OCTOBER TERM, 2001
Syllabus
CORRECTIONAL SERVICES CORP. v. MALESKO
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND
CIRCUIT
No. 00-860. Argued October 1, 200l-Decided November 27, 2001
Petitioner Correctional Services Corporation (CSC), under
contract with the federal Bureau of Prisons (BOP), operates Le
Marquis Community Correctional Center (Le Marquis), a facility that
houses federal inmates. After respondent, a federal inmate
afflicted with a heart condition limiting his ability to climb
stairs, was assigned to a bedroom on Le Marquis' fifth floor, CSC
instituted a policy requiring inmates residing below the sixth
floor to use the stairs rather than the elevator. Respondent was
exempted from this policy. But when a CSC employee forbade
respondent to use the elevator to reach his bedroom, he climbed the
stairs, suffered a heart attack, and fell. Subsequently, respondent
filed this damages action against CSC and individual defendants,
alleging, inter alia, that they were negligent in refusing him the
use of the elevator. The District Court treated the complaint as
raising claims under Bivens v. Six Unknown Fed. Narcotics Agents,
403 U. S. 388, in
which this Court recognized for the first time an implied private
action for damages against federal officers alleged to have
violated a citizen's constitutional rights. In dismissing the suit,
the District Court relied on FDIC v. Meyer,
510 U. S. 471, reasoning,
inter alia, that a Bivens action may only be maintained against an
individual, not a corporate entity. The Second Circuit reversed in
pertinent part and remanded, remarking, with respect to CSC, that
Meyer expressly declined to expand the category of defendants
against whom Bivens-type actions may be brought to include not only
federal agents, but also federal agencies. But the court reasoned
that such private entities should be held liable under Bivens to
accomplish the important Bivens goal of providing a remedy for
constitutional violations.
Held: Bivens' limited holding may not be extended to confer a
right of action for damages against private entities acting under
color of federallaw. The Court's authority to imply a new
constitutional tort, not expressly authorized by statute, is
anchored in its general jurisdiction to decide all cases arising
under federal law. The Court first exercised this authority in
Bivens. From a discussion of that and subsequent cases, it is clear
that respondent's claim is fundamentally different from anything
the Court has heretofore recognized. In 30 years of Bivens
jurisprudence, the Court has extended its holding only twice, to
pro-
62
vide an otherwise nonexistent cause of action against individual
officers alleged to have acted unconstitutionally, e. g., Carlson
v. Green,
446 U. S.
14, and to provide a cause of action for a plaintiff who lacked
any alternative remedy for harms caused by an individual officer's
unconstitutional conduct, e. g., Davis v. Passman,
442 U. S. 228, 245. Where
such circumstances are not present, the Court has consistently
rejected invitations to extend Bivens, often for reasons that
foreclose its extension here. See, e. g., Bush v. Lucas,
462 U. S. 367. Bivens'
purpose is to deter individual federal officers, not the agency,
from committing constitutional violations. Meyer made clear, inter
alia, that the threat of suit against an individual's employer was
not the kind of deterrence contemplated by Bivens. 510 U. S., at
485. This case is, in every meaningful sense, the same. For if a
corporate defendant is available for suit, claimants will focus
their collection efforts on it, and not the individual directly
responsible for the alleged injury. On Meyer's logic, inferring a
constitutional tort remedy against a private entity like CSC is
therefore foreclosed. Respondent's claim that requiring private
corporations acting under color of federal law to pay for the
constitutional harms they commit is the best way to discourage
future harms has no relevance to Bivens, which is concerned solely
with deterring individual officers' unconstitutional acts. There is
no reason here to consider extending Bivens beyond its core
premise. To begin with, no federal prisoners enjoy respondent's
contemplated remedy. If such a prisoner in a BOP facility alleges a
constitutional deprivation, his only remedy lies against the
offending individual officer. Whether it makes sense to impose
asymmetrical liability costs on private prison facilities alone is
a question for Congress to decide. Nor is this a situation in which
claimants in respondent's shoes lack effective remedies. It was
conceded at oral argument that alternative remedies are at least as
great, and in many respects greater, than anything that could be
had under Bivens. For example, federal prisoners in private
facilities enjoy a parallel tort remedy that is unavailable to
prisoners housed in government facilities. Inmates in respondent's
position also have full access to remedial mechanisms established
by the BOP, including suits in federal court for injunctive
relief-long recognized as the proper means for preventing entities
from acting unconstitutionally-and grievances filed through the
BOP's Administrative Remedy Program. Pp.66-74.
229 F.3d
374, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, in which
O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. SCALIA, J.,
filed a concurring opinion, in which THOMAS, J., joined, post, p.
75. STEVENS, J.,
63
filed a dissenting opinion, in which SOUTER, GINSBURG, and
BREYER, JJ., joined, post, p. 75.
Carter G. Phillips argued the cause for petitioner. With him on
the briefs were Frank R. Volpe, George P. Stasiuk, and Karen M.
Morinelli.
Jeffrey A. Lamken argued the cause for the United States as
amicus curiae urging reversal. With him on the brief were Acting
Solicitor General Underwood, Deputy Solicitor General Clement,
Barbara L. Herwig, and Thomas M. Bondy.
Steven Pasternak argued the cause for respondent. With him on
the brief was David C. Vladeck.
