Charles Mack v. John Yost

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________

No. 18-3504

CHARLES MACK

v.

JOHN YOST, TIM KHUN and JEFFREY
STEPHENS, sued in their individual and
official capacities; and DOUG ROBERTS and
SAMUEL VENSLOSKY, sued in their
individual capacities

Jeffrey Stephens, Samuel Venslosky, and
Douglas Roberts,

Appellants

On Appeal from the United States District Court
for the Western District of Pennsylvania
(District Court No.: 3-10-cv-00264)
District Judge: Honorable Kim Gibson

Argued April 23, 2020
 (Opinion Filed: August 4, 2020)

Before: PORTER, RENDELL, and FISHER, Circuit Judges

Sarah Czypinski (Argued)
John M. Hagan
K&L Gates LLP
K&L Gates Center
210 Sixth Avenue
Pittsburgh, PA 15222

Counsel for Appellee
Courtney Dixon (Argued)
Sharon Swingle
Barbara Herwig
Appellate Staff
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530

Laura S. Irwin
Ira M. Karoll
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219

Counsel for Appellant

2
 OPINION

RENDELL, Circuit Judge:

Although Congress has never enacted a statute
permitting a damages remedy for constitutional claims brought
against federal officials, the Supreme Court first recognized an
implied damages action for such claims under the Fourth
Amendment in Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). The
Supreme Court has since recognized an implied damages
remedy in only two other instances. 1 Most recently, in Ziglar
v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court
cautioned against creating additional implied damages
remedies and explicitly declared Bivens expansion a
“disfavored judicial activity.” Id. at 1857 (internal quotations
omitted).

Here, Charles Mack, a former inmate, seeks to bring a
First Amendment retaliation claim against federal prison
officials, alleging that he was terminated from his prison job
for complaining that correctional officers were harassing him
at work because of his religion. In light of Abbasi and our
recent precedents, we decline to expand Bivens to create a
1
See Carlson v. Green, 446 U.S. 14 (1980) (Eighth
Amendment claim for failure to render adequate medical care
to a federal inmate); Davis v. Passman, 442 U.S. 228 (1979)
(Fifth Amendment gender discrimination by federal
employer).

3
damages remedy for Mack’s First Amendment retaliation
claim. For the following reasons, we will reverse the District
Court’s denial of the Government’s motion for summary
judgment as to this claim.

I. BACKGROUND

A. Factual Background

Mack is a practicing Muslim and a former inmate at the
Federal Correctional Institution in Loretto,
Pennsylvania. While an inmate, Mack worked for pay at the
prison’s commissary from May 26, 2009 until he was
terminated on October 21, 2009. During this time, Doug
Roberts and Samuel Venslosky were correctional officers at
the prison and were assigned to supervise the inmates working
in the prison’s commissary. Mack alleges that while working
in the commissary, he was harassed by Roberts and Venslosky
because he is a Muslim. Specifically, Mack alleges that
Roberts told him, “I don’t like Muslims” and “[t]here is no
good Muslim except a dead Muslim.” App. 8. Mack also
alleges that Roberts placed a sticker on Mack’s back which
read, “I love pork bacon.” Id. Mack further alleges that
Roberts and Venslosky purposefully attempted to disrupt his
prayers, causing Mack to limit his prayers during work.

Mack alleges that he raised these issues with Roberts
and Venslosky’s supervisor, Jeffrey Stephens, who responded
that he would “look into it.” Id. Mack alleges that upon
overhearing Mack’s oral complaint to Stephens, Roberts told
Mack, “[y]ou are not going to be here long.” Id. Venslosky
fired Mack less than two weeks later.

4
 Mack filed an inmate request-to-staff form seeking a
written explanation for his termination. The prison informed
Mack in writing that he had been fired for bringing another
inmate’s commissary slip into work. Mack denies ever doing
so. Mack then filed a formal administrative remedy request,
alleging that he was wrongfully terminated from his work
assignment. The Acting Warden informed Mack that his
allegation was “referred to the appropriate office for
investigation.” App. 62. Mack was later informed that his
request for an administrative remedy was denied. Mack then
filed this federal lawsuit.

