Neither the Constitution nor the U.S. Code states that a federal official who violates a person’s constitutional rights may be sued for damages. In its landmark 1971 decision in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,1 the Supreme Court held that a federal agent who commits an unconstitutional search and seizure can be held liable in damages through a right of action implied under the Fourth Amendment. Over the next decade, the Court twice extended the Bivens cause of action into new contexts. In Davis v. Passman,2 the Court held that an employee terminated on account of her sex could seek damages from her former employer, a U.S. Congressman, under the Fifth Amendment. In Carlson v. Green,3 the Court permitted a Bivens action under the Eighth Amendment against senior prison officials who exhibited deliberate indifference to an inmate’s medical needs. The Court then decided eight consecutive cases in which it held that a Bivens action did not lie.4
Last Term, in Ziglar v. Abbasi,5 the Court ruled that persons detained after the September 11 attacks could not maintain a Bivens action against federal officials responsible for their detention under harsh conditions. Abbasi is the ninth successive decision, spanning thirty-four years, in which the Court has chosen to distinguish Bivens. If the Court wants to continue distinguishing Bivens, for the sake of judicial candor and litigative efficiency it should hold that the Bivens cause of action is limited to the facts of Bivens, Davis, and Carlson.
In the wake of the September 11 attacks, the federal government detained hundreds of persons unlawfully present in the United States on suspicion of ties to terrorism.6 Often the detention lasted for months,7 notwithstanding the flimsiness of the tip that prompted the arrest.8 Many detainees were held in the Metropolitan Detention Center (MDC) in Brooklyn, where the conditions of confinement were severe. Detainees were frequently strip-searched, could rarely leave their small cells (which were kept lit at all hours), and were often held incommunicado.9 Guards allegedly abused the detainees.10
The instant litigation began in 2002.11 Several detainees filed a putative class action in federal court, alleging violations of their constitutional rights by executive branch officials Attorney General John Ashcroft, FBI Director Robert Mueller, and INS Commissioner James Ziglar, and by MDC officials, including Warden Dennis Hasty.12 The operative complaint, filed in 2010,13 set forth Bivens claims under several constitutional amendments and alleged a conspiracy to commit civil rights violations under 42 U.S.C. § 1985(3).14
The Eastern District of New York dismissed the case against Ashcroft, Mueller, and Ziglar but allowed most of the claims against the MDC defendants to proceed.15 A divided Second Circuit panel affirmed in part, reversed in part, and remanded, reviving many of the claims against Ashcroft, Mueller, and Ziglar.16 In sustaining certain Bivens claims, the majority analogized to Carlson, which also concerned conditions of confinement.17 Judge Raggi wrote separately. She thought the instant Bivens claims differed meaningfully from those previously recognized by the Supreme Court and would have dismissed the action on that ground.18 By an evenly divided vote, the Second Circuit denied rehearing en banc.19
On certiorari, two types of Bivens claims remained live. The plaintiffs’ detention policy claims alleged that the executive branch and MDC defendants abridged their Fifth Amendment rights by detaining them under punitive pretrial conditions (a due process violation) on account of their race, religion, or national origin (an equal protection violation).20 The plaintiffs’ prisoner abuse claim alleged that MDC Warden Hasty violated the Fifth Amendment by knowingly allowing his subordinates to engage in abuse.21
A shorthanded Supreme Court,22 through Justice Kennedy,23 reversed on the detention policy claims and vacated and remanded on the prisoner abuse claim. The Court began by describing the evolution of Bivens. Bivens, Davis, and Carlson were decided during an “ancien regime,” an era when the Court would sometimes imply a cause of action into otherwise-bare statutory or constitutional text.24 That approach later fell out of favor, first for statutes,25 then for the Constitution.26 Today, “expanding the Bivens remedy” into a new context is “disfavored.”27
In a Bivens action brought today, the Court explained, the first question is whether the case arises in a new context. Does it “differ[] in a meaningful way” from the Court’s three decisions recognizing Bivens actions?28 Abbasi provided a set of factors that might so distinguish a case, including “the constitutional right at issue” and “the rank of the officers involved.”29 If the context is familiar, the claim may proceed. But if the context is new, a court must determine whether there are “special factors” that preclude a Bivens remedy.30 Are the courts well suited, in place of Congress, to decide that an action for damages should lie?31 A special factor “cause[s] a court to hesitate before answering that question in the affirmative.”32 Finally, the presence of an alternative remedy “alone may limit the power of the Judiciary to infer a new Bivens cause of action.”33
