Respondents Brief — Correctional Services Corp. v. Malesko

Suprome Court, U &.

Ful 26 >o0| | FiLED

\O JUL 20 2001

No. 00-860

es

IN THE

Supreme Court of the United States

CORRECTIONAL SERVICES CORPORATION,

Petitioner,

v.

JOHN E. MALESKO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

For the Second Circuit

BRIEF OF RESPONDENT

TANYA Y. BARTUCZ STEVEN PASTERNAK

DAVID C. VLADECK (Counsel of Record)

PUBLIC CITIZEN LAW OFFICES OF

LITIGATION GROUP STEVEN PASTERNAK

1600 20th St., N.W. P.O. Box 47

Washington, DC 20009 Livingston, NJ 07039

(202) 588-1000 (973) 994-7900

Attorneys for Respondent John E. Malesko

July 20, 2001

BEST AVAILABLE COPY

i

QUESTION PRESENTED

May a private corporation, operating a correctional

facility under color of federal law, be held liable under Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1997), for its violation of an inmate's

constitutional rights?

TABLE OF CONTENTS

Page(s)

QUESTION PRESENTED ..................ccuee i

TABLE OF AUTHORITIES ....................... iv

STATEMENT OF THE CASE ..................... l

A. Factual Background .................. l

B. Proceedings Below................... 2

SUMMARY OF ARGUMENT ..................... 4

a 7

1. Bivens Encompasses Mr. Malesko’s Claim Against

ee es a ta Sie a view ee 8

A. As a Private Entity, CSC Is Not Entitled to

Immunity When It Violates The Constitution

Under Color of Federal Law. .......... 12

B. Insulating CSC from Suit Because of Its

Corporate Status Would Run Counter to

Bivens’ Purposes. ................ we

C. CSC Is Not Entitled to Immunity by

1. No Parallel Can Be Drawn Between

CSC and a Federal Agency. ........ 22

2. Like a Federal Employee, CSC Is an

Appropriate Bivens Defendant. ...... 27

3. Because Corporations Are Liable for

Their Constitutional Torts Under Section

1983, They Should Also Be Liable Under

ee ae 34

D. State Law Does Not Assure Enforcement

of the Federal Constitution. ........... 36

E. Bivens’ Two Exceptions Are Narrow, and

Neither Applies Here. .............--. 40

eee re ee 44

IV

TABLE OF AUTHORITIES

CASES

Page(s)

Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)... ... 35

Alteiri v. Colasso, 362 A.2d 798 (Conn. 1975) ........ 39

Baran v. Silverman, 83 A. 263 (R.1.1912) ........... 39

Barr v. Matteo, 360 U.S. 564 (1959) ................ 16

Bell v. Hood, 327 U.S. 678 (1946) ............... 7, 10

Bemis Brothers Bag Co. v. United States,

PE EE G wns knees de deen ches 10

Bivens v. Six Unknown Named Agents of Federal Bureau

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

Brown v. Nationsbank,

188 F.3d 579 (Sth Cir. 1999) ................ 37

Brown v. United States,

653 F.2d 196 (Sth Cir. Unit A1981).......... 37

Burton-Bey v. United States, (No. 96-3241) 1996 U.S.

App. LEXIS 29372 (10th Cir. Nov. 12, 1996) ... 37

Burton v. Livingston, 791 F.2d 97 (8th Cir. 1986)

Bush v. Lucas, 462 U.S. 367 (1983) ........ 9, 38, 40, 41

¥

Butz v. Economou,

438 U.S. 478 (1978) .......... 12, 14, 29, 34, 35

Carey v. Piphus, 435 U.S. 247 (1978) ..........-. 20, 37

Carlson v. Green, 446 U.S. 14(1980) ............ passim

Chappell v. Wallace, 462 U.S. 296 (1983) ........ 40, 41

City of Los Angeles v. Lyons, 461 U.S. 95 (1983) ...... 42

Cleavinger v. Saxner, 474 U.S. 193 (1985) ........... 14

Clinton v. Jones, 520 U.S. 681 (1997) .... 6.6... eee 14

Cort v. Ash, 422 U.S. 66 (1975S) .. 0... eens 9

Dade Coal Co. v. Haslett, 83 Ga. 549 (1889) ......... 13

Datheim v. Lemon, 45 F. 225 (1891) ..... 66-66 5-5 14

Davis v. Passman, 442 U.S. 228 (1979) ........ 9, 10, 11

DeShaney v. Winnebago County Department of

Social Services, 489 U.S. 189 (1989) .......... 21

Del Raine v. Williford, 32 F.3d 1024 (7th Cir. 1994) .... 38

Dobyns v. E-Systems, Inc.,

667 F.2d 1219 (Sth Cir. 1982) ............. 3, 43

Doe v. McMillan, 412 U.S. 306 (1973) .........-.--. 15

Edwards v. Pocahontas, 47 F. 268 (CC Va. 1891)...... 14

vi

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

Feres v. United States, 340 U.S. 135 (1950)

Gerena v. Puerto Rico Legal Service, Inc.,

697 F.2d 447 (ist Cir. 1983)

Ginn v. Mathews, 533 F.2d 477 (9th Cir. 1976)

Graham v. Connor, 490 U.S. 386 (1989)

Green v. Carlson, 581 F.2d 669 (7th Cir- 1978)

Hammons v. Norfolk Southern Corp.,

156 F.3d 701 (6th Cir. 1998)

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

Hayes v. Cambra, (No. 99-15023) 1999 U.S. App.

LEXIS 30103 (9th Cir. Nov. 15, 1999)

Honeycutt v. Louis Pizitz Dry Goods Co.,

180 So. 91 (Ala. 1938)

J.1. Case Co. v. Borak, 377 U.S. 426 (1964)

Kauffman v. Anglo-American School of Sofia,

28 F.3d 1223 (D.C. Cir. 1994)

Kikimura v. Turner, 28 F.3d 592 (7th Cir. 1994)

Larson v. Domestic & Foreign Commerce Corp.,

337 U.S. 682 (1949)

*“_* © *

veer * @ @e © © © © © ©

_* © *

een eee ee 6s 6 6 oe eae

_** © © ©

vil

Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163 (1993) ....... 29

Lebron v. National R.R. Passenger Corp.,

A ED 2 cesabceececeseetsesee 25

Logue v. United States, 412 U.S. 521 (1973) .......... 25

Lugar v. Edmonson Oil Co.,

0 13, 34, 35

Malley v. Briggs, 475 U.S. 335 (1986) .............. 13

Marbury v. Madison, § U.S. (1 Cranch) 137 (1803) ... 7,9

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) . 39

McKesson Corp. v. Division of Alcoholic Beverages &

Tobacco, 496 U.S. 18 (1990) ..............5-. 20

Monell v. Department of Social Services,

SE ED cc cticcendeccesceses 32, 35

Owen v. Independence, 445 U.S. 622 (1980) .... 13, 32, 33

Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979)... . 39

Pennhurst State Sch. & Hospital v. Halderman,

GP ED vo co cccccceccccccccsess 39

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

Riviello v. Waldron, 47 N.Y .2d 297 (1979) ........... 31

viii

Santa Clara County v. Southern Pacific R.R. Co.,

EEE. nckcaeréeececanducats 35

Schowengerdt v. General Dynamics Corp.,

823 F.2d 1328 (9th Cir. 1987) ............. 3, 43

Schweiker v. Chilicky, 487 U.S. 412 (1988) ........... 41

Sellers v. United States, 902 F.2d 598 (7th Cir. 1990) ... 32

United States v. Bynum, 408 U.S. 125 (1972) ......... 22

United States v. Johnson, 481 U.S. 681 (1987) ........ 41

United States v. Stanley, 483 U.S. 669 (1987) ...... 40, 41

Walker v. Sauvinet, 92 U.S. (2 Otto.) 90 (1875) ....... 38

Webb v. Jackson, 583 So. 2d 946 (Miss. 1991) ........ 39

West v. Atkins, 487 U.S. 42 (1988) ................. 13

Westfall v. Erwin, 484 U.S. 292 (1988) ........ 14, 15, 16

Wilson v. Layne, 526 U.S. 603 (1999) ......... 11, 35, 38

Wood v. Strickland, 420 U.S. 308 (1975) ............ 42

Wyatt v. Cole, 504 U.S. 158 (1992) ................. 13

Yiamouyiannis v. Chemical Abstracts Service,

521 F.2d 1392 (6th Cir. 1975) ............. 3, 43

ix

STATUTES

SUG.C.§552 ..... ccc ccc cece rerreeeneees 23, 25

YL Cod ) ee er ero 25

12U.S.C. §§ 1811(a) 6... eee eee ees 25

12 US.C. § 1812(aX{1) «0. eee Pers: 25

12 U.S.C. § 1462a(cM1) 0. eee eens 25

28 U.S.C. §§ 2679(b) ee eee ees 36

28 U.S.C. § 2680(h) .... ... 0.0 ee c pvaseckncnces 36

42 U.S.C. § 1983.0... cee eens passim

REGULATIONS

PBCFR.§50.18 00... cece cece cece e eee nees 18, 26

28 CFR. § 542.10 ef Seq. 0. eee 41

MISCELLANEOUS

American Law Institute, Principles of ;

Corporate Governance (1994) .......--+0++%: 22

Brief for the U.S. as Amicus Curiae Supporting Respondent,

Richardson v. McKnight, 521 U.S. 399 (1997) .. 42

Bureau of Prisons, Statement of Work: Community

Corrections Center (Dec. 2000) .. 16, 21, 26, 30, 31

x

Bureau of Prisons Program Statement 5566.05,

Use of Force and Application of

Restraints on Inmates ..................... 21

Cornelia T.L. Pillard, Taking Fiction Seriously:

The Strange Results of Public Officials’

Individual Liability Under Bivens,

88 Geo. L.J.65(1999)........00000.0...... 33

CSC Annual Report, SEC Form 10K

(filed Apr. 2,2001) ............., 16, 22, 25, 29

CSC Prospectus (Sept. 12,1996) .................. 16

Department of Justice Web Page

http://www.usdoj.gov/O2organizations/index.html 23

Letter from George P. Stasiuk to Steven Pasternak

Se Wi MIG wise ao ct ce es 16

Reinier H. Kraakman, Corporate Liabi!ity Strategies

and the Costs of Legal Controls,

93 Yale L.J. 857 (1984) .................... 33

United States GAO, Government Corporations:

A Profile of Existing Government Corporations

es HEE Won dvdssddceceece nec 25

W. Page Keeton ef al., Prosser & Keeton

on Torts (Sth ed. 1984) .................... 31

STATEMENT OF THE CASE

A. Factual Background

John E. Malesko is a former federal prisoner who served

the last four months of his sentence at Le Marquis Community

Corrections Center, a halfway house operated by Correctional

Services Corporation (“CSC”), and, after suffering the injuries.

that gave rise to this action, in the hospital. In December 1992,

at the age of 58, Mr. Malesko was convicted of securities fraud

and sentenced to eighteen months’ imprisonment under the

supervision of the Federal Bureau of Prisons (“BOP”). Pet.