B. Procedural History

Mack filed a First Amendment retaliation claim against
the prison officials, 2 alleging that he was wrongfully
terminated for orally complaining to Stephens about
Venslosky’s and Roberts’s religious harassment. 3 The District
Court adopted the Magistrate Judge’s recommendation to
dismiss Mack’s complaint for failure to state a claim and
dismissed the complaint without leave to amend. Mack
appealed the District Court’s dismissal, and we reversed and
remanded to the District Court, concluding that Mack should
have been granted leave to amend. Mack v. Yost, 427 F. App’x
70, 72 (3d Cir. 2011) (Mack I). Mack filed an amended
complaint and the District Court dismissed the amended

2
These officials include: Prison Warden John Yost, Deputy
Prison Warden Tim Kuhn, Stephens, Venslosky, and Roberts.
3
Mack also brings a claim against Roberts and Venslosky
under the Religious Freedom Restoration Act, 42 U.S.C. §
2000bb-1(a) for their anti-Muslim harassment and hostility.
This claim is not at issue in this appeal.

5
complaint for failure to state a claim. Mack v. Yost, 979 F.
Supp. 2d 639, 652 (W.D. Pa. 2013). Mack again appealed the
District Court’s dismissal, and we reversed in Mack v. Warden
Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (Mack II).

In Mack II, we considered whether Mack presented a
cognizable First Amendment retaliation claim under Bivens.
Id. at 296. We first noted that while the Supreme Court never
“formally extended” Bivens actions to include First
Amendment claims, the Court seemed to imply in Hartman v.
Moore, 547 U.S. 250 (2006), that such actions were available.
839 F.3d at 296. Lacking clear guidance from the Supreme
Court, we then turned to our Court’s prior precedents. We first
referred to our decision in Paton v. La Prade, 524 F.2d 862 (3d
Cir. 1975), which involved an intrusive FBI investigation of a
high school student who had mailed a letter to the Socialist
Workers Party as a part of a class assignment. Id. at 865-66.
We recognized the student’s right to proceed with a damages
remedy against the FBI agents for denial of First Amendment
free speech, noting that the factors which weighed in favor of
recognizing a damages action for Fourth Amendment
violations in Bivens applied equally to First Amendment
violations. Id. at 869-70. We then cited to our decision in
Milhouse v. Carlson, 652 F.2d 371 (3d Cir. 1981), which relied
upon La Prade to recognize a First Amendment retaliation
claim brought in the prison context. There, a federal inmate
alleged that he was transferred to a less desirable prison cell
location in retaliation for initiating a lawsuit against prison
officials to remedy his religious grievances. Id. at 372-73. We
held that the inmate could bring a First Amendment Bivens
action against the prison officials who sought to punish him for
initiating the civil rights action. Id. at 374.

6
 So, at the time that Mack II was decided, we had clearly
recognized an implied right to damages to remedy First
Amendment violations and had no indication from the
Supreme Court that we should exercise restraint in expanding
Bivens in this context. Relying upon our prior precedents
which had “explicitly recognized” a Bivens remedy under the
First Amendment, we recognized a cause of action for Mack’s
First Amendment retaliation claim under Bivens. Mack II, 839
F.3d at 296-97. We also held that the prison officials were not
entitled to qualified immunity as to this claim because it was
clearly established that inmates have a right to be free from
retaliation for exercising their First Amendment rights. Id. at
300. Accordingly, we remanded to the District Court and the
parties proceeded to discovery. Id. at 301.

The Government then moved for summary judgment,
arguing that the Supreme Court’s decision in Abbasi—decided
after our decision in Mack II—alters our analysis under Bivens
and forecloses Mack’s First Amendment retaliation claim.
Abbasi involved six men of Arab or South Asian descent, five
of whom were Muslim, who had been detained for several
months in the wake of the September 11, 2001 terrorist attacks.
137 S. Ct. at 1853. The detainees brought a Bivens action
against federal officials under the Fourth and Fifth
Amendments, challenging high-level executive detention
policies and confinement conditions within the detention
facility. Id.

The Court of Appeals for the Second Circuit determined
that the claims did not present a new Bivens context. See id. at
1852. The Second Circuit relied on its own prior precedents
and the Supreme Court’s decision in Carlson v. Green, 446
U.S. 14 (1980), which recognized a Bivens remedy for an

7
Eighth Amendment prisoner mistreatment claim. 4 Turkmen v.
Hasty, 789 F.3d 218, 235 (2d Cir. 2015), rev’d in part, vacated
in part sub nom. Abbasi, 137 S. Ct. 1843. Because the claims
did not present a “new context,” the Second Circuit held that a
Bivens remedy was available against the federal officials for
the detention policy and detainee abuse claims. Id. at 236-37.
In Abbasi, the Supreme Court reversed the Second Circuit’s
decision regarding the detention policy claim and vacated and
remanded the holding regarding the detainee abuse claim. 137
S. Ct. at 1869.