*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
We decide here whether the implied damages action first
recognized in Bivens v. Six Unknown Fed. Narcotics Agents,
403 U. S. 388 (1971),
should be extended to allow recovery against a private corporation
operating a halfway house under contract with the Bureau of
Prisons. We decline to so extend Bivens.
Petitioner Correctional Services Corporation (CSC), under
contract with the federal Bureau of Prisons (BOP), operates
Community Corrections Centers and other facilities that house
federal prisoners and detainees.1 Since the late
*Briefs of amici curiae urging affirmance were filed for the
American Civil Liberties Union by Elizabeth Alexander, Margaret
Winter, David Fathi, and Steven R. Shapiro; and for the Legal Aid
Society of the City of New York by Daniel L. Greenberg and John
Boston.
1 CSC is hardly unique in this regard. The BOP has since 1981
relied exclusively on contracts with private institutions and state
and local governments for the operation of halfway house facilities
to help federal prisoners reintegrate into society. The BOP
contracts not only with for-profit entities like CSC, but also with
charitable organizations like Volunteers for America (which
operates facilities in Indiana, Louisiana, Maryland, Minnesota, New
York, and Texas), the Salvation Army (Arkansas, Florida, Illinois,
North Carolina, Tennessee, and Texas), Progress
64
1980's, CSC has operated Le Marquis Community Correctional
Center (Le Marquis), a halfway house located in New York City.
Respondent John E. Malesko is a former federal inmate who, having
been convicted of federal securities fraud in December 1992, was
sentenced to a term of 18 months' imprisonment under the
supervision of the BOP. During his imprisonment, respondent was
diagnosed with a heart condition and treated with prescription
medication. Respondent's condition limited his ability to engage in
physical activity, such as climbing stairs.
In February 1993, the BOP transferred respondent to Le Marquis
where he was to serve the remainder of his sentence. Respondent was
assigned to living quarters on the fifth floor. On or about March
1, 1994, CSC instituted a policy at Le Marquis requiring inmates
residing below the sixth floor to use the staircase rather than the
elevator to travel from the first-floor lobby to their rooms. There
is no dispute that respondent was exempted from this policy on
account of his heart condition. Respondent alleges that on March
28, 1994, however, Jorge Urena, an employee of CSC, forbade him to
use the elevator to reach his fifth-floor bedroom. Respondent
protested that he was specially permitted elevator access, but
Urena was adamant. Respondent then climbed the stairs, suffered a
heart attack, and fell, injuring his left ear.
Three years after this incident occurred, respondent filed a pro
se action against CSC and unnamed CSC employees in the United
States District Court for the Southern District of New York. Two
years later, now acting with counsel, respondent filed an amended
complaint which named Urena as 1 of the 10 John Doe defendants. The
amended complaint alleged that CSC, Urena, and unnamed defendants
were "negligent in failing to obtain requisite medication for
[respondent's] condition and were further negligent by refusing
House Association (Oregon), Triangle Center (Illinois), and
Catholic Social Services (Pennsylvania).
65
[respondent] the use of the elevator." App. 12. It further
alleged that respondent injured his left ear and aggravated a
pre-existing condition "[a]s a result of the negligence of the
Defendants." Ibid. Respondent demanded judgment in the sum of $1
million in compensatory damages, $3 million in anticipated future
damages, and punitive damages "for such sum as the Court and/or
[j]ury may determine." Id., at 13.
The District Court treated the amended complaint as raising
claims under Bivens v. Six Unknown Fed. Narcotics Agents, supra,
and dismissed respondent's cause of action in its entirety. App. to
Pet. for Cert. 20a. Relying on our decision in FDIC v. Meyer,
510 U. S. 471
(1994), the District Court reasoned that "a Bivens action may only
be maintained against an individual," and thus was not available
against CSC, a corporate entity. App. to Pet. for Cert. 20a. With
respect to Urena and the unnamed individual defendants, the
complaint was dismissed on statute of limitations grounds.
The Court of Appeals for the Second Circuit affirmed in part,
reversed in part, and remanded.
229 F.3d
374 (2000). That court affirmed dismissal of respondent's
claims against individual defendants as barred by the statute of
limitations. Respondent has not challenged that ruling, and the
parties agree that the question whether a Bivens action might lie
against a private individual is not presented here. With respect to
CSC, the Court of Appeals remarked that Meyer expressly declined"
'to expand the category of defendants against whom Bivens-type
actions may be brought to include not only federal agents, but
federal agencies as well.'" 229 F. 3d, at 378 (quoting Meyer,
supra, at 484 (emphasis deleted)). But the court reasoned that
private entities like CSC should be held liable under Bivens to
"accomplish the ... important Bivens goal of providing a remedy for
constitutional violations." 229 F. 3d, at 380.
66
We granted certiorari, 532 U. S. 902 (2001), and now
reverse.2
In Bivens v. Six Unknown Fed. Narcotics Agents,
403 U. S. 388 (1971), we
recognized for the first time an implied private action for damages
against federal officers alleged to have violated a citizen's
constitutional rights. Respondent now asks that we extend this
limited holding to confer a right of action for damages against
private entities acting under color of federal law. He contends
that the Court must recognize a federal remedy at law wherever
there has been an alleged constitutional deprivation, no matter
that the victim of the alleged deprivation might have alternative
remedies elsewhere, and that the proposed remedy would not
significantly deter the principal wrongdoer, an individual private
employee. We have heretofore refused to imply new substantive
liabilities under such circumstances, and we decline to do so
here.