App. 2a. While in prison, Mr. Malesko was diagnosed with

congestive heart failure. This condition required Mr. Malesko

to take prescription medication and to refrain from physical

exertion such as climbing stairs. Jt. App. 10-11.

In February 1994, BOP transferred Mr. Malesko to Le

Marquis. CSC, a publicly traded corporation, operated Le

Marquis for profit.’ Despite his medical condition, CSC

assigned Mr. Malesko to a fifth-floor room. On March 1, 1994,

CSC instituted a policy requiring Le Marquis inmates to take the

stairs to their rooms if they lived below the sixth floor, but

because of his illness, Mr. Malesko was allowed to continue

using the elevator. Jt. App. 11.

On March 18, Mr. Malesko informed CSC that he had

run out of his heart medication. CSC did not refill the

prescription. /d. at 12. Ten days later, a CSC guard compelled

Mr. Malesko to take the stairs to his room quickly even though

Mr. Malesko reminded him that, because of his heart condition,

' CSC no longer operates Le Marquis. CSC Annual

Report, SEC Form 10K at 10 (filed Apr. 2, 2001) (available at

www. freeedgar.com, ticker symbol CSCQ).

2

he was allowed to use the elevator. Jd. As Mr. Malesko was

hurrying up the stairs so that he could be in his room in time for

a head count, he suffered a heart attack and fell. Pet. App. 20a;

It. App. 12. The fall injured his ear and caused ongoing

difficulty with balance. Mr. Malesko’s injuries have left him

unable to work and in need of continuing medical care. Jt. App.

12-13.

B. Proceedings Below

Mr. Malesko filed this action pro se on March 27, 1997,

in the United States District Court for the Southern District of

New York, against petitioner CSC and ten “John Doe”

defendants. The complaint has been treated throughout this

case as alleging claims only under Bivens v. Six Unknown

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

(1971). On February 2, 1999, Mr. Malesko, who had since

retained counsel, filed an amended complaint naming Jorge

Urena, the guard who denied him use of the elevator, as one of

the John Doe defendants. CSC filed a motion to dismiss, which

the district court granted on July 28, 1999. In that decision, the

district court held that, because Mr. Malesko's identification of

Mr. Urena in the amended complaint did not relate back to the

filing of the orginal complaint, it was time-barred. Pet. App.

22a-24a. The Second Circuit affirmed this holding, Pet. App.

18a, and Mr. Malesko does not challenge it now. With no

explanation of its reasoning, the district court also held that

under FDIC v. Meyer, 510 U.S. 471 (1994), a Bivens action can

be maintained only against an individual, Pet. App. 20a, even

though Meyer held only that no Bivens action lies against federal

government agencies.

, The Second Circuit reversed as to CSC, holding that a

Bivens action may lie against a private corporation acting under

color of federal law. The court first noted that, before Meyer,

3

it was settled law among the federal circuits that Bivens claims

could be asserted against private corporations. Although

several circuits had not addressed the question, all those that

had, had held that the cause of action was available. Pet. App.

5a-6a (citing Schowengerdt v. General Dynamics Corp., 823

F.2d 1328 (9th Cir. 1987); Gerena v. Puerto Rico Legal Serv.,

Inc., 697 F.2d 447 (1st Cir. 1983); Dobyns v. E-Systems, Inc.,

667 F.2d 1219 (Sth Cir. 1982); Yiamouyiannis v. Chemical

Abstracts Serv., 521 F.2d 1392 (6th Cir. 1975) (per curiam)).

The Second Circuit noted that Meyer did not address these

cases or suggest that it was overruling them. Jd. at 12a. Since

Meyer was decided in 1994, only three courts of appeals have

addressed the question presented here. The Sixth Circuit, in

reasoning largely adopted by the Second Circuit below, held that

Bivens does encompass claims against private corporations.

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

1998). Using broad language, the D.C. Circuit has held that

Meyer shielded from Bivens liability a school with very close ties

to the U.S. and British governments, an entity that was in the

Second Circuit’s view “arguably a federal government agency.”

Kauffman v. Anglo-American School of Sofia, 28 F.3d 1223

(D.C. Cir. 1994); Pet. App. lla n.3.

The court below explained that Meyer is not dispositive

in this case because “private entities acting on behalf of the

federal government are not the equivalent of federal agencies.”

Id. at 10a. Nor did the court find the reasons underpinning

Meyer compelling with respect to private corporations. As the

court of appeals noted, Meyer did not address Bivens’ central

goal of providing a remedy for constitutional violations, and that

goal can be achieved here only by allowing a Bivens claim

against CSC. Jd at 10a-1la. Allowing the claim to go forward,

the Second Circuit found, would also serve Bivens’ deterrence

purpose because “an employer facing exposure to such liability

would be motivated to prevent unlawful acts by its employees.”

4

Id. at 1la. Meyer’s concern with the direct impact that federal

agency liability would have on fiscal policy is inapposite here,

observed the court, where any fiscal impact on the government

would be indirect at best. /d. Finally, the court saw no reason

not to incorporate the law governing claims under 42 U.S.C.

§ 1983, which does impose liability on private corporations

acting under color of state law. Jd. at 12a.

SUMMARY OF ARGUMENT

Thirty years ago, this Court recognized in Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403

U.S. 388 (1971), that the Constitution itself limits the exercise

of federal power and that damages are an appropriate remedy

for those who have suffered constitutional violations under color

of federal law. Bivens therefore recognized a cause of action for

damages against those who violate constitutional rights under

the color of federal authority. This principle is limited only by

the doctrine ot sovereign immunity, which bars suits against the

United States and its agencies. As a private, for-profit

corporation, CSC is decidedly not the federal government, so

sovereign immunity does not shield it. Allowing CSC to enjoy

the benefits of sovereign immunity would gratuitously insulate

its shareholders against the cost of a judgment in Mr. Malesko’s

favor, and would disserve the twin purposes of Bivens —

compensation and deterrence.

There is no question here that CSC was responsible for

Mr. Malesko’s injuries. Either CSC’s policies deprived Mr.

Malesko of needed medication, assigned him to a fifth-floor

room, and compelled him to take the stairs, or its failure to train

and supervise its employees led them to disregard his life-

threatening medical condition. In either case, the injuries Mr.

Malesko suffered are plainly CSC’s responsibility. Recognizing

Mr. Malesko’s claim against CSC fulfills Bivens’ purposes of

— — -

5

affording compensation to the victim of unlawfully exercised

federal power, and deterring the unconstitutional abuse of

federal authority.

As a private corporation contracting with the federal

government, CSC performs much the same function as an

intermediate to high-level federal employee. It sets policies for

its employees who wield federal power and controls their hiring,

training, and supervision. Its unconstitutional exercise of federal

power is best deterred through the imposition of money

damages. Because private corporations, unlike the federal

government, are not accountable through the political process,

penalizing CSC financially is the only effective way to control,

not only its corporate behavior, but also the behavior of its

employees. Moreover, private corporations, unlike government

agencies subject to civil service laws, have great flexibility to

impose financial incentives and deterrents on their employees.

The federal government acknowledges the company’s

responsibility and control over its employees by requiring CSC

to assume responsibility for litigation against its employees.

Furthermore, the Bivens remedy itself is needed to deter the

unconstitutional exercise of federal power. State law remedies,

which are oriented toward different problems and do not

address all unconstitutional misconduct, are inadequate.

Recognizing a Bivens claim directly against CSC

imposes no greater risk of uncontrolled financial exposure on

the government than does the routine availability of Suits against

federal officials under Bivens. The government ts protected

financially by its contract with CSC, which requires CSC to

insure itself and its employees against damages awards, and by

its freedom to choose less expensive contractors. The

government already indemnifies its own employees for their

Bivens liability. The financial effect on the government of

Bivens awards against a contractor is much less direct than 1s

6

the effect of Bivens awards against government employees.

Finally, Bivens’ purpose is to discourage constitutional

violations by those cloaked with federal power. Holding CSC

liable when it uses federal power to violate the Constitution

fulfills this purpose by giving CSC a powerful financial incentive

to obey the Constitution’s dictates. CSC’s success in following

the law will in turn limit the insurance costs it may seek to pass

on to the government.

Bivens’ narrow exceptions, which make the remedy

unavailable when Congress has created an equally effective

substitute or there are special factors counseling hesitation, do

not apply here. The characteristics that CSC calls “special

factors” — its corporate status, the possibility that its insurance

rates will rise, and the fact that Congress allows some agencies

to use contractors — do not counsel any hesitation in allowing

Mr. Malesko’s claim to proceed.

. CSC’s hand-wringing over the possibility that its

insurance rates might go up obscures its central contention: that

private corporations, which have no claim to sovereign

immunity and which are subject to section 1983 liability when

they violate the constitutional rights of their state prisoners,

should nonetheless be held immune from Bivens liability when

they violate the constitutional rights of their federal prisoners.

There is simply no reason to make this leap. CSC exercises

prs pa yea et pee

p public scrutiny; and it can easily force pri

like Mr. Malesko into life-threatening vated Bivens makes

clear that CSC should be held liable when it uses federal power

to violate the Constitution.

7

ARGUMENT

In Bivens v. Six Unknown Named Agents of Federal

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

recognized that the federal Constitution establishes a cause of

action for damages against those who violate constitutional

rights under color of federal authority. The foundation for

Bivens, however, was laid in the earliest days of this Court.

