argue against an “extension” of Bivens. First, the
majority opinion points out that the Court is now far less
likely than at the time it decided Bivens to imply a cause
of action for damages from a statute that does not explicitly
provide for a damages claim. See ante, at 8–9. Second,
it finds the “silence” of Congress “notable” in that Con-
16 ZIGLAR v. ABBASI
BREYER, J., dissenting
gress, though likely aware of the “high-level policies”
involved in this suit, did not “choose to extend to any
person the kind of remedies” that the plaintiffs here
“seek.” Ante, at 20–21 (internal quotation marks omitted).
I doubt the strength of these two general considerations.
The first consideration, in my view, is not relevant. I
concede that the majority and concurring opinions in
Bivens looked in part for support to the fact that the Court
had implied damages remedies from statutes silent on the
subject. See 403 U.S., at 397; id., at 402–403 (Harlan, J.,
concurring in judgment). But that was not the main
argument favoring the Court’s conclusion. Rather, the
Court drew far stronger support from the need for such a
remedy when measured against a common-law and consti-
tutional history of allowing traditional legal remedies
where necessary. Id., at 392, 396–397. The Court be-
lieved such a remedy was necessary to make effective the
Constitution’s protection of certain basic individual rights.
See id., at 392; id., at 407 (opinion of Harlan, J.). Simi-
larly, as the Court later explained, a damages remedy
against federal officials prevented the serious legal anom-
aly I previously mentioned. Its existence made basic
constitutional protections of the individual against Federal
Government abuse (the Bill of Rights’ pre-Civil War objec-
tive) as effective as protections against abuse by state
officials (the post-Civil War, post selective-incorporation
objective). See supra, at 7.
Nor is the second circumstance—congressional silence—
relevant in the manner that the majority opinion de-
scribes. The Court initially saw that silence as indicating
an absence of congressional hostility to the Court’s exer-
cise of its traditional remedy-inferring powers. See
Bivens, supra, at 397; Davis, 442 U.S., at 246–247. Con-
gress’ subsequent silence contains strong signs that it
accepted Bivens actions as part of the law. After all, Con-
gress rejected a proposal that would have eliminated
Cite as: 582 U. S. ____ (2017) 17
BREYER, J., dissenting
Bivens by substituting the U. S. Government as a defend-
ant in suits against federal officers that raised constitu-
tional claims. See Pfander, Constitutional Torts, at 102.
Later, Congress expressly immunized federal employees
acting in the course of their official duties from tort claims
except those premised on violations of the Constitution.
See Federal Employees Liability Reform and Tort Com-
pensation Act of 1988, commonly known as the Westfall
Act, 28 U.S. C. §2679(b)(2)(A). We stated that it is conse-
quently “crystal clear that Congress views [the Federal
Tort Claims Act] and Bivens as [providing] parallel, com-
plementary causes of action.” Carlson, 446 U.S., at 20;
see Malesko, 534 U.S., at 68 (similar). Congress has even
assumed the existence of a Bivens remedy in suits brought
by noncitizen detainees suspected of terrorism. See 42
U.S. C. §2000dd–1 (granting qualified immunity—but
not absolute immunity—to military and civilian federal
officials who are sued by alien detainees suspected of
terrorism).