Abbasi reflected a “notable change” in the Supreme
Court’s attitude toward creating an implied damages remedy
directly from the Constitution and declared that Bivens
expansion is now “disfavored.” Id. at 1857. To curtail
improper Bivens expansion, Abbasi provided a restrictive two-
step framework for courts to follow when analyzing Bivens
claims. First, courts must determine whether the Bivens claim
presents a “new context.” Id. at 1859. The Supreme Court
defined “new context” broadly, indicating that “a modest
extension is still an extension.” Id. at 1864. Abbasi instructed
that a context is “new” if it “is different in a meaningful way

4
The plaintiffs also brought a claim under the Free Exercise
Clause of the First Amendment, but the Second Circuit
determined that the claim presented a “new context” because
neither the Supreme Court nor its own prior precedents had
previously recognized such a claim. Turkmen v. Hasty, 789
F.3d 218, 236 (2d Cir. 2015), rev’d in part, vacated in part sub
nom. Abbasi, 137 S. Ct. 1843. The Second Circuit declined to
extend Bivens to include the Free Exercise claim. Id.

8
from previous Bivens cases decided by [the Supreme] Court.”
Id. at 1859. The Supreme Court thus rejected the Second
Circuit’s reliance upon Second Circuit precedent in the “new
context” inquiry. As to the Second Circuit’s view that the
context was not new based on Carlson, the Supreme Court
acknowledged that the differences between the two cases “are
perhaps small” but, given the Court’s “expressed caution about
extending the Bivens remedy,” it held that “the new-context
inquiry [was] easily satisfied.” Id. at 1865.

If the case presents a new context, as in Abbasi, courts
must then determine if there are “special factors counselling
hesitation” in expanding Bivens. Id. at 1857. If “there are any
special factors that counsel hesitation,” courts must “reject the
request” to expand Bivens. Hernandez v. Mesa, 140 S. Ct. 735,
743 (2020). The special factors inquiry “concentrate[s] on
whether the Judiciary is well suited, absent congressional
action or instruction, to consider and weigh the costs and
benefits of allowing a damages action to proceed.” Id. at 1857-
58. Abbasi “urged caution” when expanding Bivens actions to
new contexts, emphasizing that significant separation-of-
powers concerns arise when the Judiciary, rather than
Congress, authorizes damages remedies against federal
officials. Id. at 1857 (internal quotations and citation omitted).
When tasked with determining “who should decide” if a
damages remedy is available, Abbasi warned that “[t]he answer
most often will be Congress.” Id.

Conducting a special factors inquiry of the executive
detention policy claim at issue in Abbasi, the Supreme Court
noted that there was a proper balance between deterring
constitutional violations and allowing executive officials to
freely make policy decisions related to national security. Id. at
1863. The Supreme Court determined that Congress was better

9
positioned to strike such a balance and, based upon its special
factors inquiry, refused to extend a Bivens remedy for the
detention policy claim. Id. For the detainee abuse claim, the
Supreme Court declined to conduct a special factors inquiry,
concluding that the “better course” was to vacate and permit
the lower courts to conduct the inquiry on remand. Id. at 1865.

The District Court here addressed Abbasi’s analytical
framework, but seemed concerned with whether it could depart
from our decision in Mack II, which specifically recognized
Mack’s Bivens claim. Faced with the conflict between our
prior precedent and Abbasi’s new, demanding standard, the
District Court determined that it was “constrained to follow”
our decision in Mack II. App. 16. Guided by Mack II, the
District Court held that Mack’s claim did not present a “new”
Bivens context and, therefore, it need not analyze whether
special factors counseled hesitation in extending Bivens. 5
Accordingly, the District Court concluded that Mack presented
a cognizable First Amendment retaliation claim under Bivens.
The District Court also rejected the prison officials’ argument
that they were entitled to qualified immunity, and thus denied
the Government’s motion for summary judgment. The
Government now seeks review of the District Court’s denial of
summary judgment as to Mack’s First Amendment retaliation
claim.

II. JURISDICTION

5
However, the District Court noted that “even if Mack’s claims
presented a new context, it finds Mack’s arguments regarding
the lack of alternative remedies and the lack of special factors
counseling hesitation to be persuasive.” App. 16 n.14 (internal
quotation marks omitted).

10
 Under the collateral order doctrine, we have jurisdiction
to review a district court’s denial of summary judgment where
the defendants asserted a defense under qualified immunity “to
the extent that it turns on an issue of law[.]” Mitchell v.
Forsyth, 472 U.S. 511, 530 (1985). “Whether a Bivens claim
exists in a particular context” presents a “threshold question of
law that is directly implicated by the defense of qualified
immunity.” Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018)
(Bistrian II) (internal quotation marks and citation omitted);
see also Vanderklok v. United States, 868 F.3d 189, 197 (3d
Cir. 2017) (exercising jurisdiction over denial of summary
judgment on qualified immunity grounds to determine whether
a Bivens action exists). Therefore, we possess jurisdiction to
review on interlocutory appeal whether a damages remedy
under Bivens exists.