Two centuries ago, in Marbury v. Madison, 5 U.S. (1 Cranch)

137, 163 (1803), this Court declared that “[t]he government of

the United States has been emphatically termed a government of

laws, and not of men. It will certainly cease to deserve this high

appellation, if the laws furnish no remedy for the violation of a

vested legal right.” This sentiment — that remedies must follow

the violation of constitutional rights — was echoed again fifty-

five years ago in Bell v. Hood, 327 U.S. 678, 684 (1946).

There, while reserving the precisé question decided in Bivens,

the Court emphasized that “where federally protected rights

have been invaded, it has been the rule from the beginning that

courts will be alert to adjust their remedies so as to grant the

necessary relief.”

The Bivens cause of action — and only this cause of

action — enforces our nation’s paramount rights by providing

a damages remedy for those whose constitutional rights are

violated at the hands of federal officers or by those who are

cloaked with federal power. The only limit this Court has

recognized on Bivens’ reach is for governmental entities, namely

the United States itself and its agencies, entitled to invoke

absolute sovereign immunity — an immunity which is waivable

only by Congress.” Never has this Court suggested that private

2 Sovereign immunity sets the outer boundary to Bivens’

reach by forbidding suits against the government. There is no

individuals or corporations, exercising federal power while

doing the government’s bidding for a fee, are entitled to claim

any sovereign immunity, much less an immunity that is absolute.

Cf. Richardson v. McKnight, 521 U.S. 399 (1997) (holding that

employees of a private prison are not entitled to qualified

immunity in a section 1983 action). Therefore, CSC’s claim that

the Court should equate a private corporation with the United

States or one of its agencies should be rejected out of hand.

Immunity belongs to the government, not contractors with

which it does business.

Moreover, prisoners and others in federal custody, like

respondent Malesko, are uniquely vulnerable to the abuse of

federal power. The Bivens remedy is often these individuals’

last and only protection against the deliberate deprivation of

their constitutional rights. Mr. Malesko is not asking this Court

to establish any new cause of action. He is simply pursuing the

remedy recognized in Bivens against an unconstitutional abuse

of federal power by a defendant who has no legitimate claim to

any sovereign immunity. The judgment below should be

I. -~ heen Mr. Malesko’s Claim Against

To best understand the flaws in petitioner’s argument, it

is useful to begin with a detailed examination of the cause of

action recognized in Bivens. There, this Court answered a

question that it had left open twenty-five years earlier in Bell v.

other limit to the class of defendants subject to Bivens actions

As explained below, there are also narrow exceptions to Bivens

when Congress has established an alternative remedy, and when

special factors counsel hesitation in applying Bivens.

9

Hood and held “{t}hat damages may be obtained for injuries

consequent upon a violation of the Fourth Amendment by

federal officials.” Bivens, 403 U.S. at 395. Webster Bivens

alleged that federal narcotics agents had arrested him and had

searched his home without a warrant or probable cause and used

unreasonable force in doing so. /d. at 389. This Court rejected

defendants’ argument that state tort law provided Bivens’s sole

remedy. Instead, it focused on defendants’ exercise of federal

power and held that citizens may invoke the Constitution’s

protection against the abuse of that power even in the absence

of any Congressional action authorizing a remedy. /d. at 392.°

The theory of Bivens, which is crucial to this case, is that

the Constitution itself “operates as a limitation upon the exercise

of federal power regardless of whether the State in whose

jurisdiction that power is exercised would prohibit or penalize

> The government suggests that Bivens relied too heavily

on J.I. Case Co. v. Borak, 377 U.S. 426 (1964), a case implying

a private right of action under a federal securities statute, and

that its analysis is therefore outmoded. This argument misses’

the mark. Borak involved invasions of statutory rights, and this

case involves constitutional violations. The courts’ obligation

to uphold the Constitution is more fundamental — and more

important — than any rule of statutory construction. Marbury,

5 U.S. at 176-78. Furthermore, whatever suggestive value

Borak may have had for the Court in deciding Bivens, it has

long been clear that the Bivens doctrine is independent of Borak.

This point was made explicit in Davis v. Passman, 442 U.S.

228, 238-44 (1979), which was decided after Borak had fallen

out of favor, see, e.g., Cort v. Ash, 422 U.S. 66 (1975). See

also Bush v. Lucas, 462 U.S. 367, 374 (1983) (“The federal

courts’ power to grant relief not expressly authorized by

Congress is firmly established.”).

10

the identical act if engaged in by a private citizen. It guarantees

to citizens of the United States the absolute right to be free

from” unconstitutional injury. Jd Where, as here, “federally

protected rights have been invaded, it has been the rule from the

beginning that courts will be alert to adjust their remedies so as

to grant the necessary relief.” Jd. (quoting Bell v. Hood, 327

U.S. at 684 (footnote omitted); accord Bemis Bros. Bag Co. v.

United States, 289 U.S. 28, 36 (1933). Bivens suits have been

allowed to proceed to redress violations not only of the Fourth

Amendment, as in Bivens, but also the Eighth and Fifth

Amendments. Carlson v. Green, 446 U.S. 14, 19-20 (1980);

Davis v. Passman, 442 U.S. 228, 248-49 (1979). The only

limitation on the basic Bivens principle is that the federal

government itself is immune from liability and hence may not be

sued under Bivens.

Thus, the rule of Bivens is that a cause of action lies

against a party that has exercised federal power in a manner that

has deprived the plaintiff of a constitutionally guaranteed right.

Contrary to petitioner’s argument, the Bivens cause of action is

not defined by the potential list of defendants who may be

subject to such claims. Rather, Bivens focuses on the abuse of

federal power and seeks to remedy and deter that abuse without

regard to the identity of the defendant. Nothing in the logic

underlying Bivens or its holding suggests that the absolute

immunity enjoyed by the federal government should be extended

to a non-government, private corporation that exercises federal

power for profit.

To be sure, Bivens acknowledges the possibility that

Congress might establish an alternative remedy that would

displace the Bivens action or that some cases might present

“special factors counseling hesitation” in the recognition of a

cause of action. 403 U.S. at 396-97. But Bivens rejected the

idea that any of the factors cited by the United States (and

11

resurrected here by both CSC and the United States) —

including the potential drain on the public fisc — counseled

against its holding or constituted “special factors.” Jd. This suit

does not fall within either of Bivens’ exceptions. Rather, it falls

within the heartland of Bivens cases exemplified by the Court’s

recent decision in Wilson v. Layne, 526 U.S. 603 (1999), which

recognized Bivens and section 1983 claims against federal and

state officers who allowed newspaper reporters and

photographers to accompany them into a suspect’s home in

violation of the Fourth Amendment.

Earlier cases also illustrate Bivens’ scope. In Davis, a

former Congressman’s assistant brought a Fifth Amendment

Bivens claim against him when she was fired because of her

gender. The Court held that Bivens encompassed the claim,

despite Title VII's specific exclusion of Congressional

employees and despite the possible constitutional difficulties in

discerning whether the Speech and Debate Clause protected the

Congressman’s action. 442 U.S. at 245-48. In Carlson v.

Green, the plaintiff's son had died of an asthma attack while in

federal prison, allegedly because the defendants failed to provide

competent medical treatment and in fact took counterproductive

measures. This Court held that Bivens encompassed Eighth

Amendment claims and that the Federal Tort Claims Act, while

available to the plaintiff as a parallel remedy, did not displace the

Bivens action. 446 U.S. at 19-23.

This case falls at the core of Bivens’ holding. Petitioner

CSC, an entity exercising federal power, has allegedly violated

the constitutional rights of a person in its custody. As in Bivens,

state tort law cannot guarantee an adequate remedy, there are

no special factors counseling hesitation, and a damages award

will achieve both deterrence of the wrongdoers and

compensation for the victim. The corporate status of the entity

does nothing to alter the Bivens analysis; indeed, the fact that

12

this defendant cannot hide behind the shield of sovereign

immunity makes this case straightforward.

A. As a Private Entity, CSC Is Not Entitled to

Immunity When It Violates The Constitution

Under Color of Federal Law.

CSC’s position boils down to a claim that, because it is

a corporation, rather than an individual, it may not be sued

under Bivens. In making this argument, CSC does not point to

any passage in Bivens or in any subsequent cases that suggests

that the status of the defendant (individual or corporate) matters

one whit. Nor could it. The only entities found outside of the

ambit of Bivens have been the federal government itself, or

entities this Court has held to be the federal government for

purposes of immunity. Thus, unless CSC can demonstrate that

it, a private, for-profit corporation that is beholden only to its

shareholders and not the American people, is somehow entitled

to invoke the protective mantle of sovereign immunity, its

argument fails.

The law of sovereign immunity in Bivens suits parallels

that in suits under 42 U.S.C. § 1983; if anything, section 1983

immunity law is more protective of the government. As this

Court explained in Butz v. Economou:

[I]n the absence of congressional direction to the

contrary, there is no basis for according to

federal officials a higher degree of immunity

from liability when sued for a constitutional

infringement as authorized by Bivens than is

accorded state officials when sued for the

identical violation under § 1983. The

constitutional injuries made actionable by § 1983

are of no greater magnitude than those for which

13

federal officials may be responsible.... Surely,

federal officials should enjoy no greater zone of

protection when they violate federal

constitutional rules than do state officers.

438 U.S. at 500-01 (emphasis in original). This Court has held

that private defendants are not entitled even to qualified

immunity from section 1983 suits. McKnight, 521 U.S. 399,

Wyatt v. Cole, 504 U.S. 158 (1992). It is well-established that

both private and public corporations can be sued under

section 1983, and neither may raise a qualified immunity

defense. Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982);

Owen v. Independence, 445 U.S. 622 (1980). Contractors who

provide services to state prisons can also be held liable under

section 1983. West v. Atkins, 487 U.S. 42 (1988). Absolute

immunity has never been thought to bar a section 1983 claim

paralleling Mr. Malesko’s; indeed, insofar as respondent can

determine, no corporation subject to a section 1983 action has

ever sought to invoke absolute immunity, let alone succeeded in

doing so.

