Amicus Curiae Brief — Richardson v. McKnight

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In THE

Supreme Court of the United

OCTOBER TERM, 1996

DARYLL RICHARDSON and JOHN WALKER,

Petitioners,

Vv.

RONNIE LEE MCKNIGHT,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES, AFL-CIO,

IN SUPPORT OF RESPONDENT

MARK D. RoTH

ANNE M. WAGNER *

AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES,

AFL-CIO

80 F Street, N.W.

Washington, D.C. 20001

(202) 639-6425

Counsel for Amicus Curiae

February 12, 1997 * Counsel of Record

WILSON - Eres Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

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QUESTION PRESENTED

Are employees of a private, for-profit corrections cor-

poration which performs some of the duties traditionally

carried out by a state department of corrections entitled

to assert qualified immunity in an action for damages

under 42 U.S.C. § 1983?

(i)

TABLE OF CONTENTS

Page

QUESTION PREGENTED ..22.-..20ccecccccccccccrcccscseceesereeee i

OO iv

INTEREST OF THE AMICUS CURIAE .............. 1

STATEMENT OF THE CASE ..o..2.22..0.002..20c.ccecccccseeeenee 2

SUMMARY OF ARGUMENT ................ scintenstlimateenitahils 2

EE ES -” 4

I. THERE IS NO COMMON LAW SUPPORT,

OR PUBLIC POLICY RATIONALE, FOR EX-

PANDING THE DOCTRINE OF OFFICIAL

IMMUNITY TO PRIVATELY EMPLOYED

9 OL 4

Il. EXTENSION OF QUALIFIED IMMUNITY

TO PRIVATE CONTRACTORS WOULD UN-

DERMINE THE BALANCE BETWEEN PRO-

TECTING THOSE INJURED BY UNCONSTI-

TUTIONAL CONDUCT AND PROTECTING

GOVERNMENT'S ABILITY TO PERFORM

TRADITIONAL FUNCTIONS |... 12

I 15

(iii)

TABLE OF AUTHORITIES

CASES Page

Anderson v. Creighton, 483 U.S. 682 (1987) ........... 11

Bivens v. Six Unknown Federal Narcotics Agents,

403 U.S. 388 (1971) -...... oo ‘ 2

Buethe v. Britt Airlines, 787 F.2d 1194 (7th Cir.

EE SS ET S.A ee 13, 14

Cleavinger v. Saxner, 474 U.S. 192 (1985) ............ 13

Forrester v. White, 484 U.S. 219 (1988) —............. 4,11

Harlow v. Fitzgerald, 457 U.S. 800 (1982) —........ passim

Imbler v. Pachtman, 424 U.S. 409 (1976) —......... 5

Kissner v. OPM, 792 F.2d 133 (Fed. Cir. 1986)... 8

McKnight v. Rees, 88 F.3d 417 (6th Cir. 1996) .... 11

Metcalf & Eddy v. Mitchell, 269 U.S. 514 (1925) _.. 7

Owen v. City of Independence, 445 U.S. 622

| ES — 5

Pierson v. Ray, 386 U.S. 547 (1967) —.................... 5

Radol v. Thomas, 772 F.2d 244 (6th Cir. 1985),

cert. denied, 477 U.S. 903 (1986) —................. 10

Seaboard Industries Inc. v. Monaco, 442 Pa. 256

(EES Ne ES 10

United States v. Bynum, 408 U.S. 125 (1972) .._... 10

United States Civil Service Commission v. Na-

tional Association of Letter Carriers, 413 U.S.