III. DISCUSSION

We begin with an overview of the evolution of the
Bivens doctrine. Bivens involved a Fourth Amendment claim
against federal narcotics agents who conducted a warrantless
search of a man’s home, and allegedly arrested the man without
probable cause and threatened to arrest his entire family. 403
U.S. at 389. In its seminal decision, the Supreme Court held
that a damages remedy could be directly implied from the
Fourth Amendment to redress the harm that resulted from the
federal agents’ unconstitutional search and seizure. Id. at 397.

Bivens opened the door for courts to exercise their
judicial power to fashion a damages remedy against federal
officers for other types of constitutional violations. During the
height of Bivens expansion, the Supreme Court recognized an
implied damages remedy in two other contexts. First, under
the Due Process Clause of the Fifth Amendment for gender

11
discrimination by a federal employer, Davis v. Passman, 442
U.S. 228 (1979), and then, one year later, under the Cruel and
Unusual Punishments Clause of the Eighth Amendment for
failure to render adequate medical care to a federal inmate,
Carlson v. Green, 446 U.S. 14 (1980). After that, Bivens
expansion came to a halt. And for the past forty years, the
Supreme Court has consistently refused to expand Bivens
actions beyond these three specific contexts. 6

6
See Bush v. Lucas, 462 U.S. 367 (1983) (rejecting First
Amendment claim brought against a federal employer);
Chappell v. Wallace, 462 U.S. 296 (1983) (rejecting racial
discrimination claim brought against military officer); United
States v. Stanley, 483 U.S. 669 (1987) (rejecting substantive
due process claim against military officer); Schweiker v.
Chilicky, 487 U.S. 412 (1988) (rejecting procedural due
process claim against Social Security officer); FDIC v. Meyer,
510 U.S. 471 (1994) (rejecting procedural due process claim
for wrongful termination against federal agency); Corr. Servs.
Corp. v. Malesko, 534 U.S. 61 (2001) (rejecting Eighth
Amendment claim against private prison operator); Wilkie v.
Robbins, 551 U.S. 537 (2007) (rejecting due process claim
against Bureau of Land Management officials); Minneci v.
Pollard, 565 U.S. 118 (2012) (rejecting Eighth Amendment
claim against private prison employees); Abbasi, 137 S. Ct.
1843 (rejecting Fifth Amendment claim against high-level
executive officials in national security context); Hernandez v.
Mesa, 140 S. Ct. 735 (2020) (rejecting Fourth and Fifth
Amendment claims against a United States Border Patrol
agent).

12
 We have, however, expanded Bivens remedies beyond
these contexts. As discussed above, we had previously
recognized the availability of a damages remedy for First
Amendment deprivations by federal officials. See La Prade,
524 F.2d 862; Milhouse, 652 F.2d 371. Indeed, we relied upon
these prior precedents in Mack II, noting that they “ma[de]
clear” that a Bivens action was available for Mack’s First
Amendment retaliation claim. 839 F.3d at 297. But since the
Supreme Court’s decision in Abbasi, our prior decisions
permitting a Bivens action for First Amendment claims are
clearly called into question and are no longer controlling. See
In re City of Philadelphia Litig., 158 F.3d 711, 718 (3d Cir.
1998) (explaining that the law of the case doctrine does not bar
a subsequent panel from reconsidering a claim when
“supervening new law has been announced”). As we noted in
Bistrian II, Abbasi made clear that lower courts could no longer
rely on their own prior precedents to recognize a Bivens
remedy. See 912 F.3d at 95 (“It is Abbasi, not our own prior
precedent, that must guide us now.”). 7 Unless the Supreme

7
In the Bistrian cases, we reviewed the viability of a federal
inmate’s First Amendment retaliation claim against prison
officers twice: first, pre-Abbasi in 2012, Bistrian v. Levi, 696
F.3d 352 (3d Cir. 2012) (Bistrian I), and then again, post-
Abbasi in 2018 (Bistrian II). In Bistrian I, we relied upon our
prior precedents to recognize a Bivens remedy for the inmate’s
First Amendment retaliation claim. Id. at 376 n.9. But we
changed course in Bistrian II, declaring that those prior
precedents were no longer controlling after Abbasi. 912 F.3d
at 95. Conducting a new Bivens analysis under the framework
set forth in Abbasi, we concluded that a Bivens remedy was no

13
Court has recognized the context before, the context is “new”
and a special factors inquiry is required to determine if Bivens
expansion is appropriate.