Moreover, sovereign immunity has only been extended

in situations where both history and policy demand it. Cf

McKnight, 521 U.S. at 404; Malley v. Briggs, 475 U.S. 335,

339-40 (1986) (“Our initial inquiry is whether an official

claiming immunity under § 1983 can point to a common-law

counterpart to the privilege he asserts.”). There is no historic

tradition of immunity of any sort for private prisons, regardless

of whether they were operating under local, state, or federal

contract. In the nineteenth century, private contractors played

an important role in prison management, especially in the South.

McKnight, 521 U.S. at 405. The common law authorized

mistreated prisoners to sue their prison contractors, even when

those contractors were corporate in form. Dade Coal Co. v.

Haslett, 83 Ga. 549 (1889) (suit for injuries sustained while

14

convict was on lease to private company); Dalheim v. Lemon,

45 F. 225 (1891) (contracting firm liable for convict injuries);

Edwards v. Pocahontas, 47 F. 268 (CC Va. 1891) (suit against

municipal corporation over prison conditions); see generally

McKnight, 521 U.S. at 405-06.

There is no policy reason to extend sovereign immunity

to bar Mr. Malesko’s constitutional claim against CSC. A

defendant seeking absolute immunity “‘must bear the burden of

showing that public policy requires an exemption of that

scope.”” Cleavinger v. Saxner, 474 U.S. 193, 201 (1985)

(quoting Economou, 438 U.S. at 506); accord McKnight, 521

U.S. at 404. Defendants that were far more closely linked to the

federal government than CSC have sought absolute immunity,

only to have this Court reject their claims in case after case. For

example, in Harlow v. Fitzgerald, 457 U.S. 800 (1982), this

Court held that Presidential aides, like Executive Branch

officials generally, are not generally entitled to absolute

immunity. Saxner, 474 U.S. at 205, established that members

of a federal prison’s discipline committee were not entitled to

absolute immunity despite the committee’s adjudicatory

function. Even the President of the United States himself is not

immune to suit for his unofficial conduct. Clinton v. Jones, 520

U.S. 681, 694-95 (1997). Westfall v. Erwin, which reversed a

holding that sovereign immunity barred certain state tort law

claims, explains why absolute immunity is so rarely available:

This Court always has recognized, however, that

official immunity comes at a great cost. An

injured party with an otherwise meritorious tort

claim is denied compensation simply because he

had the misfortune to be injured by a federal

official. Moreover, absolute immunity

contravenes the basic tenet that individuals be

held accountable for their wrongful conduct.

ne

15

We therefore have held that absolute immunity

for federal officials is justified only when “the

contributions of immunity to effective

government in particular contexts outweigh the

perhaps recurring harm to individual citizens.”

484 U.S. 292, 295-96 (1988) (quoting Doe v. McMillan, 412

U.S. 306, 320 n.3 (1973)).

This Court in McKnight soundly rejected the argument

that private prisons will suffer from “overly timid, insufficiently

vigorous, unduly fearful, or ‘non-arduous’ employee job

performance” if their employees are denied even qualified

immunity from constitutional claims. 521 U.S. at 410. If

individual employee liability does not pose a threat to private

prison performance, it is hard to see why corporate liability

would do so, and certainly CSC has made no such showing.

Indeed, the “marketplace pressures” that prevent excess timidity

in private prison guards operate even more directly on the

private corporation that stands to make a profit or suffer a loss.

The different rewards and constraints of the marketplace —

including the possibility of losing the prison contract, greater

freedom in managing employees, and mandatory insurance

coverage — enable private corporate prison operators to

function even when exposed to liability for their constitutional

torts. Jd. at 409-411. Government employees “act within a

different system.” Jd. at 410 (emphasis in original). Unlike

employees of a private firm, government employees are

responsible through elected officials to voters. Multidepartment

civil service rules often limit government supervisors’ abilities to

reward or punish their employees. /d. Private corporations like

CSC are not similarly constrained. The policy reasons

underlying the qualified immunity defense for public employees

cannot justify denying Mr. Malesko the remedy to which the

Constitution entitles him. Cf id. at 412.

16

In light of these factors, CSC does not overtly make a

claim to sovereign immunity. Rather, it makes immunity-like

arguments to contend that it would be wrong for the Court to

“extend” Bivens’ coverage to corporations doing the

government’s business. This contention is without merit.

Sovereign immunity doctrine is grounded principally in the

desire to protect the public fisc, although this Court has also

cited the government’s interest in performing its functions

smoothly and in not creating unwarranted timidity on the part of

government officers. McKnight, 521 U.S. at 407-08; Erwin,

484 U.S. at 296-97 (citing Barr v. Matteo, 360 U.S. 564, 571

(1959)); Larson v. Domestic & Foreign Commerce Corp., 337

U.S. 682, 704 (1949). In this case, where the party seeking the

shield of immunity is a corporation, not the government, none

of these concerns is legitimate.

CSC’s Bivens liability to Mr. Malesko likely poses Jess

threat to the federal fisc than does the parallel Bivens action

against a federal officer in CSC’s position; surely it does not

pose more risk. To begin with, CSC insures itself against a

variety of business risks, including the risk of liability for torts,

constitutional and otherwise. CSC Annual Report, SEC Form

10K at 12 (filed Apr. 2, 2001) (available at www.freeedgar.com,

ticker symbol CSCQ); CSC Prospectus at 24 (Sept. 12, 1996),

Joint Appendix in the United States Court of Appeals for the

Second Circuit, at 142. Indeed, the federal government requires

the private prisons with which it contracts to carry liability

insurance. /d; Bureau of Prisons, Statement of Work:

Community Corrections Center 8 (Dec. 2000) [hereinafter

“BOP Statement of Work”) (available at

http://www.bop.gov/ccdpg/ccdcce.pdf). And it is CSC’s

“general practice to indemnify individual employees who are

sued in connection with matters arising within the scope and

course of their employment, and which are not criminal in

nature.” Letter from George P. Stasiuk to Steven Pasternak at

17

1 (Jan. 11, 1999), Joint Appendix in the United States Court of

Appeals for the Second Circuit, at 153. Thus, like the private

prison corporation at issue in McKnight, which had purchased

insurance to protect itself and indemnify its employees who were

subject to liability under section 1983, CSC’s potential liability

here is addressed fundamentally as a matter of insurance. For

that reason, CSC’s premiums will likely be influenced, if not

directly affected, by how well it implements policies that prevent

constitutional deprivations. The more damages actions resulting

in compensatory damages awards, the greater the likely increase

in its premiums. If those premiums climb to an unacceptable

level (that is, where it is financially better for the United States

not to contract with CSC), CSC will either lose its contracts to

competitors that do a better job of avoiding constitutional tort

actions and thus keeping their costs low, or the United States

will conclude that the inability of private prisons to deter

constitutional violations requires it to resume prison

management responsibility itself. On the other hand, the better

the job CSC does in deterring constitutional abuses, the more its

premiums are likely to fall, which will save it money, enhance its

ability to bid competitively on government contracts, and in the

long run, possibly benefit the United States through a lower

contract price. This is precisely the deterrent effect that Bivens

meant to achieve. The incentives on CSC to eliminate

constitutional abuses therefore counsel in favor of, not against,

holding it subject to liability in this case.‘

* Moreover, if one takes at face value CSC’s claim that

a Bivens action is not needed here because Mr. Malesko has

adequate state law remedies, then one wonders how CSC can

possibly contend that finding liability here would have serious

fiscal consequences. If we assume for the sake of argument that

Mr. Malesko’s claim might be worth $1,000,000 in a state law

tort action, why should it matter that the claim might also be

18

Whatever impact constitutional tort liability may have on

CSC, it is hard to see how CSC’s liability here could have any

effect on the public treasury. The United States has fully

insulated itself against liability in its contract with CSC.

Moreover, the federal government already bears the

responsibility for paying both litigation costs and most damages

awarded against its employees in Bivens actions arising out of

conduct within the scope of their-employment. 28 C.F.R.

§ 50.15; Pet. Br. at 10-11 n.8. Thus, the baseline here is that

the United States already underwrites most of the expense of

Bivens. Contracting out may reduce the cost to the United

States from Bivens, but it can hardly increase it. Making it clear

that contractors, as well as their employees, may be held liable

under Bivens does not alter that fact. Through contracting, of

course, the United States can control its potential Bivens costs

by either requiring those costs to be absorbed by its contractors

(which it already does), or, if it is dissatisfied with the contract

prices because they are equal to or exceed the costs to the

United States of operating prisons, by resuming direct

responsibility for prison management.

Furthermore, unlike the federal government, CSC is

subject to state tort law. If, as CSC claims, state tort law is an

restated as a Bivens action, tried in federal court, with a

damages award of $1,000,000? The impact on the

corporation’s bottom line is the same. Although, as explained

later in this brief, there is no parallel state law remedy for all,

perhaps even most, constitutional deprivations, CSC is plainly

trying to have it both ways in arguing that a ruling in Mr.

Malesko’s favor would have dire fiscal consequences at that

same time it argues that there is no need to permit Mr.

Malesko’s Bivens action to proceed because state law remedies

are adequate.

ee ae

19

adequate substitute for Bivens, then allowing Bivens actions

against CSC will not add to CSC’s costs. But to the extent a

Bivens remedy against CSC does add to CSC’s potential

liability, that incremental cost — which is likely to be far less

than the tort costs CSC already faces — can surely be addressed

through insurance. In choosing to use prison operators that are

subject to state tort liability, Congress and BOP decided that

their insurance requirements adequately protect the contractors

against whatever liability they may incur. Recognizing that

Bivens applies to CSC and its employees, just as it applies to the

federal employees who run other prisons, does not increase the

government’s burden.

B. Insulating CSC from Suit Because of Its

Corporate Status Would Run Counter to

Bivens’ Purposes.