Our authority to imply a new constitutional tort, not expressly
authorized by statute, is anchored in our general jurisdiction to
decide all cases "arising under the Constitution, laws, or treaties
of the United States." 28 U. S. C. § 1331. See, e. g., Schweiker v.
Chilicky,
487 U. S.
412, 420421 (1988); Bush v. Lucas,
462 U. S. 367, 373-374
(1983). We first exercised this authority in Bivens, where we held
that a victim of a Fourth Amendment violation by federal officers
may bring suit for money damages against the officers in federal
court. Bivens acknowledged that Congress had never provided for a
private right of action against federal
2The Courts of Appeals have divided on whether FDIC v. Meyer,
510 U. S. 471
(1994), forecloses the extension of Bivens to private entities.
Compare Hammons v. Norfolk Southern Corp.,
156
F.3d 701, 705 (CA6 1998) ("Nothing in Meyer prohibits a Bivens
claim against a private corporation that engages in federal
action"), with Kauffman v. Anglo-American School of Sofia,
28 F.3d
1223, 1227 (CADC 1994) ("[Under] Meyer's conclusion that public
federal agencies are not subject to Bivens liability, it follows
that equivalent private entities should not be liable either"). We
hold today that it does.
67
officers, and that "the Fourth Amendment does not in so many
words provide for its enforcement by award of money damages for the
consequences of its violation." 403 U. S., at 396. Nonetheless,
relying largely on earlier decisions implying private damages
actions into federal statutes, see id., at 397 (citing
J. 1.
Case Co. v. Borak,
377 U. S. 426, 433
(1964)); 403 u. S., at 402-403, n. 4 (Harlan, J., concurring in
judgment) ("The Borak case is an especially clear example of the
exercise of federal judicial power to accord damages as an
appropriate remedy in the absence of any express statutory
authorization of a federal cause of action"), and finding "no
special factors counseling hesitation in the absence of affirmative
action by Congress,"
id., at 395-396, we found an implied
damages remedy available under the Fourth Amendment.3
In the decade following Bivens, we recognized an implied damages
remedy under the Due Process Clause of the Fifth Amendment, Davis
v. Passman,
442 U. S.
228 (1979), and the Cruel and Unusual Punishments Clause of the
Eighth Amendment, Carlson v. Green,
446 U. S. 14 (1980). In
both Davis and Carlson, we applied the core holding of Bivens,
recognizing in limited circumstances a claim for money damages
against federal officers who abuse their constitutional authority.
In Davis, we inferred a new right of action chiefly because the
plaintiff lacked any other remedy for the alleged constitutional
deprivation. 442 U. S., at 245 ("For Davis, as for Bivens, it is
damages or nothing"). In Carlson, we in-
3 Since our decision in Borak, we have retreated from our
previous willingness to imply a cause of action where Congress has
not provided one. See, e. g., Central Bank of Denver, N. A. v.
First Interstate Bank of Denver, N. A.,
511 U. S. 164, 188
(1994); Transamerica Mortgage Advisors, Inc. v. Lewis,
444 U. S. 11, 15-16
(1979); Cannon v. University of Chicago,
441 U. S. 677,688 (1979);
id., at 717-718 (REHNQUIST, J., concurring). Just last Term
it was noted that we "abandoned" the view of Borak decades ago, and
have repeatedly declined to "revert" to "the understanding of
private causes of action that held sway 40 years ago." Alexander v.
Sandoval,
532 U. S.
275, 287 (2001).
68
ferred a right of action against individual prison officials
where the plaintiff's only alternative was a Federal Tort Claims
Act (FTCA) claim against the United States. 446 U. S., at 18-23. We
reasoned that the threat of suit against the United States was
insufficient to deter the unconstitutional acts of individuals.
Id., at 21 ("Because the Bivens remedy is recoverable against
individuals, it is a more effective deterrent than the FTCA
remedy"). We also found it "crystal clear" that Congress intended
the FTCA and Bivens to serve as "parallel" and "complementary"
sources of liability. 446 U. S., at 19-20.
Since Carlson we have consistently refused to extend Bivens
liability to any new context or new category of defendants. In Bush
v. Lucas, supra, we declined to create a Bivens remedy against
individual Government officials for a First Amendment violation
arising in the context of federal employment. Although the
plaintiff had no opportunity to fully remedy the constitutional
violation, we held that administrative review mechanisms crafted by
Congress provided meaningful redress and thereby foreclosed the
need to fashion a new, judicially crafted cause of action. 462 U.
S., at 378, n. 14, 386-388. We further recognized Congress'
institutional competence in crafting appropriate relief for
aggrieved federal employees as a "special factor counseling
hesitation in the creation of a new remedy." Id., at 380. See also
id., at 389 (noting that "Congress is in a far better
position than a court to evaluate the impact of a new species of
litigation between federal employees"). We have reached a similar
result in the military context, Chappell v. Wallace,
462 U. S. 296, 304
(1983), even where the defendants were alleged to have been
civilian personnel, United States v. Stanley,
483 U. S. 669, 681
(1987).
