Reply Brief — Correctional Services Corp. v. Malesko

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18) Supseme Court, U.S.

No. 00-860 SEP 4 2001

Supreme Court of the United States

CORRECTIONAL SERVICES CORPORATION,

Petitioner,

JOHN E. MALESKO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

REPLY BRIEF OF PETITIONER

GEORGE P. STASIUK CARTER G. PHILLIPS*

GEORGE F. BRENLLA 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 1501 K Street, NW

Washington, DC 20005

KAREN M. MORINELLI (202) 736-8000

CORRECTIONAL SERVICES CORP.

1819 Main Street

Sarasota, FL 34236

(941) 953-9199

Counsel for Petitioner

September 4, 2001 * Counsel of Record

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

SEP 07 2001

LIBRAH? Ju..viCieQBLE OF CONTENTS

TABLE OF AUTEIORITIEG............ccscccsscssccccssescsssceess

IL.

Il.

EXTENDING BIVENS TO PRIVATE ENTITIES

WOULD UNDERMINE, NOT ADVANCE, THE

I os crrcsssayccmichsonsiensaneneess

A. Extending Bivens To Private Entities Will

Undermine Its Core Deterrence Rationale. ........

B. Plaintiffs In Respondent’s Position Already

Have Appropriate Alternative Remedies...........

SPECIAL FACTORS COUNSEL AGAINST

EXTENDING BIVENS TO PRIVATE ENTITIES

A. Expanding Bivens To Government Contractors

Would Threaten Federal Fiscal Policy ..............

B. Expanding Bivens Is Contrary To Logic,

SECTION 1983 IS IRRELEVANT WHEN

DECIDING WHETHER TO EXTEND BIVENS...

hack iilsneciicndnsaienlihianiedasiisaiiivenibiagiictabepeses

. iii

init TABLE CF QUE nas TABLE OF AUTHORITIES—continued

STATUTES Page

Bivens v. Six Unknown Named Agents of Fed. ;

Bureau of Narcotics, 403 U.S. 388 (1971)..... 13,11 uae adees NSE Tn, Re =

Booth v. Churner, — US. —, 121 S. Ct. 1819 SC. | SE Ea

GID inne vvenessethsheprceencipehintesneiiiinibasiatsainiaamaaanaal 10 OTHER AUTHORITIES

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

CRUD oaissssentrtisctnhivseinaibiodemeiamaananaies 12 Bureau of Justice Assistance, U.S. Dep’t of

Butz v. Economou, 438 U.S. 478 (1978)............... 17, 18 Justice, Emerging Issues on Privatized Prisons

Carlson v. Green, 446 U.S. 14 (1980).................. 15, 18 a sccvene 7

Chisom v. Roemer, 501 U.S. 380 (1991) .........0.0... 16 Bureau of Prisons, Statement of Work for

City of Newport v. Fact Concerts, Inc., 453 U.S. Community Corrections Center (Dec. 2000)...... 13

BEE CRD wxs.0secsscvrssnehiuitivesthdliliasiiatisabdiestindyiitiis 5

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

Graham v. Connor, 490 U.S. 386 (1989).............. 17

Griffin v. Oceanic Contractors, Inc., 458 U.S.

FOO COGN aee:ssecccthitientsintiiaindacentacaelaaans 16

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

egy foe | Neer 14

Marbury v. Madison, 5 U.S. (1 Cranch) 137_

CIID «<covsesccesicreseesechesahsecnininionneeendananananianal 10

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

GD Ai visccinevscncsevtneumitthiiiaihiiaieaiiatas 17, 18, 19

Ngiraingas v. Sanchez, 495 U.S. 182 (1990)........ 18, 19

Richardson v. McKnight, 521 U.S. 399 (1997)...... 9

Ruiz Rivera v. Riley, 209 F.3d 24 (ist Cir. 2000).. 15

Schweiker v. Chilicky, 487 U.S. 412 (1988).......... 2

TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S.

GOB COBUID. 0 ccciscesvcctosstincstrtenigiiemiiatnaameiaianl 13

United States v. Stanley, 483 U.S. 669 (1987)....... 11

United States v. Wells, 519 U.S. 482 (1997).......... 16

Will v. Michigan Dep't of State Police, 491 U.S.

