Petitioners Brief — Correctional Services Corp. v. Malesko

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FILED

IN THE .

Supreme Court of the Anited States

CORRECTIONAL SERVICES CORPORATION,

Petitioner,

Vv.

JOHN E. MALESKO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

For the Second Circuit

BRIEF OF PETITIONER

GEORGE P. STASIUK CARTER G. PHILLIPS *

GEORGE P. BRENLLA FRANK R. VOLPE

CLIFTON BUDD & DEMARIA, LLP JENNIFER M. RUBIN

420 Lexington Avenue REBECCA K. SMITH

New York, NY 10170 SIDLEY AUSTIN BROWN &

(212) 687-7410 WooD

KAREN M. MORINELLI 1722 Eye Street, NW

CORRECTIONAL SERVICES CORP. Washington, DC 20006

1819 Main Street (202) 736-8000

Sarasota, FL 34236

(941) 953-9199

Counsel for Petitioner

May 17, 2001 * Counsel of Record

Le ES

WILSON-EPES PRINTING Co., INC. — (202) 789-0096 — WAasHiINGTON, D.C. 20001

} Supreme Court, US.

—

a private entity

acting under color of federal law.

STATEMENT REQUIRED BY RULES 14.1 AND 29.6

Pursuant to Supreme Court Rule 14.1, the Petitioner states

that it formerly was known as Esmor Correctional Services,

Inc. The other parties in the proceedings below were Jorge

Urena’® and “‘John Does #2 to John Does #10,’ Inclusive, The

Names Of Said John Doe Defendants Are Presently Unknown

But Intended To Indicate Managers And Guards Of The

Corporate Defendant.”

Pursuant to Supreme Court Rule 29.6, Petitioner states that

there are no parent companies, subsidiaries, and/or affiliates

of Correctional Services Corp. that have issued shares to the

public.

“In his amended complaint, Respondent substituted Jorge Urena for

“John Doe Defendant #1.” Although the caption to the district court's

Memorandum Opinion and Order of July 28, 1999 (Pet. App. 19a) bears

this substitution, the caption in the court of appeals opinion (id at la) does

not.

TABLE OF CONTENTS

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STATEMENT REQUIRED BY RULES 14.1 AND

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RELEVANT CONSTITUTIONAL AND STATU-

ET a

I. THE PURPOSES OF B/VENS ARE NOT AD-

VANCED, AND WOULD BE UNDERMINED,

BY ALLOWING BIVENS ACTIONS AGAINST

A. Extending Bivens To Private Entities Will Not

Further, And Will Undermine, The Core

Bivens Purpose Of Deterring Individual

OE Sc ere eee

B. Plaintiffs In Respondent’s Shoes Have No

Need For A Bivens Remedy Against Entities...

Il. SPECIAL FACTORS COUNSEL AGAINST

EXTENDING BIVENS TO PRIVATE ENTI-

TABLE OF CONTENTS—continued

A. Extending Bivens Liability To Private Govern-

mental Contractors Threatens Federal Fiscal

Policy And The Federal Fisc .........................

B. Extending Liability To Private Entities Is

Illogical And Inequitable And Would Under-

mine Congressional Privatization Policy........... :

1. CSC And The BOP Serve The Same Basic

Function: Confinement Of Inmates .............

2. CSC Shares Critical Attributes With The

FDIC And Other Government Corpora-

3. Extending Bivens Liability To Private

Entities Would Interfere With Congress-

ional Policy Regarding Privatization............

Ill. SECTION 1983 IS IRRELEVANT TO THE

QUESTION OF WHETHER TO CREATE A

NEW BIVENS-TYPE ACTION .....................:00+.

SID caccccsccccsnssusceseseviumsnnsieagnenessttionantmiasagatnten

Page

TABLE OF AUTHORITIES

CASES Page

AccuBanc Mortgage Corp. v. Drummonds, 938

S.W.2d 135 (Tex. Ct. App. 1996) .........000...0...... 12

Bivens v. Six Unknown Named Agents of Fed.

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

Boyle v. United Techs. Corp., 487 U.S. 500

Ree rr ae 20, 21, 22, 30

Bush v. Lucas, 462 U.S. 367 (1983)................. 6, 19, 33

Butz v. Economou, 438 U.S. 478 (1978)...... 8, 19, 33, 34

Carlson v. Green, 446 U.S. 14 (1980)............... 9, 12, 25

Chappell v. Wallace, 462 U.S. 296 (1983)........ 7, 20, 33

City of Newport v. Fact Concerts, Inc., 453 U.S.

SoU TTT cteresinisnnisednciniiniatinerinbiapanteunidiemiinisiaaeie 12

Cleavinger v. Saxner, 474 U.S. 193 (1985).......... 22, 23

Daniels v. Williams, 474 U.S. 327 (1986)............. 15

Davis v. Passman, 442 U.S. 228 (1979)............... 13, 16

Estelle v. Gamble, 429 U.S. 97 (1976).................. 15

FDIC v. Meyer, 510 U.S. 471 (1994)... passim

Farmer v. Brennan, 511 U.S. 825 (1994).............. 17

Fletcher v. Rhode Island Hosp. Trust Nat'l Bank,

496 F.2d 927 (1st Cir. 1974)...00000. oo. 25

Gerena v. Puerto Rico Legal Servs., Inc., 697

2 en 8

Hammons v. Norfolk S. Corp., 156 F.3d 701 (6th

Be Se tenceniiseviitinntmiesientnanenneanetanninnitineetiins 4, 12, 32

Harlow v. Fitzgerald, 457 U.S. 800 (1982).......... 10, 23

Haynesworth v. Miller, 820 F.2d 1245 (D.C. Cir.

ERR Ee ee 31

Heinrich ex rel. Heinrich v. Sweet, 62 F. Supp. 2d

TTT See ee ane 13

Howard v. Federal Bureau of Prisons, 198 F.3d

236, No. 99-6708, 1999 WL 798883 (4th Cir.

ERA son a ae 25

TABLE OF AUTHORITIES—continued

Page

Idaho vy. Coeur d'Alene Tribe, 521 US. 261

TIT iccisinminneisiiiesdateagiaininindaiigidainempamdianaiaaies 19

Kauffman vy. Anglo-American Sch. of Sofia, 28

J i . 4. 9 See passim

Lugar v. Edmondson Oil Co., 457 US. 922

SET weno Sete me 33

Martinez v. City of Los Angeles, 141 F.3d 1373

III, STITT usiisininstnsiianecsihainidlinaciaiaibadataihiasiiietas 31

McCall v. Swain, 510 F.2d 167 (D.C. Cir. 1975)... 26

McCarthy v. Madigan, 503 U.S. 140 (1992)......... 17

Monell v. Department of Soc. Servs., 436 U.S.

It cscinsnsnsiviciisiasinntdaendehatibamndingameieints 32

Newman v. Holder, 101 F. Supp. 2d 103

A Ee ere 25

Richardson v. McKnight, 521 U.S. 399 (1997)..... 10, 23

Schowengerdt v. General Dynamics Corp., 823

Pe ee 8

Schweiker v. Chilicky, 487 U.S. 412 (1988).......... 6, 8

Shaw v. Murphy, _ U.S. __, No. 99-1613, 2001

WL 387410 (U.S. Apr. 18, 2001) 00000. 22

Tejeda v. Reno, No. 00-CIV-6338 SAS, 2000 WL

1280969 (S.D.N.Y. Sept. 11, 2000)... 25

United States v. Stanley, 483 US. 669

RE or iiinaallidiinaia 6, 19, 30, 34

Wilson v. Garcia, 471 U.S. 261 (1985) .......00.00..... 33

Yiammouyiannis v. Chemical Abstracts Serv., 521

a ID GE dicisepstentinecmnsssnsscceneenens 8

Ex parte Young, 209 U.S. 123 (1908).................... 19

Zerilli vy. Evening News Ass'n, 628 F.2d 217

Se SHE aierchictiatesnantcenitiicenteieanniscinainaianebie 25

STATUTES AND REGULATIONS

Banking Act of 1933, ch. 89, 48 Stat. 162............. 27

vil

TABLE OF AUTHORITIES—continued

Federal Deposit Insurance Act, ch. 967, 64 Stat.

IEE Bell WS, PIR OE tt 27

Consolidated Appropriations Act, 2000, Pub. L.

No. 106-113, 113 Stat. 1501 (1999)... 2

ERIS TCR SDR Wa. Sy 30

8 U.S.C. § 1522(b) 1 KANG) ooo. 28

EATERIES ines ATER eI 30

EC SS SETS 28, 30

ee ie ictinciatatteitilaesialian hcl ale 28

5 ERR ere enee ae 27

RS Ee oa ee. 28

OS TERERDRE NSS Pam 30

ER TER 29

EERIE ATR ine Y 2

RE TTS TA EE AS AR 0 2

EI ee Fe me SOLES, 25

| Ee se 2

SEES 2, 25

RES Sey Scr erea 2

| ETE TIE Ran a OER LTE 2

EEE Nee 28

ETAL 28

I 30

ESRI FEC mor Os Ser A 29

ECS Ca 29, 30

ESTE L SNP T 29

AEE Ne 17

Ae RT tole en a RO 14

EERIE na RES ee 29

31 U.S.C. § 371SQOMI NB)... eeeeeeeee. 30

i re 27

42 U.S.C. § 604a(ay(1 MA)... ccccccccccceee eens 29

NS a een 32

ESE rr 17

IE hE Na 29

viii

TABLE OF AUTHORITIES—continued

Page

ee ee cccccseiverestninivtnsenstinesansianin 29

UT nsscisie seshenidiappiiencnsieiedialdianipaniane 29

i AcE a stiichasiienesiessenovssinenebonntes 14

SII ncincdildsisaleliiatiinilinihiiitaediasetiahtendild 2

a EE eae 11

tk eer on Pee 1]

