Charles Mack v. John Yost

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 18-3504

CHARLES MACK

v.

JOHN YOST, TIM KHUN and JEFFREY

STEPHENS, sued in their individual and

official capacities; and DOUG ROBERTS and

SAMUEL VENSLOSKY, sued in their

individual capacities

Jeffrey Stephens, Samuel Venslosky, and

Douglas Roberts,

Appellants

On Appeal from the United States District Court

for the Western District of Pennsylvania

(District Court No.: 3-10-cv-00264)

District Judge: Honorable Kim Gibson

Argued April 23, 2020

(Opinion Filed: August 4, 2020)

Before: PORTER, RENDELL, and FISHER, Circuit Judges

Sarah Czypinski (Argued)

John M. Hagan

K&L Gates LLP

K&L Gates Center

210 Sixth Avenue

Pittsburgh, PA 15222

Counsel for Appellee

Courtney Dixon (Argued)

Sharon Swingle

Barbara Herwig

Appellate Staff

U.S. Department of Justice

950 Pennsylvania Avenue, NW

Washington, DC 20530

Laura S. Irwin

Ira M. Karoll

Office of the United States Attorney

700 Grant Street

Suite 4000

Pittsburgh, PA 15219

Counsel for Appellant

2

OPINION

RENDELL, Circuit Judge:

Although Congress has never enacted a statute

permitting a damages remedy for constitutional claims brought

against federal officials, the Supreme Court first recognized an

implied damages action for such claims under the Fourth

Amendment in Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971). The

Supreme Court has since recognized an implied damages

remedy in only two other instances. 1 Most recently, in Ziglar

v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court

cautioned against creating additional implied damages

remedies and explicitly declared Bivens expansion a

“disfavored judicial activity.” Id. at 1857 (internal quotations

omitted).

Here, Charles Mack, a former inmate, seeks to bring a

First Amendment retaliation claim against federal prison

officials, alleging that he was terminated from his prison job

for complaining that correctional officers were harassing him

at work because of his religion. In light of Abbasi and our

recent precedents, we decline to expand Bivens to create a

1

See Carlson v. Green, 446 U.S. 14 (1980) (Eighth

Amendment claim for failure to render adequate medical care

to a federal inmate); Davis v. Passman, 442 U.S. 228 (1979)

(Fifth Amendment gender discrimination by federal

employer).

3

damages remedy for Mack’s First Amendment retaliation

claim. For the following reasons, we will reverse the District

Court’s denial of the Government’s motion for summary

judgment as to this claim.

I. BACKGROUND

A. Factual Background

Mack is a practicing Muslim and a former inmate at the

Federal Correctional Institution in Loretto,

Pennsylvania. While an inmate, Mack worked for pay at the

prison’s commissary from May 26, 2009 until he was

terminated on October 21, 2009. During this time, Doug

Roberts and Samuel Venslosky were correctional officers at

the prison and were assigned to supervise the inmates working

in the prison’s commissary. Mack alleges that while working

in the commissary, he was harassed by Roberts and Venslosky

because he is a Muslim. Specifically, Mack alleges that

Roberts told him, “I don’t like Muslims” and “[t]here is no

good Muslim except a dead Muslim.” App. 8. Mack also

alleges that Roberts placed a sticker on Mack’s back which

read, “I love pork bacon.” Id. Mack further alleges that

Roberts and Venslosky purposefully attempted to disrupt his

prayers, causing Mack to limit his prayers during work.

Mack alleges that he raised these issues with Roberts

and Venslosky’s supervisor, Jeffrey Stephens, who responded

that he would “look into it.” Id. Mack alleges that upon

overhearing Mack’s oral complaint to Stephens, Roberts told

Mack, “[y]ou are not going to be here long.” Id. Venslosky

fired Mack less than two weeks later.

4

Mack filed an inmate request-to-staff form seeking a

written explanation for his termination. The prison informed

Mack in writing that he had been fired for bringing another

inmate’s commissary slip into work. Mack denies ever doing

so. Mack then filed a formal administrative remedy request,

alleging that he was wrongfully terminated from his work

assignment. The Acting Warden informed Mack that his

allegation was “referred to the appropriate office for

investigation.” App. 62. Mack was later informed that his

request for an administrative remedy was denied. Mack then

filed this federal lawsuit.

