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.
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`
`
`
`
`

`

`
`
`
`
`2
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`
`
`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.
`
`
`
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`

`

`4
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`
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`
`
`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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`
`
`

`

`5
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`
`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.
`
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`
`
`
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`
`
`

`

`
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`
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` 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

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