TERR pa ae eon 1]

FN a ee 11

22 C.F.R. § 21.1............. sptpinnesscitiinsiniaiaminiiineidal 11

RRO SOLS. 11

I Ts sinccrenenniehidiheneepnaianiamniummdia 11

iin ssicicneeesistnsidbsinipeiidaiandiminies 11

a ee 17

issih hihineeantaittidaaliaciacticiiiaiae 17

| TESA arco ees 17

ESERIES CEE SOC EEUEerarws 17

| A TEE ae oNTET 17

chil elala lacie celled 17

ERE Seaee mana 17

AAI icintsisuincntteaisenicheiseniiousanneoienaiontiias 11

SI TTI cccecnchinieccimiaeniiinancniatiindinaiaieadenianidin 1]

ee ee iccsossccesselenitienientiiarigusinitinaieimnaianaabanstaain 11

RULE

en 3

LEGISLATIVE HISTORY

H.R. Conf. Rep. No. 106-355 (1999), available at

ee aiacnnstiidnrapnitenineeatinniaiiaintnanedive 30

H.R. Rep. No. 106-1047 (2001), available at

Be RE inincnicncsecnnsienseniantimmatheliiseaismimssets 30

S. Rep. No. 106-77 (1999), available at 1999 WL

| ll A ARE EP AS ALE STE 30

TABLE OF AUTHORITIES—continued

Page

132 Cong. Rec. E403-01 (daily ed. Feb. 20,

St hcdecnistideciniiehiiiaesinedbeaaehuitiiReniadsbesiasbintiiatdiniaahee 30

132 Cong. Rec. §3552-02 (daily ed. Mar. 26,

UTI stsichevessaceiionensamcntpianiiieiaidaaiadiatbesdduesiibiciehitelilaiaasiil 29

137 Cong. Rec. H1735-01 (daily ed. Mar. 13,

1991), available at 1991 WL 43750 .................. 10

139 Cong. Rec. E2554-01 (daily ed. Oct. 27,

1993), available at 1993 WL 435032 ................ 29

SCHOLARLY AUTHORITIES

Kenneth S. Abraham, Efficiency and Fairness in

Insurance Risk Classification, 71 Va. L. Rev.

Se inceccnscintniibacesiiistcienpiitiintatnintbainadeanes 22

A. Michael Froomkin, Reinventing _ the

Government Corporation, 1995 U. Ill. L. Rev.

i adidhidiniclicsiiadiiatiiidiadla ibateiiitthda meatus Sale teal 26, 27, 28

OTHER AUTHORITIES

Keeton & Widiss, /nsurance Law (1988) .............. 22

United States GAO, Government Corporations: A

Profile of Existing Government Corporations

i a 27

Buel White et al., Budget Limitations Spur Priva-

tizations, Nat’! L.J., May 27, 1996...........0.0....... 26

IN THE

Supreme Court of the Gnited States

No. 00-860

CORRECTIONAL SERVICES CORPORATION,

Petitioner,

JOHN E. MALESKO,

; Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF PETITIONER

OPINIONS BELOW

The opinion of the court of appeals was entered on October

6, 2000, is reported at 229 F.3d 374 (2d Cir. 2000), and was

reprinted in the Appendix to the Petition for Certiorari (Pet.

App. la-18a). The memorandum opinion and order of the

United States District Court for the Southern District of New

York was entered on July 28, 1999, is unreported, and is

reprinted in Pet. App. 19a-24a.

JURISDICTION

The court of appeals entered its decision on October 6,

2000. The petition for a writ of certiorari was filed on

November 22, 2000, and was granted on March 5, 2001. This

Court has jurisdiction pursuant to 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

This case does not involve the construction of a particular

statutory or constitutional provision. Instead, the issue

presented is whether the Court should extend to private

entities the constitutionally inferred cause of action

recognized in Bivens v. Six Unknown Named Agents of

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

STATEMENT OF THE CASE

This case concerns a correctional institution operated by a

private entity on behalf of the Federal Bureau of Prisons

(“BOP”). The ultimate responsibility to “provide suitable

quarters and provide for the safekeeping, care, and

subsistence of all persons charged with or convicted of

offenses against the United States” is committed to the BOP,

“under the direction of the Attorney General,” 18 U.S.C.

§ 4042(a)(2). Acting pursuant to statutory authority,

' The statutory authority for this practice is found in scattered sections

of the United States Code. See, e.g, 18 U.S.C. § 3621(b) (“The Bureau of

Prisons shall designate the place of the prisoner’s imprisonment. The

Bureau may designate any available penal or correctional facility that

meets minimum standards of health and habitability established by the

Bureau, whether maintained by the Federal Government or other-

wise... .”) (emphasis added); id. § 4002 (permitting the Attorney General

to contract with States, territories, and their political subdivisions to house

and care for federal prisoners); id § 4013(b) (stating procedure for

contracting with private entities to house and care for federal detainees),

id. § 4247(i) (permitting the Attorney General to contract with States, their

political subdivisions, localities, and private entities to house and care for

federal offenders with mental diseases or defects), id § 5040 (permitting

the Attorney General to contract with private and public entities and

individuals to house and care for juvenile offenders); 42 U.S.C. § 13901

(permitting the Attorney General to contract with public and private

entities to house and care for certain inmates and their families in com-

munity correctional facilities); Consolidated Appropriations Act, 2000,

Pub. L. No. 106-113, App. A, 113 Stat. 1501, 1501A-13 (1999) (author-

izing and appropriating funds for the “Federal Prison System” to enter into

contracts with private entities “for the confinement of Federal prisoners”).

PR a we.

however, the BOP has entered into contracts with private

entities, including Petitioner Correctional Services

Corporation (“CSC”), for the housing, safekeeping, care, and

subsistence of federal prisoners and detainees. Under a

contract with BOP, and “on behalf of BOP,” CSC operated Le

Marquis Community Corrections Center, a halfway house

located in New York. Pet. App. 2a.

Respondent John E. Malesko, having been convicted of

federal securities fraud, was sentenced on December 3, 1992,

to 18 months imprisonment under the supervision of the BOP.

On February 2, 1994, Respondent was transferred by the BOP

to Le Marquis for the remainder of his sentence.

According to Respondent’s amended complaint, during his

imprisonment he was diagnosed with a heart condition and

was given a prescription for medication for that condition.’

J.A. 10-11. CSC, “through its Officers, Directors, Guards,

Servants and/or Employees” changed its elevator policy to

prohibit inmates residing on the first through fifth floors of Le

Marquis from using the elevator, but that CSC permitted him

(a fifth-floor resident) to use the elevator because of his heart

condition. /d at 11. On March 28, 1994, however, a Le

Marquis guard, Jorge Urena, allegedly required Respondent

to use the stairs despite Respondent’s protestation that he was

specially permitted to use the elevator. /d at 12. Respondent

suffered a heart attack and fell while climbing the stairs to

reach his fifth-floor room. Respondent argues that this injury

was caused by the failure of unnamed persons to replenish his

heart medication and by Officer Urena’s denying him use of

the elevator.

On March 27, 1997, Respondent filed a pro se complaint in

the United States District Court for the Southern District of

New York against CSC and ten “John Doe” defendants. On

? Because this appeal arises from an order dismissing the amended

complaint pursuant to Federal Rule of Civil Procedure 12(6)(6), all

allegations are accepted as true.

February 2, 1999, Respondent filed an amended complaint

adding Officer Urena as a defendant. CSC moved to dismiss

the amended complaint on February 10, 1999.7

The district court treated Respondent’s amended complaint

as raising Bivens claims. See Pet. App. 4a. On July 28, 1999,

the district court granted CSC’s motion to dismiss the

amended complaint as to CSC “on two independent grounds:

first, that Plaintiff cannot bring a Bivens action against a

corporation; and, second, that CSC is immune to suit because

it is a government contractor.” /d at 20a. Citing FDIC v.

Meyer, 510 U.S. 471, 483-87 (1994), the district court

reasoned that “[a] Bivens action may only be maintained

against an individual,” Pet. App. 20a, and thus, was not

available against CSC, a corporation.

On appeal, the Second Circuit reversed the district court’s

dismissal of the claims against CSC. Agreeing with the Sixth

Circuit’s decision in Hammons v. Norfolk Southern Corp.,

156 F.3d 701 (6th Cir. 1998), and rejecting the D.C. Circuit’s

decision in Kauffman v. Anglo-American School of Sofia, 28

F.3d 1223 (D.C. Cir. 1994), the court of appeals concluded

that private entities such as CSC are amenable to suit under

Bivens. See Pet. App. 8a-10a, 12a.* The Second Circuit

adopted this expansion to the category of Bivens defendants

>On March 17, 1999, Respondent filed a motion for leave to file a

second amended complaint to name additional CSC employees as “Doe”

defendants. Pet. App. 20a. The district court denied this proposed

amendment as untimely, and thus, futile under Rule 15 of the Federal

Rules of Civil Procedure. /d at 21a-24a. The district court also ruled that

the claim against Officer Urena, the individual defendant named in the

first amended complaint, was time-barred. /d. at 24a. The Second Circuit

affirmed these rulings. /d at 18a. As a result, CSC is the only defendant

remaining in the case. Accordingly, this case does not present the

question of whether private individuals who are employed by a private

entity may be liable under Bivens.

* The Second Circuit also rejected the district court’s holding regarding

the government contractor defense. Pet. App. 13a. CSC did not seek

review of that decision.

despite its recognition that such actions against private

entities may lack “a substantial deterrent effect,” id at 10a,

and that “a private entity contracting to carry out

governmental functions might pass on the costs of Bivens

liability to the government,” thereby affecting the federal fisc,

id. at lla. On November 22, 2000, CSC filed a petition for

certiorari, which this Court granted on March 5, 2001.