FD EIB cenecssiovssvssistvenecisiesstitndaaaaaial 18, 19

Wilson v. Layne, 526 U.S. 603 (1999)............000. 17, 18

INTRODUCTION

The issue presented in this case is not, as Respondent and

his amici would have it, whether privatization of federal

prisons is good policy or whether Correctional Services

Corporation (“CSC”) is entitled to sovereign immunity. The

issue is whether the implied cause of action against federal

officers for damages arising from constitutional violations,

see Bivens v. Six Unknown Named Agents of Federal Bureau

of Narcotics, 403 U.S. 388 (1971), should be extended to

private entities acting under color of federal law. CSC and

the Government showed in their opening briefs that this Court

should not do so because such an extension would serve

neither of the purposes underlying Bivens—to wit, it would

neither enhance deterrence of constitutional violations by

individual officers nor provide a remedy where none

otherwise exists.

Indeed, the logic of this Court’s decision in FDIC v. Meyer,

510 U.S. 471 (1994), simply cannot accommodate the

extension of Bivens to private entities. Meyer makes clear

that the core purpose of Bivens is the deterrence not of

corporate entities, but of individual actors—i.e., the people

who set and implement policies—and further that a Bivens

remedy is appropriate only where a plaintiff lacks any other

remedy. Where, as here, it has been assumed that the plaintiff

could have brought a Bivens-type action against the CSC

employees who allegedly injured him by creating,

implementing, or violating a CSC policy, the requisite

deterrence of and remedy for constitutional violations already

exists, and Bivens should not be extended.

The fundamental difference between the parties in this case

is found in their entirely distinct views of the role of the

Bivens action. CSC and the Government contend that a

Bivens action is a gap-filler, a judicially created solution for

the problematic situation created when there is no deterrence

of, nor any damages remedy for, constitutional violations

committed by individual federal officers. Respondent and his

amici treat Bivens as a full-blown statutory scheme, akin to

Section 1983, establishing and implementing remedies for

any and all constitutional violations under color of federal

law. But precisely because the Bivens action is a judicial—

not a congressional—creation, it extends only as far as

necessary to fill the gaps identified by this Court in the line of

cases following Bivens.

Even where a gap exists, a Bivens action will be implied

only if there are no “‘special factors’ that counsel against

doing so. Meyer, 510 U.S. at 486. CSC and the Government

showed that “[rjecognizing an additional Bivens damages

action directly against correctional corporations in this

context has the potential of impeding the BOP’s [Bureau of

Prisons’] implementation of important correctional programs”

and would place an additional burden on federal fiscal

interests. Gov't Br. 10, 26-28. And CSC’s and the

Government’s view has the added virtue of treating federal

prisoners consistently: Federal prisoners in facilities operated

by either the BOP or a private contractor may bring Bivens

actions against individuals acting under color of federal law,

but not against the entity holding the prisoners. By contrast,

Respondent’s proposed extension would grant federal

prisoners in private, but not public, facilities a Bivens action

against the entity holding them.

CSC’s and the Government’s approach best comports with

this Court’s “cautious[]” response to proposals for new

extensions of Bivens. Schweiker v. Chilicky, 487 U.S. 412,

421 (1988). Exercise of such caution is fully warranted here.

The decision below, extending Bivens to a context in which

none of its purposes would be served, should be reversed.

ARGUMENT

I. EXTENDING BIVENS TO PRIVATE ENTITIES

WOULD UNDERMINE, NOT ADVANCE, THE

PURPOSES OF BIVENS.

As demonstrated in CSC’s and the Government’s opening

briefs, the cause of action for damages created in Bivens v.

Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971), only will be extended where it both (i)

would deter an individual officer by exposing him personally

to the direct threat of litigation and liability if he

unconstitutionally abuses his federal authority and (ii) would

provide damages for a constitutional violation that lacks an

alternative remedy. See Pet. Br. 8-18; Gov't Br. 18-26.

Enlarging Bivens to include actions against private entities

such as CSC would serve neither of these purposes.

A. Extending Bivens To Private Entities Will

Undermine Its Core Deterrence Rationale.

