concurring in the judgment.
Although I join the judgment, I do not agree with much of the language in the Court’s opinion. The Court states the principles governing Bivens actions as follows:
“Bivens established that the victims of a constitutional *26violation ... have a right to recover damages.... Such a cause of action may be defeated ... in two situations. The first is when defendants demonstrate 'special factors counselling hesitation in the absence of affirmative action by Congress.’ . . . The second • is when defendants show that Congress has provided an alternative remedy which it explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. . . .” Ante, at 18-19 (emphasis in original).
The foregoing statement contains dicta that go well beyond the prior holdings of this Court.
I
We are concerned here with inferring a right of action for damages directly from the Constitution. In Davis v. Passman, 442 U. S. 228, 242 (1979), the Court said that persons who have “no [other] effective means” of redress “must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights.” The Davis rule now sets the boundaries of the “principled discretion” that must be brought to bear when a court is asked to infer a private cause of action not specified by the enacting authority. Id., at 252 (Powell, J., dissenting). But the Court’s opinion, read literally, would restrict that discretion dramatically. Today we are told that a court must entertain a Bivens suit unless the action is “defeated” in one of two specified ways.
Bivens recognized that implied remedies may be unnecessary when Congress has provided “equally effective” alternative remedies. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 397 (1971); see Davis v. Passman, supra, at 248. The Court now volunteers the view that a defendant cannot defeat a Bivens action simply by showing that there are adequate alternative avenues of relief. The defendant also must show that Congress “explicitly declared [its rem*27edy] to be a substitute for recovery directly under the Constitution and viewed [it] as equally effective.” Ante, at 18-19 (emphasis in original). These are unnecessarily rigid conditions. The Court cites no authority and advances no policy reason — indeed no reason at all — for imposing this threshold burden upon the defendant in an implied remedy case.
The Court does implicitly acknowledge that Congress possesses the power to enact adequate alternative remedies that would be exclusive. Yet, today’s opinion apparently will permit Bivens plaintiffs to ignore entirely adequate remedies if Congress has not clothed them in the prescribed linguistic garb. No purpose is served by affording plaintiffs a choice of remedies in these circumstances. Nor is there any precedent for requiring federal courts to blind themselves to congressional intent expressed in language other than that which we prescribe.
A defendant also may defeat the Bivens remedy under today’s decision if “special factors” counsel “hesitation.” But the Court provides no further guidance on this point. The opinion states simply that no such factors are present in this case. The Court says that petitioners enjoy no “independent status in our constitutional scheme” that would make judicially created remedies inappropriate. Ante, at 19. But the implication that official status may be a “special factor” is withdrawn in the sentence that follows, which concludes that qualified immunity affords all the protection necessary to ensure the effective performance of official duties. No other factors relevant to the purported exception are mentioned.
One is left to wonder whether judicial discretion in this area will hereafter be confined to the question of alternative remedies, which is in turn reduced to the single determination that congressional action does or does not comport with the specifications prescribed by this Court. Such a drastic curtailment of discretion would be inconsistent with the Court’s longstanding recognition that Congress is ultimately the appropriate body to create federal remedies. See ante, at 19-20; *28Bivens v. Six Unknown Fed. Narcotics Agents, supra, at 397. A plaintiff who seeks his remedy directly under the Constitution asks the federal courts to perform an essentially legislative task. In this situation, as Mr. Justice Harlan once said, a court should “take into account [a range of policy considerations] at least as broad as the range of those a legislature would consider with respect to an express statutory authorization of a traditional remedy.” Bivens, supra, at 407. The Court does not explain why this discretion should be limited in the manner announced today.
The Court’s absolute language is all the more puzzling because it comes in a case where the implied remedy is plainly appropriate under any measure of discretion. The Federal Tort Claims Act, on which petitioners rely, simply is not an adequate remedy.1 And there are reasonably clear indications that Congress did not intend that statute to displace Bivens claims. See ante, at 19-20. No substantial contrary policy has been identified, and I am aware of none. I therefore agree that a private damages remedy properly is inferred from the Constitution in this case. But I do not agree that Bivens plaintiffs have a “right” to such a remedy whenever the defendant fails to show that Congress has “provided an [equally effective] alternative remedy which it explicitly *29declared to be a substitute. . . .” In my view, the Court’s willingness to infer federal causes of action that cannot be found in the Constitution or in a statute denigrates the doctrine of separation of powers and hardly comports with a rational system of justice. Cf. Cannon v. University of Chicago, 441 U. S. 677, 730-749 (1979) (Powell, J., dissenting).2
II
In Part III of its opinion, the Court holds that “ ‘whenever the relevant state survival statute would abate a Bivens-type action brought against defendants whose conduct results in death, the federal common law allows survival of the action.’ ” Ante, at 24, quoting 581 P. 2d 669, 675 (CA7 1978). I agree that the relevant policies require the application of federal common law to allow survival in this case.
It is not “obvious” to me, however, that “the liability of federal officials for violations of citizens’ constitutional rights should be governed by uniform rules” in every case. Ante, at 23; see ante, at 23-24. On the contrary, federal courts routinely refer to state law to fill the procedural gaps in national remedial schemes. The policy against invoking the federal common law except where necessary to the vitality of a federal claim is codified in 42 U. S. C. § 1988, which directs that state law ordinarily will govern those aspects of § 1983 actions not covered by the “laws of the United States.”
The Court’s opinion in this case does stop short of mandating uniform rules to govern all aspects of Bivens actions. Ante, at 24-25, n. 11. But the Court also says that the preference for state law embodied in § 1988 is irrelevant to the selection of rules that will govern actions against federal officers under Bivens. Ibid. I see no basis for this view. In *30Butz v. Economou, 438 U. S. 478, 498-504, and n. 25 (1978), the Court thought it unseemly that different rules should govern the liability of federal and state officers for similar constitutional wrongs. I would not disturb that understanding today.
The Federal Tort Claims Act is not a federal remedial scheme at all, but a waiver of sovereign immunity that permits an injured claimant to recover damages against the United States where a private person “would be hable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. § 1346 (b); see also 28 U. S. C. § 2674. Here, as in Bivens itself, a plaintiff denied his constitutional remedy would be remitted to the vagaries of state law. See 403 U. S., at 394-395. The FTCA gives the plaintiff even less than he would receive under state law in many cases, because the statute is hedged with protections for the United States. As the Court points out, the FTCA allows neither jury trial nor punitive damages. Ante, at 21-22. And recovery may be barred altogether if the claim arises from a “discretionary function” or “the execution of a statute or regulation, whether or not such statute or regulation be valid.” 28 U. S. C. § 2680 (a).
I do not suggest that courts enjoy the same degree of freedom to infer causes of action from statutes as from the Constitution. See Davis v. Passman, 442 U. S. 228, 241-242 (1979). I do believe, however, that the Court today has overstepped the bounds of rational judicial decision-making in both contexts.