In Schweiker v. Chilicky, we declined to infer a damages action
against individual Government employees alleged to have violated
due process in their handling of Social Security applications. We
observed that our "decisions have re-
69
sponded cautiously to suggestions that Bivens remedies be
extended into new contexts." 487 U. S., at 421. In light of these
decisions, we noted that "[t]he absence of statutory relief for a
constitutional violation ... does not by any means necessarily
imply that courts should award money damages against the officers
responsible for the violation." Id., at 421-422. We therefore
rejected the claim that a Bivens remedy should be implied simply
for want of any other means for challenging a constitutional
deprivation in federal court. It did not matter, for example, that
"[t]he creation of a Bivens remedy would obviously offer the
prospect of relief for injuries that must now go unredressed." 487
U. S., at 425. See also Bush, supra, at 388 (noting that "existing
remedies do not provide complete relief for the plaintiff");
Stanley, supra, at 683 ("[I]t is irrelevant to a special factors
analysis whether the laws currently on the books afford Stanley ...
an adequate federal remedy for his injuries" (internal quotation
marks omitted)). So long as the plaintiff had an avenue for some
redress, bedrock principles of separation of powers foreclosed
judicial imposition of a new substantive liability. Chilicky,
supra, at 425-427.
Most recently, in FDIC v. Meyer, we unanimously declined an
invitation to extend Bivens to permit suit against a federal
agency, even though the agency-because Congress had waived
sovereign immunity-was otherwise amenable to suit. 510 U. S., at
484-486. Our opinion emphasized that "the purpose of Bivens is to
deter the officer," not the agency. Id., at 485 (emphasis in
original) (citing Carlson v. Green, supra, at 21). We reasoned that
if given the choice, plaintiffs would sue a federal agency instead
of an individual who could assert qualified immunity as an
affirmative defense. To the extent aggrieved parties had less
incentive to bring a damages claim against individuals, "the
deterrent effects of the Bivens remedy would be lost." 510 U. S.,
at 485. Accordingly, to allow a Bivens claim against federal
agencies "would mean the evisceration of the Bivens remedy,
70
rather than its extension." 510 U. S., at 485. We noted further
that "special factors" counseled hesitation in light of the
"potentially enormous financial burden" that agency liability would
entail. Id., at 486.
From this discussion, it is clear that the claim urged by
respondent is fundamentally different from anything recognized in
Bivens or subsequent cases. In 30 years of Bivens jurisprudence we
have extended its holding only twice, to provide an otherwise
nonexistent cause of action against individual officers alleged to
have acted unconstitutionally, or to provide a cause of action for
a plaintiff who lacked any alternative remedy for harms caused by
an individual officer's unconstitutional conduct. Where such
circumstances are not present, we have consistently rejected
invitations to extend Bivens, often for reasons that foreclose its
extension here.4
The purpose of Bivens is to deter individual federal officers
from committing constitutional violations. Meyer made clear that
the threat of litigation and liability will adequately deter
federal officers for Bivens purposes no matter that they may enjoy
qualified immunity, 510 U. S., at 474,485, are indemnified by the
employing agency or entity,
id., at 486, or are acting
pursuant to an entity's policy,
id., at 473-474. Meyer also
made clear that the threat of suit against an individual's employer
was not the kind of deterrence contemplated by Bivens. See 510 U.
S., at 485 ("If we were to imply a damages action directly against
federal agencies ... there would be no reason for aggrieved parties
to bring damages actions against individual officers. [T]he
deterrent
4JUSTICE STEVENS' claim that this case does not implicate an
"extension" of Bivens, post, at 76-77, 82 (dissenting opinion),
might come as some surprise to the Court of Appeals which twice
characterized its own holding as "extending Bivens liability to
reach private corporations."
229 F.3d
374, 381 (CA22000). See also ibid. ("Bivens liability should
extend to private corporations").
71
effects of the Bivens remedy would be lost"). This case is, in
every meaningful sense, the same. For if a corporate defendant is
available for suit, claimants will focus their collection efforts
on it, and not the individual directly responsible for the alleged
injury. See, e. g., TXO Production Corp. v. Alliance Resources
Corp.,
509 U. S.
443, 464 (1993) (plurality opinion) (recognizing that
corporations fare much worse before juries than do individuals);
id., at 490-492 (O'CONNOR, J., dissenting) (same) (citing
authorities). On the logic of Meyer, inferring a constitutional
tort remedy against a private entity like CSC is therefore
foreclosed.
Respondent claims that even under Meyer's deterrence rationale,
implying a suit against private corporations acting under color of
federal law is still necessary to advance the core deterrence
purpose of Bivens. He argues that because corporations respond to
market pressures and make decisions without regard to
constitutional obligations, requiring payment for the
constitutional harms they commit is the best way to discourage
future harms. That may be so, but it has no relevance to Bivens,
which is concerned solely with deterring the unconstitutional acts
of individual officers. If deterring the conduct of a policymaking
entity was the purpose of Bivens, then Meyer would have implied a
damages remedy against the Federal Deposit Insurance Corporation;
it was after all an agency policy that led to Meyer's
constitutional deprivation. Meyer, supra, at 473-474. But Bivens
from its inception has been based not on that premise, but on the
deterrence of individual officers who commit unconstitutional
acts.
There is no reason for us to consider extending Bivens beyond
this core premise here.5 To begin with, no federal
5 JUSTICE STEVENS claims that our holding in favor of CSC
portends "tragic consequence[s]," post, at 81, and "jeopardize[s]
the constitutional rights of ... tens of thousands of inmates,"
ibid. He refers to examples
72
prisoners enjoy respondent's contemplated remedy. If a federal
prisoner in a BOP facility alleges a constitutional deprivation, he
may bring a Bivens claim against the offending individual officer,
subject to the defense of qualified immunity. The prisoner may not
bring a Bivens claim against the officer's employer, the United
States, or the BOP. With respect to the alleged constitutional
deprivation, his only remedy lies against the individual; a remedy
Meyer found sufficient, and which respondent did not timely pursue.