B
The majority opinion also sets forth a more specific list
of factors that it says bear on “whether a case presents a
new Bivens context.” Ante, at 16. In the Court’s view, a
“case might differ” from Bivens “in a meaningful way
because of [1] the rank of the officers involved; [2] the
constitutional right at issue; [3] the generality or specifi-
city of the individual action; [4] the extent of judicial guid-
ance as to how an officer should respond to the problem or
emergency to be confronted; [5] the statutory or other legal
mandate under which the officer was operating; [6] the
risk of disruptive intrusion by the Judiciary into the func-
tioning of other branches; [7] or the presence of potential
special factors that previous Bivens cases did not con-
sider.” Ante, at 16. In my view, these factors do not make a
“meaningful difference” at Step One of the Bivens frame-
18 ZIGLAR v. ABBASI
BREYER, J., dissenting
work. Some of them are better cast as “special factors”
relevant to Step Three. But, as I see it, none should nor-
mally foreclose a Bivens action and none is determinative
here. Consider them one by one:
(1) The rank of the officers. I can understand why an
officer’s rank might bear on whether he violated the Con-
stitution, because, for example, a plaintiff might need to
show the officer was willfully blind to a harm caused by
lower ranking officers or that the officer had actual
knowledge of the misconduct. And I can understand that
rank might relate to the existence of a legal defense, such
as qualified, or even absolute, immunity. But if—and I
recognize that this is often a very big if—a plaintiff proves
a clear constitutional violation, say, of the Fourth
Amendment, and he shows that the defendant does not
possess any form of immunity or other defense, then why
should he not have a damages remedy for harm suffered?
What does rank have to do with that question, namely, the
Bivens question? Why should the law treat differently a
high-level official and the local constable where each has
similarly violated the Constitution and where neither can
successfully assert immunity or any other defense?
(2) The constitutional right at issue. I agree that this
factor can make a difference, but only when the substance
of the right is distinct. See, e.g., Wilkie, 551 U.S. 537
(land rights). But, for reasons I have already pointed out,
there is no relevant difference between the rights at issue
here and the rights at issue in our previous Bivens cases,
namely, the rights to be free of unreasonable searches,
invidious discrimination, and physical abuse in federal
custody. See supra, at 10–11.
(3) The generality or specificity of the individual action.
I should think that it is not the “generality or specificity”
of an official action but rather the nature of the official
action that matters. Bivens should apply to some generally
applicable actions, such as actions taken deliberately to
Cite as: 582 U. S. ____ (2017) 19
BREYER, J., dissenting
jail a large group of known-innocent people. And it should
not apply to some highly specific actions, depending upon
the nature of those actions.
(4) The extent of judicial guidance. This factor may be
relevant to the existence of a constitutional violation or a
qualified-immunity defense. Where judicial guidance is
lacking, it is more likely that a constitutional violation is
not clearly established. See Anderson v. Creighton, 483
U.S. 635, 640 (1987) (Officials are protected by qualified
immunity unless “[t]he contours of the right [are] suffi-
ciently clear that a reasonable official would understand
that what he is doing violates that right”). But I do not
see how, assuming the violation is clear, the presence or
absence of “judicial guidance” is relevant to the existence
of a damages remedy.
(5) The statutory (or other) legal mandate under which
the officer was operating. This factor too may prove rele-
vant to the question whether a constitutional violation
exists or is clearly established. But, again, assuming that
it is, I do not understand why this factor is relevant to the
existence of a damages remedy. See Stanley, 483 U.S., at
684 (the question of immunity is “analytically distinct”
from the question whether a Bivens action should lie).
(6) Risk of disruptive judicial intrusion. All damages
actions risk disrupting to some degree future decisionmak-
ing by members of the Executive or Legislative Branches.
Where this Court has authorized Bivens actions, it has
found that disruption tolerable, and it has explained why
disruption is, from a constitutional perspective, desirable.
See Davis, 442 U.S., at 242 (Unless constitutional rights
“are to become merely precatory, . . . litigants who allege
that their own constitutional rights have been violated,
and who at the same time have no effective means other
than the judiciary to enforce these rights, must be able to
invoke the existing jurisdiction of the courts for . . . protec-
tion”); Malesko, supra, at 70 (“The purpose of Bivens is to
20 ZIGLAR v. ABBASI
BREYER, J., dissenting
deter individual federal officers from committing constitu-
tional violations”). Insofar as the Court means this con-
sideration to provide a reason why there should be no
Bivens action where a Government employee acts in time
of security need, I shall discuss the matter next, in Part C.