SUMMARY OF ARGUMENT

The court of appeals decision below is premised on three

analytical flaws. First, the court ignored the holding in FD/C

v. Meyer, 510 U.S. 471 (1994), by extending the cause of

action created in Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388 (1971), to private

entities “even absent a substantial deterrent effect,” Pet. App.

10a. Second, the court failed to consider properly whether

“special factors counsel[] hesitation,” Bivens, 403 U.S. at 396,

in creating a damages remedy against a new category of

defendants where Congress has not acted. Third, the court of

appeals improperly relied on 42 U.S.C. § 1983, to bolster its

conclusion that extending the Bivens remedy is appropriate in

this context. As shown below, an analysis free from these

flaws compels the conclusion that extending Bivens liability

to private entities is contrary to the logic of this Court’s

precedents embodied in Bivens and its progeny.

1. As this Court unanimously stated in FDIC v. Meyer,

“the purpose of Bivens is to deter the officer.” 510 U.S. at

485 (emphasis in original). Here, as in Meyer, extension of

the Bivens remedy to entities will actually undermine the goal

of deterring individual officers. /d The court of appeals’

contrary reasoning that expansion of Bivens in this context

will still deter individual officers, see Pet. App. Ila,

contradicts both common sense and this Court’s express

reasoning in Meyer, 510 U.S. at 485. As such, the decision

below cannot stand, particularly in light of the fact that means

exist by which a plaintiff in Respondent’s position can sue for

compensatory damages or can seek to change an enitity’s

policies.

2. As this Court emphasized in Meyer, extending the

Bivens remedy “would be inappropriate even if such a remedy

were consistent with Bivens” if special factors counsel

hesitation. Meyer, 510 U.S. at 486 (emphasis supplied).

Here, as in Meyer, extending liability to an entity serving the

government interferes with federal fiscal decisionmaking. /d

at 486. In addition, the lower court’s decision to extend

Bivens liability to CSC, where the similarly situated BOP and

FDIC are free from such liability, is illogical and inequitable

and interferes with Congress’s privatization policy. The

policy issues raised by extension of Bivens in this context are

ones that ought to be decided by Congress and, therefore, this

Court should refuse to extend Bivens to private entities.

3. Unlike the appropriately narrow remedy created by this

Court in Bivens, Section 1983 is a purposefully broad remedy

created by Congress. Because Congress used its institution-

ally superior legislating powers to create its breadth, Section

1983 is irrelevant to the threshold question of whether courts

should create a new Bivens-type remedy. Analogies to that

statute, therefore, do not undermine the clear conclusion that

judicially extending Bivens liability to private entities is

inappropriate.

ARGUMENT

This Court’s “recent decisions have responded cautiously to

suggestions that Bivens remedies be extended to new

contexts.” Schweiker vy. Chilicky, 487 U.S. 412, 421 (1988).

Indeed, in recent years, the Court has been presented with

many requests to extend Bivens to new settings and to new

classes of defendants, and has consistently declined these

invitations. See FDIC v. Meyer, 510 U.S. 471 (1994);

Schweiker v. Chilicky, 487 U.S. 412 (1988), United States v.

Stanley, 483 U.S. 669 (1987), Bush v. Lucas, 462 U.S. 367

(1983), Chappell v. Wallace, 462 U.S. 296 (1983). In this

case, Respondent asks the Court to expand dramatically the

category of defendants susceptible to a Bivens action to

include private entities acting under color of federal law.

That expansion, however, is contrary to the Bivens line of

cases, as we demonstrate in detail herein.

This Court has never authorized a Bivens action against any

entity or, indeed, against any defendant other than an

individual federal officer. In its most recent Bivens decision,

the Court unanimously held that an entity, specifically the

Federal Deposit Insurance Corporation (“FDIC”), is not

subject to Bivens actions largely because “the purpose of

Bivens is to deter the officer,” and that purpose is not served,

and in fact is undermined, by authorizing Bivens actions

against an entity. Meyer, 510 U.S. at 485 (emphasis in

original), Moreover, even where a Bivens remedy might

serve a deterrent purpose or arguably would provide a more

effective remedy, it will not be allowed where “special factors

counsel[] hesitation in the absence of affirmative action by

Congress.” /d. at 486, Bivens v. Six Unknown Named Agents

of Fed. Bureau of Narcotics, 403 U.S. 388, 396 (1971)

Accordingly, in assessing whether to allow a Bivens action

against a private entity such as CSC, a court must first

determine whether such an extension would serve the core

Bivens purposes of deterring individual federal officers from

violating the Constitution and providing a remedy where none

otherwise exists. Meyer, 510 U.S. at 473, 484-85. Second,

and independent from these questions, the court considers

whether there are “‘special factors’” that counsel against the

proposed extension. /d at 486 (quoting Bivens, 403 US. at

396), Chappell, 462 U.S. at 298 (“Before a Bivens remedy

may be fashioned, ... a court must take into account any

‘special factors counselling hesitation.””), Both components

must be satisfied before extending Bivens to a new context,

and because neither is satisfied here, we respectfully submit

that private entities should not be subject to Bivens actions.”

I THE PURPOSES OF BIVENS ARE NOT

ADVANCED, AND WOULD BE UNDERMINED,

BY ALLOWING BIVENS ACTIONS AGAINST

PRIVATE ENTITIES.

The cause of action for damages created by the Court in

Bivens is a narrow judicial solution crafted to fill a particular

gap: the lack of amy damages remedy for specified

constitutional violations committed by individual federal

officers. See FDIC v. Meyer, 510 US. 471, 485 (1994),

Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 US. 388, 409-10 (1971) (Harlan, J,

concurring).° In filling this gap, Bivens authorized damages

* The court of appeals and Respondent both rely on lower court cases

decided prior to Meyer. See Resp. Pet. Opp. at 6 (citing cases), Pet. App.

6a, 12a Most of these cases, however, did not squarely address whether

Bivens could apply to private entities, but instead, focused exclusively on

the private defendant's lack of federal action. See, e.g, Gerena v. Puerto

Rico Legal Servs., Inc., 697 F.2d 447, 449 (ist Cir. 1983). To the extent

these cases focused on the amenability question, they assumed without

analysis that private individuals and entities were both subyect to Bivens

actions, see, e.g, Schowengerdt v. General Dynamics Corp., 823 F.2d

1328, 1337 (9th Cir. 1987), even though the arguments for individual and

entity liability under Bivens are entirely distinct, see Kauffman v Anglo-

American School of Sofia, 28 F.3d 1223, 1226 (D.C. Cir. 1994). The pre-

Meyer cases also failed to assess whether claims against private entities

served the Bivens deterrent goal or to inquire whether special factors

counseled hesitation. See, e.g, Yiammouyiannis v. Chemical Abstracts

Serv., 521 F.2d 1392, 1393 (6th Cir. 1975). The pre-MJeyer cases thus

“do[] not survive Meyer.” Kauffman, 28 F.3d at 1226.

* While the Bivens Court was responding in part to the then-narrow

reach of the Federal Tort Claims Act (“FTCA”), the FTCA was

“subsequently amended in light of Bivens to lift the bar againsi some

claims when arising from the act of federal law enforcement officers.”

Butz v. Economou, 438 U.S. 478, 504 n.31 (1978). In any event, im recent

years, the Court has refused to extend Bivens even where the plaintiff

lacks a fully effective alternative federal remedy. See, e.g, Schweiker v.

Suits against individual federal officers in order to serve a

specific “purpose”: “to deter the officer” by exposing him

personally to the direct threat of litigation and liability if he

uses his federal authority to act in an unconstitutional manner.

Meyer, 510 U.S. at 485 (emphasis in the original) (citing

Carlson v. Green, 446 US. 14, 21 (1980)). Accordingly, a

Bivens action is appropriate only where it both provides

damages for a constitutional violation that would otherwise

lack amy remedy and deters individual federal officers from

committing constitutional violations. Bivens actions against

ae ee ae ae ee eee

owed.

A. Extending Bivens To Private Entities Will Not

Further, And Will Undermine, The Core Bivens

Purpose Of Deterring Individual Officers.

Recently and unanimously, this Court made clear that the

primary purpose of Bivens is to deter individual federal

officers from committing constitutional violations. Meyer,

510 U.S. at 485. More specifically, the Court concluded that

the fear of Bivens actions would dissuade individual federal

oo Gen te a

direct threat of litigation and liability for acting in a

constitutionally proscribed manner.

When an individual federal officer is contemplating action,

the threat of being personally sued under Bivens will affect

his decisionmaking and deter him from engaging in

unconstitutional acts. Indeed, “[i}t is almost axiomatic that

the threat of damages has a deterrent effect ._.. surely

particularly so when the individual officer faces personal

financial liability.” Carlson v. Green, 446 US. 14, 21

(1980). Moreover, the pain of litigation—its many stresses,

Chilicky, 487 U.S. 412, 421 (1988) (“[T]he absence of statutory relief for

a constitutional violation . . does not by any means necessarily imply that

courts should award money damages against the officers responsible for

the violation”).

embarrassments, and disruptions—is well known, and goes

far beyond the threat of paying a lawyer or an adverse

judgment. For example, this Court has recognized the

intrusion of “broad-ranging discovery and the deposing of

numerous persons, including an official’s professional

colleagues,” that often attends litigation Harlow v

Fitzgerald, 457 U.S. 800, 817 (1982). Accordingly, the

prospect of personally enduring litigation encourages

individuals acting under a cloak of federal authority to

conduct themselves in a constitutionally appropriate manner.