RPS ie 10

Westfall v. Erwin, 484 U.S. 292 (1988) —............. 14

Wyatt v. Cole, 504 U.S. 158 (1992) —...................... passim

STATUTES

CE ee 7,8

ID ciiisrinsnnieinslieeieeninntanianniinsins 8

CR EN TT 8

0 Fe EE ee eee 8

en ne a 9

6 U.S.C. § 7301 ................ siaiceneeceteeitiamainiatiniaiatcli tanta tela 10

5 U.S.C. § 7321 et seq. ........... ceepadiniieaediiies 10

8 13

IID, occnrscemtnrpitiinniinindiiietbinatliaibiiniiaiatn 9

CE eee eee 9

IT ctiricmtccntenimenienaiinmeiathindeniimen 10

18 U.S.C. § 1601 ..................- 8

TABLE OF AUTHORITIES—Continued

Page

18 U.S.C. § 1905 _.......... TE BS. 2 9

8 TINEA: RIL a a 8

ERIE STAN eC ee 10

Sr passim

STN aa See passim

Freedom of Information Act, 5 U.S.C. § 552 —........... 14

Whistleblower Protection Act, Pub. L. No. 101-12,

Ee ene 13

REGULATIONS

EE ne 9

EL OE 9

a 9

EEE EE 9

IS A a 9

a 9

MISCELLANEOUS

63 Am. Jur. 2d Public Officers and Employees

CF Ee x

IN THE

Supreme Court of the United States

OCTOBER TERM, 1996

No. 96-318

DARYLL RICHARDSON and JOHN WALKER,

Petitioners,

RONNIE LEE MCKNIGHT,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

BRIEF OF AMICUS CURIAE AMERICAN FEDERATION

OF GOVERNMENT EMPLOYEES, AFL-CIO,

IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS CURIAE

The American Federation of Government Employees,

AFL-CIO, (“AFGE”) submits this amicus brief in sup-

port of respondent McKnight, who filed suit against peti-

tioners under 42 U.S.C. § 1983 alleging that they had

violated his Eighth Amendment rights. Specifically,

AFGE joins respondent in arguing that qualified immunity

from a § 1983 action is not available to employees of a

private, for-profit corporation, which has contracted with

the state of Tennessee to manage correctional facilities.’

1 Counsel for respondent, Ronnie Lee McKnight, and for petition-

ers, Daryl! Richardson and John Walker, have consented in writing

to the filing of this brief.

AFGE represents some 700,000 federal and District of

Columbia government workers, including federal prison

guards. Congress recently authorized the privatization of

one federal corrections facility, on an experimental basis,

and has considered a more widespread use of private con-

tractors to maintain federal penal institutions. The Union

has strenuously opposed efforts to contract these, and

other, core functions of the government.

Federal officers and employees can be held liable for

money damages for unconstitutional conduct committed

during the course of their employment. See Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).

Although this case arose under 42 U.S.C. § 1983, the

Court has traditionally not distinguished between suits

alleging constitutional violations under § 1983 and those

brought directly under the Constitution when resolving

claims of official immunity. Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982) (“it would be ‘untenable to draw

a distinction for purposes of immunity law between suits

brought against state officials under § 1983 and suits

brought directly under the Constitution against federal offi-

cials.’”). Therefore, a ruling in this case will undoubt-

edly affect federal employees, and AFGE bargaining unit

members, who are competing with contractors to retain

in-house, the performance of federal functions.

STATEMENT

Amicus adopts respondent Ronnie Lee McKnight’s

Statement of the Case.

SUMMARY OF ARGUMENT

Petitioners’ demand for official immunity from suit for

acts committed while carrying out their duties as privately

employed prison guards must be rejected as lacking either

an antecedent in common law or a justification based upon

public policy.

Federal and state governments are under increasing

political and economic pressure to contract out their func-

tions, even those, such as guarding prison inmates, which

are arguably core or inherently governmental. Proponents

of privatization, most notably those hoping to be awarded

such contracts, often disparage the public sector as ineffi-

cient and hampered by process. Although the cost-effec-

tiveness of “contracting out” is dubious, in our view, its

advocates routinely commend the private sector precisely

for being unencumbered by perceived constraints on gov-

ernmental conduct.

Public officials and employees are obliged to carry out

their mission within the parameters of constitutional,

statutory, regulatory, and political imperatives which have

the public interest as their sole object, and which are

designed to maximize public accountability. Conversely,

the primary, and legitimate, purpose of private enterprise

is to generate a profit for its investors. While the govern-

ment may “contract out” a function, the contractor’s

performance is fundamentally controlled by its business

purpose, which may, or may not, conform with the public

interest, and which may, or may not, withstand the exact-

ing standards applied to government conduct.