B. Procedural History

Mack filed a First Amendment retaliation claim against

the prison officials, 2 alleging that he was wrongfully

terminated for orally complaining to Stephens about

Venslosky’s and Roberts’s religious harassment. 3 The District

Court adopted the Magistrate Judge’s recommendation to

dismiss Mack’s complaint for failure to state a claim and

dismissed the complaint without leave to amend. Mack

appealed the District Court’s dismissal, and we reversed and

remanded to the District Court, concluding that Mack should

have been granted leave to amend. Mack v. Yost, 427 F. App’x

70, 72 (3d Cir. 2011) (Mack I). Mack filed an amended

complaint and the District Court dismissed the amended

2

These officials include: Prison Warden John Yost, Deputy

Prison Warden Tim Kuhn, Stephens, Venslosky, and Roberts.

3

Mack also brings a claim against Roberts and Venslosky

under the Religious Freedom Restoration Act, 42 U.S.C. §

2000bb-1(a) for their anti-Muslim harassment and hostility.

This claim is not at issue in this appeal.

5

complaint for failure to state a claim. Mack v. Yost, 979 F.

Supp. 2d 639, 652 (W.D. Pa. 2013). Mack again appealed the

District Court’s dismissal, and we reversed in Mack v. Warden

Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (Mack II).

In Mack II, we considered whether Mack presented a

cognizable First Amendment retaliation claim under Bivens.

Id. at 296. We first noted that while the Supreme Court never

“formally extended” Bivens actions to include First

Amendment claims, the Court seemed to imply in Hartman v.

Moore, 547 U.S. 250 (2006), that such actions were available.

839 F.3d at 296. Lacking clear guidance from the Supreme

Court, we then turned to our Court’s prior precedents. We first

referred to our decision in Paton v. La Prade, 524 F.2d 862 (3d

Cir. 1975), which involved an intrusive FBI investigation of a

high school student who had mailed a letter to the Socialist

Workers Party as a part of a class assignment. Id. at 865-66.

We recognized the student’s right to proceed with a damages

remedy against the FBI agents for denial of First Amendment

free speech, noting that the factors which weighed in favor of

recognizing a damages action for Fourth Amendment

violations in Bivens applied equally to First Amendment

violations. Id. at 869-70. We then cited to our decision in

Milhouse v. Carlson, 652 F.2d 371 (3d Cir. 1981), which relied

upon La Prade to recognize a First Amendment retaliation

claim brought in the prison context. There, a federal inmate

alleged that he was transferred to a less desirable prison cell

location in retaliation for initiating a lawsuit against prison

officials to remedy his religious grievances. Id. at 372-73. We

held that the inmate could bring a First Amendment Bivens

action against the prison officials who sought to punish him for

initiating the civil rights action. Id. at 374.

6

So, at the time that Mack II was decided, we had clearly

recognized an implied right to damages to remedy First

Amendment violations and had no indication from the

Supreme Court that we should exercise restraint in expanding

Bivens in this context. Relying upon our prior precedents

which had “explicitly recognized” a Bivens remedy under the

First Amendment, we recognized a cause of action for Mack’s

First Amendment retaliation claim under Bivens. Mack II, 839

F.3d at 296-97. We also held that the prison officials were not

entitled to qualified immunity as to this claim because it was

clearly established that inmates have a right to be free from

retaliation for exercising their First Amendment rights. Id. at

300. Accordingly, we remanded to the District Court and the

parties proceeded to discovery. Id. at 301.

The Government then moved for summary judgment,

arguing that the Supreme Court’s decision in Abbasi—decided

after our decision in Mack II—alters our analysis under Bivens

and forecloses Mack’s First Amendment retaliation claim.

Abbasi involved six men of Arab or South Asian descent, five

of whom were Muslim, who had been detained for several

months in the wake of the September 11, 2001 terrorist attacks.

137 S. Ct. at 1853. The detainees brought a Bivens action

against federal officials under the Fourth and Fifth

Amendments, challenging high-level executive detention

policies and confinement conditions within the detention

facility. Id.

The Court of Appeals for the Second Circuit determined

that the claims did not present a new Bivens context. See id. at

1852. The Second Circuit relied on its own prior precedents

and the Supreme Court’s decision in Carlson v. Green, 446

U.S. 14 (1980), which recognized a Bivens remedy for an

7

Eighth Amendment prisoner mistreatment claim. 4 Turkmen v.

Hasty, 789 F.3d 218, 235 (2d Cir. 2015), rev’d in part, vacated

in part sub nom. Abbasi, 137 S. Ct. 1843. Because the claims

did not present a “new context,” the Second Circuit held that a

Bivens remedy was available against the federal officials for

the detention policy and detainee abuse claims. Id. at 236-37.

