Opposition Brief — Michael D. Cohen, Petitioner v. Donald J. Trump, former President of the United States, et al.

Supreme Court briefSep 13, 2024

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No. 24-41

In the Supreme Court of the United States

MICHAEL D. COHEN, PETITIONER

DONALD J. TRUMP, FORMER PRESIDENT

OF THE UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES ET AL. IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Principal Deputy Assistant

Attorney General

MARK B. STERN

BRIAN J. SPRINGER

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

In Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), this Court

recognized a cause of action for damages for certain violations of the Constitution. The question presented is

whether Bivens should be extended to a claim alleging

that federal officials violated the Fourth Amendment in

deciding to transfer a federal inmate from release on

furlough back to custody at a federal correctional institution to serve the rest of his sentence.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 2

Argument....................................................................................... 4

Conclusion ................................................................................... 11

TABLE OF AUTHORITIES

Cases:

Alvarez v. USCIS, 818 F.3d 1194 (11th Cir. 2016),

cert. denied, 582 U.S. 930 (2017) ......................................... 9

Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971) ....................... 3-5

Correctional Servs. Corp. v. Malesko,

534 U.S. 61 (2001) ................................................................. 6

Egbert v. Boule, 596 U.S. 482 (2022) ............................. 5-9, 11

Hartman v. Moore, 547 U.S. 250 (2006).............................. 11

Hernandez v. Mesa, 589 U.S. 93 (2020)............................. 5, 6

Hornof v. United States, 107 F.4th 46 (1st Cir. 2024) ......... 9

McCrory v. Alabama, 144 S. Ct. 2483 (2024) ...................... 10

Mirmehdi v. United States, 689 F.3d 975

(9th Cir. 2012), cert. denied, 569 U.S. 972 (2013) ............... 9

Turner v. Saf ley, 482 U.S. 78 (1987)...................................... 7

Washington v. Confederated Bands and Tribes of the

Yakima Indian Nation, 439 U.S. 463 (1979) ..................... 8

Wilson v. Rackmill, 878 F.2d 772 (3d Cir. 1989) .................. 9

Whren v. United States, 517 U.S. 806 (1996) ...................... 11

Ziglar v. Abbasi, 582 U.S. 120 (2017) ................................. 5-7

Constitution, statutes, and regulations:

U.S. Const.:

Amend. I ....................................................................... 5, 10

(III)

Constitution, statutes, and regulations—Continued:

Page

Amend. IV ................................................................. 3-5, 11

Prison Litigation Reform Act of 1995,

Pub. L. No. 104-134, Tit. VIII, § 803,

110 Stat. 1321 (42 U.S.C. 1997e) .......................................... 7

18 U.S.C. 3621(a) ..................................................................... 2

18 U.S.C. 3621(b) ..................................................................... 2

18 U.S.C. 3622 .......................................................................... 2

18 U.S.C. 3624(c)(2) ................................................................. 2

28 C.F.R.:

Section 542.10(a) ................................................................ 6

Section 570.38(b)................................................................ 2

Section 570.38(b)(1) ........................................................... 2

Section 570.38(c) ................................................................ 2

Miscellaneous:

Stephen M. Shapiro et al., Supreme Court Practice

(11th ed. 2019) ..................................................................... 10

In the Supreme Court of the United States

No. 24-41

MICHAEL D. COHEN, PETITIONER

DONALD J. TRUMP, FORMER PRESIDENT

OF THE UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES ET AL. IN OPPOSITION

The Solicitor General respectfully submits this brief

on behalf of respondents United States of America, William P. Barr, Michael D. Carvajal, Jon Gustin, Patrick

McFarland, James Petrucci, Enid Febus, and Adam

Pakula.

OPINIONS BELOW

The summary order of the court of appeals (Pet. App.

1a-9a) is available at 2024 WL 20558. The opinion and

order of the district court (Pet. App. 10a-52a) is reported at 640 F. Supp. 3d 324.