Service to, and accountability for, the common good is

the bedrock of public employment, from hiring to retire-

ment, from the highest office to the lowest position. These

fundamental precepts clearly distinguish it from private

enterprise in a way that warrants application of immunity

in one setting, but not the other. The divergent purposes

of the public and private sectors weigh heavily against

granting these private employees an immunity, heretofore

reserved for government officials, from suits alleging con-

stitutional violations. The balance is tipped even further

by the fact that a damages action under § 1983 may be

the most effective means of ensuring that contractors

remain accountable for their actions with regard to con-

stitutional rights. This is especially true here, where the

plaintiff is an inmate in a correctional facility already

removed from public view and access.

Furthermore, as government contracts out more and

more functions, the contractors’ potential liability for con-

Stitutional violations may become the only realistic deter-

rent to unlawful conduct. Therefore, amicus AFGE re-

spectfully asks that the Court affirm the lower court’s

decision holding that petitioners are not entitled to quali-

fied immunity for unconstitutional acts committed in the

course of their employment.

ARGUMENT

I. THERE IS NO COMMON LAW SUPPORT, OR PUB-

LIC POLICY RATIONALE, FOR EXPANDING THE

DOCTRINE OF OFFICIAL IMMUNITY TO PRI-

VATELY EMPLOYED PRISON GUARDS.

This Court has consistently ruled that government offi-

cials possess some form of immunity from suits for dam-

ages caused by their official acts. Harlow v. Fitzgerald,

supra, 457 U.S. at 807. Certain government officials,

such as the President, legislators, judges, and prosecutors,

generally enjoy absolute immunity from such actions. /d.;

Forrester v. White, 484 U.S. 219, 224-226 (1988). For

other governmental officers, however, qualified immunity

is the norm. Harlow, supra, 457 U.S. at 807. As such,

it shields “government officials performing discretionary

functions . . . from liability for civil damages insofar as

their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would

have known.” Harlow, supra, 457 U.S. at 818.

In the instant case, Mr. McKnight alleged that peti-

tioners, in their capacity as privately-employed prison

guards, violated his Eighth Amendment rights. He brought

this action under the Civil Rights Act of 1871, 42 U.S.C.

§ 1983, which provides, in pertinent part, that a cause of

action will lie against “every person who, under color of

any statute... of any State . . . subject, or causes to be

subject, any citizen . . . to the deprivation of any rights,

privileges, or immunities secured by the Constitution and

laws... .” 42 U.S.C. § 1983. The provision is designed

“to deter state actors from using the badge of their au-

thority to deprive individuals of their federally guaranteed

rights and to provide relief to victims if such deterrence

fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).

Section 1983 “creates a species of tort liability that on

its face admits of no immunities.” /mbler v. Pachtman,

424 U.S. 409, 417 (1976). The Court has not, however,

construed 42 U.S.C. § 1983 as signifying congressional

revocation of the doctrine of immunity for government

Officials. See Pierson v. Ray, 386 U.S. 547, 554-555

(1967). Rather, that doctrine was deemed to be so deeply

ingrained in the common law at the time of § 1983's

enactment, and grounded in such strong policy concerns,

that “ ‘Congress would have specifically so provided had it

wished to abolish [it]..” Owen v. City of Independence,

445 U.S. 622, 637 (1980) quoting Pierson v. Ray, supra,

386 U.S. at 555. The Court has nevertheless been sensi-

tive to the fact that by incorporating immunity defenses

into § 1983 jurisprudence, it is “devising limitations to a

remedial statute, enacted by Congress, which ‘on its face

does not provide for any immunities.” Wyatt v. Cole,

supra, 504 U.S. at 171 (Kennedy, J., concurring) quot-

ing Malley v. Briggs, 475 U.S. 335, 342 (1986). Thus,

at various times, it has warned against expanding the

scope of the immunity based upon “free-wheeling” notions

of policy or efficiency. See e.g., Wyatt, supra, 504 US.

at 170-172.

