Charles Mack v. John Yost, 968 F.3d 311

Background:

Charles Mack, a Muslim federal inmate at FCI Loretto, worked in the commissary from May–October 2009 and alleges repeated anti-Muslim harassment by correctional officers (verbal slurs, a derogatory sticker, and prayer disruption).
Mack orally complained to a supervisor; shortly thereafter he was fired (officially for bringing another inmate’s commissary slip, which he denies). He exhausted BOP administrative remedies without success.
Mack sued federal prison officials asserting a First Amendment retaliation claim (and a separate RFRA claim not at issue here).
The District Court twice dismissed Mack’s complaints; the Third Circuit in Mack II (839 F.3d 286) reversed, recognizing a Bivens remedy for First Amendment retaliation and remanding for discovery.
After discovery, the Government moved for summary judgment relying on the Supreme Court’s decision in Ziglar v. Abbasi (137 S. Ct. 1843), which tightened the standard for creating new Bivens causes of action; the District Court declined to revisit Mack II and denied summary judgment.
The Third Circuit, applying Abbasi, held the case presents a new Bivens context and that special factors (BOP administrative remedies, separation-of-powers/prison-administration deference, and practical burdens) counsel against extending Bivens to First Amendment retaliation claims in the prison work-assignment context; it reversed the denial of summary judgment.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a Bivens damages remedy extends to a First Amendment retaliation claim arising from a prison work-assignment termination	Mack: prior Third Circuit precedents (La Prade, Milhouse, Mack II) support recognizing a Bivens remedy for First Amendment retaliation	Government: Abbasi bars expansion of Bivens to new contexts; this is a new context and Bivens should not be extended	Case presents a new context under Abbasi; Bivens does not extend here
Whether the BOP administrative remedy and equitable relief foreclose Bivens	Mack: administrative process and injunctive relief are inadequate to fully redress his losses	Government: BOP remedies and ability to seek injunctive relief provide an alternative remedial structure	Availability of BOP administrative process and equitable relief is a convincing alternative and counsels against Bivens expansion
Whether separation-of-powers and deference to prison administration counsel against creating a damages remedy	Mack: constitutional violations by officers warrant judicially fashioned damages remedy	Government: judicially imposing damages would intrude on executive functions and prison administration	Separation-of-powers and deference to BOP administrative decisions weigh strongly against expanding Bivens
Whether the district court was bound by prior Third Circuit precedent (Mack II) despite Abbasi	Mack/District Court: Mack II controls and supports a Bivens remedy	Government: Abbasi is supervening law; courts must re-evaluate Bivens questions under Abbasi	Abbasi supersedes prior panel law; court must apply Abbasi’s two-step test and declined to extend Bivens

Key Cases Cited

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) (recognized implied damages remedy under the Fourth Amendment)
Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (established two-step framework and declared Bivens expansion disfavored)
Davis v. Passman, 442 U.S. 228 (1979) (recognized a Bivens remedy under the Fifth Amendment in employment discrimination context)
Carlson v. Green, 446 U.S. 14 (1980) (recognized Bivens remedy under the Eighth Amendment for inadequate medical care)
Correctional Services Corp. v. Malesko, 534 U.S. 61 (2001) (explained BOP administrative remedies and availability of non-damages relief for federal inmates)
Mack v. Warden Loretto FCI, 839 F.3d 286 (3d Cir. 2016) (Third Circuit previously recognized a Bivens remedy for this First Amendment retaliation claim)
Bistrian v. Levi, 912 F.3d 79 (3d Cir. 2018) (applied Abbasi and declined to extend Bivens for a prison housing retaliation claim)
Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017) (declined Bivens expansion in a national-security/airport-security context)
Mitchell v. Forsyth, 472 U.S. 511 (1985) (qualified immunity interlocutory appeal doctrine permitting review of whether a Bivens claim exists)