concurring in part and concurring in the judgment.
Respondents have asserted that their claims arise under the Due Process Clause of the Fifth Amendment. In my opinion the Court should not reach the issue whether these claims may be brought directly under the Constitution without first deciding whether the Solicitor General is correct in his submission that Congress has enacted a statute that expressly requires dismissal of the complaint. See, e. g., Schweiker v. Hogan, 457 U. S. 569, 585 (1982). I agree with the explanation in Part III-A of Justice Brennan’s opinion of why 42 U. S. C. § 405(h) does not preclude a Bivens remedy in this case. Accordingly, I join all of the Court’s opinion except footnote 3.