Applying this test, the Court dismissed the detainees’ detention policy claims.34 Those claims, which challenged conditions of confinement imposed after a catastrophic terrorist attack, bore “little resemblance to the three Bivens claims the Court ha[d] approved in the past.”35 Thus they arose in a new context, prompting a consideration of special factors that amply weighed against permitting a Bivens action. Allowing a Bivens suit would “requir[e] an inquiry into sensitive issues of national security” and would occasion interference with “sensitive functions of the Executive Branch.”36 Further, in light of Congress’s “frequent and intense” interest in the MDC, the legislature’s failure to enact a damages remedy was telling.37 Finally, as an alternative remedy, the detainees might have filed a habeas petition, although the Court acknowledged it had never held that habeas can be used to challenge conditions of confinement.38
The Court considered separately the prisoner abuse claim against MDC Warden Hasty. Here the new context question was closer: the suit against Hasty had “significant parallels” to Carlson, which also involved a warden’s mistreatment of a prisoner.39 Still, the new context inquiry was “easily satisfied,”40 in part because the detainees’ claim concerned the Fifth Amendment, not the Eighth, as in Carlson.41 The Court then vacated and remanded on the prisoner abuse claim, directing the courts below to conduct the special factors analysis.42
The Court also held that each defendant was entitled to qualified immunity on the § 1985(3) civil conspiracy claim. There is a longstanding circuit split on whether officials in the same government department can conspire with each other, the Court noted.43 It would be “unfair,” the Court explained, “to subject officers to damages liability when even ‘judges . . . disagree.’”44
Justice Breyer dissented.45 The Court erred at each step in its ana-lysis, he argued.46 First, the context was not new. Justice Breyer criticized in particular the Court’s distinguishing of Carlson. On the prisoner abuse claim, “the only difference in constitutional scope consist[ed] of a circumstance” — the lack of a conviction — “that ma[de] the violation here worse.”47 Second, there was likely no alternative remedy available to persons detained under a “communications blackout.”48 Third, there were no special factors counselling hesitation. He regarded each factor discussed by the Court as nondeterminative.49
Justice Breyer did not share the Court’s aversion to Bivens.50 Because 42 U.S.C. § 1983 provides a damages remedy to those whose constitutional rights are infringed by state officials, the absence of a Bivens remedy would “amount to a constitutional anomaly.”51 He rejected “the Court’s strongest argument”: “that Bivens should not apply to policy-related actions taken in times of national-security need.”52 Invoking Korematsu v. United States,53 he concluded his dissent by observing that Bivens actions may prove essential when the government claims wartime exigency as an excuse.54
“Cases that get distinguished often enough are commonly said to die — or at least to suffer near-death experiences.”55 So too for Bivens, Davis, and Carlson. Through Abbasi and its forebears, those cases have “slowly become mere ghosts of their former selves, barely clinging to existence.”56 The Court’s decision in Abbasi hastens the spectral process. Most actions will not survive its three-part test, due in part to Abbasi’s unorthodox manner of distinguishing cases. If the Court wants to persist in distinguishing Bivens at every turn, in the interest of judicial candor and litigative efficiency it should hold that the Bivens action is limited to the facts of its original three Bivens decisions.
The Court is already close to limiting the Bivens cause of action to the circumstances of Bivens, Davis, and Carlson, as it will be very difficult for any case not presenting those facts to survive Abbasi’s three-part test.57 Consider the new context analysis and the Court’s distinguishing of Carlson. Despite the “modest”58 difference between the warden claims in Carlson and Abbasi, the Court found the new context inquiry “easily satisfied.”59 As Justice Breyer observed, the principal difference between the two cases — that Carlson involved the Eighth Amendment and Abbasi the Fifth — served only to make “the violation here worse.”60 Detainees, unlike convicted prisoners, cannot invoke the Cruel and Unusual Punishments Clause only because they cannot, in a legal sense, be punished at all.61 The new context inquiry is quite exacting if the Court can distinguish Carlson on this ground.62
Often then the context will be new, prompting a court to ask whether a sufficient alternative remedy exists. After Abbasi, an alternative remedy like habeas may suffice even if: (1) the plaintiffs, held incommunicado, had no way to avail themselves of the remedy;63 (2) the nation was so anxious that a court might have hesitated to grant relief;64 and (3) there is a credible argument that the suggested remedy did not, as a matter of law, exist.65 This is a lenient standard. Further, even the absence of alternative relief may undermine a Bivens action. In Abbasi, the Court cited as a special factor Congress’s failure to enact a damages remedy for the alleged abuse at the MDC.66 If either the existence or absence of an alternative remedy can defeat a claim, Bivens plaintiffs are in a double bind.