In Abbasi, the Supreme Court reversed the Second Circuit’s

decision regarding the detention policy claim and vacated and

remanded the holding regarding the detainee abuse claim. 137

S. Ct. at 1869.

Abbasi reflected a “notable change” in the Supreme

Court’s attitude toward creating an implied damages remedy

directly from the Constitution and declared that Bivens

expansion is now “disfavored.” Id. at 1857. To curtail

improper Bivens expansion, Abbasi provided a restrictive two-

step framework for courts to follow when analyzing Bivens

claims. First, courts must determine whether the Bivens claim

presents a “new context.” Id. at 1859. The Supreme Court

defined “new context” broadly, indicating that “a modest

extension is still an extension.” Id. at 1864. Abbasi instructed

that a context is “new” if it “is different in a meaningful way

4

The plaintiffs also brought a claim under the Free Exercise

Clause of the First Amendment, but the Second Circuit

determined that the claim presented a “new context” because

neither the Supreme Court nor its own prior precedents had

previously recognized such a claim. Turkmen v. Hasty, 789

F.3d 218, 236 (2d Cir. 2015), rev’d in part, vacated in part sub

nom. Abbasi, 137 S. Ct. 1843. The Second Circuit declined to

extend Bivens to include the Free Exercise claim. Id.

8

from previous Bivens cases decided by [the Supreme] Court.”

Id. at 1859. The Supreme Court thus rejected the Second

Circuit’s reliance upon Second Circuit precedent in the “new

context” inquiry. As to the Second Circuit’s view that the

context was not new based on Carlson, the Supreme Court

acknowledged that the differences between the two cases “are

perhaps small” but, given the Court’s “expressed caution about

extending the Bivens remedy,” it held that “the new-context

inquiry [was] easily satisfied.” Id. at 1865.

If the case presents a new context, as in Abbasi, courts

must then determine if there are “special factors counselling

hesitation” in expanding Bivens. Id. at 1857. If “there are any

special factors that counsel hesitation,” courts must “reject the

request” to expand Bivens. Hernandez v. Mesa, 140 S. Ct. 735,

743 (2020). The special factors inquiry “concentrate[s] on

whether the Judiciary is well suited, absent congressional

action or instruction, to consider and weigh the costs and

benefits of allowing a damages action to proceed.” Id. at 1857-

58. Abbasi “urged caution” when expanding Bivens actions to

new contexts, emphasizing that significant separation-of-

powers concerns arise when the Judiciary, rather than

Congress, authorizes damages remedies against federal

officials. Id. at 1857 (internal quotations and citation omitted).

When tasked with determining “who should decide” if a

damages remedy is available, Abbasi warned that “[t]he answer

most often will be Congress.” Id.

Conducting a special factors inquiry of the executive

detention policy claim at issue in Abbasi, the Supreme Court

noted that there was a proper balance between deterring

constitutional violations and allowing executive officials to

freely make policy decisions related to national security. Id. at

1863. The Supreme Court determined that Congress was better

9

positioned to strike such a balance and, based upon its special

factors inquiry, refused to extend a Bivens remedy for the

detention policy claim. Id. For the detainee abuse claim, the

Supreme Court declined to conduct a special factors inquiry,

concluding that the “better course” was to vacate and permit

the lower courts to conduct the inquiry on remand. Id. at 1865.

The District Court here addressed Abbasi’s analytical

framework, but seemed concerned with whether it could depart

from our decision in Mack II, which specifically recognized

Mack’s Bivens claim. Faced with the conflict between our

prior precedent and Abbasi’s new, demanding standard, the

District Court determined that it was “constrained to follow”

our decision in Mack II. App. 16. Guided by Mack II, the

District Court held that Mack’s claim did not present a “new”

Bivens context and, therefore, it need not analyze whether

special factors counseled hesitation in extending Bivens. 5

Accordingly, the District Court concluded that Mack presented

a cognizable First Amendment retaliation claim under Bivens.

The District Court also rejected the prison officials’ argument

that they were entitled to qualified immunity, and thus denied

the Government’s motion for summary judgment. The

Government now seeks review of the District Court’s denial of

summary judgment as to Mack’s First Amendment retaliation

claim.

II. JURISDICTION

5

However, the District Court noted that “even if Mack’s claims

presented a new context, it finds Mack’s arguments regarding

the lack of alternative remedies and the lack of special factors

counseling hesitation to be persuasive.” App. 16 n.14 (internal

quotation marks omitted).

10

Under the collateral order doctrine, we have jurisdiction

to review a district court’s denial of summary judgment where

the defendants asserted a defense under qualified immunity “to

the extent that it turns on an issue of law[.]” Mitchell v.