The Bivens remedy exists because of this Court’s

recognition that “[a]n agent acting — albeit unconstitutionally

— in the name of the United States possesses a far greater

capacity for harm than an individual trespasser exercising no

authority other than his own.” 403 U.S. at 392. The Bivens

action enforces the Constitution’s “limitation upon the exercise

of federal power”; the particular defendant is important only

insofar as it is the conduit of federal power. Jd Everyday

wrongs between private citizens can be, and properly are,

addressed through state tort law. But an officer cloaked in

federal authority is special. He can bring to bear on an

individual the full weight of federal power to enforce his

instructions, and the ultimate source of his power — the federal

government — is in theory constrained by the Constitution, but

absolutely immune from suit. The only way to deter the

unconstitutional exercise of federal power, and to compensate

its victim, is therefore to make the officer liable. Jd. at 391-92.

20

The Bivens remedy was initially focused on

compensation, and that remains a vital purpose of the action.

Id. at 395-96. “The cardinal principle of damages in Anglo-

American law is that of compensation for the injury to plaintiff

caused by defendant’s breach of duty.” Carey v. Piphus, 435

U.S. 247, 254-55 (1978) (emphasis in original) (internal

quotation marks and citation omitted). As Justice Harlan

phrased it in his Bivens concurrence, “it is apparent that some

form of damages is the only possible remedy for someone in

Bivens’ alleged position.... the sovereign still remains immune

to suit.... [and] the ‘exclusionary rule’ is simply irrelevant. For

people in Bivens’ shoes, it is damages or nothing.” 403 US. at

409-410 (Harlan, J., concurring). This Court has recognized the

importance of compensation for constitutional violations in

other contexts as well. McKesson Corp. v. Division of

Alcoholic Beverages & Tobacco, 496 U.S. 18 (1990) (holding

that Due Process Clause requires compensation for taxes paid

under a state law that violated the dormant Commerce Clause).

Even if the Bivens action had no deterrent effect on private

corporations, which it plainly does, the action would be needed

to accomplish the complementary Bivens goal of providing a

remedy for constitutional violations. As Justice Harlan observed

in his Bivens concurrence:

I agree with the Court that the appropriateness

of according Bivens compensatory relief does

not turn simply on the deterrent effect liability

will have on federal official conduct. Damages

as a traditional form of compensation for

invasion of a legally protected interest may be

entirely appropriate even if no substantial

deterrent effects on future official lawlessness

might be thought to result. Bivens, after all, has

invoked judicial processes claiming entitlement

to compensation for injuries resulting from

21

allegedly lawless official behavior, if those

injuries are properly compensable in money

damages. I do not think a court of law —

vested with the power to accord a remedy —

should deny him his relief simply because he

cannot show that future lawless conduct will

thereby be deterred.

403 U.S. at 407-08 (Harlan, J., concurring) (footnote omitted).

Deterring unconstitutional conduct is the second pillar

of Bivens. FDIC v. Meyer, 510 U.S. 471, 485 (1994); Green,

446 US. at 21 (“It is almost axiomatic that the threat of

damages has a deterrent effect ....”) It is no less important to

deter CSC’s unlawful conduct than it was to deter the officers’

unlawful conduct in Bivens. To be sure, the Bivens defendants

violated the Bivens’s Fourth Amendment rights when they

searched and humiliated the Bivens family and seized Webster

Bivens. Those injuries were grave. But as this case exemplifies,

CSC literally has the power of life and death over the inmates

entrusted to its supervision. As set forth in the complaint, CSC

assigned Mr. Malesko a fifth-floor room, deprived him of

needed medicine for his heart condition, and then forced him to

rush up so many flights of steps that he suffered a heart attack,

which could well have been fatal. Jt. App. 12. As BOP policies

recognize, prisoners are uniquely vulnerable to their guards.

See, e.g., Program Statement 5566.05, Use of Force and

Application of Restraints on Inmates (available at

www.bop.gov); BOP Statement of Work at 71-81 (providing

detailed guidelines for prison discipline). It is especially

important that those who operate prisons be reminded that the

Constitution speaks directly to them. As this Court recently

noted, prisons present a “continual and conceded need for

deterring constitutional violations.” McKnight, 521 U.S. at 412;

cf. DeShaney v. Winnebago County Dep't of Soc. Servs., 489

22

U.S. 189, 199-200 (1989). It is precisely because a criminal

conviction strips a prisoner of so many rights that those rights

that remain must be vigilantly safeguarded.

Cc, CSC Is Not Entitled to Immunity by

Analogy.

1, No Parallel Can Be Drawn Between

CSC and a Federal Agency.

A damages remedy is a uniquely appropriate deterrent

for a private corporation. As a publicly-traded corporation,

CSC exists to make money for its shareholders. See, ¢.z.,

United States v. Bynum, 408 U.S. 125, 137-38 (1972)

(corporate officer owes fiduciary duty to corporation and its

shareholders); American Law Institute, Principles of Corporate

Governance § 2.01(a) (1994) (“a corporation should have as its

objective the conduct of business activities with a view to

enhancing corporate profit and shareholder gain”). The obvious

way to deter CSC is therefore to subject it to financial liability

for its actions. CSC itself acknowledges that the threat of

liability is a powerful incentive to improve its behavior: Its

annual report states that CSC follows American Correctional

Association guidelines in part to establish a “better defense

against lawsuits by offenders alleging violations of civil rights.”

CSC Form 10K at 11. This Court recently observed that not

only are firms motivated to respond to financial pressure, they

are designed to do so: “The organizational structure is one

subject to the ordinary competitive pressures that normally help

private firms adjust their behavior in response to the incentives

that tort suits provide — pressures not necessarily present in

government departments.” McKnight, 521 U.S. at 412.

In contrast, government agencies are designed to operate

without making a profit. An agency’s ability to spend money is

23

limited only by Congress’ willingness to fund it. Rather than

profit-mak.ng, the agency’s object is to serve the public. For

example, the mission statement of the Department of Justice,

which includes BOP, is:

To enforce the law and defend the interests of

the United States according to the law, to

provide Federal leadership in preventing and

controlling crime, to seek just punishment for

those guilty of unlawful behavior, to administer

and enforce the Nation’s immigration laws fairly

and effectively, and to ensure fair and impartial

administration of justice for all Americans.

http://www.usdoj.gov/O2organizations/index. html.

The different goals of corporate and governmental

entities manifest themselves in different constraints. A

corporation is constrained by costs and revenues; an agency is

constrained by politics. Each agency answers to political

masters: the President and Congress. Agencies are ultimately

accountable to the public, and so their activities are also subject

to scrutiny under the Freedom of Information Act, 5 U.S.C. §

552, and other open government laws. It is in an agency’s

political interest to be viewed as performing well and within the

law. Political appointees also need to be seen as honest and

effective in order to further their own careers and keep their

party in power. As this Court observed in Carlson v. Green, it

is reasonable to assume that “responsible [civil service]

superiors are motivated not only by concern for the public fisc

but also by concern for the Government's integrity.” 446 US.

at 21.

A private corporation, of course, is not accountable to

the President, Congress, or the public, especially when

24

compared to a federal agency. Corporations are accountable

principally to their boards and shareholders. To the extent that

CSC is legally accountable to the government, the accountability

comes from BOP’s contract-based authority to monitor CSC’s

performance and, if necessary, to litigate to enforce the contract.

BOP may also refuse to renew the contract. Under no theory

can CSC claim that it is accountable to the American people in

the same manner or to the same degree as BOP, its federal

counterpart.

Nonetheless, the core of CSC’s argument is that, as a

corporation, it is more like a government agency than it is like

a government employee, and that since government agencies are

immune from Bivens actions, it must be as well. But the

equation that CSC seeks to draw between a private corporation

that contracts with the government and a government agency

itself is flawed at its core. In arguing that it is like a federal

agency, CSC relies primarily on FDIC v. Meyer, 510 U.S. 471

(1994). Meyer recognized that no Bivens action lies against a

federal agency. Although Meyer held that the FDIC’s sue-and-

be-sued clause waived sovereign immunity, the justifications for

the FDIC’s exemption from Bivens also form the basis for other

agencies’ sovereign immunity protection. None of these

justifications apply to CSC.

Three reasons underlay the Court’s decision. First,

Bivens was premised on the assumption that sovereign immunity

barred suits directly against federal agencies. “[W]e implied a

cause of action against federal officials in Bivens in part because

a direct action against the Government was not available.”

Meyer, 510 U.S. at 485 (emphasis in original). That reasoning

is clearly not implicated here — Bivens did not rest on any

assumptions about private corporations’ liability. Meyer's

discussion of the FDIC treated it as indistinguishable from any

other federal agency for Bivens purposes. CSC’s argument that

25

it is “strikingly similar” to the FDIC is based more on wishful

thinking than on logic. Most fundamentally, it ignores the

FDIC’s status as an instrumentality of the federal government.

See Lebron v. National R.R. Passenger Corp., 513 U.S. 374,

394 (1995); cf 5 U.S.C. § 552(f) (Freedom of Information Act

defines “agency” to include federal government corporations).

Like Amtrak, which in Lebron was held to be a government

agency for constitutional purposes, the FDIC was created by

Congress to further federal governmental goals, and a majority

of its directors are appointed to the FDIC by the President with

the advice and consent of the Senate. 12 U.S.C. §§ 1811(a),

1812(aX1); United States GAO, Government Corporations: A

Profile of Existing Government Corporations 68-69 (Dec.

1995). The other two directors are the Comptroller of the

Currency and the Director of the Office of Thrift Supervision,

12 U.S.C. § 1812(a)(1), who are appointed to those positions

by the President with the advice and consent of the Senate. /d.

§§ 2, 1462a(c\(1). CSC, in contrast, was not established by the

federal government, was not created to further governmental

goals, is not directed by government appointees, and is not

subject to federal control. It performs contracts not only for the

federal government but also for state and local governments.

CSC Form 10K at 7-10. Surely it is not an agency of each of

these governments. Cf Logue v. United States, 412 U.S. 521,

526 (1973) (county jail housing federal prisoner was not a

federal agency). CSC is a private corporation that serves its

private shareholders’ interests.