Whether it makes sense to impose asymmetrical liability costs on
private prison facilities alone is a question for Congress, not us,
to decide.
Nor are we confronted with a situation in which claimants in
respondent's shoes lack effective remedies. Cf. Bivens, 403 U. S.,
at 410 (Harlan, J., concurring in judgment) ("For people in Bivens'
shoes, it is damages or nothing"); Davis, 442 U. S., at 245 ("For
Davis, as for Bivens, it is damages or nothing" (internal quotaton
marks omitted)). It was conceded at oral argument that alternative
remedies are at least as great, and in many respects greater, than
anything that could be had under Bivens. Tr. of Oral Arg. 41-42,
43. For example, federal prisoners in private facilities enjoy a
par-
of cases suggesting that private correctional providers
routinely abuse and take advantage of inmates under their control.
Post, at 81, n. 9 (citing Brief for Legal Aid Society of City of
New York as Amicus Curiae 8-25). See also Brief for American Civil
Liberties Union as Amicus Curiae 1416, and n. 6 (citing and
discussing "abundant" examples of such abuse). In all but one of
these examples, however, the private facility in question housed
state prisoners-prisoners who already enjoy a right of action
against private correctional providers under 42 U. S. C. § 1983. If
it is true that the imperatives for deterring the unconstitutional
conduct of private correctional providers are so strong as to
demand that we imply a new right of action directly from the
Constitution, then abuses of authority should be less prevalent in
state facilities, where Congress already provides for such
liability. That the trend appears to be just the opposite is not
surprising given the BOP's oversight and monitoring of its private
contract facilities, see Brief for United States as Amicus Curiae
4-5, 2426, which JUSTICE STEVENS does not mention.
73
allel tort remedy that is unavailable to prisoners housed in
Government facilities. See Brief in Opposition 13. This case
demonstrates as much, since respondent's complaint in the District
Court arguably alleged no more than a quintessential claim of
negligence. It maintained that named and unnamed defendants were
"negligent in failing to obtain requisite medication ... and were
further negligent by refusing ... use of the elevator." App. 12
(emphasis added). It further maintained that respondent suffered
injuries "[a]s a result of the negligence of the Defendants." Ibid.
(emphasis added). The District Court, however, construed the
complaint as raising a Bivens claim, presumably under the Cruel and
Unusual Punishments Clause of the Eighth Amendment. Respondent
accepted this theory of liability, and he has never sought relief
on any other ground. This is somewhat ironic, because the
heightened "deliberate indifference" standard of Eighth Amendment
liability, Estelle v. Gamble,
429 U. S. 97, 104 (1976),
would make it considerably more difficult for respondent to prevail
than on a theory of ordinary negligence, see, e. g., Farmer v.
Brennan,
511 U. S.
825, 835 (1994) ("[DJeliberate indifference describes a state
of mind more blameworthy than negligence").
This also makes respondent's situation altogether different from
Bivens, in which we found alternative state tort remedies to be
"inconsistent or even hostile" to a remedy inferred from the Fourth
Amendment. 403 U. S., at 393-394. When a federal officer appears at
the door and requests entry, one cannot always be expected to
resist. See
id., at 394 ("[A] claim of authority to enter is
likely to unlock the door"). Yet lack of resistance alone might
foreclose a cause of action in trespass or privacy. Ibid.
Therefore, we reasoned in Bivens that other than an implied
constitutional tort remedy, "there remain[ed] ... but the
alternative of resistance, which may amount to a crime." Id., at
395 (internal quotation marks and citation omitted). Such logic
does not apply to
74
respondent, whose claim of negligence or deliberate indifference
requires no resistance to official action, and whose lack of
alternative tort remedies was due solely to strategic choice.6
Inmates in respondent's position also have full access to
remedial mechanisms established by the BOP, including suits in
federal court for injunctive relief and grievances filed through
the BOP's Administrative Remedy Program (ARP). See 28 CFR § 542.10
(2001) (explaining ARP as providing "a process through which
inmates may seek formal review of an issue which relates to any
aspect of their confinement"). This program provides yet another
means through which allegedly unconstitutional actions and policies
can be brought to the attention of the BOP and prevented from
recurring. And unlike the Bivens remedy, which we have never
considered a proper vehicle for altering an entity's policy,
injunctive relief has long been recognized as the proper means for
preventing entities from acting unconstitutionally.
In sum, respondent is not a plaintiff in search of a remedy as
in Bivens and Davis. Nor does he seek a cause of action against an
individual officer, otherwise lacking, as in Carlson. Respondent
instead seeks a marked extension of Bivens, to contexts that would
not advance Bivens' core purpose of deterring individual officers
from engaging in unconstitutional wrongdoing. The caution toward
extending Bivens remedies into any new context, a caution
consistently and repeatedly recognized for three decades,
forecloses such an extension here.
The judgment of the Court of Appeals is reversed.
It is so ordered.
6 Where the government has directed a contractor to do the very
thing that is the subject of the claim, we have recognized this as
a special circumstance where the contractor may assert a defense.
Boyle v. United Technologies Corp.,
487 U. S. 500 (1988). The
record here would provide no basis for such a defense.