Forsyth, 472 U.S. 511, 530 (1985). “Whether a Bivens claim

exists in a particular context” presents a “threshold question of

law that is directly implicated by the defense of qualified

immunity.” Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018)

(Bistrian II) (internal quotation marks and citation omitted);

see also Vanderklok v. United States, 868 F.3d 189, 197 (3d

Cir. 2017) (exercising jurisdiction over denial of summary

judgment on qualified immunity grounds to determine whether

a Bivens action exists). Therefore, we possess jurisdiction to

review on interlocutory appeal whether a damages remedy

under Bivens exists.

III. DISCUSSION

We begin with an overview of the evolution of the

Bivens doctrine. Bivens involved a Fourth Amendment claim

against federal narcotics agents who conducted a warrantless

search of a man’s home, and allegedly arrested the man without

probable cause and threatened to arrest his entire family. 403

U.S. at 389. In its seminal decision, the Supreme Court held

that a damages remedy could be directly implied from the

Fourth Amendment to redress the harm that resulted from the

federal agents’ unconstitutional search and seizure. Id. at 397.

Bivens opened the door for courts to exercise their

judicial power to fashion a damages remedy against federal

officers for other types of constitutional violations. During the

height of Bivens expansion, the Supreme Court recognized an

implied damages remedy in two other contexts. First, under

the Due Process Clause of the Fifth Amendment for gender

11

discrimination by a federal employer, Davis v. Passman, 442

U.S. 228 (1979), and then, one year later, under the Cruel and

Unusual Punishments Clause of the Eighth Amendment for

failure to render adequate medical care to a federal inmate,

Carlson v. Green, 446 U.S. 14 (1980). After that, Bivens

expansion came to a halt. And for the past forty years, the

Supreme Court has consistently refused to expand Bivens

actions beyond these three specific contexts. 6

6

See Bush v. Lucas, 462 U.S. 367 (1983) (rejecting First

Amendment claim brought against a federal employer);

Chappell v. Wallace, 462 U.S. 296 (1983) (rejecting racial

discrimination claim brought against military officer); United

States v. Stanley, 483 U.S. 669 (1987) (rejecting substantive

due process claim against military officer); Schweiker v.

Chilicky, 487 U.S. 412 (1988) (rejecting procedural due

process claim against Social Security officer); FDIC v. Meyer,

510 U.S. 471 (1994) (rejecting procedural due process claim

for wrongful termination against federal agency); Corr. Servs.

Corp. v. Malesko, 534 U.S. 61 (2001) (rejecting Eighth

Amendment claim against private prison operator); Wilkie v.

Robbins, 551 U.S. 537 (2007) (rejecting due process claim

against Bureau of Land Management officials); Minneci v.

Pollard, 565 U.S. 118 (2012) (rejecting Eighth Amendment

claim against private prison employees); Abbasi, 137 S. Ct.

1843 (rejecting Fifth Amendment claim against high-level

executive officials in national security context); Hernandez v.

Mesa, 140 S. Ct. 735 (2020) (rejecting Fourth and Fifth

Amendment claims against a United States Border Patrol

agent).

12

We have, however, expanded Bivens remedies beyond

these contexts. As discussed above, we had previously

recognized the availability of a damages remedy for First

Amendment deprivations by federal officials. See La Prade,

524 F.2d 862; Milhouse, 652 F.2d 371. Indeed, we relied upon

these prior precedents in Mack II, noting that they “ma[de]

clear” that a Bivens action was available for Mack’s First

Amendment retaliation claim. 839 F.3d at 297. But since the

Supreme Court’s decision in Abbasi, our prior decisions

permitting a Bivens action for First Amendment claims are

clearly called into question and are no longer controlling. See

In re City of Philadelphia Litig., 158 F.3d 711, 718 (3d Cir.

1998) (explaining that the law of the case doctrine does not bar

a subsequent panel from reconsidering a claim when

“supervening new law has been announced”). As we noted in

Bistrian II, Abbasi made clear that lower courts could no longer

rely on their own prior precedents to recognize a Bivens

remedy. See 912 F.3d at 95 (“It is Abbasi, not our own prior

precedent, that must guide us now.”). 7 Unless the Supreme

7

In the Bistrian cases, we reviewed the viability of a federal

inmate’s First Amendment retaliation claim against prison

officers twice: first, pre-Abbasi in 2012, Bistrian v. Levi, 696

F.3d 352 (3d Cir. 2012) (Bistrian I), and then again, post-

Abbasi in 2018 (Bistrian II). In Bistrian I, we relied upon our

prior precedents to recognize a Bivens remedy for the inmate’s

First Amendment retaliation claim. Id. at 376 n.9. But we

changed course in Bistrian II, declaring that those prior

precedents were no longer controlling after Abbasi. 912 F.3d

at 95. Conducting a new Bivens analysis under the framework

set forth in Abbasi, we concluded that a Bivens remedy was no

13

Court has recognized the context before, the context is “new”

and a special factors inquiry is required to determine if Bivens

expansion is appropriate.