JURISDICTION

The judgment of the court of appeals was entered on

January 2, 2024. A petition for rehearing en banc was

denied on March 7, 2024 (Pet. App. 53a-54a). On May

30, 2024, Justice Sotomayor extended the time within

(1)

which to file a petition for a writ of certiorari to and including July 10, 2024. The petition was filed on that

date. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

STATEMENT

1. In general, a person who is sentenced to a term of

imprisonment for a federal offense is “committed to the

custody of the Bureau of Prisons.” 18 U.S.C. 3621(a).

The Bureau may place the person in a prison and may

at any time transfer him from one prison to another.

See 18 U.S.C. 3621(b). The Bureau also may, in certain

circumstances, release a prisoner on furlough, see 18

U.S.C. 3622, or place him in home confinement, see 18

U.S.C. 3624(c)(2). A furloughed prisoner remains “in

the legal custody of the U.S. Attorney General, in service of a term of imprisonment,” 28 C.F.R. 570.38(b)(1),

and must agree to and abide by various requirements,

see 28 C.F.R. 570.38(b) and (c).

In 2018, petitioner pleaded guilty to multiple federal

felonies, including making false statements to Congress

and violating federal campaign-finance laws. See Pet.

App. 12a. He was sentenced to a 36-month term of imprisonment. See id. at 3a. In May 2019, he began serving his sentence at the federal correctional institution in

Otisville, New York. See ibid.

Petitioner alleges that, at the start of the COVID-19

pandemic, he asked the Bureau to be placed on furlough

and then in home confinement. See Pet. App. 4a. The

Bureau approved his request, placing him on furlough

in May 2020. See ibid. While on furlough, petitioner

made public statements about his plans to publish a

book describing his experiences with then-President

Donald Trump. See id. at 3a-4a.

In July 2020, petitioner and his lawyer met with two

federal probation officers to review paperwork relating

to his transition from furlough to home confinement.

See Pet. App. 14a. Petitioner alleges that the officers

asked him to sign an agreement that prohibited him

from engaging with the media or using social media;

that he and his attorney asked the officers to change or

remove that language; and that, after a delay, three

Deputy U.S. Marshals arrived with an order remanding

petitioner to prison for failure to sign the agreement.

See id. at 4a, 14a. Petitioner further alleges that he was

taken back to the Otisville prison and placed in solitary

confinement for 16 days. See id. at 17a.

Petitioner filed a petition for a writ of habeas corpus.

See Pet. App. 5a. The district court granted relief, concluding that the government had reassumed physical

custody over petitioner in order to “retaliat[e]” against

him for “desiring to exercise his First Amendment

rights to publish a book critical of the President and to

discuss the book on social media.” Id. at 5a & n.2. The

Bureau released petitioner to home confinement, where

he remained until he completed his sentence. See id. at

5a.

2. Petitioner sued respondents—the United States,

former President Trump, former Attorney General William P. Barr, former Bureau Director Michael D. Carvajal, and federal prison officials—in the U.S. District

Court for the Southern District of New York. See Pet.

App. 18a. As relevant here, petitioner invoked Bivens

v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971), to assert Fourth Amendment claims against the individual defendants. See Pet.

App. 18a-19a.

The district court dismissed petitioner’s complaint,

holding that petitioner lacked a cause of action under

Bivens. See Pet. App. 10a-52a. The court observed that

this Court’s cases preclude extending Bivens to a “new

context” if “special factors” counsel hesitation about the

extension. Id. at 25a (citation omitted). The court determined that this case presents a new Bivens context

because it involved claims against the “former President,” “former Attorney General,” and “members of the

Bureau of Prisons” and because it concerns “a remand

of a federal prisoner who had already been sentenced to

a term of incarceration.” Id. at 27a. The court then explained that “special factors” counsel against extending

Bivens to that context because of the availability of alternative remedies such as habeas corpus. See id. at

28a-35a.