The special policy concerns which do justify qualified

immunity to government officials include the need to “pre-

serve their ability to serve the public good or to ensure

that talented candidates were not deterred by the threat

of damages suits from entering public service.” Wyatt v.

Cole, supra, 504 U.S. at 167. The essential purpose of

qualified immunity is, therefore, “to safeguard govern-

ment, and thereby to protect the public at large, not to

benefit its agents.” Jd. at 167-168.

As respondent ably argues, the common law provides

no basis for petitioners’ contention that private parties

are entitled to qualified immunity.* Similarly, this case

implicates none of the policy concerns which, in the con-

text of governmental actors, justify depriving injured par-

ties of a cause of action for constitutional violations. Most

damaging to petitioners’ claim in this latter regard is the

Court’s unambiguous declaration in Wyatt that “rationales

mandating qualified immunity for public officials are not

applicable to private parties.” Wyatt v. Cole, supra, 504

US. at 167.

In Wyatt, a private creditor, who was sued under § 1983

after attaching the debtor’s property under the state re-

plevin statutes, asserted a qualified immunity defense,

which had been successfully raised by the sheriff and depu-

ties involved in the seizure, on the grounds that he relied

on a state law which he had no reason to believe was

invalid. The Court rejected this contention, however,

stating that while fairness might suggest that he be entitled

to the same protection as that given to the sheriff and

deputies, as a private individual, his interests were “not

sufficiently similar to the traditional purposes of qualified

immunity to justify such an expansion.” In particular,

. unlike public officials, private parties hold no

office requiring them to exercise discretion; nor are

they principally concerned with enhancing the public

good . . . [nor would immunity] bear[] on whether

public officials are able to act forecfully and decisively

in their jobs or on whether qualified applicants enter

public service . . . unlike with government officials

performing discretionary functions, the public interest

will not be unduly impaired if private individuals are

required to proceed to trial. ~

2 Amicus hereby incorporates respondent’s arguments, and adds

the following comments primarily to illuminate the concrete differ-

ences between public service and private enterprise which are

relevant to the immunity question at issue here.

Wyatt v. Cole, supra, 504 U.S. at 168. Thus, the Court

concluded that the “nexus between private parties and

the historic purposes of qualified immunity is simply too

attenuated to. justify such an extension of our doctrine of

immunity.” /d.

While the holding of Wyatt may be narrow, the Court’s

opinion certainly speaks to the broader issue of whether

the scope of immunity can be enlarged to protect private

parties from damages actions. In particular, it explains

why the policies justifying qualified immunity for public

Officials simply do not apply to private parties. These

policies are equally applicable here. That petitioners are

employed by a corporation which has contracted with the

government does not distinguish this case from Wyatt, or

warrant the drastic departure from settled principles of

immunity law which they seek.

As a threshold matter, it is axiomatic that persons do

not acquire public office by virtue of a contractual rela-

tionship with the government to perform services. See

Metcalf & Eddy v. Mitchell, 269 U.S. 514, 520 (1925)

(contracts for services as consulting engineers, though

entered into by authority of law, did not create an office

or endow plaintiffs with status as officers or employees so

as to be exempt from taxation.) In the federal govern-

ment, for example, an officer is statutorily required to be

appointed in the civil service by either the President,

United States court, agency head or Secretary of a mili-

tary department, to engage in the performance of a federal

function under authority of law or Executive act, subject

to the supervision of one of the aforementioned authori-

ties while in the performance of that duty. 5 U.S.C.

§ 21048

3 For purposes of the Civil Service Reform Act codified through-

out title 5 of the United States Code, an “emrloyee” is defined as

any officer or individual, appointed in the civil service by the

President, Member of Congress or the Congress, member of a

uniformed service, another employee, head of a government con-

Despite their efforts to cloak themselves in the mantle

of public office (pet. br. 33-46), petitioners do not possess

the most basic prerequisites of that designation. Public

policy “demands that an officeholder discharge his duties

with undivided loyalty.” 63 Am. Jr. 2d Public Officers

and Employees § 319. He or she must have an undivided

duty to the public whom they serve, and must act in the

best public interest. Jd. Specifically, a public office is

“created for the purpose of effecting the end for which

government has been instituted, which is the common

good, and not for the profit, honor, or private interest of

any one person, family, or class of persons.” Id. at § 2.