1. Respondent posits that “[t}he only limit this Court has

recognized on Bivens’ reach is for ... entities entitled to

invoke absolute sovereign immunity.” Resp. Br. 7. This

contention does not withstand even cursory scrutiny. As an

initial matter, as is plain from its opening brief, CSC does not

claim (either “overtly” or covertly) that it is entitled to

sovereign immunity. /d at 16. More importantly, this Court

has rejected the claim, repeated throughout Respondent’s

brief, see id. at 4, 7-8, 10, 12-18, that the scope of Bivens is in

any way linked to the scope of sovereign immunity. Indeed,

in Meyer, the Court rejected the lower court’s “conflat[ion]”

of the sovereign immunity and Bivens analyses, terming them

“two ‘analytically distinct’ inquiries.” FDIC v. Meyer, 510

U.S. 471, 484 (1994). As such, courts consider separately

whether sovereign immunity precludes liability and whether

Bivens “provides an avenue for relief.” Jd As the Meyer

Court unanimously held, a federal corporation, the Federal

Deposit Insurance Corporation (“FDIC”)}—which had no

sovereign immunity—still was not amenable to a Bivens suit.

Id. at 486. The question whether CSC is entitled to sovereign

immunity is simply irrelevant to whether extending Bivens is

appropriate given its logic and purpose anc the presence of

special factors counselling hesitation. /d. at 483-36.

2. As the Court unanimously held in Meyer, “the purpose

of Bivens is to deter the officer.” Id at 485 (emphasis in

original). Deterrence, in the Bivens sense, operates on the

behavior and motivations of an individual, natural person, not

on an entity or artificial person. See Pet. Br. 9-13. The

quintessential Bivens defendant (indeed, the only Bivens

defendant ever recognized by this Court), is an individual

federal officer—either a line agent directly interacting with

the public or an ‘administrator directly setting an entity’s

policies.

The Court never has held that an entity—even one that

enjoys no sovereign immunity (such as the FDIC in Meyer)—

is amenable to a Bivens action. Contrary to Respondent’s

suggestion, the Court’s distinction between individuals and

entities is no “arcane” “pleading trap,” Resp. Br. 29, but a

core analytical distinction based on the purpose and logic of

Bivens to deter and to fill a remedial gap. As shown in CSC’s

opening brief, deterrence in the Bivens sense specifically

targets the threat and pains of litigation at those individuals

who actually interact with, and set policies impacting, the

public and who are directly responsible for unconstitutional

conduct. Pet. Br. 9-13."

3. As shown in CSC’s opening brief and explained in

Meyer, if entities were amenable to Bivens, these deterrent

effects would be undermined. Pet. Br. 11-13: ./feyer, 510

' Furthermore, Respondent and his amici ignore that the Court has held

that Bivens deterrence is not undermined even where an individual officer

has qualified immunity (or, as here, a possible good faith defense), is

indemnified against constitutional torts, and is acting pursuant to an

entity’s policy. See Pet. Br. 10-11 & nn.7 & 8; see FDIC v. Meyer, 510

U.S. 471, 473, 474, 486 (1994).

U.S. at 485; cf. City of Newport v. Fact Concerts, Inc., 453

U.S. 247, 270 (1981) (“[A] damages remedy recoverable

against individuals is more effective as a deterrent than the

threat of damages against a government employer.”).

Respondent does not dispute that entities are more attractive

litigation targets. See 13 & n.12, infra. Thus, if Bivens

liability were expanded, plaintiffs would tend to sue, and to

enforce judgments against, entities to the exclusion of the

individuals responsible for the unconstitutional conduct. In

such a case, “the deterrent effects of the Bivens remedy would

be lost.” Meyer, 510 U.S. at 485. Deterrence in the Bivens

sense is achieved by targeting individual officers to the

exclusion of the employing entity.

4. Respondent and his amici assert that a Bivens action is

necessary to cure systemic problems and to deter an entity

from making and enforcing unconstitutional policies, but this

contention fails. First, because plaintiffs can bring Bivens

actions against individuals who directly make policy for

federal entities and entities acting under color of federal law,

it plainly is aot necessary to have a Bivens action against the

entity. See 1B., infra. In any event, there is no policy at

issue here. Despite Respondent and his amici’s character-

ization, Respondent has not clearly pled that his injuries were

caused by a CSC policy. To the contrary, Respondent

concedes that CSC’s policy was that, “because of his illness,

Mr. Malesko was allowed to continue to use the elevator.”