The Second Circuit affirmed. See Pet. App. 1a-9a.

The court determined that this case presents a new

Bivens context because it involves “new categories of

defendants”—namely, a former President, a former Attorney General, and Bureau of Prisons officials. Id. at

7a-8a (brackets and citation omitted). The court then

explained that special factors counsel against extending

Bivens to that context because petitioner could seek

(and successfully sought) “alternative forms of judicial

relief.” Id. at 9a (citation omitted).

ARGUMENT

Petitioner renews his contention (Pet. 12-25) that

this Court’s decision in Bivens v. Six Unknown Named

Agents of Federal Bureau of Narcotics, 403 U.S. 388

(1971), provides him with a cause of action to sue respondents for allegedly violating his Fourth Amendment rights. The court of appeals correctly rejected

that contention, and its decision does not conflict with

any decision of this Court or of any other court of appeals. This case would also be a poor vehicle for considering petitioner’s arguments because his allegations of

retaliation for speech fit more naturally under the First

rather than the Fourth Amendment, and the Court has

already declined to extend Bivens to First Amendment

retaliation claims. The petition for a writ of certiorari

should be denied.

1. In Bivens, this Court created a cause of action for

a plaintiff who alleged that federal narcotics agents had

manacled him in his home and threatened his family

while conducting a warrantless search. See 403 U.S. at

389-390. Since Bivens, however, the Court has recognized that “creating a cause of action is a legislative endeavor” and that “the Judiciary’s authority to [create a

cause of action] is, at best, uncertain.” Egbert v. Boule,

596 U.S. 482, 491 (2022). Fashioning a Bivens remedy

is accordingly “a disfavored judicial activity.” Ibid. (citation omitted).

In deciding whether a plaintiff may seek a remedy

under Bivens, a court must first determine whether the

case presents “a new Bivens context.” Egbert, 596 U.S.

at 492 (citation omitted). If it does, “a Bivens remedy is

unavailable if there are ‘special factors’ indicating that

the Judiciary is at least arguably less equipped than

Congress to ‘weigh the costs and benefits of allowing a

damages action to proceed.’ ” Ibid. (citation omitted).

Potential special factors include the existence of an “alternative remedial structure,” id. at 493 (citation omitted); the fact that the case arises in a field that is “entrusted to the political branches,” Hernandez v. Mesa,

589 U.S. 93, 104 (2020) (citation omitted); and “legislative action suggesting that Congress does not want a

damages remedy,” Ziglar v. Abbasi, 582 U.S. 120, 148

(2017). “If there is even a single ‘reason to pause before

applying Bivens in a new context,’ a court may not recognize a Bivens remedy.” Egbert, 596 U.S. at 492 (citation omitted).

Petitioner concedes (Pet. 5) that this case—a suit

against a former President, former Attorney General,

former Director of the Bureau of Prisons, and other federal prison officials for remanding him to custody rather than allowing him to serve the rest of his sentence

in home confinement—presents a new Bivens context.

The only question, then, is whether there is at least “a

single ‘reason to pause’ ” before extending Bivens to

that context. Egbert, 596 U.S. at 492 (citation omitted).

There is.

First, Congress and the Executive have provided

“alternative remedial structures.” Egbert, 596 U.S. at

493. Petitioner could have sought a writ of habeas corpus; indeed, he did so, obtaining an order requiring the

Bureau to release him from imprisonment to home confinement. Pet. App. 9a; see Abbasi, 582 U.S. at 145

(treating the availability of habeas corpus as a special

factor and noting that it would typically “provide[] a

faster and more direct route to relief than money damages”). Petitioner could also have invoked the Bureau’s

Administrative Remedy Program, which allows inmates

“to seek formal review of an issue relating to any aspect

of his/her own confinement.” 28 C.F.R. 542.10(a); see

Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 74

(2001) (identifying the availability of the Administrative

Remedy Program as a special factor).