Second, Meyer wanted to sue the agency because the

officer defendant had raised a qualified immunity defense. The

Court feared that allowing an end-run around immunity defenses

would discourage plaintiffs from suing federal officers. Meyer,

510 U.S. at 485. That argument is also inapposite here because

the Court has held that qualified immunity is not a defense for

guards employed by private prisons. McKnight, 521 U.S. at

26

412. Furthermore, whether a plaintiff sues CSC or its

employees, the corporation is responsible for both litigation

costs and any damages award because it has assumed that

liability by contract. As explained below, suits brought against

CSC can be expected to deter constitutional violations by CSC

employees. Bivens’ deterrent function thus would be enhanced

rather than undercut by allowing Bivens suits against

corporations operating federal prisons.

Third, Meyer found a “‘special factor[] counselling

hesitation’ in the creation of a damages remedy” in the

“potentially enormous financial burden for the Federal

Government” if direct damages actions were allowed against

federal agencies. 510 U.S. at 486. This is a central concern

driving federal sovereign immunity. It does not arise here where

any financial effect on the federal government is indirect at best

and where the government has already shielded itself from

liability by requiring its prison contractors to carry liability

insurance. Meyer is the only case in which this Court cited

Bivens’ financial impact on the federal government as a “special

factor,” because there, a federal agency would have been

directly liable for any damages award. The idea that the

government is paying the Bivens defendant who will eventually

pay any damages judgment is hardly novel or shocking; the

government indemnifies its employees against litigation arising

out of conduct within the scope of their employment, including

garden-variety Bivens litigation. 28 C.F.R. § 50.15; Pet. Br. at

10-11 n.8. CSC is required to insure itself. BOP Statement of

Work at 8. Yet federal employees’ exposure to Bivens suits has

never been considered a direct drain on the federal fisc, even

though the judgments ultimately are paid from the U.S.

Treasury. Any dainages awarded to Mr. Malesko would be paid

by CSC’s insurers. It can have no effect on the United States

unless CSC tries to raise its prices when it seeks to renew its

contracts — and even then, a competitor might outbid CSC.

27

Furthermore, the indirect impact that corporate liability might

have on the federal government has never been held to insulate

private prisons from state tort law.

2. Like a Federal Employee, CSC Is an

Appropriate Bivens Defendant.

Like a federal employee, CSC is an entity with which a

federal agency has contracted and which it has invested with

federal power in exchange for CSC’s performance of certain

core governmental functions. Carlson v. Green establishes that

even high-level federal employees, such as the BOP Director,

can be held liable for constitutional violations that they did not

directly commit but that they were responsible for preventing.

CSC is in exactly this position. BOP — the relevant federal

agency here — has hired CSC to perform a core government

function with limited federal supervision. The heart of CSC’s

responsibility is to supervise its employees effectively to ensure

that order is maintained without infringing the constitutional

rights of inmates.

Green concerned the death, while in federal custody, of

Marie Green’s son Joseph Jones Jr. When Jones entered the

federal prison system, he was diagnosed with chronic asthma, at

one point during his incarceration, his condition required an

eight-day hospital stay. After he left the hospital, prison officials

failed to provide Jones with his prescribed medication. When he

suffered a severe asthma attack, Jones received no competent

medical care for more than eight hours. An unlicensed nurse

injected him twice with Thorazine, a contra-indicated drug, and

Jones died of respiratory arrest half an hour after the second

injection. Green, 446 U.S. at 16 n.1; 581 F.2d 669, 671 (7th

Cir. 1978).

28

As administratrix of her son’s estate, Ms. Green brought

his Eighth Amendment Bivens claim against Carlson, the BOP

Director, the chief medical officer responsible for the prison

medical services, and several other federal officials. 446 U.S. at

16; see also 581 F.2d at 671, 676. This Court held that Green

was entitled to pursue the claim against the federal officials, and

emphasized the deterrence aspect of the Bivens remedy. Of

course, it was highly unlikely that the BOP Director had any role

in Jones’s case, let alone that he actively deprived Jones of

medical care or actually administered the Thorazine. There was

no allegation that the prison’s chief medical officer was even

present during these events. But either of them could have

imposed procedures that would have prevented Jones’s death,

and each had the authority to prevent similar deaths in the

future. From a conceptual standpoint, CSC plays the same kind

of role as the defendants in Green. CSC decides whether to

withhold prescribed medication; it decides whether prisoners’

medical needs will be accommodated or ignored; and it decides

how to train and equip its employees. Here, Mr. Malesko

alleges that CSC denied him his medication and refused to

accommodate his serious illness, as it could have done by

allowing him to use the elevator or housing him on a lower

floor. Both the BOP Director and CSC are amenable to suit

under Bivens because both wield federal power and both control

how federal power is used by others.

CSC argues that it is unfair for Mr. Malesko’s Bivens

cause of action to extend to CSC as well as its guards, when a

prisoner incarcerated in a government-run prison may sue only

the guards and not BOP. This argument ignores several points.

First, it ignores the point made earlier in this brief: namely, that

the reach of Bivens is limited only by sovereign immunity, and

that BOP is immune from Bivens not because it is a corporation

(it is not), but because as part of the United States, it is

absolutely immune. Second, from a more practical standpoint,

— —— ——— se

29

the CSC’s argument studiously overlooks the fact that the

United States government by and large indemnifies its

employees in Bivens actions. Thus, when an inmate brings a

Bivens action against BOP employees, the United States is a real

party in interest, providing attorneys to represent the defendant

and providing money to pay any adverse judgment. Third, CSC

ignores the fact that Mr. Malesko could presumably sue CSC’s

chief executive officer, just as an inmate in a government-run

prison could sue the director of BOP. Since the government

requires CSC to assume responsibility for — and insure against

— its employees’ liability, it is a sterile formality to recognize

Mr. Malesko’s cause of action against CSC’s CEO but not

against CSC itself. The arcane distinction that CSC urges on

this Court is nothing more than a pleading trap intended to

protect private prisons from meritorious claims. Cf

Leatherman v. Tarrant County Narcotics Intelligence &

Coordination Unit, 507 U.S. 163 (1993) (holding that the

liberal system of “notice pleading” established by the Federal

Rules of Civil Procedure bars the imposition of heightened

pleading requirements in section 1983 cases). Fourth, CSC

. itself urges an anomalous result by asking this Court to insulate

CSC from constitutional claims brought by inmates held under

contract with BOP when CSC clearly is subject to liability in

constitutional claims brought by inmates held under state

contracts. Indeed, CSC holds federal and state inmates in the

same facilities. CSC Form 10K at 7-10. It cuts against the

grain of this Court’s rulings to argue that CSC’s federal

prisoners are limited to state tort remedies when its state

prisoners may invoke the federal Constitution. Butz v.

Economou, 438 U.S. 478, 501 (1978).

In terms of its motivation, and therefore the incentives

needed to control it, a corporation is much more like a federal

employee than like an agency. Each contracts with the

government to provide services at a given price. However, each

30

is ultimately responsible only to itself. If anything, a federal

employee is more like a federal agency than is a private

corporation. Unlike a federal employee, a contracting

corporation can profit by cutting corners. It can save money by

hiring fewer guards, offering lower wages, failing to train its

employees, or withholding goods and services from inmates.

Government employees are subject to a level of supervision by

their superiors that the government cannot hope to match in

monitoring its contractors. Brief of Amicus Curiae the Legal

Aid Society in Support of Respondent at 25-27. Agencies’

budgets — and therefore staffs — are generally subject to direct

Congressional control; private prisons submit bids for given time

periods and are thereafter free to arrange their finances as they

like.

Requiring CSC to pay for the harm it commits is the best

way to discourage future harm. BOP recognizes this reality by

requiring each contracting prison, not individual guards, to

assume responsibility for “all litigation, including the cost of

litigation, brought against it, its employees or agents for alleged

acts or omissions.” BOP Statement of Work at 5. This

requirement ends any doubt that CSC bears liability even where

the nominal defendant is a CSC employee rather than the

corporation itself. The requirement is grounded in four realities:

(a) that CSC is in a position to control the way its employees

perform their duties; (b) that CSC's policies or lack of policies

may be responsible for injuries inflicted on inmates; (c) that the

employees themselves may lack the assets to pay the damages

awarded against them; and (d) that individual employees may be

impossible to identify or find.

First, as a private corporation, CSC has free rein to

control its employees. Cf McKnight, 521 U.S. at 410 (noting

private prison’s “freedom to respond to ... market pressures

through rewards and penalties that operate directly upon its

31

employees”). It may hire them at will, discipline them, reduce

their pay, and fire them as it pleases. CSC can give superior

employees promotions, raises, or extra leave. Common law

courts have long recognized the significance of an employer’s

ability to control its employees; it is one of the underpinnings of

the respondeat superior doctrine. See, e.g., Riviello v.

Waldron, 47 N.Y.2d 297, 302 (1979); W. Page Keeton et al.,

Prosser & Keeton on Torts 500 (Sth ed. 1984). BOP also

exploits this economic reality in an effort to achieve better

control over private prisons. It limits subcontracting to 25% of

contract requirements “to create a uniform composition of

services under the control and supervision of the facility

director.” BOP Statement of Work at 6-7.

As this Court has recognized, things are very different in

the public sector. McKnight, 521 U.S. at 410 (“government

employees typically act within a different system”) (emphasis in

original). Government employees ultimately report to elected

officials. Federal civil service rules sharply restrict agencies’

freedom either to punish or to reward their employees. /d at

410-11. In contrast to private employees, individual

government employees are therefore less likely to be deterred

from misconduct by damages awards against their agencies.

Conversely, the threat of liability is less likely to produce overly

timid job performance by the employees of private corporations,

both because private employment laws are more flexible and

because financial considerations act as a counterbalance. /d.

Second, CSC’s policies, rather than individual fault, may

be the cause of a plaintiff's injuries. Particularly if the cause is

a systemic problem such as a failure to train or a failure to

address a recurring situation, there may be no one individual

responsible for the deprivation. Suppose that Mr. Malesko had

routinely been denied his medication. It is far from clear that, in

such a case, he could point to any particular individuals within

32

a corporation who were responsible. It may that a single guard

withheld the medication for vindictive reasons; it may be that the

corporation decided to save money by providing medication to

inmates only when they complained or agreed to pay for it

themselves. Similarly, suppose that Mr. Malesko had routinely

been denied his right to consult with counsel. Again, the denial

might be the act of a single guard or it might be the result of a

corporate policy to curtail inmate access to their attorneys. In

these circumstances, the corporation, not any one individual, is

responsible for injuries that may be caused by harmful policies

or systemic failings. The Bivens action is meant to deter

recurring, systemic constitutional violations just as much as

unpredictable individual instances of constitutional violations.

