Rasul v. Myers

I join Parts I, II-A and II-B of the opinion. I write separately because I believe special factors foreclose plaintiffs from bringing a Bivens action and because I disagree that the term “person” limits the scope of the Religious Freedom Restoration Act (“RFRA”).

I

Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), a federal court can only fashion a damages action for constitutional violations where no “special factors counsel[] hesitation” in doing so. Chappell v. Wallace, 462 U.S. 296, 298, 103 S.Ct. 2362, 76 L.Ed.2d…