Second, this case arises in a field that is ordinarily

“entrusted to the political branches,” Hernandez, 589

U.S. at 104 (citation omitted)—namely, administering

prisons. “Running a prison is an inordinately difficult

undertaking that requires expertise, planning, and the

commitment of resources, all of which are peculiarly

within the province of the legislative and executive

branches.” Turner v. Safley, 482 U.S. 78, 84-85 (1987).

“[S]eparation of powers concerns” therefore “counsel a

policy of judicial restraint.” Id. at 85. In light of those

concerns, courts are “at least arguably less equipped

than Congress,” Egbert, 596 U.S. at 492, to weigh the

costs and benefits of permitting damages actions for decisions about whether an inmate will be placed in prison

or home confinement.

Finally, “legislative action suggest[s]” that Congress

may not “want a damages remedy.” Abbasi, 582 U.S. at

148. In the Prison Litigation Reform Act of 1995, Pub.

L. No. 104-134, Tit. VIII, § 803, 110 Stat. 1321-70 (42

U.S.C. 1997e), Congress “made comprehensive changes

to the way prisoner abuse claims must be brought in

federal court,” but “d[id] not provide for a standalone

damages remedy against federal jailers.” Abbasi, 582

U.S. at 148-149. That statute at least arguably suggests

that Congress “chose not to extend” the Bivens damages remedy to new types of prisoner claims. Id. at 149.

2. Petitioner’s contrary arguments lack merit. Petitioner primarily contends (Pet. 13-19) that habeas corpus is an inadequate alternative remedy because it does

not compensate a plaintiff for past harm. But this Court

has specifically identified “habeas corpus” as an alternative remedy that precludes extending Bivens to a new

context, Abbasi, 582 U.S. at 145, and has thus rejected

the argument that the habeas remedy is inadequate because it fails to “provide plaintiffs with redress for

harms they have already suffered,” id. at 173 (Breyer,

J., dissenting). More broadly, it has explained that

courts should not ask whether the alternative remedy

would “provide complete relief ” or would be “as effective as an individual damages remedy.” Egbert, 596

U.S. at 493, 498 (citations omitted). “So long as Congress or the Executive has created a remedial process

that it finds sufficient,” “the courts cannot second-guess

that calibration by superimposing a Bivens remedy.”

Id. at 498.

Petitioner notes (Pet. 23) that the “sole basis for the

Second Circuit’s decision” was its determination that

petitioner could (and did) obtain redress through a petition for a writ of habeas corpus. But “[i]f there are

alternative remedial structures in place, ‘that alone,’

like any special factor, is reason enough” not to extend

Bivens. Egbert, 596 U.S. at 493 (citation omitted). In

any event, a prevailing party may “defend its judgment

on any ground properly raised below whether or not

that ground was relied upon, rejected, or even considered” by the lower courts. Washington v. Confederated

Bands and Tribes of the Yakima Indian Nation, 439

U.S. 463, 476 n.20 (1979). Here, there are at least two

special factors—apart from the availability of alternative remedies—which independently justify declining to

extend Bivens. See pp. 6-7, supra.

Petitioner also contends (Pet. 14) that a court should

recognize a Bivens remedy in this case because the case

involves what petitioner describes as a “gross violation

of civil liberties.” Contrary to petitioner’s suggestion,

however, the availability of a Bivens remedy does not

depend on a court’s assessment of the egregiousness of

the alleged misconduct. The inquiry instead focuses on

whether “the Judiciary is at least arguably less

equipped than Congress to ‘weigh the costs and benefits

of allowing a damages action to proceed.’ ” Egbert, 596

U.S. at 492 (citation omitted). And in conducting that

inquiry, a court must consider not just the allegations in

the case before it, but also the “impact on governmental

operations systemwide.” Id. at 491 (citation omitted).

Here, Congress is better equipped than courts to “predict the ‘systemwide’ consequences” of creating a damages remedy for prison-placement decisions. Id. at 493

(citation omitted).