Since deciding Mack II and guided by Abbasi, we have

declined to recognize an implied damages remedy for First

Amendment retaliation claims in different contexts. Most

recently, in Bistrian II, we emphasized that Abbasi changed the

landscape for how we approach Bivens claims. There, a federal

inmate brought a First Amendment retaliation claim against

prison officials, alleging that he was wrongfully placed in a

special housing unit in retaliation for complaining about his

treatment by correctional officers. Id. at 96. Applying

Abbasi’s two-step framework, we held that the case presented

a new Bivens context and that special factors counseled against

Bivens expansion. Id. Thus, we concluded that the inmate did

not have a right to bring a Bivens action based on the detention

decision made by the prison, which he contended was

retaliatory. Id.

Although we held that a Bivens action was foreclosed

for the inmate’s First Amendment retaliation claim in Bistrian

II, we must nevertheless conduct a separate inqury to

determine if Bivens expansion is appropriate here. This is

because the special factors inquiry is context-specific, and the

factors which counseled hesitation in the prison housing

context in Bistrian II might be analyzed differently and lead to

a different outcome when applied to the prison work

assignment context in this case. We must therefore revisit our

decision to expand Bivens in Mack II, which relied upon pre-

longer available for the inmate’s First Amendment retaliation

claim. Id. at 96.

14

Abbasi Third Circuit precedent. We will apply Abbasi’s two-

step test to determine whether Mack’s First Amendment

retaliation claim presents a new context and, if so, whether

special factors counsel hesitation in expanding Bivens.

A. New Bivens Context

Abbasi held that the “proper test” for determining

whether a case presents a new Bivens context is if the Supreme

Court has not previously recognized a claim in that context.

137 S. Ct. at 1859. A context is “new” if it implicates a

constitutional right not previously recognized by the Supreme

Court. Id. at 1860. As noted above, and as we recognized in

Bistrian II, the Supreme Court has never recognized a Bivens

remedy for First Amendment retaliation claims brought in the

prison context. See also Reichle v. Howards, 566 U.S. 658,

663 n.4 (2012) (“We have never held that Bivens extends to

First Amendment claims.”). Accordingly, this case presents a

new Bivens context and a special factors inquiry is required.

B. Special Factors

Under this inquiry, we must determine whether there are

“special factors counselling hesitation in the absence of

affirmative action by Congress.” Abbasi, 137 S. Ct. at 1857

(citation omitted). “[I]f there are sound reasons to think

Congress might doubt the efficacy or necessity of a damages

remedy,” courts must refrain from expanding Bivens. Id. at

1858. Two special factors are “particularly weighty”: the

availability of an alternative remedial structure and separation-

of-powers concerns. Bistrian II, 912 F.3d at 90 (citing Abbasi,

137 S. Ct. at 1857-58). We will first address these two weighty

factors and then address the remaining special factors

discussed in Abbasi and Bistrian II.

15

i. Alternative Remedial Structure

The Supreme Court has noted that “when alternative

methods of relief are available, a Bivens remedy usually is

not.” Abbasi, 137 S. Ct. at 1863. Thus, the availability of an

alternative remedial structure may, on its own, prevent courts

from expanding Bivens. The Supreme Court has emphasized

that the alternative remedy need not provide an individual with

complete relief in order to foreclose a damages remedy under

Bivens. See Schweiker v. Chilicky, 487 U.S. 412, 424-25

(1988) (finding the administrative remedy adequate even

though it failed to provide any money damages for the federal

officials’ unconstitutional conduct). The relevant question “is

not what remedy the court should provide for a wrong that

would otherwise go unredressed,” but instead, “whether an

elaborate remedial system . . . should be augmented by the

creation of a new judicial remedy.” Bush v. Lucas, 462 U.S.

367, 388 (1983).

As a federal inmate, Mack had access to the BOP’s

administrative remedy program. 8 In Correctional Services

Corp. v. Malesko, 534 U.S. 61 (2001), the Supreme Court

provided an overview of the remedies available to federal

inmates through this program. The Supreme Court noted that

federal inmates have “full access to remedial mechanisms

established by the BOP,” id. at 74, through which they “may

seek formal review of an issue which relates to any aspect of

their confinement,” id. (quoting 28 CFR § 542.10 (2001)).