These are not empty platitudes trotted out to bolster

our contention that public service is different from private

enterprise in a way that is relevant to the disposition of

this case. On the contrary, these statements reflect prin-

ciples which actually infuse government service from hir-

ing to retirement, and apply whether one occupies the

office of President or the position of clerk-typist in an

obscure government agency.

For example, Congress has enacted a myriad of laws

governing federal employees which are designed, or have

been invoked, to protect the integrity of the federal gov-

ernment. Specifically, federal officials are prohibited from

hiring or promoting relatives, or granting “any preference

or advantage not authorized by law, rule or regulation to

any employee or applicant.” See 5 U.S.C. § 2302(b) (6)

and (7); 5 U.S.C. § 3110. They are criminally liable for

willful and corrupting interference with the hiring process.

18 U.S.C. § 1917. In addition, employees who falsify

an employment application are subject to criminal sanc-

tions, see 18 U.S.C. § 1001, in addition to being fired.

See Kissner v. OPM, 792 F.2d 133 (Fed. Cir. 1986).

Applicants are, by law, subject to rigorous suitability

examinations to ascertain their “fitness . . . as to age,

trolled corporation, or adjutant general who is engaged in the

performance of a federal function under authority of law or an

Executive act under the supervision of one of the foregoing au-

thorities. 5 U.S.C. § 2104.

— >

health, character, knowledge, and ability.” 5 U.S.C.

§ 3301 ef seq. See also 5 C.F.R. § 731. They may be

further required to submit to security clearance investiga-

tions in the case of sensitive positions. 5 U.S.C. § 7531

et seq.

A federal employee’s tenure in office is similarly circum-

scribed by proscriptions against conduct which conflicts,

or even appears to conflict, with the government’s interest.

Government-wide regulations promulgated by the Office

of Government Ethics (“OGE”) state that “public service

is a public trust” endowing each employee* with a “re-

sponsibility to the United States Government and its citi-

zens to place loyalty to the constitution, laws and ethical

principles above private gain.” 5 C.F.R. § 2635.101(a).

An entire chapter of Title V of the United States Code

is dedicated to prescribing specific merit system principles

and prohibited personnel practices that insulate govern-

saad age pi from the pressures, weaknesses, and

emptations of the private sector and insure ivi

loyalty of federal civil servants. shat aes

The requirement of undivided loyalty pervades the

federal conflict-of-interest laws, including prohibitions

against bribes and graft, violations of which could subject

employees to criminal and civil liability. See 18 U.S.C.

§§ 201-209. Employees are further subject not only to the

OGE’s government-wide regulations noted above, but also,

to each agency’s standards of conduct.®

‘The definition of eraployee for purposes of these

includes nonmilitary officers. See 5 C.F.R. § 2635.102. pee

® Standards of conduct governing em ees of the U.S. -

ment of Justice, of which tie Bureau ay td is Me wt ani

are published at 28 C.F.R. § 45.735 et seq. They provide, in part,

that “[iJn all their activities, both personal and official, [employees]

should be mindful of the high standard of behavior expected of

them.” 28 C.F.R. § 45.735-2. Another section identifies no less

pond bye cary ate on their conduct, including,

sclosure of confidential info

Gre 4 aman, rmation (18 U.S.C. § 1905).

In addition, employees may not advocate the over-

throw of, or partictipate in, or assert, the right to strike

against the government under pain of criminal sanctions,

as well as removal. See 18 U.S.C. § 1918; 5 U.S.C.

§ 7301. Their political activities have long been restricted

in order “to serve this great end of Government—the im-

partial execution of the laws” and to conform their offi-

cial conduct with “the will of Congress, rather than in

accordance with their own or the will of a political party.”

United States Civil Service Commission v. National As-

sociation of Letter Carriers, 413 U.S. 548, 565 (1973).