Resp. Br. 1 (emphasis added). Subsequently, and in violation

of this CSC policy, it was an individual CSC guard who

“compelled Mr. Malesko to take the stairs to his room”

despite being reminded that Respondent “was allowed to use

the elevator.” Resp. Br. 1-2.? But, even if this case squarely

? There is no allegation that CSC had any policy, or took any action,

that precluded Respondent from obtaining his medication. J.A. 13; see

Gov't Br. 6 n.3 (noting that “residents generally are responsible for the

costs of their medical and dental care” except “‘[iJn an emergency’”)

(quoting BOP, Statement of Work for Community Corrections Center 88

involved a CSC policy, it is axiomatic that corporations act

only through their officers and agents. See Gov’t Br. 21 n.11.

5. Respondent’s and his amici’s suggestion that Bivens is

necessary to deter the wrongdoing, and to provide proper

oversight and accountability, of entities such as CSC

overlooks the fact that there already are numerous

mechanisms for ensuring direct and indirect scrutiny and

oversight of entities. First, as discussed below, there are

already appropriate judicial means to hold entities directly

accountable in tort. See I.B., infra.

Second, entities such as CSC already are subject to

“extensive” BOP “oversight and enforcement” including

“contract monitoring and performance evaluation.” Gov’t Br.

25. In particular, CSC must comply with the BOP’s

voluminous Statement of Work, detailing numerous policies

and standards designed to protect inmates. Indeed, CSC risks

losing its contract if it does not meet these standards. Given

that there are few, if any, alternative buyers besides the

government, entities such as CSC have a powerful incentive

to satisfy the BOP’s standards. Moreover, the BOP remains

under direct public scrutiny and political pressure to take care

in monitoring entities, such as CSC.

Third, as a publicly traded company, CSC is subject to

extensive and ongoing reporting requirements in the securities

markets that provide broad disclosure to the public. See, e.g.,

Resp. Br. 16, 22 (citing CSC’s Form 10K). Moreover, a

corporation is directly responsible to its shareholders, and

would have difficulty attracting new investment and retaining

current investment if its employees behave unconstitutionally,

thereby subjecting them to substantial liability and the

company to adverse publicity.

(Dec. 2000)) (alteration in original). Moreover, despite Respondent's new

theory that CSC somehow “failfed] to train and supervise” its employees,

Resp. Br. 4, he made no such allegation in his complaint.

Fourth, as is plain from Respondent’s amici’s citation to

newspaper accounts of alleged correctional abuses, there

already is substantial media oversight and access to

correctional facilities. This is particularly true at a

Community Correctional Center, such as the facility at issue

here, where inmates have substantial interaction with the

outside world. See Gov’t Br. 2-4.’ Finally, plaintiffs always

= bring a Bivens suit against the wrongdoing individual

officer.

Accordingly, the opposition’s unsupported assertion that it

is somehow efficient for a profit-making entity such as CSC

to cut constitutional corners, defies reality. Resp. Br. 22;

ACLU Br. 4. Extending Bivens to entities such as CSC is

neither necessary (nor sufficient) to deter unconstitutional

conduct given the myriad mechanisms that already exist to

ensure government and public oversight.‘

* Despite Respondent and his amici’s assertion that private facilities are

inherently more troubled and more prone to constitutional violations than

are their public counterparts, in fact, the same study cited by the Legal Aid

Society of the City of New York (“LAS”), see, e.g., LAS Br. 8, concludes

that “private prisons operate much the same as public facilities,” “function

as well as publicly operated prisons,” and tend to have “the same staffing

patterns; provide the same levels of work, education, and counseling

programs for inmates; and have the same rate of serious inmate

more similarities and fewer differences between the two methods of

operation.” Bureau of Justice Assistance, U.S. Dep’t of Justice, Emerging

Issues on Privatized Prisons ix, x, 59 (Feb. 2001). In sum, such

comparisons “cannot be used to conclude that either a private or a public

prison is superior to the other.” /d. at 47.