This Court has made clear that an individual is deterred by

the threat of litigation and liability even where he or she may

have qualified immunity, is indemnified by the employing

agency or entity, or is acting pursuant to an entity’s policy

See, e.g, Meyer, 510 US. at 473 (observing that the

individual employee had qualified immunity),’ id at 474

(observing that the employee who terminated plaintiff was

acting pursuant to an FDIC policy), id at 486 (acknowledging

the possibility of indemnification of officers for Bivens

liability).* None of these circumstances, the Court has

” A CSC employee, unlike an FDIC employee, may not be entitled to

qualified immunity, but may be entitled to raise a good faith defense See

Richardson v. McKnight, $21 U.S. 399, 412 (1997) (holding that qualified

immunity is not available to private prison guards under 42 U.S.C. § 1983,

although a good faith defense may be available), see also n.19, infra

(discussing Richardson) Even so, if an individual federal officer entitled

to qualified immunity protections is effectively deterred by the possibility

of a Bivens action, as was the individual officer in Meyer, then a CSC

guard working at a facility under a contract with the BOP who is unsure

whether he 1s entitled to qualified immunity will be even more effectively

deterred.

* In fact, the FDIC (and its statutory predecessor, the FSLIC), the

federal entity at issue in Meyer, has had a policy of indemnifying its

employees for constitutional torts since at least 1984. See 137 Cong. Rec.

H1735-01, 1748 (daily ed. Mar. 13, 1991), available at 1991 WL 43750

(FDIC Statement of Policy and Plan for the Indemnification of Directors,

Officers and Employees) (including indemnification for “all constitutional

determined, gives rise to individual indifference to the

prospect of entanglement in litigation and potential liability.

Equally to the point, the Court has concluded that an

individual will not be effectively deterred by the prospect that

his or her employer may be subject to suit. This is the

necessary premise of Meyer where the Court held that “the

deterrent effects of the Bivens remedy would be lost” if the

Court were to imply a damages remedy directly against the

entity that employs the offending individual. 510 U.S. at 485.

As the Court explained, “[i]f we were to imply a damages

action directly against federal agencies .. . there would be no

reason for aggrieved parties to bring damages actions against

individual officers... . [T]he deterrent effects of the Bivens

remedy would be lost.” /d This logic applies with equal

force to Respondent’s proposed Bivens action against a

private entity:

[O}n Meyer’s logic, provision of a damages remedy

against a private entity would actively diminish the

deterrent value of the remedy against the individual... .

If such additional defendants were available (often with

deeper pockets than the individual offenders), plaintiffs

might make the same choice as the [plaintiffs here], who

indemnification of their employees for “any” suit in federal or state court

arising from conduct falling within the scope of employment. See, e.g., 13

C.F.R. § 114.110 (Small Business Administration); 14 C.F.R. § 1261.316

(National Aeronautics and Space Administration); 15 CFR. § 15.31

(Department of Commerce), 17 CFR. § 142.2 (Commodity Futures

Trading Commission), 22 C.F.R. § 21.1 (Department of State); 22 C.F.R.

§ 207.01 (Agency for International Development); 24 CFR § 18.1

(Department of Housing and Urban Development); 28 C.F.R. § 50.15(c)

(Department of Justice), 34 C.F. R. § 60.1 (Department: of Education), 43

C.F.R. § 22.6 (Department of the Interior), 45 C_F.R. § 36.1 (Department

of Health and Human Services). Moreover, federal employees sued in

their individual capacities for actions that reasonably appear to have been

performed in the scope of their employment may be provided with

representation by the Department of Justice 28 C.F. R § 50.1 5(a).

brought their Bivens actions only against the private

entity and not against the individual board members.

Kauffman vy. Anglo-American Sch. of Sofia, 28 F.3d 1223,

1227 (D.C. Cir. 1994); see also AccuBanc Mortgage Corp. v.

Drummonds, 938 S.W.2d 135, 144-45 (Tex. Ct. App. 1996)

(same).

Moreover, even if plaintiffs still sued individuals as well as

entities, “they would likely focus collection efforts against the

entity, with effects only partly blunted by the entity’s rights to

contribution” from the wrongdoing employee. Kauffman, 28

F.3d at 1227. Thus, like the proposed expansion of Bivens

liability to the FDIC, the expansion of Bivens liability to

private entities such as CSC would undermine the deterrence

rationale of Bivens. And the Second Circuit’s contrary

assumption—that employers are better targets for Bivens

liability than are employees, Pet. App. at 1la—has been

specifically rejected by this Court, see Meyer, 510 U.S. at

484-86; Carlson, 446 U.S. at 21. See also City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 269-70 (1981) (“[A]

damages remedy recoverable against individuals is more

effective as a deterrent than the threat of damages against a

government employer.”) (citing Carlson) (emphasis sup-

plied).

Given that the purpose of Bivens is “to deter the officer,”

the proper “claim that the logic of Bivens supports” is a claim

against the individual federal officer who allegedly violated

the plaintiff's rights, not against the entity employing the

wrongdoing individual. Meyer, 510 U.S. at 485; see also id

at 484 (observing that, in Bivens, the appropriate defendants

* Nevertheless, both the Second and Sixth Circuits were willing to

disregard the Court’s teaching about deterrence and extend a Bivens-type

action against private entities “even absent a substantial deterrent effect,”

Pet. App. at 10a, and “regardless of whether future lawless conduct is

deterred.” Hammons v. Norfolk S. Corp., 156 F.3d 701, 706 (6th Cir.

1998). This approach cannot be reconciled with the Court's Bivens

jurisprudence and should be rejected.

were “the agents of the Federal Bureau of Narcotics who

allegedly violated [plaintiff's] rights, not the Bureau itself”)

(emphasis added). A fortiori, the proper Bivens defendant is

not an entity, be it private or public. '°

B. Plaintiffs In Respondent’s Shoes Have No Need

For A Bivens Remedy Against Entities.

Unlike the plaintiff in Bivens who would have lacked any

damages remedy for the alleged constitutional violations but

for this Court’s authorization of a cause of action against the

FBI officers, 403 U.S. at 409-10 (Harlan, J., concurring),"’

Respondent had several substantial remedial options.

Respondent assumes—and the court of appeals appears to

have agreed—that he could have brought a Bivens-type action

against CSC’s individual employees who allegedly acted

unconstitutionally under color of federal law. See J.A. 9

(naming various individual CSC employees, including

numerous “John Does” and Officer Urena as Bivens

defendants).'* While the Court has never decided whether

individual employees of private entities acting under color of

federal law are subject to Bivens actions, the weight of

authority is that they are. See generally Heinrich ex rel.

Heinrich v. Sweet, 62 F. Supp. 2d 282, 306-07 (D. Mass.

'° While the Bivens vehicle only addresses wrongdoing by individuals,

as shown in Section 1.B., infra, a plaintiff has a variety of potential

alternative means to recover damages from individuals or entities or to

join an entity's alleged! ieettenel aalicl

'' Indeed, Respondent's numerous options stand in marked contrast to

those available to the plaintiffs in Bivens and Davis v. Passman, 442 U.S.

228 (1979). Because the alleged wrongdoer in Davis was a United States

Congressman, the Davis plaintiff had “no other alternative forms of

judicial relief,” id. at 245, “‘no cause of action under [state] law,”” id. at

245 n.23, and no Title VII action “available,” id. at 247 n.26. Indeed, the

only available “remedy” for the plaintiff in Davis was a “voluntary”

committee process with “no enforcement powers.” /d at 243 n.21.

'? As discussed above, see n.4, supra, Respondent's attempt to name

individual employees as defendants was time-barred.

1999) (collecting cases). And while future defendants should

be permitted to argue that extending Bivens to these

individuals is not warranted, the availability of such a claim

has been assumed from the inception of this case. That being

sO, it is not logical for Respondent to argue that a Bivens

action against the private entity should be inferred. As this

Court explained, in the face of individual liability,

institutional liability does not comport with the “logic” of

Bivens:

An additional problem with Meyer’s “logic” argument is

the fact that we implied a cause of action against federal

officials in Bivens in part because a direct action against

the Government was not available. In essence, Meyer

asks us to imply a damages action based on a decision

that presumed the absence of that very action.

Meyer, 510 U.S. at 485 (emphasis supplied).

In addition to recourse against the appropriate Bivens

defendant, i.e., the individual wrongdoing officer, plaintiffs in

Respondent’s position may have other judicially enforceable

mechanisms for recovering compensation from wrongdoing

officers and from entities. For example, plainiffs in

Respondent’s position may have remedies under federal

statutes. Here, for example, Respondent has asserted that he

is entitled to recover under the Americans With Disabilities

Act, 42 U.S.C. § 12131, ef seg., and the Rehabilitation Act of

1973, 29 U.S.C. § 794. See Pet. App. 18a n.5 (noting that

Respondent briefly raised these issues for the first time in his

brief to the Second Circuit). The lower court did not address

these claims.'* Such congressionally created remedies could

'? The Second Circuit declined to address the merits of Respondent's

claims and permitted the district court to “consider the arguments on

remand after the issue has been adequately briefed.” Pet. App. 18 n.5. It

would appear, however, that Respondent has waived these arguments by

A AIT AT TIN OTP EO.

provide means both of compensating a plaintiff for injuries

and of compelling an entity to change its policies.

Additionally, as Respondent also acknowledges, plaintiffs

in his position have a remedy under state law. See Resp. Pet.

Opp. 13 (“In every state, individuals may sue corporations for

the torts they commit. In many states, including New York,

private employers are liable for many of their employees’

torts.”). Respondent thus could have filed a tort claim against

CSC or its employees.'* There is nothing that remotely

suggests that such a tort law remedy would have been

inadequate to redress his claims.