75
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring.
I join the opinion of the Court because I agree that a narrow
interpretation of the rationale of Bivens v. Six Unknown Fed.
Narcotics Agents,
403
U. S. 388 (1971), would not logically produce its application
to the circumstances of this case. The dissent is doubtless correct
that a broad interpretation of its rationale would logically
produce such application, but I am not inclined (and the Court has
not been inclined) to construe Bivens broadly.
In joining the Court's opinion, however, I do not mean to imply
that, if the narrowest rationale of Bivens did apply to a new
context, I would extend its holding. I would not. Bivens is a relic
of the heady days in which this Court assumed common-law powers to
create causes of action-decreeing them to be "implied" by the mere
existence of a statutory or constitutional prohibition. As the
Court points out, ante, at 67, n. 3, we have abandoned that power
to invent "implications" in the statutory field, see Alexander v.
Sandoval,
532 U. S.
275, 287 (2001). There is even greater reason to abandon it in
the constitutional field, since an "implication" imagined in the
Constitution can presumably not even be repudiated by Congress. I
would limit Bivens and its two follow-on cases (Davis v. Passman,
442 U. S. 228
(1979), and Carlson v. Green,
446 U. S. 14 (1980)) to
the precise circumstances that they involved.
JUSTICE STEVENS, with whom JUSTICE SOUTER, JUSTICE GINSBURG, and
JUSTICE BREYER join, dissenting.
In Bivens v. Six Unknown Fed. Narcotics Agents,
403 U. S. 388 (1971), the
Court affirmatively answered the question that it had reserved in
Bell v. Hood,
327 U.
S. 678 (1946): whether a violation of the Fourth Amendment "by
a federal agent acting under color of his authority gives rise to a
cause of action for damages consequent upon his unconstitutional
conduct." 403 U. S., at 389 (emphasis added). Nearly a
76
decade later, in Carlson v. Green,
446 U. S. 14 (1980), we
held that a violation of the Eighth Amendment by federal prison
officials gave rise to a Bivens remedy despite the fact that the
plaintiffs also had a remedy against the United States under the
Federal Tort Claims Act (FTCA). We stated:
"Bivens established that the victims of a constitutional
violation by a federal agent have a right to recover damages
against the official in federal court despite the absence of any
statute conferring such a right." 446 U. S., at 18 (emphasis
added).
In subsequent cases, we have decided that a Bivens remedy is not
available for every conceivable constitutional violation.1 We have
never, however, qualified our holding that Eighth Amendment
violations are actionable under Bivens. See Farmer v. Brennan,
511 U. S. 825
(1994); McCarthy v. Madigan,
503 U. S. 140 (1992). Nor
have we ever suggested that a category of federal agents can commit
Eighth Amendment violations with impunity.
The parties before us have assumed that respondent's complaint
has alleged a violation of the Eighth Amendment.2 The violation was
committed by a federal agent-a private corporation employed by the
Bureau of Prisons to perform functions that would otherwise be
performed by individual employees of the Federal Government. Thus,
the question presented by this case is whether the Court should
create an exception to the straightforward application of Bivens
and
1 See, e. g., FDIC v. Meyer,
510 U. S. 471 (1994);
Schweiker v. Chilicky,
487 U. S. 412 (1988);
Bush v. Lucas,
462 U.
S. 367 (1983); Chappell v. Wallace,
462 U. S. 296 (1983).
2 Although it might have challenged the sufficiency of
respondent's constitutional claim, see ante, at 72-73, petitioner
has not done so. See Tr. of Oral Arg. 55 (acknowledgment by
petitioner that the complaint states an Eighth Amendment
violation). Its petition for certiorari presented the single
question whether a Bivens cause of action for damages "should be
implied against a private corporation acting under color of federal
law." Pet. for Cert. (i).
77
Carlson, not whether it should extend our cases beyond their
"core premise," ante, at 71. This point is evident from the fact
that prior to our recent decision in FDIC v. Meyer,
510 U. S. 471 (1994), the
Courts of Appeals had consistently and correctly held that
corporate agents performing federal functions, like human agents
doing so, were proper defendants in Bivens actions.3
Meyer, which concluded that federal agencies are not suable
under Bivens, does not lead to the outcome reached by the Court
today. In that case, we did not discuss private corporate agents,
nor suggest that such agents should be viewed differently from
human ones. Rather, in Meyer, we drew a distinction between
"federal agents" and "an agency of the Federal Government," 510 U.
S., at 473. Indeed, our repeated references to the Federal Deposit
Insurance Corporation's (FDIC) status as a "federal agency"
emphasized the FDIC's affinity to the federal sovereign. We
expressed concern that damages sought directly from federal
agencies, such as the FDIC, would "creat[e] a potentially enormous
financial burden for the Federal Government." Id., at 486. And it
must be kept in mind that Meyer involved the FDIC's waiver of
sovereign immunity, which, had the Court in Meyer recognized a
cause of action, would have permitted the very sort of lawsuit that
Bivens presumed impossi-
3 See Schowengerdt v. General Dynamics Corp.,
823 F.2d
1328 (CA9 1987); Reuber v. United States,
750
F.2d 1039 (CADC 1984); Gerena v. Puerto Rico Legal Servs.,
Inc.,
697 F.2d
447 (CA1 1983); Dobyns v. E-Systems, Inc.,
667 F.2d
1219 (CA5 1982); Yiamouyiannis v. Chemical Abstracts Serv.,
521 F.2d
1392 (CA6 1975).