“If anything, LAS’s litany of “patterns of abuse” at various State

entities, LAS Br. 11-16, which are amenable to Section 1983 liability,

indicates that extending Bivens to entities would not solve the problems

LAS identifies. LAS’s submission simply substitutes sensationalism for

legal analysis.

B. Plaintiffs In Respondent’s Position Already Have

Appropriate Alternative Remedies.

1. Although Respondent and his amici do not dispute that

individual CSC officers are appropriate Bivens defendants,

they virtually ignore these potential defendants in insisting

that a Bivens remedy is needed against CSC.° This approach

is not surprising. Just as the plaintiff in Meyer sought to sue

the FDIC as an end run around the individual FDIC officer’s

qualified immunity, Respondent seeks to sue CSC because his

Bivens claims against CSC’s officers are time-barred.

Respondent’s current inability to pursue Bivens claims

against individual officers is the result of a self-inflicted

wound. Indeed, Malesko waited until nearly three years

following the incident, on the eve of the expiration of the

statute of limitations, to bring suit and did not identify a

particular officer until his amended complaint, nearly five

years after the alleged incident.

Accordingly, the difference between the parties is clear.

CSC and the Government believe that a federal inmate held in

a CSC facility should have the same rights as one held in a

BOP facility: namely, the right to sue the individual rogue

agent or policymaker directly responsible for an alleged

constitutional violation, but not the entity. Respondent and

his amici, by contrast, believe that the CSC inmate should

* Respondent and the courts below have assumed that CSC’s individual

officers would be amenable to a Bivens suit. See Pet. Br. 13-14. CSC

does not “ignore[] 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.” Resp. Br. 29. In fact, all involved in this case

under color of federal law is amenable to a Bivens suit—as is the director

of the BOP.

° Respondent does not challenge the holdings below that this belated

attempt to name individual defendants was time-barred. Resp. Br. 2.

have an additional cause of action against the entity. There is

no justification for that proposed disparity.’

2. Respondent’s arguments about the potential difficulties

of suing individuals, as opposed to entities, do not warrant

creation of a Bivens action against entities. First, while

individuals are more likely than entities to have “shallow

pockets” or to be judgment proof, this phenomenon is equally

likely with regard to public officers. In any event, as shown

above, providing access to entities severely undermines the

Bivens deterrence rationale (see I.A., supra).

Similarly, Respondent’s claim that entities are more

desirable litigation targets because they are easier to identify

than individuals does not support an extension of Bivens to

private entities. This claim, if true, would be equally

problematic in the public context. In all cases, the proper

course instead is to sue the individual wrongdoers as “John

Does” and utilize ordinary discovery mechanisms, such as

propounding interrogatories, to learn their identity.® A

plaintiff also could utilize non-litigation mechanisms to seek

the identity of an individual wrongdoer, such :s making

inquiries through the BOP’s Administrative Remedy

Program. See generally Pet. Br. 16-17 & n.16; Gov’t Br. 24

& n.15.

’ Moreover, to the extent private correctional employees (as opposed to

public correctional employees) may not be entitled to qualified immunity,

if anything, a plaintiff such as Respondent would have a more effective

Bivens remedy than his publicly held counterpart. See Pet. Br. 10 n.7;

Richardson v. McKnight, 521 U.S. 399, 412 (1997); but cf id. at 413

(limiting holding, noting “[t}he case does not involve a private individu-

al... serving as an adjunct to government in an essential governmental

activity, or acting under close official supervision”). In Meyer, by

contrast, the individual officer was protected by qualified immunity,

leaving that plaintiff with no practically effective Bivens remedy.

* Here, of course, Respondent brought a John Doe Bivens suit against

individual officers but failed to utilize discovery to learn their names and

to amend his complaint in a timely manner. See 8 & n.6, supra.

3. In addition to the assumed Bivens remedy against

individual CSC officers, Respondent concedes that plaintiffs

in his position have damages remedies under State law. See

Resp. Br. 18-19, 36; Resp. Pet. Opp. 13. Although urging

that only Congress and the federal courts can protect federal

rights, Respondent does not show why available State

remedies would be inadequate to provide the damages he

seeks in this case.” Indeed, Respondent does not answer

CSC’s point that plaintiffs in his position likely will have an

easier time prevailing (and recovering damages) under State

law standards (e.g., by showing negligence) than under

heightened Eighth Amendment “‘deliberate indifference’”

standards. Pet. Br. 15 (quoting Estelle v. Gamble, 429 US.