8

The fact that Mack was unsuccessful in obtaining relief

through this program “does not mean that he did not have

access to alternative or meaningful remedies.” Vega v. United

States, 881 F.3d 1146, 1155 (9th Cir. 2018) (citation omitted).

16

Through this process, inmates can alert the BOP to

unconstitutional officer conduct and policies and prevent such

constitutional violations from recurring. Id. In addition to the

remedies available through the BOP, federal inmates may also

bring an action in federal court to obtain injunctive relief. Id.

Here, Mack could have sought equitable remedies

through the BOP, including reinstatement to his job in the

commissary, and could seek injunctive relief in federal court.

This would partially address one of the interests asserted in this

case, namely, Mack’s loss of employment. Although the

alternative remedy would not provide Mack with money

damages for the constitutional violation incurred or back pay

for his lost wages during the pendency of his claim, see Nyhuis

v. Reno, 204 F.3d 65, 70 (3d Cir. 2000), this was not a case of

“damages or nothing” for Mack, Abbasi, 137 S. Ct. at

1862 (citation omitted). Notably, Mack did not sustain any

physical injuries with resulting monetary loss, which may have

otherwise caused us to create a damages remedy despite the

availability of the BOP’s administrative remedy. 9

9

In Bistrian II, we held that a Bivens remedy was available for

the inmate’s Fifth Amendment failure-to-protect claim, where

he suffered physical injuries from the beating which took place

in the prison yard. 912 F.3d at 92. Although the BOP’s

administrative remedy was also available to the inmate in

Bistrian II, we nevertheless determined that it was inadequate

to redress his physical injuries, “which due to their very nature

are difficult to address except by way of damages actions after

the fact.” Id. (citation omitted). Similarly, the Supreme Court

recognized the need to redress a failure to render adequate

medical care to an inmate by providing a damages remedy in

Carlson, 446 U.S. at 19.

17

Accordingly, because Mack had access to at least “some

redress,” Malesko, 534 U.S. at 69, through injunctive relief and

reinstatement to his prison job, we find that the BOP’s

administrative remedy program offers a “convincing reason,”

Abbasi, 137 S. Ct. at 1858, for us to refrain from creating a new

damages remedy against federal prison officials.

ii. Separation of Powers

In addition to the availability of an adequate alternative

remedial structure, we must also consider whether Bivens

expansion would improperly encroach upon other branches of

government. Over the years, the Supreme Court has made

explicit that there are certain areas within the executive’s

domain which are particularly sensitive to judicial intrusion.

These include matters related to national security and the

military. 10 Where a Bivens claim is inextricably intertwined

with these executive functions—which often involve a host of

considerations related to public safety and security—a Bivens

remedy will rarely be appropriate. This does not mean that

Bivens actions may never be recognized in these sensitive

areas, but rather, courts must be mindful of any unintended

consequences that may follow upon creation of a new damages

remedy. Because courts are not in a position to second-guess

the administrative policies and functions historically within the

executive’s domain, we must exercise restraint if judicial

intervention would ultimately interfere with executive

functions. See Abbasi, 137 S. Ct. at 1860.

10

See, e.g., Abbasi, 137 S.Ct. at 1860 (rejecting Bivens claim

in national security context); Stanley, 483 U.S. at 684

(rejecting Bivens claim in military context).

18

In Vanderklok, we considered the viability of a Bivens

remedy in the context of airport security. 868 F.3d at 199.

There, Transportation Security Administration (TSA)

personnel stopped a passenger who had a heart monitor and a

PVC pipe in his luggage and directed him to a secondary

screening area. Id. at 194. Believing that the TSA agent was

disrespectful and aggressive, the passenger informed the TSA

agent that he would file an administrative complaint to report

his behavior. Id. The passenger alleged that, in response, the

TSA agent falsely reported to the Philadelphia police that he

had made a bomb threat. Id. at 194-95. The passenger then

filed a First Amendment claim against the TSA agent, alleging

that the agent retaliated against him for threatening to file an

administrative grievance. Id. at 193.

In our analysis, we first noted that the TSA was

specifically created in response to the September 11, 2001

terrorist attacks to secure airports throughout the nation from

future attacks. Id. at 206. We determined that allowing private

individuals to bring a damages action against TSA officials

could cause officials to hesitate before making critical, split-

second decisions which directly affect national security. Id. at

207. Because national security policy “is the prerogative of

the Congress and President” we were particularly mindful of

any future, and potentially devastating, consequences which

could arise from judicial intervention in this sphere. Id.