Indeed, given the heightened “deliberate indifference to

serious medical needs” standard of the Eighth Amendment,'*

Estelle v. Gamble, 429 U.S. 97, 106 (1976) (emphasis

supplied), it likely would be easier for someone in

Respondent’s position to prevail under a state tort claim than

under a constitutional tort theory. See Daniels v. Williams,

474 U.S. 327, 330, 331 (1986) (stating that while both the

Due Process Clause and the Eighth Amendment require

“deliberate” violations by officers, “merely negligent

conduct” involving lack of due care by prison officials is

suitable for state tort relief) ‘citing Estelle); id. at 332 (“Our

Constitution deals with the large concerns of the governors

and the governed, but it does not purport to supplant

'* Although Count I of Respondent’s Amended Complaint arguably

alleged a negligence claim, see J.A. 11-13, Respondent never sought any

relief on any ground other than Bivens. Moreover, both the district court

and the Second Circuit treated this case as raising only Bivens claims. See

Pet. App. 4a, 20a-21a. Accordingly, any tort claim respondent may have

had was abandoned long ago and is therefore forfeited.

'S While neither court below reached the question of which constitu-

tional provision Respondent’s putative Bivens claim arose under (and

Respondent did not so specify in his amended complaint), it appears that

Respondent attempted to raise a claim of “deliberate indifference . . . to a

prisoner's serious illness or injury” under the Cruel and Unusual

Punishments Clause_of the Eighth Amendment. Estelle v. Gamble, 429

U.S. 97, 104-05 (1976).

traditional to.t law.”); see also Hudson v. McMillian, 503

U.S. 1, 9 (1992) (noting that, even when malevolent touching

is alleged, “‘[n]Jot every push or shove [by an officer], even if

it may later seem unnecessary ..., violates a prisoner’s

constitutional rights”) (quoting Johnson v. Glick, 481 F.2d

1028, 1033 (2d Cir. 1973)). In Bivens, by contrast, in the

search and seizure context, state law remedies were feared to

offer a narrower remedy to an aggrieved plaintiff than would

the Fourth Amendment in the circumstances presented. 403

US. at 393-94. Here, there is no indication that Respondent

was precluded from bringing a state law claim against CSC or

its employees or that such a tort claim would be insufficient

to provide compensation for any injury.

Accordingly, Respondent’s situation stands in sharp

contrast to cases where this Court has applied the Bivens

remedy. Cf. id. at 409-10 (Harlan, J., concurring) (“For

people in Bivens’ shoes it is damages [against the individual

officer] or nothing.”); Davis v. Passman, 442 U.S. 228, 243

n.21, 245 (1979) (“For Davis, as for Bivens, it is damages or

nothing”; no remedy other than an unenforceable “voluntary”

committee process). Malesko—unlike Bivens—is not a

plaintiff in search of a remedy. Plaintiffs in “Malesko’s

shoes” may obtain redress for harms suffered without the

unprecedented and substantial extension of Bivens sought by

Respondent.

Moreover, in addition to these remedies, people in

Respondent’s position also may have administrative and

injunctive vehicles through which to address their complaints

against both individual officers and entities. First,

administrative remedies may be available to address an

individual officer’s conduct or an entity’s policies. For

example, the BOP’s Administrative Remedy Program

(“Program”), provides “a process through which inmates may

seek formal review of an issue which relates to any aspect of

their confinement.” 28 C.F.R. § 542.10 (emphasis added). '®

Second, a plaintiff seeking to challenge an entity’s policy as

being unconstitutional may seek injunctive relief pursuant to

28 U.S.C. § 1331, to change that policy. Unlike the Bivens

remedy, which has never been the proper vehicle through

which to alter an entity’s policy, see Section I.A., injunctive

relief has long been recognized as a proper means through

which to prevent an entity from acting unconstitutionally.

Injunctive relief, unlike the Bivens remedy, is well-tailored to

' The Program applies to all “inmates designated to contract Com-

munity Corrections Centers (CCCs) under Bureau of Prisons’ responsi-

bility.” 28 C.F.R. § 542.10; see also Pet. App. 2a (describing Le Marquis,

the halfway house to which Respondent was assigned by BOP, as a

“Community Corrections Center”). Moreover, “{iJnmates in CCCs are not

required to attempt informal resolution” before utilizing the Program. 28

C.F.R. § 542.13. The Community Corrections Manager, Warden, Region-

al Director, and General Counsel are charged with “implementation and

operation” of the Program at CCCs and “shall”: “[e]stablish procedures

for receiving, recording, reviewing, investigating, and responding” to

imate requests and appeals; “[ajcknowledge” receipt of an inmate's

request or appeal; “[cjonduct an investigation” into each request or appeal;

and “[rjespond” to all requests and appeals. /d § 542.11. In the case of

“[sJensitive issues,” an aggrieved inmate may submit a request directly to

a regional director outside of the institution in which the inmate is housed.

Id. § 542.14(d). In addition, appeals, id § 542.15, and assistance, id

§ 542.16, are available.

The Program provides an additional means through which allegedly

unconstitutional actions and policies can be brought to the attention of

both CCC and the BOP and be prevented in the future. See

Farmer v. an, 511 U.S. 825, 847 (1994) (“[A]n inmate would be

well advised to take advantage of internal prison procedures for resolving

inmate grievances. ”). Although claims that are covered by other adminis-

trative procedures (such as tort claims under the FTCA), 28 CFR.

§ 542.12(6), are excluded from the Program, constitutional claims

recognized under Bivens are included. See 42 U.S.C. § 1997e(a) (1996)

(creating mandatory requirement that prisoners exhaust administrative

remedies), superseding McCarthy v. Madigan, 503 U.S. 140, 142 n.2, 152

(1992) (holding that a prisoner need not exhaust administrative remedies

under the Program before bringing a Bivens claim against individual

federal officers where “Congress has not required exhaustion”).

the goal of preventing entities from engaging in unconstitu-

tional behavior. Finally, in addition to these alternatives, the

BOP has several means to check the behavior of a private

correctional provider including vigorous oversight and refus-

ing to extend the contract with a wrongdoing corporation.

se eee -

Like the plaintiff in Meyer, Respondent seeks a dramatic

extension of Bivens but that extension would not advance—

and would indeed undermine—the core Bivens purpose of

deterring individual officers from engaging in unconsti-

tutional wrongdoing. Nor is the proposed extension neces-

sary to remedy constitutional violations against those in

Respondent’s position. For these reasons alone, this Court

should reverse the Second Circuit’s impermissible expansion

of the category of Bivens defendants to include private

entities.

Il. SPECIAL FACTORS COUNSEL AGAINST EX-

TENDING BIVENS TO PRIVATE ENTITIES.

Even if extending Bivens liability to private entities in this

context would further the deterrence and compensation goals

of Bivens—which it would not—extension is nonetheless

inappropriate because special factors counsel against it. See

FDIC v. Meyer, 510 U.S. 471, 486 (1994) (holding

unanimously that, where special factors are present, a Bivens

remedy is “inappropriate even if such a remedy is consistent

with Bivens”). Special factors present in this case make it

plain that extending Bivens in this context would be unwise

and inappropriate.

In determining whether there are “special factors” in a

given case, “the range of policy considerations [the Court]

may take into account is at least as broad as the range of those

a legislature would consider.” Bivens v. Six Unknown Named

Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 407 (1971)

(Harlan, J., concurring). Thus, the “Bivens line[{] of cases

reflects a sensitivity to varying contexts.... The range of

concerns to be considered in answering this inquiry is broad.”

Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 280 (1997)

(Kennedy, J., opinion) (citation omitted) (comparing the case-

by-case analyses required under Bivens and Ex parte Young,

209 U.S. 123 (1908)). Of particular import in this inquiry is

“whether the courts are qualified to handle the types of

questions raised by the plaintiff's claim.” Butz v. Economou,

438 U.S. 478, 503 (1978). Sensitive to the varying institu-

tional abilities of different branches of the Federal Govern-

ment, see Bush v. Lucas, 462 U.S. 367, 389 (1987), this Court

has been reluctant to resolve questions that lie within the

institutional competence of Congress or to interfere with

determinations that Congress already has made. See, e.g., id.,

at 380 (stating that the prudential “special factors” speak not

to “the merits” of the proposed remedy but rather “to the

question of who should decide whether such a remedy should

be provided”).

In conducting the “special factors” analysis, the Court first

considers “how harmful and inappropriate judicial intrusion

upon [the subject matter] is thought to be. This is essentially

a policy judgment, and there is no scientific or analytic

demonstration of the right answer.” United States v. Stanley,

483 U.S. 669, 681 (1987). Second, the Court makes an

“analytic” judgment about “the degree of disruption [a Bivens

action] will in fact produce” if extended to a given context.

Id. In making these assessments, “it is irrelevant . . . whether

the laws currently on the books afford [a potential plaintiff]

an ‘adequate’ federal remedy for his injuries.” /d. at 683.

Under these principles, several “special factors” counsel

against authorizing Bivens actions against private entities, and

specifically private correctional providers. To prevent

interference with federal fiscal decisionmaking, to maintain

equitable treatment of public and private entities acting under

color of federal law, and to avoid interference with

Congress’s interest in privatization, this Court should reject

the proposed expansion of Bivens liability to private entities

and leave such extension to Congress’s informed judgment.

Whether considered separately or “([t]aken together,”

Chappell v. Wallace, 462 U.S. 296, 304 (1983), these special

factors demonstrate that an extension of Bivens is

inappropriate in this context.

A. Extending Bivens Liability To Private

Governmental Contractors Threatens Federal

Fiscal Policy And The Federal Fisc.

This Court has previously recognized that a primary factor

weighing against judicial expansion of Bivens is the extent to

which that expansion would interfere with or have a

detrimental impact on “federal fiscal policy.” Meyer, 510

U.S. at 486; Bivens, 403 U.S. at 396. Pertinent here, this

Court has refused to extend Bivens liability where such an

extension could require the expenditure of federal funds or

otherwise significantly affect federal fiscal decisionmaking.

Meyer, 510 U.S. at 486. In Meyer, for example, the Court

held that because permitting a direct action against a

government corporation could “creat{[e] a potentially

enormous financial burden for the Federal Government,”

imposition of liability against such defendants was

“inappropriate even if such a remedy were consistent with

Bivens.” Id.