97, 106 (1976)). In any event, federal inmates assigned by

the BOP to private and public facilities generally may sue

both individual officers and entities through State tort law or,

fcr those in public facilities, through the analogous federal

tort remedy under the Federal Tort Claims Act, 28 U.S.C.

§ 2671 et seq. See Gov’t Br. 11-12. These tort remedies,

combined with Bivens remedies against individual officers,

are adequate for ail federal prisoners. /d.

4. Finally, as CSC has shown, many other mechanisms

ensure oversight and accountability of entities. Pet. Br. 16-

18. For example, the Court recently has emphasized the

importance with which Congress views the Administrative

Remedy Program at least as a vehicle to “produce

administrative results that would satisfy at least some

inmates” and a useful “filter [of] some frivolous claims.”

Booth v. Churner, — U.S. —, —, 121 S. Ct. 1819, 1823

* Despite Respondent’s repeated citation to Marbury v. Madison, 5 U.S.

(1 Cranch) 137 (1803), and history as support for expanding Bivens here,

there was no Bivens cause of action at all for nearly 170 years. Moreover,

as shown in CSC’s and the Government’s opening briefs and below, the

Court is properly reluctant to imply causes of action where Congress has

not acted, unless certain rigorous conditions are met. See III., infra.

(2001) (holding that this process must be exhausted before

seeking money damages under Section 1983).

Respondent is therefore left in the same position as the

plaintiff in Meyer: he may sue the individual officer under

Bivens, and he may pursue remedies against the institution in

tort, but he may not sue the entity in a Bivens action. CSC’s

and the Government’s position, unlike respondent’s, treats all

federal prisoners equally while properly promoting Bivens’

deterrence and remedial purposes.

Il. SPECIAL FACTORS COUNSEL AGAINST

EXTENDING BIVENS TO PRIVATE ENTITIES.

Where “‘special factors counsel[{] hesitation,” extending

Bivens is “inappropriate even if such a remedy were

consistent with Bivens,” FDIC v. Meyer, 510 U.S. 471, 486

(1994), and regardless of “whether the laws currently on the

books afford [a plaintiff] an ‘adequate’ federal remedy for his

injuries,” United States v. Stanley, 483 U.S. 669, 683 (1987).

See Pet. Br. 18-31. The range of factors considered in this

analysis is broad and context sensitive. /d at 18-19.

Extending Bivens here would injure at least two sets of

interests within Congress’s_ particular _ institutional

competence by interfering with federal fiscal policy and by

creating disparate treatment that is contrary to logic, equity,

and congressional privatization policy. See id at 20-31.

Special factors are implicated in this case, and extending

Bivens to private entities therefore would be inappropriate.

A. Expanding Bivens To Government Contractors

Would Threaten Federal Fiscal Policy.

Interference with federal fiscal policy is a “special factor[]

counseling hesitation.”'® Bivens v. Six Unknown Agents of

'° Respondent’s challenge to this conclusion is baffling. Resp. Br. 11.

Bivens stated that interference with federal fiscal policy could be a

“special factor[] counseling hesitation,” 403 U.S. at 396, and Meyer relied

on that factor in refusing to extend Bivens to the FDIC, 510 U.S. at 486.

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

due respect for Congress’s role in spending decisions, the

Court rightly hesitates to distort public choice, directly or

indirectly. Because extending Bivens to government

contractors would impact the federal fisc, hesitation is

warranted here. Pet. Br. 20-23; Gov’t Br. 26.

1. Respondent argues that the Court should ignore the

effect on the fisc caused by increased liability of government

contractors because that impact would be indirect. But, this

Court rejected this argument in Boyle v. United Technologies

Corp., 487 U.S. 500 (1988). Boyle reflects the practical

reality that if private entities are subjected to higher liability

risks while providing services to the government, entities will

either raise their prices or refuse to provide those services. /d.

at 507. This, in turn, will affect the federal fisc, i.e., by

increasing the price that the government pays or by removing

options for service. The harm to the federal fisc will be no

less significant because it is indirect. See Pet. Br. 20-21 &

n.17 (analyzing effect of increased government contractor

liability on federal fisc).