Since deciding Mack II and guided by Abbasi, we have
declined to recognize an implied damages remedy for First
Amendment retaliation claims in different contexts. Most
recently, in Bistrian II, we emphasized that Abbasi changed the
landscape for how we approach Bivens claims. There, a federal
inmate brought a First Amendment retaliation claim against
prison officials, alleging that he was wrongfully placed in a
special housing unit in retaliation for complaining about his
treatment by correctional officers. Id. at 96. Applying
Abbasi’s two-step framework, we held that the case presented
a new Bivens context and that special factors counseled against
Bivens expansion. Id. Thus, we concluded that the inmate did
not have a right to bring a Bivens action based on the detention
decision made by the prison, which he contended was
retaliatory. Id.

Although we held that a Bivens action was foreclosed
for the inmate’s First Amendment retaliation claim in Bistrian
II, we must nevertheless conduct a separate inqury to
determine if Bivens expansion is appropriate here. This is
because the special factors inquiry is context-specific, and the
factors which counseled hesitation in the prison housing
context in Bistrian II might be analyzed differently and lead to
a different outcome when applied to the prison work
assignment context in this case. We must therefore revisit our
decision to expand Bivens in Mack II, which relied upon pre-

longer available for the inmate’s First Amendment retaliation
claim. Id. at 96.

14
Abbasi Third Circuit precedent. We will apply Abbasi’s two-
step test to determine whether Mack’s First Amendment
retaliation claim presents a new context and, if so, whether
special factors counsel hesitation in expanding Bivens.

A. New Bivens Context

Abbasi held that the “proper test” for determining
whether a case presents a new Bivens context is if the Supreme
Court has not previously recognized a claim in that context.
137 S. Ct. at 1859. A context is “new” if it implicates a
constitutional right not previously recognized by the Supreme
Court. Id. at 1860. As noted above, and as we recognized in
Bistrian II, the Supreme Court has never recognized a Bivens
remedy for First Amendment retaliation claims brought in the
prison context. See also Reichle v. Howards, 566 U.S. 658,
663 n.4 (2012) (“We have never held that Bivens extends to
First Amendment claims.”). Accordingly, this case presents a
new Bivens context and a special factors inquiry is required.

B. Special Factors

Under this inquiry, we must determine whether there are
“special factors counselling hesitation in the absence of
affirmative action by Congress.” Abbasi, 137 S. Ct. at 1857
(citation omitted). “[I]f there are sound reasons to think
Congress might doubt the efficacy or necessity of a damages
remedy,” courts must refrain from expanding Bivens. Id. at
1858. Two special factors are “particularly weighty”: the
availability of an alternative remedial structure and separation-
of-powers concerns. Bistrian II, 912 F.3d at 90 (citing Abbasi,
137 S. Ct. at 1857-58). We will first address these two weighty
factors and then address the remaining special factors
discussed in Abbasi and Bistrian II.

15
 i. Alternative Remedial Structure

The Supreme Court has noted that “when alternative
methods of relief are available, a Bivens remedy usually is
not.” Abbasi, 137 S. Ct. at 1863. Thus, the availability of an
alternative remedial structure may, on its own, prevent courts
from expanding Bivens. The Supreme Court has emphasized
that the alternative remedy need not provide an individual with
complete relief in order to foreclose a damages remedy under
Bivens. See Schweiker v. Chilicky, 487 U.S. 412, 424-25
(1988) (finding the administrative remedy adequate even
though it failed to provide any money damages for the federal
officials’ unconstitutional conduct). The relevant question “is
not what remedy the court should provide for a wrong that
would otherwise go unredressed,” but instead, “whether an
elaborate remedial system . . . should be augmented by the
creation of a new judicial remedy.” Bush v. Lucas, 462 U.S.
367, 388 (1983).

As a federal inmate, Mack had access to the BOP’s
administrative remedy program. 8 In Correctional Services
Corp. v. Malesko, 534 U.S. 61 (2001), the Supreme Court
provided an overview of the remedies available to federal
inmates through this program. The Supreme Court noted that
federal inmates have “full access to remedial mechanisms
established by the BOP,” id. at 74, through which they “may
seek formal review of an issue which relates to any aspect of
their confinement,” id. (quoting 28 CFR § 542.10 (2001)).

