Ziglar v. Abbasi

(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

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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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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) 1

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

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

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.

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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

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 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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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,

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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

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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

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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.