This limiting principle also applies to Respondent’s

attempts to extend Bivens liability to private entities, such as

CSC, that contract with and act on behalf of the Federal

Government. This Court has recognized that “[t}he financial

burden of judgments against the [government] contractors

would ultimately be passed through, substantially if not

totally, to the United States itself, since .. . contractors will

predictably raise their prices to cover, or to insure against,

contingent liability.” Boyle v. United Techs. Corp., 487 US.

500, 511-12 (1988) (creating the government contractor

defense). The analysis in Boyle accords well with common

sense and with economic realities. As Respondent acknow-

ledges, CSC (like other private government contractors) is a

profit-making entity. See Resp. Pet. Opp. at 1, 5, 7, 13.

Boyle reflects the fact that profit-making entities will seek to

avoid absorbing costs by passing on those costs to end users

(here, the Federal Government)—particularly where, as here,

all other competitors will be likewise subject to the same risk

of liability. This is singularly likely for industries, such as

prison management, where the government is the only

purchaser of the services in question.

Indeed, the Second Circuit acknowledged that “a private

entity contracting to carry out governmental functions might

pass on the costs of Bivens liability to the government.” Pet.

App. lla. While the Second Circuit glossed over this threat

to the federal fisc on the ground that it was not sufficiently

“direct,” id., Boyle is unquestionably correct in stating that an

indirect attack on the fisc is a threat nonetheless. Indeed,

while assessing liability against a government contractor may

not “directly” remove money from the Treasury, it will lead

to either the unavailability of government contractors or

higher prices for the Government: “Either way, the interests

of the United States will be directly affected.” Boyle, 487

U.S. at 507 (emphasis supplied). '”

Respondent has erroneously suggested that federal monies

will not be at risk if Bivens liability is extended to private

entities because insurance policies will cover the liability.

See Resp. Pet. Opp. at 11. As this Court in Boyle recognized,

however, private contractors will pass on to the government

either the increased contingent liability or the increased cost

'” In addressing this question the D.C. Circuit correctly recognized that

extending Bivens liability to private entities would constitute a threat to

the federal fisc because “diversion of resources from a private entity

created to advance federal interests has effects similar to those of

diversion of resources directly from the Treasury.” Kauffman v. Anglo-

American Sch. of Sofia, 28 F.3d 1223, 1227-28 (D.C. Cir. 1994). This is

because the diversion of resources will require the Federal Government to

make a choice between either providing more funds to the entity or risking

that its interests will suffer due to inadequate funding /d

of insuring against that liability, 487 US. at 511-12.

Because extending Bivens liability to private entities will

increase the risk of loss, it follows inevitably that a private

entity subject to Bivens liability would be required by an

insurance company to pay higher premiums to cover that

higher risk.'* Additionally, to the extent that liability exceeds

the amount covered by such an entity’s insurance policy, that

liability would be passed along to the Federal Government.

If Bivens were extended to private entities acting on behalf

of the Federal Government, there is little that those entities

could do to eliminate their exposure to liability, and thus, to

avoid passing along their increased costs to the Federal

Government. For example, in the instant context, the nature

of prison management would make Bivens lawsuits unavoi-

dable, and imposing Bivens liability in this new context would

inevitably lead to higher costs to the Federal Government.

Indeed, it is no answer to assert that all a private correctional

provider need do to avoid Bivens liability is to act in a

constitutionally consistent manner. “The administration of a

prison is a difficult undertaking at best, for it concerns

persons many of whom have demonstrated a proclivity for

antisocial, criminal, and violent behavior.” Cleavinger v.

Saxner, 474 U.S. 193, 203 (1985); cf. Shaw v. Murphy, __

U.S. _, No. 99-1613, 2001 WL 387410, at **4 (Apr. 18,

'® Risk is “the basis of the computation of a premium that an insured

pays to the insurer to acquire insurance.” Keeton & Widiss, /nsurance

Law § 1.3(a) n.1 (1988). “{I}f two purchasers of insurance coverage have

different predicted losses or actual loss experiences, it is easy to conclude

that the prices that each pay should reflect those differences.” Kenneth S.

Abraham, Efficiency and Fairness in Insurance Risk Classification, 71 Va.

L. Rev. 403, 404 (1985). Indeed, if an entire group of insureds is subject

to a given risk, an insurance company may choose to classify it as a single

group for premium pricing purposes, in order to spread the risk among

that group. /d Thus, if the entire group of private correctional providers

is subject to Bivens liability, a particular provider which takes extra steps

to avoid Bivens liability may still be subject to higher insurance premiums.

Accordingly, all contractors would pass along the increased costs to the

Federal Government, thereby impacting federal fiscal policy.

2001) (discussing deference given to prison officials’ poli-

cies)."” Ever. worse, “(t]he number of nonmeritorious prison-

ers’ cases” filed. Ci Cleavinger, 474 U.S. at 203, will only be

exacerbated by the availability of a “deep pocket” corporation

as an attractive litigation target, Kauffman v. Anglo-American

School of Sofia, 28 F.3d 1223, 1227 (D.C. Cir. 1994).

If subjected to Bivens liability, any private correctional

provider—even one acting in good faith—would be targeted

for numerous, often nonmeritorious lawsuits and would pass

the resulting costs of litigation and liability on to the Federal

Government. This Court should “leave it to Congress to

weigh the implications of such a significant expansion of

Government liability.” Meyer, 510 U.S. at 486.

B. Extending Liability To Private Entities Is

Illogical And Inequitable And Would Undermine

Congressional Privatization Policy.

Because of recent congressional policy permitting

privatization of certain governmental functions, a new breed

of government contractor has arisen: entities that do not

_'* This discretion inherently increases the risk of lawsuits, particularly

given that, as the very existence of the qualified immunity defense

acknowledges, there are situations in which a government actor may seck

to act constitutionally but fail because the constitutional nght is not one

that is “clearly established.” Harlow v. Fitzgerald, 457 U.S. 800, 817-18

(1982). While the Court has not addressed this question in terms of

munity is not available to private prison guards under Section 1983. See

Richardson v. McKnight, 521 U.S. 399, 412 (1997). Richardson based its

conclusion largely on a historical analysis, but also concluded that the

guards’ actions reduces the risks that a prison guard might not do an

effective job or eschew such employment absent qualified immunity. /d

at 410-11. This analysis did not consider the risk that the increased liabil-

ity May raise insurance premiums or necessitate the purchase of additional

insurance, because it was assessing the effect of both insurance and

liability on private prison guards, not on the corporations who actually pay

merely assist an agency with an aspect of its mission, but

instead, actually perform the mission. A plaintiff may not

logically assert that a private entity performing such a

governmental mission should be subject to Bivens because it

is analogous to a federal entity and yet maintain that the

private entity, unlike its federal counterpart, may incur Bivens

liability. See Kauffman, 28 F.3d at 1226 (It is “untenable to

draw this analogy [between a federal agency and a private

entity] for purposes of Bivens but not for purposes of

Meyer.”). Kauffman’s \ogic accords well with common

sense, but also with the principle of equity: Similarly situated

entities should receive identical treatment under the law.

In this case, CSC is being sued because it is performing the

BOP mission. As such, it effectively stands in the shoes of

the BOP and, like the BOP, should not be amenable to Bivens

suits. Moreover, CSC also shares a remarkably similar legal

nature to the FDIC, the entity held in Meyer not to be

answerable to Bivens suits. The Second Circuit’s incongruent

treatment of CSC as compared to the BOP and the FDIC,

thus, is both illogical and inequitable and, therefore, should be

rejected. Just as importantly, upholding this incongruent

treatment of private entities, as compared to their counterpart

public entities, would interfere with express congressional

policies regarding privatization. Accordingly, this Court

should refuse to extend Bivens to private entities.

1. CSC And The BOP Serve The Same Basic

Function: Confinement Of Inmates.

Respondent’s theory of liability rests on the basic principle

that CSC performs the same public function as does the BOP.

Cf. Kauffman, 28 F.3d at 1226. That is, Respondent seeks to

make CSC amenable to Bivens suit on the ground that CSC is

acting sufficiently like the Federal Government to be acting

under color of federal law. Indeed, the duties that he alleges

that CSC employees violated are duties that Congress has

committed to the BOP: namely, to provide “for the safe-

keeping, care, and subsistence of all persons charged with or

convicted of offenses against the United States.” 18 U.S.C.

§ 4042(a)(2), see also id. § 4006 (discussing subsistence for

prisoners, including health care items and services).

As an entity engaged in the precise activities as the BOP,

albeit with contractual limitations and BOP oversight, CSC

should be subject to the same exposure to Bivens liability as is

the BOP. Under the decision below, however, private

correctional providers, such as CSC, may be liable under

Bivens, while the BOP—the entity with ultimate statutory

responsibility for prison inmates—is free from such liability.

See, e.g., Howard v. Federal Bureau of Prisons, 198 F.3d

236, No. 99-6708, 1999 WL 798883, at **1 (4th Cir. Oct. 7,

1999) (per curiam) (unpublished table decision) (concluding

that Bivens action could not be brought against the BOP);

Tejeda v. Reno, No. 00-CIV-6338 SAS, 2000 WL 1280969,

at *3 (S.D.N.Y. Sept. 11, 2000) (same); Newman v. Holder,

101 F. Supp. 2d 103, 107 (E.D.N_Y. 2000) (same).

Indeed, “the differences between a federal agency and an

artificial person that is a federal actor seem to weaken, rather

than strengthen, the case for a Bivens remedy.” Kauffman, 28

F.3d at 1226. Under Meyer, if the private entity-defendant

actually were a federal agency, a Bivens action would only lie

against its individual employees, not against the entity itself.