8
The fact that Mack was unsuccessful in obtaining relief
through this program “does not mean that he did not have
access to alternative or meaningful remedies.” Vega v. United
States, 881 F.3d 1146, 1155 (9th Cir. 2018) (citation omitted).

16
Through this process, inmates can alert the BOP to
unconstitutional officer conduct and policies and prevent such
constitutional violations from recurring. Id. In addition to the
remedies available through the BOP, federal inmates may also
bring an action in federal court to obtain injunctive relief. Id.

Here, Mack could have sought equitable remedies
through the BOP, including reinstatement to his job in the
commissary, and could seek injunctive relief in federal court.
This would partially address one of the interests asserted in this
case, namely, Mack’s loss of employment. Although the
alternative remedy would not provide Mack with money
damages for the constitutional violation incurred or back pay
for his lost wages during the pendency of his claim, see Nyhuis
v. Reno, 204 F.3d 65, 70 (3d Cir. 2000), this was not a case of
“damages or nothing” for Mack, Abbasi, 137 S. Ct. at
1862 (citation omitted). Notably, Mack did not sustain any
physical injuries with resulting monetary loss, which may have
otherwise caused us to create a damages remedy despite the
availability of the BOP’s administrative remedy. 9

9
In Bistrian II, we held that a Bivens remedy was available for
the inmate’s Fifth Amendment failure-to-protect claim, where
he suffered physical injuries from the beating which took place
in the prison yard. 912 F.3d at 92. Although the BOP’s
administrative remedy was also available to the inmate in
Bistrian II, we nevertheless determined that it was inadequate
to redress his physical injuries, “which due to their very nature
are difficult to address except by way of damages actions after
the fact.” Id. (citation omitted). Similarly, the Supreme Court
recognized the need to redress a failure to render adequate
medical care to an inmate by providing a damages remedy in
Carlson, 446 U.S. at 19.

17
Accordingly, because Mack had access to at least “some
redress,” Malesko, 534 U.S. at 69, through injunctive relief and
reinstatement to his prison job, we find that the BOP’s
administrative remedy program offers a “convincing reason,”
Abbasi, 137 S. Ct. at 1858, for us to refrain from creating a new
damages remedy against federal prison officials.

ii. Separation of Powers

In addition to the availability of an adequate alternative
remedial structure, we must also consider whether Bivens
expansion would improperly encroach upon other branches of
government. Over the years, the Supreme Court has made
explicit that there are certain areas within the executive’s
domain which are particularly sensitive to judicial intrusion.
These include matters related to national security and the
military. 10 Where a Bivens claim is inextricably intertwined
with these executive functions—which often involve a host of
considerations related to public safety and security—a Bivens
remedy will rarely be appropriate. This does not mean that
Bivens actions may never be recognized in these sensitive
areas, but rather, courts must be mindful of any unintended
consequences that may follow upon creation of a new damages
remedy. Because courts are not in a position to second-guess
the administrative policies and functions historically within the
executive’s domain, we must exercise restraint if judicial
intervention would ultimately interfere with executive
functions. See Abbasi, 137 S. Ct. at 1860.

10
See, e.g., Abbasi, 137 S.Ct. at 1860 (rejecting Bivens claim
in national security context); Stanley, 483 U.S. at 684
(rejecting Bivens claim in military context).

18
 In Vanderklok, we considered the viability of a Bivens
remedy in the context of airport security. 868 F.3d at 199.
There, Transportation Security Administration (TSA)
personnel stopped a passenger who had a heart monitor and a
PVC pipe in his luggage and directed him to a secondary
screening area. Id. at 194. Believing that the TSA agent was
disrespectful and aggressive, the passenger informed the TSA
agent that he would file an administrative complaint to report
his behavior. Id. The passenger alleged that, in response, the
TSA agent falsely reported to the Philadelphia police that he
had made a bomb threat. Id. at 194-95. The passenger then
filed a First Amendment claim against the TSA agent, alleging
that the agent retaliated against him for threatening to file an
administrative grievance. Id. at 193.

In our analysis, we first noted that the TSA was
specifically created in response to the September 11, 2001
terrorist attacks to secure airports throughout the nation from
future attacks. Id. at 206. We determined that allowing private
individuals to bring a damages action against TSA officials
could cause officials to hesitate before making critical, split-
second decisions which directly affect national security. Id. at
207. Because national security policy “is the prerogative of
the Congress and President” we were particularly mindful of
any future, and potentially devastating, consequences which
could arise from judicial intervention in this sphere. Id.
(quoting Abbasi, 137 S. Ct. at 1861). Balancing the need for
passenger rights with the significant dangers associated with
airport security, we concluded that Congress was better
positioned to create a damages remedy in this area, and thus
declined to extend a Bivens remedy for the First Amendment
retaliation claim in Vanderklok. Id. at 209.