(quoting Abbasi, 137 S. Ct. at 1861). Balancing the need for

passenger rights with the significant dangers associated with

airport security, we concluded that Congress was better

positioned to create a damages remedy in this area, and thus

declined to extend a Bivens remedy for the First Amendment

retaliation claim in Vanderklok. Id. at 209.

19

We performed a similar analysis in Bistrian II, which

involved a First Amendment retaliation claim brought in the

prison housing context. We noted that the inmate’s claim that

he was unlawfully placed in a restrictive housing unit was

“grounded in administrative detention decisions[,]” which

involve “real-time and often difficult judgment calls about

disciplining inmates, maintaining order, and promoting prison

officials’ safety and security.” 912 F.3d at 96. We therefore

determined that creating a damages remedy in that context

would improperly interfere with administrative detention

decisions, which lie squarely within the executive’s domain.

Id. at 94-95.

Expanding Bivens in the context presented here would

similarly invite intrusive judicial inquiry into the BOP’s

administrative decisions. Although we recognize that hiring

and firing decisions for inmate work assignments are not as

weighty as the decisions in Bistrian II related to where and how

an inmate is detained, 11 we nonetheless find that the same

considerations support leaving such determinations to the

executive branch. First Amendment retaliation claims often

require an “analysis of the reasoning, motivations, or actions

of prison officials,” which counsels against Bivens expansion.

Id. at 95 n.23. Mack alleges that he was terminated from his

prison job for complaining that he was being harassed because

of his religious beliefs. BOP officials contend that he was

11

Unlike prison employment, detention policies directly

implicate a main BOP function—to provide a secure and

controlled environment for inmates while they serve their

sentences of imprisonment—and therefore could be said to

demand a higher level of judicial deference than prison work

assignment policies.

20

terminated for bringing in other inmates’ commissary slips in

violation of BOP rules. In order to succeed on this claim, Mack

would need to establish a causal connection between his oral

complaint and his termination, which requires analysis of the

officers’ reasons and motivations for his termination. 12 We

should hesitate before embarking down such a path. Further,

as was the case in Bistrian II, the BOP, not the judiciary, is

responsible for delegating prison work assignments and

overseeing the operational needs of the prison. See 28 CFR §

545.23 (detailing the guidelines and policies for prison work

assignments). Courts have recognized that such day-to-day

administrative decisions have been committed solely to the

province of the BOP. See Turner v. Safley, 482 U.S. 78, 85

(1987) (“Prison administration is . . . a task that has been

committed to the responsibility of [the legislative and

executive] branches, and separation of powers concerns

counsel a policy of judicial restraint.”). Thus, we have

afforded a level of deference to the decision making of prison

officials. See, e.g., Florence v. Bd. of Chosen Freeholders, 621

F.3d 296, 302 (3d Cir. 2010), aff’d, 566 U.S. 318 (2012)

(“[P]rison administrators . . . should be accorded wide-

ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve

12

“A prisoner alleging retaliation must show (1)

constitutionally protected conduct, (2) an adverse action by

prison officials sufficient to deter a person of ordinary firmness

from exercising his constitutional rights, and (3) a causal link

between the exercise of his constitutional rights and the

adverse action taken against him.” Mitchell v. Horn, 318 F.3d

523, 530 (3d Cir. 2003) (alterations, citations, and internal

quotation marks omitted).

21

internal order and discipline and to maintain institutional

security.” (citation omitted)).

We therefore find that, on balance, judicial intervention

in such administrative decisions would improperly encroach

upon the executive’s domain. Heeding Abbasi’s cautionary

language regarding the appropriate exercise of judicial power,

we conclude that these separation-of-powers concerns counsel

against Bivens expansion in this context.

iii. Other Special Factors

We must also consider whether Congressional silence

in a particular subject area suggests that Congress did not want

to create a damages remedy in that context. See Abbasi, 137

S. Ct. at 1865. Where Congress specifically had occasion to

consider whether to grant a damages remedy against federal

officials and failed to do so, the Supreme Court has held that

such silence may be “more than inadvertent.” Id. at 1862

(internal quotation marks omitted). This is a delicate balance

and we must be careful not to derive meaning from

Congressional inaction where none was intended. The

Government makes two arguments under this factor, but we

find neither to be persuasive.

First, the Government argues the Prison Litigation

Reform Act (“PLRA”) suggests that Congress had specific

occasion to create a damages remedy for constitutional

violations against federal officials and chose not to do so. We

considered this exact argument in Bistrian II and noted that

because the PLRA “govern[s] the process by which federal

prisoners bring Bivens claims[,]” it “cannot rightly be seen as

dictating that a Bivens cause of action should not exist at all.”

