|||United States Supreme Court
|||122 S.Ct. 515, 534 U.S. 61, 2001.SCT.0000169 <http://www.versuslaw.com>,
70 USLW 4013, 1 Cal. Daily Op. Serv. 9899
|||November 27, 2001
|||CORRECTIONAL SERVICES CORPORATION, PETITIONER
JOHN E. MALESKO
|||SYLLABUS BY THE COURT
|||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 federal
law. 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 provide 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. 4-12.
|||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. Stevens, J., filed a dissenting opinion,
in which Souter, Ginsburg, and Breyer, JJ., joined.
|||Court Below: 229 F. 3d 374
|||Carter G. Phillips argued the cause for petitioner. With him on the brief
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. 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.
|||The opinion of the court was delivered by: Chief Justice Rehnquist.
|||534 U. S. ____ (2001)
|||On Writ Of Certiorari To The United States Court Of Appeals For The Second
|||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
|||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.*fn1
Since the late 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, petitioner 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 petitioner, 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 [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 petitioner, 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 petitioner, 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 petitioner should be held liable under Bivens
to "accomplish the ... important Bivens goal of providing a remedy for constitutional
violations." 229 F. 3d, at 380.
|||We granted certiorari, 532 U. S. 902 (2001), and now reverse.*fn2
|||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,
420-421 (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 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. I. 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.*fn3
|||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 Punishment 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 inferred 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 responded 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, 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.*fn4
|||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 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
|||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 policy-making 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.*fn5 To begin with, no federal
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
parallel 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 Punishment 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) ("[D]eliberate 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 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.*fn6
|||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
|||The judgment of the Court of Appeals is reversed.
|||It is so ordered.
|||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 5, and 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 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.*fn7
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
|||The parties before us have assumed that respondent's complaint has alleged
a violation of the Eighth Amendment.*fn8
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 Carlson, not whether it
should extend our cases beyond their "core premise," ante, at 9. 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.*fn9
|||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 impossible:
"a direct action against the Government." 510 U. S., at 485.*fn10
|||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.*fn11
|||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 8. In Bivens, however, even though
the plaintiff's suit against the Federal Government 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.*fn12
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.*fn13
|||It is ironic that the Court relies so heavily for its holding on this
assumption that alternative effective remedies -- primarily negligence actions
in state court -- are available to respondent. See ante, at 10-12. Like
Justice Harlan, I think it "entirely proper that these injuries be compensable
according to uniform rules of federal law, especially in 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 10-11, 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.*fn14
|||Second, the Court claims that the deterrence goals of Bivens would not
be served by permitting liability here. Ante, at 8-9 (citing Meyer). It
cannot be seriously maintained, however, that tort remedies against corporate
employers have less deterrent value than actions against their 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 today'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.*fn15
|||The Court raises a concern with imposing "asymmetrical liability costs
on private prison facilities," ante, at 10, 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 §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 5, 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 1, that the driving force
behind the Court's decision is a disagreement with the holding in Bivens
itself.*fn16 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 predisposition. First, as is clear from the legislative
materials cited in Carlson, 446 U. S., at 19-20, see also ante, at 6, 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.
|||*fn1 Petitioner 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 petitioner, 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 House Association (Oregon), Triangle Center (Illinois),
and Catholic Social Services (Pennsylvania).
|||*fn2 The 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.
|||*fn3 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).
|||*fn4 Justice Stevens' claim that this
case does not implicate an "extension" of Bivens, post, at 2, 8 (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 (CA2 2000). See also ibid. ("Bivens liability
should extend to private corporations").
|||*fn5 Justice Stevens claims that our
holding in favor of petitioner portends "tragic consequence[s]," post, at
6, and "jeopardize[s] the constitutional rights of . . . tens of thousands
of inmates," post, at 7. He refers to examples of cases suggesting that
private correctional providers routinely abuse and take advantage of inmates
under their control. Post, at 7, n. 9 (citing Brief for Legal Aid Society
of New York as Amicus Curiae 8-25). See also Brief for American Civil Liberties
Union as Amicus Curiae 14-16, 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, 24-26, which Justice Stevens does not mention.
|||*fn6 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.
|||*fn7 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).
|||*fn8 Although it might have challenged
the sufficiency of respondent's constitutional claim, see ante, at 10-11,
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).
|||*fn9 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).
|||*fn10 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).
|||*fn11 The Court incorrectly assumes
that we are being asked "to imply a new constitutional tort," ante, at 4.
The tort here is, however, well established; the only question is whether
a remedy in damages is available against a limited class of tortfeasors.
|||*fn12 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 3. Both petitioner 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 10 (noting that Meyer "found
sufficient" a remedy against the individual officer, "which respondent did
not timely pursue" (emphasis added)).
|||*fn13 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.
|||*fn14 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 11. Such
strategic behavior, generally speaking, is imaginable, but there is no basis
in the case before us to charge respondent with acting strategically. Cf.
ibid. (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
|||*fn15 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 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.
|||*fn16 See also ante, at 1 (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).
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