Finally, petitioner states (Pet. 18) that, the courts, as

“traditional guardians of the boundary between power

and rights,” “are best positioned to craft” a remedy for

the alleged violation of his rights. He also asserts (Pet.

24) that, even “in the absence of Bivens relief,” courts

should proceed to invent “some [other] remedy.” But

those arguments flatly contradict this Court’s admonition that “creating a cause of action” to vindicate constitutional rights is “a legislative endeavor.” Egbert, 596

U.S. at 491.

3. Petitioner does not assert that the decision below

conflicts with the decision of any other court of appeals.

To the contrary, he contends (Pet. 20-21) that other

courts “have yet to meaningfully analyze” the arguments that he raises here. In making that statement,

he disregards decisions in which other courts of appeals

have—as the court below did—treated the availability

of habeas corpus as an alternative remedy that precludes extending Bivens to a new context. See, e.g.,

Hornof v. United States, 107 F.4th 46, 66 (1st Cir. 2024);

Wilson v. Rackmill, 878 F.2d 772, 775 (3d Cir. 1989);

Mirmehdi v. United States, 689 F.3d 975, 982 (9th Cir.

2012), cert. denied, 569 U.S. 972 (2013); Alvarez v.

USCIS, 818 F.3d 1194, 1209 (11th Cir. 2016), cert. denied, 582 U.S. 930 (2017). In any event, the fact that

other courts “have yet to meaningfully analyze” an issue, Pet. 20, usually weighs against granting review to

consider that issue. See, e.g., McCrory v. Alabama, 144

S. Ct. 2483, 2483 (2024) (statement of Sotomayor, J., respecting the denial of certiorari) (“I vote to deny this

petition because [the questions presented] have yet to

percolate sufficiently through the federal courts.”).

Petitioner also contends (Pet. 20) that the decision

below allows federal officials “to retaliate against critics

with imprisonment, without any consequence for or

check against the officials engaged in such retaliation.”

That is incorrect. As an initial matter, this case does

not involve the “imprisonment” of “free citizen[s]” for

“critic[izing]” the government. Ibid. Rather, it involves

a determination whether someone who has already been

convicted of a crime and sentenced to imprisonment

should be allowed to serve a portion of his sentence in

home confinement. In addition, “officials engaged in

such retaliation” are subject to “check[s].” Ibid. A

court can award prospective relief, and the Bureau can

respond to administrative grievances. Concerns about

the adequacy of those remedies are properly directed to

Congress, not to the courts.

In the final analysis, petitioner asks this Court to resolve a narrow, case-specific issue: whether to recognize

a Bivens claim on the particular facts alleged in this

complaint. Petitioner makes no meaningful effort to

show that the legal issues raised by this case recur in

other cases. Petitioner thus seeks the type of “error

correction” that is “outside the mainstream of the

Court’s functions.” Stephen M. Shapiro et al., Supreme

Court Practice § 5.12(c)(3), at 5-45 (11th ed. 2019).

This case would in any event be a poor vehicle for

considering petitioner’s arguments. His claim—that

government officials “retaliated against [him] for his

speech,” Pet. 3—would fit most naturally under the

First Amendment, which prohibits officials from “subjecting an individual to retaliatory actions” for protected speech. Hartman v. Moore, 547 U.S. 250, 256

(2006). But this Court has already held that “there is

no Bivens action for First Amendment retaliation.” Egbert, 596 U.S. at 499. Petitioner tries (Pet. 14) to circumvent that precedent by shoehorning his claim into

the Fourth Amendment instead. But the Fourth

Amendment focuses on objective reasonableness of the

challenged search or seizure, not the “motivations of the

individual officers involved.” Whren v. United States,

517 U.S. 806, 813 (1996). The mismatch between petitioner’s legal theory (a Fourth Amendment violation)

and his factual allegations (retaliation for speech) provides a further reason to deny review.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.