912 F.3d at 93 (citations omitted). We again reject the

22

argument that Congressional silence within the PLRA suggests

that Congress did not want a damages remedy against prison

officials for constitutional violations. This argument is

untenable, as it would arguably foreclose all Bivens claims

brought in the prison context, which would run counter to the

Supreme Court’s ruling in Carlson and our recent ruling in

Bistrian II regarding the inmate’s Fifth Amendment duty-to-

protect claim. See supra n.10.

The Government attempts to bolster this argument by

noting that the PLRA bars recovery of emotional and mental

damages without a corresponding physical injury, and by

extension, asking us to infer that Congress did not intend to

create a damages remedy for First Amendment retaliation

claims, which rarely involve physical injuries. See 42 U.S.C.

§ 1997e(e) (“No Federal civil action may be brought by

a prisoner . . . for mental or emotional injury suffered while in

custody without a prior showing of physical injury or the

commission of a sexual act.”). But mental or emotional

injuries cannot be equated with constitutional violations and

we therefore find this point unpersuasive.

Second, the Government argues that Congress’s failure

to include inmates in worker protection laws—for example, the

Fair Labor Standards Act or Title VII of the Civil Rights Act—

suggests that Congress did not want to extend a Bivens remedy

in the prison work assignment context. However, the

relationship between inmate and prison is not the same as a

traditional relationship between employee and employer. See

Tourscher v. McCullough, 184 F.3d 236, 243 (3d Cir. 1999).

The BOP’s primary function is one of confinement and public

safety and, though it does employ inmates, such employment

is subject to numerous safety-related restrictions that are not

otherwise present in a traditional employment relationship.

23

Given these differences, we find that the Government asks us

to read too much into Congressional silence as it relates to

worker protection laws. Accordingly, we decline to ascribe

any meaning to Congress’s failure to mention federal inmates

in these statutes and conclude that legislative inaction does not

counsel hesitation in this context.

For the final special factor, Abbasi counsels us to

consider the burdens and costs associated with “establish[ing]

whole categories of cases in which federal officers must defend

against personal liability claims.” 137 S. Ct. 1858. This factor

is inherently forward-looking and asks us to consider the

practical effects of Bivens expansion. Some considerations

include burdens to the judiciary, litigation costs for federal

officers, and potential impacts that the threat of liability may

have on an officer’s ability to serve the public. Some of these

considerations are undoubtedly present whenever a court

considers creating a damages remedy against federal officers,

yet there are certain circumstances where the benefits of Bivens

expansion will outweigh these burdens. We must therefore

take a hard look at how the relevant players will be affected

and ask if this is really a situation in which courts should be

creating a new damages remedy. In certain situations, the

impact may be minimal and a remedy warranted, but there is

no need for us to say here what those situations might be, for

this case is not one of them.

First Amendment retaliation claims brought by inmates

should be approached “with skepticism and particular care”

because such claims are easy to allege and difficult to prove.

Bistrian, 912 F.3d at 96 (citation omitted). This is particularly

true where, as is the case here, there is no formal record of the

oral grievance. Because these types of claims are “easily

fabricated” and cannot be readily dismissed on the pleadings,

24

we are hesitant to create a category of cases which may well

open the floodgates to litigation in this sphere. Id. (citation

omitted). Such lawsuits could ultimately clog the courts and

burden individual prison officials with the costs and resources

needed to defend such suits. Equally important to these

financial considerations, the fear of such suits and the efforts

needed to defend against them may detract from an officer’s

ability to properly fulfill his duties to the federal government.

This is especially troubling in the prison context, an area in

which we want officials to be able to do their job without

concern that their actions will result in considerable cost and

worry. While there are certainly circumstances where we

should hold prison officers accountable by imposing a

damages remedy, here, the above concerns weigh against

doing so.

Based on the above special factors inquiry, we find that

Bivens expansion would be an inappropriate exercise of

judicial power in this new context. There may be future cases

where we determine that, on balance, judicial intervention is

needed to fulfill our obligation to faithfully uphold the

Constitution. But in this case, we will exercise restraint and

allow Congress to decide whether to redress the harm present

in these types of cases. Accordingly, we decline to extend a

Bivens remedy for First Amendment retaliation claims brought

in the prison workplace assignment context. 13

IV. CONCLUSION

13

Because a Bivens cause of action is not available for Mack’s

First Amendment retaliation claim, we need not analyze

whether the officials are entitled to qualified immunity as to

this claim.

25

For the foregoing reasons, we will reverse the District

Court’s denial of summary judgment as to Mack’s First

Amendment retaliation claim and remand for further

proceedings.

26