Only holding the corporation liable achieves this purpose. Cf.

Owen v. City of Independence, 445 U.S. 622 (1980); Monell v.

Department of Soc. Servs., 436 U.S. 658 (1978).

Third, an individual defendant may well be unable to pay

any substantial damages judgment awarded against him. The

career of a prison guard, especially in a private prison, is not

particularly lucrative. It is partially for that reason, we assume,

that BOP has required in its contract with CSC that CSC pay

any judgments entered against its employees.

Fourth, it may be impossible for the plaintiff to identify

or locate an individual defendant. As the dismissal of Mr.

Malesko’s claim against Jorge Urena demonstrates, Pet. App.

17a-18a, a plaintiff may be unable to identify his guards before

the limitation period expires. Private prisons have no reason to

disclose guards’ identities to prisoners, and several reasons not

to. By hiding the identities of their guards, prisons may avoid

litigation against the guards, protect the guards from retaliation

by disgruntled prisoners or their families, and discourage

improper inmate-guard relationships. See Sellers v. United

States, 902 F.2d 598, 602 (7th Cir. 1990) (explaining why

4

33

prisoners cannot be expected to serve BOP guards with process

without assistance from the U.S. Marshals Service). However,

hiding the defendants substantially impairs the value of the

Bivens suit both as a deterrent and as a remedy. Continuing to

allow suits directly against the corporation is the obvious

solution. When the plaintiff cannot find an individual who is the

sole defendant, there is no deterrent effect at all, let alone any

compensation to the plaintiff. BOP addresses the problem by

requiring the corporation to assume responsibility for litigation

against its employees. It would be an empty formalism to

require the plaintiff to sue an individual employee rather than the

corporation that could have prevented the injury, that will

conduct the defense litigation, and that will pay for the injury in

the end.

Citing Meyer, 510 U.S. at 485, CSC argues that finding

liability here will actually undercut the deterrent effect of the

Bivens remedy by encouraging plaintiffs to sue corporations

rather than their employees. This argument defies logic,

stretches Meyer beyond its limits, and ignores cases such as

Carlson v. Green in which plaintiffs pursued their claims against

the offending officers’ superiors and Owen v. Independence,

which acknowledged the deterrent effect of entity liability in the

section 1983 context. For the reasons just given, CSC’s liability

is likely to affect its employees’ behavior as much as, if not more

than, individual employee liability would. In either case, CSC’s

insurers will pay the damages and CSC will have an incentive to

control its employees’ behavior to minimize its insurance costs.

See also Reinier H. K:sakman, Corporate Liability Strategies

and the Costs of Legal Controls, 93 Yale L.J. 857 (1984);

Cornelia T.L. Pillard, Zaking Fiction Seriously: The Strange

Results of Public Officials’ Individual Liability Under Bivens,

88 Geo. L.J. 65, 76 (1999). Meyer was concerned that agency

liability would discourage plaintiffs from suing individual

officers, because officers but not federal agencies would have a

34

qualified immunity defense. But Richardson v. McKnight

established that private prison guards do not have qualified

immunity from section 1983 lawsuits, and CSC does not,

because it cannot, argue that a qualified immunity defense would

be available to private prison guards in a Bivens action.

Therefore, Meyer’s concerns about diminished deterrence can

apply only to federal agencies.

3. Because Private Corporations Are

Liable for Their Constitutional Torts

Under Section 1983, They Should

Also Be Liable Under Bivens.

The federal courts have long looked to 42 U.S.C. § 1983

as a parallel to the Bivens action. Enacted in 1871, section 1983

creates a cause of action against “[e]very person who, under

color of any statute, ordinance, regulation, custom, or usage, of

any State ... subjects, or causes to be subjected, any citizen of

the United States ... to the deprivation of any rights, privileges,

or immunities secured by the Constitution and laws.” This

~ broad language has been given detailed meaning by the federal

courts, which have often recognized its similarity to Bivens,

because both actions enforce the federal Constitution. Lugar v.

Edmonson Oil Co., 457 U.S. 922, 934 & n.17 (1982)

(discussing purpose of section 1983); Bivens, 403 U.S. 388.

Congress did not need to enact a federal parallel to section 1983

because federal officers could always obtain a federal forum by

removing their cases to federal court. Because there was no

general federal question jurisdiction in 1871, however,

section 1983 was needed to ensure a federal forum for the

vindication of federal rights when state officers violated those

rights. Economou, 438 U.S. at 502 n.30.

In case after case, this Court and the lower federal

courts have drawn on the parallel purposes of the two causes of

35

action to elaborate the scope and requirements of each. In

Wilson v. Layne, 526 U.S. 603 (1999), for example, federal and

state officers acted together; accordingly, this Court applied a

single analysis to the Bivens and section 1983 claims. See also,

e.g., Graham v. Connor, 490 U.S. 386, 394 n.9 (1989) (analysis

of excessive force claims); Carlson v. Green, 446 U.S. at 21

n.6, 22 (availability of punitive damages); Economou, 438 U.S.

at 495-96, 501 (“Surely, federal officials should enjoy no

greater zone of protection when they violate federal

constitutional rules than do state officers.”) Contrary to the

government’s suggestion, these parallels have not been limited

to questions of qualified immunity.

It is well-established, and CSC concedes, that a plaintiff

may sue a private corporation in a section 1983 action. Lugar,

457 U.S. 922; Adickes v. S.H. Kress & Co., 398 U.S. 144

(1970).* Just as the Court focuses on the “under color of state

law” requirement in modern section 1983 cases such as Lugar,

Bivens focuses on the abuse of federal authority and not the

individual characteristics of the defendant. Bivens, 403 U.S. at

392. CSC’s position is that if a state and federal prisoner

confined in the same facility suffer identical injuries under the

same unconstitutional policy, only the state prisoner will be able

to sue CSC under the federal Constitution in federal court. The

federal prisoner’s only recourse against CSC - if, indeed, any is

available — will be to sue CSC under state law. Nothing in

section 1983 or the Constitution can justify this absurd result.

* “(B]y 1871, it was well understood that corporations

should be treated as natural persons for virtually all purposes of

constitutional and statutory analysis.” Monell v. Department of

Soc. Servs., 436 U.S. 658, 687 (1978); accord Santa Clara

County v. Southern Pac. R.R. Co., 118 U.S. 394 (1886)

(holding that corporation is a “person” under section 1983).

36

“[T])he ‘constitutional design’ would be stood on its head if

federal officials did not face at least the same liability as state

officials guilty of the same constitutional transgression.” Green,

446 U.S. at 22. Dismissing this case based on the defendant’s

corporate status would vitiate Bivens’ purposes. It would

create a gulf between Bivens and section 1983 that cannot be

justified on any policy grounds, much less the key policies

underlying the two causes of action: deterrence of constitutional

wrongdoing and compensation of its victims.

D. State Law Does Not Assure Enforcement of

the Federal Constitution.

CSC seeks to resuscitate the argument rejected in

Bivens: namely, that state tort law adequately protects rights

guaranteed by the federal constitution against invasion by

federal officers, obviating the need for a federal cause of action.

Not so. The bedrock assumption underlying Bivens and all its

progeny is that only Congress can provide an adequate

alternative remedy, because only Congress can guarantee federal

rights as effectively as the federal courts. State tort law is no

substitute for the federal Constitution. Congress has recognized

this principle by acquiescing in this Court’s twenty-year-old

conclusion in Green that the Federal Tort Claims Act does not

guards under both Bivens and state law for intentional torts such

as assault, battery, and false imprisonment. 28 U.S.C.

§§ 2679(b), 2680(h).

State law addresses matters of state, not federal,

concern, and has nothing to do with the exercise of federal

power. State tort law does not have any necessary relationship

to the federal Constitution, and therefore cannot deter those

who violate the Constitution or compensate their victims. It is

—

37

interests protected by state laws regulating trespass and the

invasion of privacy, and those protected by the Fourth

Amendment’s guarantee against unreasonable searches and

seizures, may be inconsistent or even hostile.” Bivens, 403 U.S.

at 394 (discussing cases); cf Carey v. Piphus, 435 U.S. 247,

258 (1978) (“In other cases, the interests protected by a

constitutional right may not also be protected by an analogous

branch of the common law of torts.... The purpose of § 1983

would be defeated if injuries caused by the deprivation of

constitutional rights went uncompensated simply because the

common law does not recognize an analogous cause of

action.”).

Various types of wrongdoing in private prisons might

give rise to a Bivens claim but not to a state tort claim. See,

e.g., Brown v. United States, 653 F.2d 196 (Sth Cir. Unit A

1981) (affirming dismissal of malicious prosecution claim and

noting that Fourth and Fifth Amendment claims are not part of

state law). The Equal Protection Clause, for example, was

enacted specifically because the common law provided no

remedy against government-sponsored discrimination. Thus,

even if racially-motivated death threats at gunpoint by a prison

guard would not constitute assault under state law, they may

v. Livingston, 791 F.2d 97, 100-01 (8th Cir. 1986)

(section 1983 case). Federal law or federal officials might

purport to authorize unconstitutional acts, immunizing them

against state tort claims. Brown v. Nationsbank, 188 F.3d 579,

588-89 (Sth Cir. 1999) (Supremacy Clause shields private

defendants acting under FBI direction from state law claims);

Burton-Bey v. United States, (No. 96-3241) 1996 U.S. App.

LEXIS 29372 (10th Cir. Nov. 12, 1996) (affirming dismissal of

of the right of ownership” was actionable under state law, and

BOP regulations authorized the seizure at issue) (emphasis

38

added). Of course, such “authorization” would not shield the

defendants from a Bivens claim if their acts were

unconstitutional. Other claims arise out of unique features of

the prison context, making it difficult to imagine a parallel

common law claim. Del Raine v. Williford, 32 F.3d 1024,

103 1-38 (7th Cir. 1994) (confinement in bitterly cold cell can

give rise to Eighth Amendment Bivens claim); Kikimura v.