Absent the new context inquiry, it is unlikely that even Bivens, Davis, or Carlson would survive the Abbasi Court’s test. At a minimum the alternative remedy available in each case would likely suffice to defeat a Bivens claim. Webster Bivens had state trespass law.67 A modern-day plaintiff in Shirley Davis’s shoes could invoke the Congressional Accountability Act of 1995.68 The Carlson plaintiff could sue under a federal tort statute.69 When the Court writes that the ana-lysis in its three Bivens cases might have been different if decided today,70 it’s true not only because the background principles governing implied causes of action have changed. Without a saving clause — the new context inquiry — those cases would not survive Abbasi.
This is an unusual way to distinguish cases. On one familiar theory, to distinguish a precedent a court will take a rule from an earlier case and add a condition. But the refined rule must fit the facts and outcome of the earlier case.71 Soon after Bivens was decided, for example, some lower courts held that its implied cause of action was limited to Fourth Amendment violations.72 That narrow rule fit the facts and outcome of Bivens, at least until Davis was decided. In contrast, Abbasi’s alternative remedy inquiry likely precludes the outcomes of Bivens, Davis, and Carlson. So the Court has grandfathered them in as “old contexts,” legacy exceptions to the general rule.
This unusual manner of distinguishing is understandable, because there is no coherent theory that would allow a remedy on the facts of Bivens, Davis, and Carlson and only on those facts. In other words, there is no common logical thread that links those three cases and also excludes the Court’s nine decisions rejecting Bivens claims. After deciding Bivens, the Court might have followed an internally coherent course. It could have expanded the remedy into the federal-official equivalent of § 1983.73 When its approach to implied causes of action shifted, the Court could have done away with Bivens altogether. Or it could have found a justifiable middle ground, like “Bivens for only the most egregious violations.”74 The Court has done none of those things, instead choosing to distinguish Bivens, one case at a time, for thirty-four years. Path dependence best explains why some fact patterns support a Bivens action today and others not.75 But that is a matter of chance — that certain cases were heard in one era and others later — and not logic.
If the Court wants to continue distinguishing Bivens, it could promote the values of judicial candor and litigative efficiency by expressly limiting the Bivens action to the facts of Bivens, Davis, and Carlson.76 The Court acts candidly when it says what it means.77 With Abbasi, the Court has sent its clearest signal yet that it wants to confine Bivens to its three old contexts. But until the Court so states, Bivens will continue to provoke (or prolong) litigation that is unlikely to succeed.78
The two Bivens cases that continue on remand after last Term illustrate how clearer guidance would help resolve long-running litigation. Abbasi has lasted fifteen years; the other, involving the cross-border shooting of a Mexican national,79 has lasted seven. Both cases likely will be resolved against the plaintiffs — eventually. On the prisoner abuse claim in Abbasi, the Court described special factors and alternative remedies that will be difficult for the plaintiffs to overcome.80 The cross-border case assuredly arises in a new context.81 Yet that litigation alone has prompted more than a dozen opinions at four stages of litigation, with more to come.82
The Court does occasionally limit a disfavored decision to its facts in order to quiet litigation.83 In 1922, the Court held that professional baseball teams, despite their “constantly repeated travelling” across interstate lines, did not engage in interstate commerce and thus were exempt from the Sherman Antitrust Act.84 Later the Court’s conception of commerce changed, calling the 1922 holding into serious doubt.85 In a series of cases heard in the 1950s, the Court refused either to extend baseball’s antitrust exemption to similar forms of sport and entertainment86 or to overrule the earlier decision, citing Congress’s failure to act.87 Still litigation persisted as parties argued for the extension of the exemption to new industries.88
Finally, seemingly exasperated by the failure of litigants and lower courts to get the message,89 the Court made clear that its 1922 decision was “specifically limit[ed] . . . to the facts there involved, i.e., the business of organized professional baseball.”90 The Court could say the same for Bivens, Davis, and Carlson. Here as there, the legal underpinnings of a precedent have eroded and the Court has stated that any extension must be legislative, not judicial.91 Having refused to extend Bivens on nine occasions yet apparently unwilling to overrule it outright,92 the explicit limitation of Bivens, Davis, and Carlson to their facts is a logical next step.93
The foregoing is offered in service of moving the Bivens doctrine to a more sensible resting place. But we should be mindful that Bivens, unlike baseball, is not a game. It is deeply troubling that the Abbasi plaintiffs and those like them are left without an effective remedy for constitutional wrongs by federal officials.94 With Bivens now at a low ebb — whether limited to its facts or not — the courts are unlikely to afford relief in all but the narrowest circumstances. Abbasi makes plain that real redress will be scant unless Congress acts.95