It is true that one court has overruled its Circuit precedent in
light of Meyer and held that Meyer dictates the exclusion of all
corporate entities from Bivens liability. Kauffman v.
Anglo-American School of Sofia,
28 F.3d
1223 (CADC 1994). However, as another court has explained, that
conclusion is in no way compelled by Meyer. See Hammons v. Norfolk
Southern Corp.,
156 F.3d
701 (CA6 1998).
78
ble: "a direct action against the Government." 510 U. S., at
485.4
Moreover, in Meyer, as in Bush v. Lucas,
462 U. S. 367 (1983), and
Schweiker v. Chilicky,
487 U. S. 412 (1988), we
were not dealing with a well-recognized cause of action. The cause
of action alleged in Meyer was a violation of procedural due
process, and as the Meyer Court noted, "a Bivens action alleging a
violation of the Due Process Clause of the Fifth Amendment may be
appropriate in some contexts, but not in others." 510 U. S., at
484, n. 9. Not only is substantive liability assumed in the present
case, but respondent's Eighth Amendment claim falls in the
heartland of substantive Bivens claims.5
Because Meyer does not dispose of this case, the Court claims
that the rationales underlying Bivens-namely, lack of alternative
remedies and deterrence-are not present in cases in which suit is
brought against a private corporation serving as a federal agent.
However, common sense, buttressed by all of the reasons that
supported the holding in Bivens, leads to the conclusion that
corporate agents should not be treated more favorably than human
agents.
First, the Court argues that respondent enjoys alternative
remedies against the corporate agent that distinguish this case
from Bivens. In doing so, the Court characterizes Bivens and its
progeny as cases in which plaintiffs lacked "any alternative
remedy," ante, at 70. In Bivens, however, even though the
plaintiff's suit against the Federal Gov-
4 Meyer also did not address the present situation
because the Court understood the plaintiff's "real complaint" in
that case to be that the individual officers would be shielded by
qualified immunity, 510 U. S., at 485, a concern not present in the
case before us, see Richardson v. McKnight,
521 U. S. 399, 412 (1997)
(denying qualified immunity to private prison guards in a suit
under 42 U. S. C. § 1983).
5 The Court incorrectly assumes that we are being asked "to
imply a new constitutional tort," ante, at 66. The tort here is,
however, well established; the only question is whether a remedy in
damages is available against a limited class of tortfeasors.
79
ernment under state tort law may have been barred by sovereign
immunity, a suit against the officer himself under state tort law
was theoretically possible. Moreover, as the Court recognized in
Carlson, Bivens plaintiffs also have remedies available under the
FTCA. Thus, the Court is incorrect to portray Bivens plaintiffs as
lacking any other avenue of relief, and to imply as a result that
respondent in this case had a substantially wider array of
non-Bivens remedies at his disposal than do other Bivens
plaintiffs.6 If alternative remedies provide a sufficient
justification for closing the federal forum here, where the
defendant is a private corporation, the claims against the
individual defendants in Carlson, in light of the FTCA alternative,
should have been rejected as well.7
It is ironic that the Court relies so heavily for its holding on
this assumption that alternative effective remediesprimarily
negligence actions in state court-are available to respondent. See
ante, at 72-74. Like Justice Harlan, I think it "entirely proper
that these injuries be compensable according to uniform rules of
federal law, especially in
6 The Court recognizes that the question whether a Bivens action
would lie against the individual employees of a private corporation
like Correctional Services Corporation (CSC) is not raised in the
present case. Ante, at 65. Both CSC and respondent have assumed
Bivens would apply to these individuals, and the United States as
amicus maintains that such liability would be appropriate under
Bivens. It does seem puzzling that Bivens liability would attach to
the private individual employees of such corporations-subagents of
the Federal Government-but not to the corporate agents themselves.
However, the United States explicitly maintains this to be the
case, and the reasoning of the Court's opinion relies, at least in
part, on the availability of a remedy against employees of private
prisons. Cf. ante, at 72 (noting that Meyer "found sufficient" a
remedy against the individual officer, "which respondent did not
timely pursue" (emphasis added)).
7 Although the Court lightly references administrative remedies
that might be available to CSC-housed inmates, these are by no
means the sort of comprehensive administrative remedies previously
contemplated by the Court in Bush and Schweiker.
80
light of the very large element of federal law which must in any
event control the scope of official defenses to liability." Bivens,
403 U. S., at 409 (opinion concurring in judgment). And aside from
undermining uniformity, the Court's reliance on state tort law will
jeopardize the protection of the full scope of federal
constitutional rights. State law might have comparable causes of
action for tort claims like the Eighth Amendment violation alleged
here, see ante, at 73, but other unconstitutional actions by prison
employees, such as violations of the Equal Protection or Due
Process Clauses, may find no parallel causes of action in state
tort law. Even though respondent here may have been able to sue for
some degree of relief under state law because his Eighth Amendment
claim could have been pleaded as negligence, future plaintiffs with
constitutional claims less like traditional torts will not
necessarily be so situated.8
Second, the Court claims that the deterrence goals of Bivens
would not be served by permitting liability here. Ante, at 71
(citing Meyer). It cannot be seriously maintained, however, that
tort remedies against corporate employers have less deterrent value
than actions against their
8 The Court blames respondent, who filed his initial complaint
pro se, for the lack of state remedies in this case; according to
the Court, respondent's failure to bring a negligence suit in state
court was "due solely to strategic choice," ante, at 74. Such
strategic behavior, generally speaking, is imaginable, but there is
no basis in the case before us to charge respondent with acting
strategically. Cf. ante, at 73 (discussing how proving a federal
constitutional claim would be "considerably more difficult" than
proving a state negligence claim). Respondent filed his complaint
in federal court because he believed himself to have been severely
maltreated while in federal custody, and he had no legal counsel to
advise him to do otherwise. Without the aid of counsel, respondent
not only failed to file for state relief, but he also failed to
name the particular prison guard who was responsible for his
injuries, resulting in the eventual dismissal of the claims against
the individual officers as time barred. Respondent may have been an
unsophisticated plaintiff, or, at worst, not entirely diligent
about determining the identify of the guards, but it can hardly be
said that "strategic choice" was the driving force behind
respondent's litigation behavior.