Turner, 28 F.3d 592, 597-99 (7th Cir. 1994) (warden violated

prisoner’s First Amendment right to receive correspondence

written in Japanese).

Nor can the evolution of state tort law result in a

uniform interpretation of the federal Constitution. As this Court

recently explained, Bivens and section 1983 cases provide

federal courts with a valuable opportunity to clarify

constitutional standards. This clarification function is so

important that it justifies the courts’ deciding constitutional

issues before reaching the question of qualified immunity.

Wilson, 526 U.S. at 609.

Moreover, state law does not guarantee the procedural

protections needed to safeguard constitutional rights. Most

importantly, the Seventh Amendment applies in Bivens actions,

Green, 446 U.S. at 22-23, but does not apply to state court

actions, Walker v. Sauvinet, 92 U.S. (2 Otto.) 90, 92-93

(1875). “The founders of our Nation considered the right of

trial by jury in civil cases an important bulwark against tyranny

and corruption, a safeguard too precious to be left to the whim

* Of course, Congress could create an alternative

remedy that does not require trial by jury, but such a remedy

would have to be “an equally effective substitute” for the Bivens

action, which includes the federal court jury guarantee. Bush,

462 U.S. at 378.

39

of the sovereign, or, it might be added, to that of the judiciary.”

Parklane Hosiery Co. v. Shore, 439 U.S. 322, 343 (1979)

(Rehnquist, J., dissenting). That federal right is an important

element of the Bivens action and while states generally afford a

right to trial by jury, the federal Constitution does not require

them to do so.

Individual states also have their own causes of actions

and procedural rules, making state tort law far from uniform.

For example, negligent conduct may give rise to an assault claim

in Connecticut, Alteiri v. Colasso, 362 A.2d 798 (Conn. 1975),

or Alabama, Honeycutt v. Louis Pizitz Dry Goods Co., 180 So.

91 (Ala. 1938), but not in Rhode Island, Baran v. Silverman, 83

A. 263 (RI. 1912), or Mississippi, Webb v. Jackson, 583 So.2d

946 (Miss. 1991). See also, e.g., Hayes v. Cambra, (No. 99-

15023) 1999 U.S. App. LEXIS 30103 (9th Cir. Nov. 15, 1999)

(section 1983 retaliation claim remanded for reconsideration of

sovereign immunity, but dismissal of state law claims affirmed

for failure to file claim with a state agency). The enforcement

of federal rights should be uniform, see Pennhurst State Sch. &

Hosp. v. Halderman, 465 U.S. 89, 105 (1984); Green, 446 U.S.

at 25, especially when those who invoke federal law are likely

to file complaints pro se and may well be incarcerated against

their will in a distant and unfamiliar state. In Green, for

example, the state law claims were barred by Indiana’s law of

survivorship, but this Court held that federal law governs

survivorship in the Bivens action. 446 U.S. at 25.

Finally and most importantly, states are free at any time

to change or eliminate their own tort law, or to restrict tort

remedies, yet the Supremacy Clause forbids state interference

with federal rights. McCulloch v. Maryland, 17 US. (4

Wheat.) 316, 407 (1819). The federal Constitution can be

vindicated only in an action intended to enforce it: one under

Bivens or section 1983. In sum, one teaching pervades Bivens

40

and its progeny: When federal power is used to violate

constitutional rights, the victim must be able to seek damages

for that violation in federal court.

E. Bivens’ Two Exceptions Are Narrow, and

Neither Applies Here.

This Court has decided only a handful of cases

concerning Bivens’ scope. As explained above, Bivens’ progeny

establish that Fifth and Eighth Amendment claims are cognizable

under Bivens and that the Federal Tort Claims Act does not

displace the Bivens cause of action. When federal authority has

been used to violate constitutional rights, the victim can bring a

Bivens action unless Congress has enacted an equally effective

substitute remedy or there are special factors counseling

hesitation in the absence of Congressional action. 403 US. at

396-97. This Court has never found a Congressional remedy to

be an equally effective substitute for Bivens, and there is none

even arguably applicable here. This Court has found “special

factor[s] counseling hesitation” only in a few exceptional cases.

Two pairs of cases illustrate the stringency of Bivens’

“special factor” standard. In Chappell v. Wallace, 462 U.S. 296

(1983), and United States v. Stanley, 483 U.S. 669 (1987), this

Court expanded the doctrine of Feres v. United States, 340 U.S.

135 (1950), to bar Bivens actions by military personnel. In

Chappell, enlisted Navy personnel sought to bring a damages

action against their superior officers, but this Court held that

“(t]aken together,” the “unique disciplinary structure of the

[mJilitary’” and Congress’ control over military matters

constituted “‘special factors” barring a Bivens action by

soldiers against their superior officers. 462 U.S. at 304.

Chappell noted that the military’s needs were important enough

to override the arguably plain language of the Federal Tort

Claims Act in Feres itself. Jd at 299. In Stanley, a bare

41

majority of this Court held that a military exception parallel to

the Feres doctrine barred a Bivens action against various federal

officers arising out of LSD experimentation on unconsenting

soldiers. 438 U.S. at 683-84. Feres, Chappell, and Stanley are

simply inapplicable to this civilian case, but they do illustrate the

strength of the federal interest needed to overcome the

presumption that a Bivens action is available. “In every respect

the military is, as this Court has recognized, ‘a specialized

society,”” not necessarily subject to civilian rules. United States

v. Johnson, 481 U.S. 681, 690-91 (1987).

Bush v. Lucas, 462 U.S. 367 (1983), and Schweiker v.

Chilicky, 487 U.S. 412 (1988), addressed statutory schemes that

Congress created to adjudicate monetary claims against the

government. Bush concerned civil service employees who were

allegedly fired in violation of their First Amendment rights,

while Chilicky arose out of systemic processing problems with

social security benefits. The statutory remedy in each case

included administrative adjudication of the aggrieved

individuals’ claims, judicial review, and full payment of the

unlawfully withheld monies to the complainants. Bush, 462

U.S. at 386-88; Chilicky, 487 U.S. at 424-25. In both cases,

Congress had addressed the specific problem at issue and,

although the statutory remedies were in some respects

unsatisfactory to the plaintiffs, they did constitute “special

factors counseling hesitation.”

It is undisputed that Mr. Malesko has no access to any

statutory remedy that could displace a Bivens suit. The

alternative remedies to which CSC alludes were not created by

Congress and do not address his situation. BOP’s complaint

policy is the equivalent of a suggestion box: There is no

provision for binding dispute resolution, let alone judicial

review, and no opportunity for prisoners to obtain damages. 28

C.F.R. § 542.10 et seg. CSC’s suggestion that Mr. Malesko

42

might obtain an injunction is likewise unrealistic. Even if

injunctive relief would be available to a prisoner who had just

suffered Mr. Malesko’s injuries, now that Mr. Malesko has been

released from federal custody, he lacks standing to seek an

injunction in federal court. City of Los Angeles v. Lyons, 461

U.S. 95 (1983). An injunction simply would not remedy his

injuries; in Justice Harlan’s words, “it is damages or nothing.”

Bivens, 403 U.S. at 410 (Harlan, J., concurring).

The last “special factor” that CSC identifies is a broad

pro-privatization policy on the part of Congress. Here CSC

overstates its case. Most of the statutes CSC cites leave it to

the agency’s discretion whether to use contractors or not. See

generally statutes cited in Pet. Br. at 28-29 n.25. But even if

Congress did favor privatization, this argument utterly fails to

distinguish Bivens or any of its progeny. Congress clearly has

a pro-civil-service policy; federal agencies have required staff

since their creation. The federal courts themselves have

recognized the threat that liability may pose to “principled and

fearless decision-making” by government employees. Wood v.

Strickland, 420 U.S. 308, 319 (1975) (internal quotation marks

and citation omitted). Yet Bivens was conceived as a remedy

against federal officers.

Nor does the fact that Congress pursues a particular end

mean that it or those exercising federal authority may ignore the

Constitution on the way to that end. Indeed, the federal

government’s asserted move from performing core

governmental functions itself to contracting out those functions

makes it all the more important that contractors be at least as

accountable as federal employees. Brief for the U.S. as Amicus

Curiae Supporting Respondent at 21-24, Richardson v.

McKnight, 521 U.S. 399. For decades, the federal courts of

appeals have explicitly held or assumed that private corporations

can be held liable under Bivens. See, e.g., Hammons v. Norfolk

43

Southern Corp., 156 F.3d 701 (6th Cir. 1998); Schowengerdt v.

General Dynamics Corp., 823 F.2d 1328 (9th Cir. 1987);

Gerena v. Puerto Rico Legal Serv., Inc., 697 F.2d 447 (1st Cir.

1983); Dobyns v. E-Systems, Inc., 667 F.2d 1219 (Sth Cir.

1982); Ginn v. Mathews, 533 F.2d 477 (9th Cir.1976);

Yiamouyiannis v. Chemical Abstracts Serv., 521 F.2d 1392 (6th

Cir. 1975) (per curiam). Yet nothing in the array of statutes

CSC cites indicates any congressional intent even to address

constitutional violations by private contractors, let alone to limit

contractors’ liability for their constitutional torts. Congress has

enacted extensive laws authorizing privatization, yet for over

twenty-five years has chosen not to immunize private

corporations from liability for their unconstitutional abuses of

federal power. This Court should not override Congress’s

judgment.

The cases elaborating Bivens’ exceptions only

demonstrate the substantial congressional activity or federal

interest needed to displace the Bivens action. There is no such

activity or interest here.

44

CONCLUSION

For the foregoing reasons, the judgment of the Second

Circuit should be affirmed, and this case remanded to determine

whether petitioner violated John E. Malesko’s constitutional

nights.

_ Respectfully submitted,

STEVEN PASTERNAK

(Counsel of Record)

LAW OFFICES OF STEVEN PASTERNAK

P.O. Box 47

Livingston, NJ 07039

(973) 994-7900

TANYA Y. BARTUCZ

DAVID C. VLADECK

PUBLIC CITIZEN LITIGATION GROUP

1600 20th St., N.W.

Washington, DC 20009

(202) 588-1000

Attorneys for Respondent

John E. Malesko

July 20, 2001