“That the [private entity]’s link to federal authority is more

tenuous does not make a Bivens remedy against it any more

appropriate.” Jd” This Court should reverse the decision

* The prospect of extending Bivens to any private party itself counsels

hesitation. See generally Zerilli vy. Evening News Ass'n, 628 F.2d 217,

224 (D.C. Cir. 1980) (stating that the fact that a claim is against a private

party “should at least ‘counsel hesitation’ in the creation of Bivens

liability”), Fletcher vy. Rhode Island Hosp. Trust Nat'l Bank, 496 F.2d

927, 932 n8 (ist Cir. 1974) (“[T)here is no [Bivens] cause of action

pnp acon emmy ap aperrent ete guemene tory emer The

paradigm Bivens claim is one against an individual federal officer.

See FDIC v. Meyer, 510 U.S. 471, 485 (1994); Carlson v. Green, 446

U.S. 14, 21 (1980); Bivens v. Six Unknown Named Agents of Fed. Bureau

of Narcotics, 403 U.S. 388, 397 (1971). Indeed, the Court has never

below, which causes this illogical and inequitable difference

in treatment between the BOP and private correctional

providers.”

2. CSC Shares Critical Attributes With The

FDIC And Other Government Corporations.

It is likewise illogical and inequitable to treat CSC and the

FDIC differently in terms of their amenability to Bivens

liability. In fact, private contractors, such as CSC, are

strikingly similar to federal government corporations, such as

the FDIC, in several critical ways. First, both private

contractors and federal government corporations have lega!

personalities separate from the Federal Government. See A.

Michael Froomkin, Reinventing the Government Corporation,

1995 U. Ill. L. Rev. 543, 552 (defining federal government

cory:,"ations as “separate legal persons chartered directly by

an act of Congress or by persons acting pursuant to

congressional authorization”); Buel White et al. Budget

Limitations Spur Privatizations, Nat’| L. J., May 27, 1996, at

B7 (“Government corporations typically are structured as

stand-alone corporate bodies.”).”” Second, as with CSC, it is

recognized a Bivens remedy against anyone other than an individual

tederal officer. As a claim extends from that core, e.g., to private entities,

a court should be more reluctant to expand Bivens liability. See, supra,

Section |.A; cf Kauffman, 28 F.3d at 1226.

| A different issue of equity is raised by the possibility that otherwise

similarly situated federal prisoners currently may have different remedies

for similar mistreatment depending solely on the kinds of facility (federal,

state, municipal, or private) to which the Federal Government chooses to

commit them. Cf McCall v. Swain, 510 F.2d 167, 182 (D.C. Cir. 1975)

(asserting that disparate access to courts for prisoners based solely on the

Attorney General's commitment orders “would likely constitute a denial

of equal protection”).

72 Indeed, “the United States is not legally responsible for the debts of

even a wholly owned [federal government corporation] unless there is a

constitutional, statutory, or federal common-law rule to the contrary.” A.

Michael Froomkin, Reinventing the Government Corporation, 1995 U. Ill.

L. Rev. 543, 553.

———

not necessary for the Federal Government to own all, or even

any, of the FDIC’s equity.” Like CSC, the FDIC gets a

portion of its funding from nonfederal sources and, in some

years, its nonfederal collections exceed its gross outlays.

United States GAO, Government Corporations: A Profile of

Existing Government Corporations 69 (Dec. 1995). Thus,

much of the money in the FDIC’s coffers at any given time

does not come from the federal budget, but from assessments

from insured banks. Third, like private corporations

(including CSC), the FDIC can “sue and be sued.” 12 U.S.C.

§ 1819(a). As Meyer noted, the FDIC’s “sue-and-be-sued

clause ‘fully waived’” sovereign immunity. 510 U.S. at 483

(quoting Franchise Tax Bd. v. Postal Serv., 467 U.S. 512, 520

(1984)). Meyer gave government corporations, such as the

FDIC, the same exemption from Bivens liability granted to

government agencies. A private corporation, such as CSC,

which is fulfilling a public mission on behalf of the Federal

Government and shares key characteristics relevant to both

suability and accountability, should receive the same

treatment under Meyer as does the FDIC.”

* As a mixed-ownership corporation, see 31 U.S.C. § 9101(2); United

States GAO, Government Corporations: A Profile of Existing Government

Corporations 68 (Dec. 1995), “the United States may own some or none

of the [FDIC’s] equity.” Froomkin, supra, at 555. As originally consti-

tuted, the FDIC was owned in part by the banks that it insured and is now

funded by assessments from insured banks. See Banking Act of 1933, ch.

89, sec. 8, § 12A, 48 Stat. 162, 168-72 (creating FDIC and describing

stock ownership), see also Federal Deposit Insurance Act, ch. 967, sec. 2,

§ 7, 64 Stat. 873, 876-79 (1950) (recodifying Federal Deposit Insurance

Act and instituting assessment system).

**In fact, at least one commentator argues that government

corporations are subject to /ess accountability than are either government

agencies or private corporations:

[A]n FGC’s [federal government corporation] liberty to abuse its

powers faces fewer practical or even theoretical constraints than

Subject to regulation by the states. Because they are governmental,

and often have special powers or access to cheaper capital, they are

3. Extending Bivens Liability To Private

Entities Would Interfere With Congressional

Policy Regarding Privatization.

A judicial authorization of Bivens actions against private

entities would undermine Congress’s stated policy in favor of

privatization. That consideration also counsels hesitation in

extending Bivens to this context.

Indeed, Congress has enacted many statutory provisions

permitting” and encouraging”® federal agencies to work with

largely immune from market forces. Because they are corporations,

they are exempt from most constraints ordinarily applied to federal

agencies. ...

... Ordinary state-chartered corporations exist to further

privately selected goals, often the quest for private profit. Their

liberty to abuse their powers is curbed by market forces and by public

and private laws enacted by both the state and federal governments.

Ordinary federal agencies are established to further publicly selected

goals, defined, in at least a general fashion, by Congress and the

President. The federal agencies’ liberty to abuse their powers is

curbed by political forces, federal statutes, and the Constitution. In

practice, neither public nor private accountability mechanisms are

necessarily effective when applied to many FGCs.

Froomkin, supra, at 560 (footnote omitted).

>> See, e.g., 8 U.S.C. § 1522()(1)(A){ii) (permitting Director of Immi-

gration and Naturalization Service to contract with “public or private

nonprofit agencies” for initial resettlement of refugees); 10 U.S.C.

§ 2462(a) (permitting Secretary of Defense to use private contractors for

Department of Defense functions “other than functions which the

Secretary of Defense determines must be performed by military or

Government personnel”), 12 U.S.C. § 1701w (permitting Secretary of

Housing and Urban Development to contract with public or private

organizations to counsel mortgagors insured under certain code

provisions), id § 4241(a) (permitting Attorney General to contract with

private attorneys to represent United States in civil actions against persons

who committed bank fraud); 20 U.S.C. § 2534(a) (permitting Secretary of

Education “on a competitive basis, to enter into contracts” with, inter alia,

private nonprofit organizations to train teachers and counselors), id

§ 3475 (permitting Secretary of Education to contract with, infer alia,

“private organizations and persons . . . as the Secretary may determine

or through private entities. See also, supra, n.1 (listing

congressional authority for private correctional providers). In

pursuing privatization, Congress has sought to promote a

number of goals, including reducing costs while maintaining

or improving quality of services.”” Other goals furthered by

necessary Or appropriate to carry out functions of the Secretary or the

Department”); 24 U.S.C. § 324(a) (permitting Secretary of Health and

Human Services (“HHS”) to contract with private hospitals for care of

certain mentally ill persons); 25 U.S.C. § 452 (permitting Secretary of the

Interior to contract with private entities to provide for the education,

medical attention, agricultural assistance, and social welfare of Indians),

30 U.S.C. § 937(a) (permitting Secretary of HHS to contract with “public

construction, purchase, and operation” of clinics for the diagnosis and

treatment of respiratory and pulmonary illness of coal miners); 42 U.S.C.

§ 604a(a)(1)(A) (permitting States funded through certain Social Security

provisions to contract with charitable, religious, or private organizations to

perform the funded functions), id § 5150 (permitting contracting with

“private organizations, firms, or individuals” to perform disaster and

emergency assistance activities and encouraging use of “organizations,

firms, and individuals residing or doing business primarily in the area

affected by such major disaster or emergency”); id § 5631(b)(1)

(permitting Administrator to contract “with public and private agencies,

organizations, and individuals to provide technical assistance” to states,

localities, and agencies in performing programs to prevent juvenile

delinquency and to improve juvenile justice); id. § 11705(a) (permitting

Secretary of HHS to enter into contracts with entities to provide health

Care to native Hawaiians).

able, the Secretary [of the Interior] shall contract with private entities to

conduct or assist in those elements of the management of the National

Park Service concessions program considered by the Secretary to be

suitable for non-Federal performance.”); 22 U.S.C. § 2381(a) (requiring

agencies and officers, “to the fullest extent practicable,” to contract with

private enterprises to perform functions under the Foreign Assistance

chapter of Title 22).

”” See, e.g., 139 Cong. Rec. E2554-01, E2554 (daily ed. Oct. 27, 1993),

available at 1993 WL 435032 (statement of Rep. Crane) (quoting Asmus,

Private Sector Solutions to Public Sector Problems, Imprimis (Oct.

1993)), 132 Cong. Rec. $3552-02 (daily ed. Mar. 26, 1986) (statement of

privatization include “promoting local job creation and

private sector investment in rural communities,” 7 U.S.C.

§ 2204d(a); promoting the interests of small-business

concerns, 15 U.S.C. § 631(a); encouraging private investment

in “less developed friendly countries,” 22 U.S.C. § 2351 (a);

serving the best interests of patients, 24 U.S.C. § 324(a),

promoting firms “owned and controlled by socially and

economically disadvantaged individuals,” 31 USC.

§ 3718(b)(1)(B); and promoting competition, H.R. Rep. No.