81
employees. As the Court has previously noted, the
"organizational structure" of private prisons "is one subject to
the ordinary competitive pressures that normally help private firms
adjust their behavior in response to the incentives that tort suits
provide-pressures not necessarily present in government
departments." Richardson v. McKnight,
521 U. S. 399, 412
(1997). Thus, the private corporate entity at issue here is readily
distinguishable from the federal agency in Meyer. Indeed, a tragic
consequence of to day's decision is the clear incentive it gives to
corporate managers of privately operated custodial institutions to
adopt cost-saving policies that jeopardize the constitutional
rights of the tens of thousands of inmates in their custody.9
The Court raises a concern with imposing "asymmetrical liability
costs on private prison facilities," ante, at 72, and further
claims that because federal prisoners in Government-run
institutions can only sue officers, it would be unfair to permit
federal prisoners in private institutions to sue an "officer's
employer," ibid. Permitting liability in the present case, however,
would produce symmetry: both private and public prisoners would be
unable to sue the principal (i. e., the Government), but would be
able to sue the primary federal agent (i. e., the Government
official or the corporation). Indeed, it is the Court's decision
that creates asymmetry-between federal and state prisoners housed
in private correctional facilities. Under 42 U. S. C. § 1983, a
state prisoner may sue a private prison for deprivation of
constitutional rights, see Lugar v. Edmondson Oil
Co.,
457 U. S. 922,
936-937 (1982) (permitting suit under
9 As amici for respondent explain, private prisons are exempt
from much of the oversight and public accountability faced by the
Bureau of Prisons, a federal entity. See, e.
g., Brief for
Legal Aid Society of the City of New York as Amicus Curiae 8-25.
Indeed, because a private prison corporation's first loyalty is to
its stockholders, rather than the public interest, it is no
surprise that cost-cutting measures jeopardizing prisoners' rights
are more likely in private facilities than in public ones.
82
§ 1983 against private corporations exercising "state action"),
yet the Court denies such a remedy to that prisoner's federal
counterpart. It is true that we have never expressly held that the
contours of Bivens and § 1983 are identical. The Court, however,
has recognized sound jurisprudential reasons for parallelism, as
different standards for claims against state and federal actors
"would be incongruous and confusing." Butz v. Economou,
438 U. S. 478, 499 (1978)
(internal quotation marks omitted); cf. Bolling v. Sharpe,
347 U. S. 497, 500 (1954)
("In view of our decision that the Constitution prohibits the
states from maintaining racially segregated public schools, it
would be unthinkable that the same Constitution would impose a
lesser duty on the Federal Government"). The value of such
parallelism was in fact furthered by Meyer, since § 1983 would not
have provided the plaintiff a remedy had he pressed a similar claim
against a state agency.
It is apparent from the Court's critical discussion of the
thoughtful opinions of Justice Harlan and his contemporaries, ante,
at 66-67, and n. 3, and from its erroneous statement of the
question presented by this case as whether Bivens "should be
extended" to allow recovery against a private corporation employed
as a federal agent, ante, at 63, that the driving force behind the
Court's decision is a disagreement with the holding in Bivens
itself.10 There are at least two reasons why it is improper for the
Court to allow its decision in this case to be influenced by that
predisposi-
10 See also ante, at 75 (SCALIA, J., concurring) (arguing that
Bivens is a "relic of ... heady days" and should be limited, along
with Carlson v. Green,
446 U. S. 14 (1980), and
Davis v. Passman,
442
U. S. 228 (1979), to its facts). Such hostility to the core of
Bivens is not new. See, e.
g., Carlson, 446 U. S., at 32
(REHNQUIST, J., dissenting) ("[T]o dispose of this case as if
Bivens were rightly decided would in the words of Mr. Justice
Frankfurter be to start with an 'unreality' "). Nor is there
anything new in the Court's disregard for precedent concerning
well-established causes of action. See Alexander v. Sandoval,
532 U. S. 275,
294-297 (2001) (STEVENS, J., dissenting).
83
tion. First, as is clear from the legislative materials cited in
Carlson, 446 U. S., at 19-20, see also ante, at 68, Congress has
effectively ratified the Bivens remedy; surely Congress has never
sought to abolish it. Second, a rule that has been such a
well-recognized part of our law for over 30 years should be
accorded full respect by the Members of this Court, whether or not
they would have endorsed that rule when it was first announced. For
our primary duty is to apply and enforce settled law, not to revise
that law to accord with our own notions of sound policy.
I respectfully dissent.
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