2. Respondent’s analysis also judges the effect that

increased liability would have on the availability and cost of

insurance. As CSC has explained, insurers (being rational

actors) will require higher premiums for providing coverage

to entities subject to increased risk of liability—and may

require higher premiums for all affected entities in order to

spread the risk. /d at 21-22 & n.18. Thus, even cautious

contractors would have higher insurance premiums, to be

passed on to the government. Similarly, any liability that

exceeds policy limits would likewise be passed on to the

government.

3. The fact that CSC, like the government, may

voluntarily'' indemnify its employees is irrelevant. While

"' In claiming that CSC is obligated to assume its employees’ liability,

Respondent overreads the BOP Statement of Work’s provision that “(the

arguing that indemnification means that CSC would suffer no

additional financial pain from direct liability under Bivens,

Respondent does not dispute that “it is well documented that

corporations fare worse before juries than do individuals” —

with increased risk of being found liable and, if found liable,

of having larger damage awards assessed against them. See

Gov't Br. 20 n.10. Indeed, this Court has acknowledged that

corporations may be subject to unduly large verdicts as

compared to individual defendants. See 7XO Prod. Corp. v.

Alliance Res. Corp., 509 U.S. 443, 464 (1993) (plurality). In

sum, permitting plaintiffs to sue private corporations under

Bivens creates problems,’ including undue risk of larger

damages and attendant harm to federal fiscal policy, that

counsel against extending Bivens.

B. Expanding Bivens Is Contrary To Logic, Equity,

And Congressional Privatization Policy.

Contractors, such as CSC, share key attributes with the

entity whose task they perform—here, the BOP—and with

the FDIC, the entity at issue in Meyer. CSC does not, and

need not, claim that private entities are identical to federal

agencies or government corporations. Rather, CSC focuses

on critical traits showing that CSC, the BOP, and the FDIC

should have the same Bivens liability, as a matter of logic,

i employees or agents for alleged acts or

” BOP, Statement of Work for Community Corrections Center

5 (Dec. 2000). Respondent asserts an obligation on CSC’s part to

individual officer,” Gov't Br. 21 n.10. See also LA., supra, Pet. Br. 11-

equity, and policy. Thus, the Court should decline to extend

Bivens to private entities such as CSC.

1. Private entities operating prisons on behalf of the BOP

serve the same function as does the BOP and, “[t]o the extent

those entities exercise federal authority, they exercise that

authority on behalf of—they stand in the shoes of—the BOP

itself in pursuit of the Bureau’s penological mission.” Gov't

Br. 24-25; see Pet. Br. 24-25. This fact has three

consequences. First, it is illogical and inequitable to

analogize CSC to the BOP in deciding if it is engaging in

federal action but not when deciding whether it should be

subject to Bivens liability. Pet. Br. 24; Kauffman v. Anglo-

American Sch. of Sofia, 28 F.3d 1223, 1226 (D.C. Cir. 1994).

Second, it is equally illogical and inequitable to treat federal

prisoners differently solely because they are held, not by the

BOP, but by a private prison. Pet. Br. 26 n.21; Gov't Br. 23.

Third, as shown by the Government, the BOP maintains

“extensive administrative and contractual oversight” over

private prisoner providers, thus “mak[ing] it particularly

difficult to justify a differential rule for BOP-regulated and

BOP-operated institutions.” Gov't Br. 25. Private prison

providers, including CSC, act as arms of the BOP and, like

the BOP, should not be amenable to Bivens.

2. Respondent has not, and cannot, deny that at least three

central points of similarity exist between federal government

corporations, such as the FDIC, and government contractors,

such as CSC: (1) each has a separate legal personality from

the federal government; (2) much of each entity’s funding

comes from nonfederal sources; and (3) neither entity is

protected by sovereign immunity. See Pet. Br. 26-27.

