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. 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 impunity.
The parties before us have assumed that respondent’s complaint has alleged a violation of the Eighth Amendment. 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.
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 485.4
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.
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.