(7) Other potential special factors. Since I am not cer-
tain what these other “potential factors” are and, since the
Court does not specify their nature, I would not, and the
Court cannot, consider them in differentiating this suit
from our previous Bivens cases or as militating against
recognizing a Bivens action here.
C
In my view, the Court’s strongest argument is that
Bivens should not apply to policy-related actions taken in
times of national-security need, for example, during war or
national-security emergency. As the Court correctly
points out, the Constitution grants primary power to
protect the Nation’s security to the Executive and Legisla-
tive Branches, not to the Judiciary. But the Constitution
also delegates to the Judiciary the duty to protect an
individual’s fundamental constitutional rights. Hence
when protection of those rights and a determination of
security needs conflict, the Court has a role to play. The
Court most recently made this clear in cases arising out of
the detention of enemy combatants at Guantanamo Bay.
Justice O’Connor wrote that “a state of war is not a blank
check.” Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004)
(plurality opinion). In Boumediene, 553 U.S., at 732–733,
the Court reinforced that point, holding that noncitizens
detained as enemy combatants were entitled to challenge
their detention through a writ of habeas corpus, notwith-
standing the national-security concerns at stake.
We have not, however, answered the specific question
the Court places at issue here: Should Bivens actions
continue to exist in respect to policy-related actions taken
Cite as: 582 U. S. ____ (2017) 21
BREYER, J., dissenting
in time of war or national emergency? In my view, they
should.
For one thing, a Bivens action comes accompanied by
many legal safeguards designed to prevent the courts from
interfering with Executive and Legislative Branch activity
reasonably believed to be necessary to protect national
security. In Justice Jackson’s well-known words, the
Constitution is not “a suicide pact.” Terminiello v. Chicago,
337 U.S. 1, 37 (1949) (dissenting opinion). The Consti-
tution itself takes account of public necessity. Thus, for
example, the Fourth Amendment does not forbid all Gov-
ernment searches and seizures; it forbids only those that
are “unreasonable.” Ordinarily, it requires that a police
officer obtain a search warrant before entering an apart-
ment, but should the officer observe a woman being
dragged against her will into that apartment, he should,
and will, act at once. The Fourth Amendment makes
allowances for such “exigent circumstances.” Brigham
City v. Stuart, 547 U.S. 398, 401 (2006) (warrantless
entry justified to forestall imminent injury). Similarly,
the Fifth Amendment bars only conditions of confinement
that are not “reasonably related to a legitimate govern-
mental objective.” Bell v. Wolfish, 441 U.S., at 539. What
is unreasonable and illegitimate in time of peace may be
reasonable and legitimate in time of war.
Moreover, Bivens comes accompanied with a qualified-
immunity defense. Federal officials will face suit only if
they have violated a constitutional right that was “clearly
established” at the time they acted. Harlow, 457 U.S., at
818.
Further, in order to prevent the very presence of a
Bivens lawsuit from interfering with the work of a Gov-
ernment official, this Court has held that a com-
plaint must state a claim for relief that is “plausible.”
Iqbal, 556 U.S., at 679. “[C]onclusory” statements and
“[t]hreadbare” allegations will not suffice. Id., at 678.
22 ZIGLAR v. ABBASI
BREYER, J., dissenting
And the Court has protected high-level officials in particu-
lar by requiring that plaintiffs plead that an official was
personally involved in the unconstitutional conduct; an
official cannot be vicariously liable for another’s misdeeds.
Id., at 676.
Finally, where such a claim is filed, courts can, and
should, tailor discovery orders so that they do not unnec-
essarily or improperly interfere with the official’s work.