19
 We performed a similar analysis in Bistrian II, which
involved a First Amendment retaliation claim brought in the
prison housing context. We noted that the inmate’s claim that
he was unlawfully placed in a restrictive housing unit was
“grounded in administrative detention decisions[,]” which
involve “real-time and often difficult judgment calls about
disciplining inmates, maintaining order, and promoting prison
officials’ safety and security.” 912 F.3d at 96. We therefore
determined that creating a damages remedy in that context
would improperly interfere with administrative detention
decisions, which lie squarely within the executive’s domain.
Id. at 94-95.

Expanding Bivens in the context presented here would
similarly invite intrusive judicial inquiry into the BOP’s
administrative decisions. Although we recognize that hiring
and firing decisions for inmate work assignments are not as
weighty as the decisions in Bistrian II related to where and how
an inmate is detained, 11 we nonetheless find that the same
considerations support leaving such determinations to the
executive branch. First Amendment retaliation claims often
require an “analysis of the reasoning, motivations, or actions
of prison officials,” which counsels against Bivens expansion.
Id. at 95 n.23. Mack alleges that he was terminated from his
prison job for complaining that he was being harassed because
of his religious beliefs. BOP officials contend that he was

11
Unlike prison employment, detention policies directly
implicate a main BOP function—to provide a secure and
controlled environment for inmates while they serve their
sentences of imprisonment—and therefore could be said to
demand a higher level of judicial deference than prison work
assignment policies.

20
terminated for bringing in other inmates’ commissary slips in
violation of BOP rules. In order to succeed on this claim, Mack
would need to establish a causal connection between his oral
complaint and his termination, which requires analysis of the
officers’ reasons and motivations for his termination. 12 We
should hesitate before embarking down such a path. Further,
as was the case in Bistrian II, the BOP, not the judiciary, is
responsible for delegating prison work assignments and
overseeing the operational needs of the prison. See 28 CFR §
545.23 (detailing the guidelines and policies for prison work
assignments). Courts have recognized that such day-to-day
administrative decisions have been committed solely to the
province of the BOP. See Turner v. Safley, 482 U.S. 78, 85
(1987) (“Prison administration is . . . a task that has been
committed to the responsibility of [the legislative and
executive] branches, and separation of powers concerns
counsel a policy of judicial restraint.”). Thus, we have
afforded a level of deference to the decision making of prison
officials. See, e.g., Florence v. Bd. of Chosen Freeholders, 621
F.3d 296, 302 (3d Cir. 2010), aff’d, 566 U.S. 318 (2012)
(“[P]rison administrators . . . should be accorded wide-
ranging deference in the adoption and execution of policies
and practices that in their judgment are needed to preserve

12
“A prisoner alleging retaliation must show (1)
constitutionally protected conduct, (2) an adverse action by
prison officials sufficient to deter a person of ordinary firmness
from exercising his constitutional rights, and (3) a causal link
between the exercise of his constitutional rights and the
adverse action taken against him.” Mitchell v. Horn, 318 F.3d
523, 530 (3d Cir. 2003) (alterations, citations, and internal
quotation marks omitted).

21
internal order and discipline and to maintain institutional
security.” (citation omitted)).

We therefore find that, on balance, judicial intervention
in such administrative decisions would improperly encroach
upon the executive’s domain. Heeding Abbasi’s cautionary
language regarding the appropriate exercise of judicial power,
we conclude that these separation-of-powers concerns counsel
against Bivens expansion in this context.

iii. Other Special Factors

We must also consider whether Congressional silence
in a particular subject area suggests that Congress did not want
to create a damages remedy in that context. See Abbasi, 137
S. Ct. at 1865. Where Congress specifically had occasion to
consider whether to grant a damages remedy against federal
officials and failed to do so, the Supreme Court has held that
such silence may be “more than inadvertent.” Id. at 1862
(internal quotation marks omitted). This is a delicate balance
and we must be careful not to derive meaning from
Congressional inaction where none was intended. The
Government makes two arguments under this factor, but we
find neither to be persuasive.