106-1047 (2001), available at 2001 WL 29442 (discussing

Pub. L. No. 106-180).

Creating a Bivens action against private entities performing

government functions, but not against their government

counterparts, undermines Congress’s efforts to achieve these

goals through privatization. As previously noted, by impos-

ing increased costs on private entities, extending Bivens

liability will cause private entities either to raise their prices

or to avoid contracting with the government. See Boyle, 487

U.S. at 507; Section II.A. In addition to imposing costs on

the federal fisc, this effect risks causing privatization to be-

come unavailable in many instances due to lack of availability

of government contractors because of the increased liability

risks. Thus, in addition to being inequitable, the disparate

treatment proposed by Respondent distorts privatization that

would otherwise occur. This, in turn, may prevent many

congressional policies from being achieved. Because exten-

ding Bivens in this context would amount to “harmful and

inappropriate judicial intrusion,” Stanley, 483 U.S. at 681, in

Sen. Humphrey); 132 Cong. Rec. E403-01 (daily ed. Feb. 20, 1986)

(statement of Rep. Courter). See also S. Rep. No. 106-77 (1999), avail-

able at 1999 WL 398160 (discussing privatization of NASA functions to

increase cost-effectiveness); H.R. Conf. Rep. No. 106-355 (1999), avail-

able at 1999 WL 782348, at *119-*20 (discussing possible privatization

of air traffic management). In fact, statutory provisions expressly require

the Department of Defense to contract with the entity (private or public)

which will perform a given function at the lowest cost. See 10 U.S.C.

§ 129a; id. § 2462(a).

privatization policy best left to Congress, Respondent’s

requested extension should be rejected.

Extending Bivens liability to private entities raises special

concerns by creating different rules for public and private

entities performing the same functions and playing similar

roles in relation to the Federal Government. Such differential

treatment would be illogical, inequitable, and contrary to

congressional policy regarding privatization. There would be

a special concern about incongruent treatment in any

context—but particularly where, as here, a congressional

purpose of encouraging privatization is evident. These

concerns, whether taken together or separately, counsel this

Court not just to hesitate, but to decline altogether to extend

Bivens liability in this context.

see

The special factors highlighted herein illustrate the thicket

of policy issues in which the courts would inevitably become

enmeshed in deciding whether Bivens liability should be

extended to private entities as defendants.” Applying Bivens

liability to private correctional providers, particularly given

that the BOP and FDIC are not subject to suit under Bivens,

would interfere with both federal fiscal policy and

congressional privatization policy. In light of all of these

special factors counseling judicial reluctance and deference to

a legislative solution, this Court should reject the court of

appeals’ holding extending Bivens liability to private entities.

* Extending Bivens here would also raise a host of thorny legal

questions. For example, the proposed extension of Bivens would require

courts to decide whether—and how—to extend Bivens to states and

municipalities that contract with the Federal Government. Compare

Martinez v. City of Los Angeles, 141 F.3d 1373, 1383 (9th Cir. 1998)

(refusing to apply Bivens to state actors), with Haynesworth v. Miller, 820

F.2d 1245, 1274 & n.241 (D.C. Cir. 1987) (extending Bivens to munici-

palities but importing Section 1983 limits, e.g., rejection of respondeat

superior liability and immunity from punitive damages on liability).

lll. SECTION 1983 IS IRRELEVANT TO THE

QUESTION OF WHETHER TO CREATE A NEW

BIVENS-TYPE ACTION.

In applying Bivens, the Court has both the duty and the

opportunity to consider whether a given extension serves the

purposes of the Bivens remedy and whether special factors

weigh against doing so. This role contrasts sharply with the

Court’s role in applying the cause of action created by

Congress in 42 U.S.C. § 1983.7” As shown above, Bivens is a

narrow, judge-made gap filler with a specific goal of deterring

individual officers from violating the Constitution. By

contrast, Section 1983 is part of a broad and inclusive

congressional remedial scheme providing an all-purpose

vehicle for “monetary, declaratory, or injunctive relief,”

Monell v. Department of Social Servs., 436 U.S. 658, 690

(1978), against “[e]very person” violating constitutional

rights under color of state law, 42 U.S.C. § 1983.

Consistent with its expansive remedial scope, Section 1983

has a “textual” basis and a broader sweep than does Bivens.

Section 1983 permits plaintiffs to bring a cause of action

against “/e/very person” who deprives them of constitutional

rights under color of state law, which includes more than

natural persons. 42 U.S.C. § 1983 (emphasis added); Monell,

436 US. at 683. Indeed, “[a]n examination of the debate on

[Section 1983] and the application of appropriate rules of

construction show unequivocally that [Section 1983] was

intended to cover legal as well as natural persons.” Monell,

2° The Second Circuit below asserted, without analysis, that there is “no

reason not to incorporate [Section 1983] law into the Bivens context and

permit suits against private corporations engaging in federal action,” Pet.

App. 12a (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-37

(1982)); see also Hammons v. Norfolk S. Corp., 156 F.3d 701, 708 (6th

Cir. 1998) (finding “no valid reason” not to apply Section 1983

jurisprudence to extend Bivens to private corporations). This assumption

ignores both binding precedent and the many reasons why Section 1983 is

of no use in resolving the threshold question of whether to extend a Bivens

action to private entities.

436 U.S. at 683. Thus, Section 1983, with its broad definition

of “person” and broad remedial mission, necessarily reaches

private parties, both individuals and entities, if sufficient state

action is shown. See Lugar v. Edmondson Oil Co., 457 U.S.

922, 942 (1982).

The breadth of Section 1983 is no accident, for Congress

designed Section 1983 to remedy a broad problem:

The specific historical catalyst for the Civil Rights Act

of 1871 was the campaign of violence and deception in

the South, fomented by the Ku Klux Klan, which was

denying decent citizens their civil and political rights.

The debates on the Act chronicle the alarming insecurity

of life, liberty, and property in the Southern States, and

the refuge that local authorities extended to the authors

of these outrageous incidents . . . .

Wilson v. Garcia, 471 U.S. 261, 276 (1985) (citation

omitted). As such, a central -purpose of Section 1983 has

always been to address the acts of ail private parties acting

under color of state law.

By contrast, Bivens was designed to solve a narrow

problem and to reach a narrow class of defendants. See

Section I. “[T]he logic of Bivens” supports a very narrow

cause of action: “to deter the officer” through the direct threat

of litigation and liability for damages against that officer.

FDIC v. Meyer, 510 U.S. 471, 485 (1994). In addition, and in

part because it is a judge-made cause of action, courts must

consider whether special factors exist that make it more

appropriate to look to Congress to create a remedy. See

Chappell v. Wallace, 462 U.S. 296, 298 (1983); Butz v.

Economou, 438 U.S. 478, 503 (1978).

It is both unsurprising and appropriate that the Court

crafted a narrower remedy in Bivens than did Congress in

Section 1983. Unlike Congress, the courts cannot hold

hearings and determine whether a broader remedy is

appropriate. See Bush v. Lucas, 462 U.S. 367, 389 (1983)

(“Not only has Congress developed considerable familiarity

with balancing governmental efficiency and the rights of

[individuals], but it also may inform itself through factfinding

procedures such as hearings that are not available to the

courts.”). Instead, courts rightly proceed cautiously.

Recognizing the critical distinctions between the

institutions that created these two remedies, this Court has

made clear that, while Section 1983 caselaw may be helpful

in evaluating how to apply immunities to an established

Bivens remedy, Section 1983 is not relevant to the question of

whether to create a Bivens-type remedy. See Butz, 438 U.S.

at 503 (juxtaposing the threshold analysis of whether a cause

of action exists under Bivens from the decision of whether to

apply an immunity recognized in the Section 1983 context to

an established Bivens action); cf. United States v. Stanley, 483

U.S. 669, 684 (1987) (“[W]hether a damages action for injury

... can be founded directly upon the Constitution—is

analytically distinct from the question of official immunity

from Bivens liability.”). Indeed, Section 1983 could not be

relevant to this threshold inquiry. Whether a given

application would deter constitutional violations or whether

“special factors counsel hesitation” is irrelevant under Section

1983, but courts will not extend the Bivens remedy without

undertaking precisely that two-step analysis. In this case, that

analysis compels the conclusion that extension is

inappropriate.

***#* *

Far from serving the core Bivens purpose of deterring

individual officers—the persons targeted by the Bivens action

and the ones actually in contact with the public—from

engaging in constitutional torts, implying a remedy against an

entity would actually undermine that purpose. See Meyer,

510 U.S. at 485. That fact, which itself compels the conclu-

sion that extending Bivens is not appropriate, is buttressed by

the utter lack of any reason to believe that Respondent, and

similarly situated plaintiffs, lack an adequate remedy for

—

constitutional torts committed by employees of private

entities. But even if the proffered extension “were consistent

with Bivens,” it would be unwise to expand Bivens to this

context in light of the “‘special factors counselling hesita-

tion.”” /d. at 486 (quoting Bivens, 403 U.S. at 396). Because

Respondent cannot establish either component deemed

essential to support a judge-made expansion of Bivens, the

Court should decline his request to extend Bivens to private

entities.

CONCLUSION

The decision of the court of appeals should be reversed.

Respectfully submitted,

GEORGE P. STASIUK

GEORGE F. BRENLLA

CARTER G. PHILLIPsS*

FRANK R. VOLPE

CLIFTON BUDD & DEMARIA, JENNIFER M. RUBIN

LLP REBECCA K. SMITH

420 Lexington Avenue SIDLEY AUSTIN BROWN &

New York, NY 10170 Woop

(212) 687-7410 1722 Eye Street, NW

Washington, DC 20006

KAREN M. MORINELLI (202) 736-8000

CORRECTIONAL SERVICES CORP.

1819 Main Street

Sarasota, FL 34236

(941) 953-9199

Counsel for Petitioner

May 17, 2001 * Counsel of Record

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