throbber

`(Slip Opinion)
`
`
`
` OCTOBER TERM, 2016
`
`
`Syllabus
`
`1
`
` 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
`
`
`
`

`

`3
`
`
`Cite as: 582 U. S. ____ (2017)
`
`
`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
`
`
`
`

`

`5
`
`
`Cite as: 582 U. S. ____ (2017)
`
`
`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.
`
`
`
`
`
`
`
`
`

`

`
`
`
`
` Cite as: 582 U. S. ____ (2017)
`
`Opinion of the Court
`
`1
`
`
` 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
`
`v.
`AHMER IQBAL ABBASI, ET AL.
`
`
`15–1358
`
`
`
`JOHN D. ASHCROFT, FORMER ATTORNEY
`
`GENERAL, ET AL., PETITIONERS
`
`
`
`v.
`AHMER IQBAL ABBASI, ET AL.
`
`
`15–1359
`
`
`
`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
`
`
`
`
`
`
`
`

`

`
`
`3
`
`
`
` Cite as: 582 U. S. ____ (2017)
`
`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-
`
`
`
`

`

`5
`
`
`
`
`
` Cite as: 582 U. S. ____ (2017)
`
`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
`
`
`
`

`

`7
`
`
`
` Cite as: 582 U. S. ____ (2017)
`
`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
`
`
`
`

`

`9
`
`
`
`
`
`
`
` Cite as: 582 U. S. ____ (2017)
`
`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
`
`
`
`
`
`

`

`10
`
`
`
` ZIGLAR v. ABBASI
`
`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 equita

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Try refreshing this document from the court, or go back to the docket to see other documents.

We are unable to display this document.

Go back to the docket to see more.