First, the Government argues the Prison Litigation
Reform Act (“PLRA”) suggests that Congress had specific
occasion to create a damages remedy for constitutional
violations against federal officials and chose not to do so. We
considered this exact argument in Bistrian II and noted that
because the PLRA “govern[s] the process by which federal
prisoners bring Bivens claims[,]” it “cannot rightly be seen as
dictating that a Bivens cause of action should not exist at all.”
912 F.3d at 93 (citations omitted). We again reject the

22
argument that Congressional silence within the PLRA suggests
that Congress did not want a damages remedy against prison
officials for constitutional violations. This argument is
untenable, as it would arguably foreclose all Bivens claims
brought in the prison context, which would run counter to the
Supreme Court’s ruling in Carlson and our recent ruling in
Bistrian II regarding the inmate’s Fifth Amendment duty-to-
protect claim. See supra n.10.

The Government attempts to bolster this argument by
noting that the PLRA bars recovery of emotional and mental
damages without a corresponding physical injury, and by
extension, asking us to infer that Congress did not intend to
create a damages remedy for First Amendment retaliation
claims, which rarely involve physical injuries. See 42 U.S.C.
§ 1997e(e) (“No Federal civil action may be brought by
a prisoner . . . for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the
commission of a sexual act.”). But mental or emotional
injuries cannot be equated with constitutional violations and
we therefore find this point unpersuasive.

Second, the Government argues that Congress’s failure
to include inmates in worker protection laws—for example, the
Fair Labor Standards Act or Title VII of the Civil Rights Act—
suggests that Congress did not want to extend a Bivens remedy
in the prison work assignment context. However, the
relationship between inmate and prison is not the same as a
traditional relationship between employee and employer. See
Tourscher v. McCullough, 184 F.3d 236, 243 (3d Cir. 1999).
The BOP’s primary function is one of confinement and public
safety and, though it does employ inmates, such employment
is subject to numerous safety-related restrictions that are not
otherwise present in a traditional employment relationship.

23
Given these differences, we find that the Government asks us
to read too much into Congressional silence as it relates to
worker protection laws. Accordingly, we decline to ascribe
any meaning to Congress’s failure to mention federal inmates
in these statutes and conclude that legislative inaction does not
counsel hesitation in this context.

For the final special factor, Abbasi counsels us to
consider the burdens and costs associated with “establish[ing]
whole categories of cases in which federal officers must defend
against personal liability claims.” 137 S. Ct. 1858. This factor
is inherently forward-looking and asks us to consider the
practical effects of Bivens expansion. Some considerations
include burdens to the judiciary, litigation costs for federal
officers, and potential impacts that the threat of liability may
have on an officer’s ability to serve the public. Some of these
considerations are undoubtedly present whenever a court
considers creating a damages remedy against federal officers,
yet there are certain circumstances where the benefits of Bivens
expansion will outweigh these burdens. We must therefore
take a hard look at how the relevant players will be affected
and ask if this is really a situation in which courts should be
creating a new damages remedy. In certain situations, the
impact may be minimal and a remedy warranted, but there is
no need for us to say here what those situations might be, for
this case is not one of them.

First Amendment retaliation claims brought by inmates
should be approached “with skepticism and particular care”
because such claims are easy to allege and difficult to prove.
Bistrian, 912 F.3d at 96 (citation omitted). This is particularly
true where, as is the case here, there is no formal record of the
oral grievance. Because these types of claims are “easily
fabricated” and cannot be readily dismissed on the pleadings,

24
we are hesitant to create a category of cases which may well
open the floodgates to litigation in this sphere. Id. (citation
omitted). Such lawsuits could ultimately clog the courts and
burden individual prison officials with the costs and resources
needed to defend such suits. Equally important to these
financial considerations, the fear of such suits and the efforts
needed to defend against them may detract from an officer’s
ability to properly fulfill his duties to the federal government.
This is especially troubling in the prison context, an area in
which we want officials to be able to do their job without
concern that their actions will result in considerable cost and
worry. While there are certainly circumstances where we
should hold prison officers accountable by imposing a
damages remedy, here, the above concerns weigh against
doing so.

Based on the above special factors inquiry, we find that
Bivens expansion would be an inappropriate exercise of
judicial power in this new context. There may be future cases
where we determine that, on balance, judicial intervention is
needed to fulfill our obligation to faithfully uphold the
Constitution. But in this case, we will exercise restraint and
allow Congress to decide whether to redress the harm present
in these types of cases. Accordingly, we decline to extend a
Bivens remedy for First Amendment retaliation claims brought
in the prison workplace assignment context. 13

IV. CONCLUSION

13
Because a Bivens cause of action is not available for Mack’s
First Amendment retaliation claim, we need not analyze
whether the officials are entitled to qualified immunity as to
this claim.

25
 For the foregoing reasons, we will reverse the District
Court’s denial of summary judgment as to Mack’s First
Amendment retaliation claim and remand for further
proceedings.

26