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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
ATTORNEYGENERAL, 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 hundreds 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 filed suit, leading to the cases now before the Court.
The complaint named as defendants three high
executive 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 violations, 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 defendants 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 opinion 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 decision);
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 Appeals,
are the petitioners here. The former detainees who seek relief
under the fourth amended complaint are the 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
substantiated 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 designated an alien as not being “of
interest” to the investigation, 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
Metropolitan Detention Center (MDC) in Brooklyn, New York. They
were held in the Administrative Maximum Special Housing Unit (or
Unit) of the MDC. The complaint 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
toothbrush. 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 imposed pursuant to official policy. According to the
complaint, 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
descent. Five are Muslims. Each was illegally in this country,
arrested during the course of the September 11 investigation, 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. Respondents, it seems fair to
conclude from the arguments presented, acknowledge that in the
ordinary course aliens who are present in the United States without
legal authorization 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
consisted 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, respondents 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 Wardens 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.
Respondents also brought a claim under 42
U. S. C. §1985(3), which forbids certain conspiracies to
violate equal protection rights. Respondents alleged that
petitioners 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 concurring 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 codified 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 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
statutoryauthorization, 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 damages remedy in “explicit” terms and that no
“special factors” 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 assistant 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 Punishments 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.
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 Elections, 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
constitutional 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., concurring) (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
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 –46 (1977);
Cort v.
Ash, 422 U. S. 66 –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 –16, 23–24 (1979);
Karahalios v.
Federal Employees, 489 U. S. 527
–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 considerations
than when the question is whether to recognize an implied cause of
action to enforce a provision of the Constitution itself. When
Congress enacts a statute, there are 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
Constitution, 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 determining 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 determine 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 intrusions resulting from the
discovery and trial process are significant factors to be
considered. In an analogous context, 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 provisions 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 the Court’s general approach to recognizing implied damages
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
guidance 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 reasons 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 Amendment
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 –305 (1983); a substantive due process suit against
military officers,
United States v.
Stanley, 483
U. S. 669 –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 –474 (1994); an
Eighth Amendment 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 –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 –513 (1954)). In
most instances, the Court’s precedents now instruct, the
Legislature is in the better position 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 Judiciary is
well suited, absent congressional action or instruction, to
consider and weigh the costs and benefits of allowing a damages
action to proceed. Thus, to be a “special factor counselling
hesitation,” a factor must cause acourt 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 assessment of its impact on governmental operations
systemwide. Those matters include the burdens on Government
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 formulation and implementation of public policies.
These and other considerations may make it less probable that
Congress 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 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] interest” 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 attacks. The
Court will refer to these claims as the “detention 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
“detention 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.
A
Before allowing respondents’ detention policy
claims to proceed under
Bivens, the Court of Appeals did not
perform 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 Appeals’
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 mechanism 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
approved a
Bivens action under the Eighth Amendment against
federal prison officials for failure to provide medical 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 mechanism 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
framework in
Malesko. Even though the right and the
mechanism of injury were the same as they were in
Carlson,
the Court held that the contexts were different. 534 U. S., at
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 endeavoring
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 operating; the risk of
disruptive intrusion by the Judiciary into the functioning of other
branches; or the presence of potential 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
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 without 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 implicated 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
Officials, 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 subordinates under a theory of
respondeat superior”).
Even if the action is confined to the conduct of
a particular Executive Officer in a discrete instance, these claims
would call into question the formulation and implementation 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 governmental acts being
challenged. These consequences counsel against allowing a
Bivens action against the Executive 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
protecting 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 context in other circumstances, would require
courts to interfere 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 considerations 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 other special factors that apply as well to the detention
policy claims against all of the petitioners. First, respondents’
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 Congress 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
deference to what the Executive Branch “has determined
. . . is ‘essential to national security.’ ”
Winter v.
Natural Resources Defense Council, Inc.,
555 U. S. 7, 24, 26 (2008) . Indeed, “courts traditionally
have been reluctant to intrude 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 otherwise here.
There are limitations, of course, on the power
of the 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 –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 concerns must not become a talisman used to ward
off inconvenient 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 –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
provide a damages remedy might be more than mere oversight, and
that congressional silence might be more than “inadvertent.”
Schweiker, 487 U. S., at 423. This possibility counsels
hesitation “in the absence of affirmative action 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 documented. Congressional interest
has been “frequent and intense,”
Schweiker,
supra, at
425, and some of that interest has been directed to the conditions
of confinement at 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 Department’s Inspector
General to review and report semi-annually to Congress on any
identified abuses of civil rights and civil liberties in fighting
terrorism”). Nevertheless, “[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
circumstances 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
conditions 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 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 available, 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
circumstances 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 necessary to protect the
Nation in times of great peril. Cf.
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 willing to tolerate”). The proper balance is one
for the Congress, not the Judiciary, to undertake. For all of these
reasons, the Court of Appeals erred by allowing respondents’
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 complaint 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
assumes 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 complaints, 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
supra, at 4. These allegations—assumed here to be
true, subject to proof at a later stage—plausibly show the warden’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 especially true given that the
complaint alleges serious violations 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 (requiring
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 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 considered 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.
Supra, at 14. And there might have been alternative remedies
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
regulations discussed above; or some other form of equitable
relief.
Furthermore, legislative action suggesting that
Congress 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 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 remedy 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
Carlson 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
satisfied. 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 analyzed 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 comprehensive
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 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
legislation passed in the aftermath of the Civil War. See
Carpenters v.
Scott, 463 U. S. 825 –837 (1983)
(detailing the legislative history of §1985(3));
Griffin v.
Breckenridge, 403 U. S. 88 –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” performed 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 unreasonable 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 encountered. 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 reason, “[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
“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 qualified 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 situation 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 reasonable officials in petitioners’ positions would not have
known, and could not have predicted, that §1985(3) prohibited their
joint consultations and the resulting policies that caused the
injuries alleged.
At least two aspects of the complaint indicate
that petitioners’ 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 complaint 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 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 Department, an analogous principle discussed in the context of
antitrust law is instructive. The Court’s precedent indicates that
there is no unlawful conspiracy when officers within a single
corporate entity consult among themselves and then adopt a policy
for the entity. See
Copperweld Corp v
. Independence Tube
Corp., 467 U. S. 752 ,769–771 (1984). Under this
principle—sometimes called the intracorporate-conspiracy
doctrine—an agreement between 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 –1262 (1991) (White, J.,
dissenting from denial of certiorari) (discussing the Circuit
split);
Bowie v.
Maddox, 642 F. 3d 1122, 1130–1131
(CADC 2011) (detailing a longstanding split about whether the
intracorporate-conspiracy doctrine applies to civil rights
conspiracies). Nothing in this opinion should be interpreted as
either 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 respecting equal
protection guarantees, as distinct from a conspiracy in the
antitrust context. Yet the fact that the courts are divided as to
whether or not a §1985(3) conspiracy 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 alleged,
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 –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 officials
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 agreement—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
encouraged, 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. 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 adoption and implementation of governmental
policies. See
Cheney, 542 U. S., at 383 (discussing the
need for confidential communications among Executive Branch
officials);
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 question 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 given above, the Court answers that question in the
negative 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 Appeals 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 conspiracy. 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.