The Second Circuit has emphasized the “need to vindicate
the purpose of the qualified immunity defense by dismiss-
ing non-meritorious claims against public officials at an
early stage of litigation.” Iqbal v. Hasty, 490 F.3d 143,
158 (2007). Where some of the defendants are “current or
former senior officials of the Government, against whom
broad-ranging allegations of knowledge and personal
involvement are easily made, a district court” not only
“may, but ‘must exercise its discretion in a way that pro-
tects the substance of the qualified immunity defense . . .
so that’ ” those officials “ ‘are not subjected to unnecessary
and burdensome discovery or trial proceedings.’ ” Id., at
158–159. The court can make “all such discovery subject
to prior court approval.” Id., at 158. It can “structure . . .
limited discovery by examining written responses to inter-
rogatories and requests to admit before authorizing depo-
sitions, and by deferring discovery directed to high-level
officials until discovery of front-line officials has been
completed and has demonstrated the need for discovery
higher up the ranks.” Ibid. In a word, a trial court can
and should so structure the proceedings with full recogni-
tion that qualified immunity amounts to immunity from
suit as well as immunity from liability.
Given these safeguards against undue interference by
the Judiciary in times of war or national-security emer-
gency, the Court’s abolition, or limitation of, Bivens ac-
tions goes too far. If you are cold, put on a sweater, per-
haps an overcoat, perhaps also turn up the heat, but do
Cite as: 582 U. S. ____ (2017) 23
BREYER, J., dissenting
not set fire to the house.
At the same time, there may well be a particular need
for Bivens remedies when security-related Government
actions are at issue. History tells us of far too many in-
stances where the Executive or Legislative Branch took
actions during time of war that, on later examination,
turned out unnecessarily and unreasonably to have de-
prived American citizens of basic constitutional rights.
We have read about the Alien and Sedition Acts, the thou-
sands of civilians imprisoned during the Civil War, and
the suppression of civil liberties during World War I. See
W. Rehnquist, All the Laws but One: Civil Liberties in
Wartime 209–210, 49–50, 173–180, 183 (1998); see also
Ex parte Milligan, 4 Wall. 2 (1866) (decided after the Civil
War was over). The pages of the U. S. Reports themselves
recite this Court’s refusal to set aside the Government’s
World War II action removing more than 70,000 American
citizens of Japanese origin from their west coast homes
and interning them in camps, see Korematsu v. United
States, 323 U.S. 214 (1944)—an action that at least some
officials knew at the time was unnecessary, see id., at
233–242 (Murphy, J., dissenting); P. Irons, Justice at War
202–204, 288 (1983). President Franklin Roosevelt’s
Attorney General, perhaps exaggerating, once said that
“[t]he Constitution has not greatly bothered any wartime
President.” Rehnquist, supra, at 191.
Can we, in respect to actions taken during those periods,
rely exclusively, as the Court seems to suggest, upon
injunctive remedies or writs of habeas corpus, their retail
equivalent? Complaints seeking that kind of relief typi-
cally come during the emergency itself, when emotions are
strong, when courts may have too little or inaccurate
information, and when courts may well prove particularly
reluctant to interfere with even the least well-founded
Executive Branch activity. That reluctance may itself set
an unfortunate precedent, which, as Justice Jackson
24 ZIGLAR v. ABBASI
BREYER, J., dissenting
pointed out, can “li[e] about like a loaded weapon” await-
ing discharge in another case. Korematsu, supra, at 246
(dissenting opinion).
A damages action, however, is typically brought after
the emergency is over, after emotions have cooled, and at a
time when more factual information is available. In such
circumstances, courts have more time to exercise such
judicial virtues as calm reflection and dispassionate ap-
plication of the law to the facts. We have applied the
Constitution to actions taken during periods of war and
national-security emergency. See Boumediene, 553 U.S.,
at 732–733; Hamdi v. Rumsfeld, 542 U.S. 507; cf. Youngs-
town Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). I
should think that the wisdom of permitting courts to
consider Bivens actions, later granting monetary compen-
sation to those wronged at the time, would follow
a fortiori.
As is well known, Lord Atkins, a British judge, wrote in
the midst of World War II that “amid the clash of arms,
the laws are not silent. They may be changed, but they
speak the same language in war as in peace.” Liversidge
v. Anderson, [1942] A. C. 206 (H. L. 1941) 244. The Court,
in my view, should say the same of this Bivens action.
With respect, I dissent.