Respondent lists various distinctions between CSC and the

FDIC, see Resp. Br. 25, but each is irrelevant to this

analysis." For example, the fact that the President appoints

'> Similarty, Respondent notes throughout his brief that private entities

are not subject to the civil service rules—but ignores that government

corporations, such as the FDIC, are not covered by most relevant civil

members of the FDIC’s board of directors does not affect the

FDIC’s financial situation or lack of sovereign immunity.

3. Respondent’s assertion that CSC is “[ljike a federal

employee,” Resp. Br. 27, is not convincing. This claim relies

on an incorrect reading of Carlson v. Green, 446 U.S. 14

(1980). Carlson did not hold that the BOP director could be

sued under Bivens, even if he or she did not “ha[ve] any role”

in a wrong alleged by an inmate. Resp. Br. 28. Rather,

Carlson involved a motion to dismiss on jurisdictional

grounds, and the parties agreed that the plaintiff had stated a

claim of deliberate indifference under the Eighth Amendment

against each defendant. 446 US. at 16-18 & nn.1, 3. Thus,

Carlson does not hold that a defendant may be liable under

Bivens for a wrong in which the defendant had no role.'* And

Carlson, where the only defendants were officers, id at 16,

did not raise the issue of whether entities may be liable under

Bivens. Every other premise of the analogy between CSC and

a federal officer, as shown in our opening brief and in this

brief, is similarly flawed.'°

4 It is beyond cavil that Congress has an express policy in

favor of privatization generally, and in favor of Community

Correctional Centers such as those run by CSC in particular.

See Pet. Br. 28-31; Gov’t Br. 3-4, 27. Respondent and his

service rules. See 5 U.S.C. § 2302(aX2)(C)i) (but barring retaliation

against whistleblower covered by Section 2302(b)(9)).

'* While Respondent implies that respondeat superior is permissible

under Bivens, every court of appeals that has addressed the issue has

rejected such derivative liability. See, e.g., Ruiz Rivera v. Riley, 209 F.3d

24, 28 (1st Cir. 2000) (collecting cases).

'S These arguments include Respondent’s emphasis on sovereign

immunity, analysis of the role of civil service in Bivens, claim that the

government requires CSC to indemnify its own employees, incorrect

reading of deterrence under Bivens, and analogy between CSC-held

federal prisoners and state prisoners. See Resp. Br. 28-34. This amalgam

of flawed arguments cannot weaken the analogies between CSC, the BOP,

and the FDIC, nor does it show that CSC is like an employee.

amici do not dispute the policy’s existence, but instead,

engage in an improper, irrelevant debate on its wisdom.

Congress’s manifest determination to privatize certain prison

functions is a factor counselling hesitation in extending

Bivens here. Respondent also asserts that, because Congress

did not exempt private entities from Bivens liability in light of

pre-Meyer lower court decisions assuming such liability,

Congress must have intended for Bivens to apply here. But,

legislative silence certainly does not indicate that “Congress

has ratified holdings of some of the Courts of Appeals.”

United States v. Wells, 519 U.S. 482, 496 (1997) (It “‘is at

best treacherous to find in congressional silence alone the

adoption of a controlling rule of law.’”) (quoting NLRB v.

Plasterers’ Local Union No. 79, 404 U.S. 116, 129-30

(1971))."® See also Pet. Br. 8 n.5 (explaining that pre-Meyer

cases are not good precedent for the claim that Bivens applies

to private entities). Legislative silence is particularly suspect

where, as here, it is unlikely that Congress even considered

the question at hand.

5. Finally, Respondent ignores the impact that extending

Bivens to private entities such as CSC will have on federal

procurement policy in the prison setting. The government

seeks to choose providers (public or private) based on which

'® Indeed, given that neither Congress nor this Court has ever held that

entities—private or public—are subject to Bivens liability, “Congress’

silence in this regard can be likened to the dog that did not bark.” Chisom

v. Roemer, 501 U.S. 380, 396 n.23 (1991) (citing Harrison v. PPG Indus.,

446 U.S. 578, 602 (1980) (Rehnquist, J., dissenting); see also Griffin v.

Oceanic Contractors, Inc., 458 U.S. 564, 588, 589 (1982) (accepting less

drastic, “unremarkable” statutory interpretation in the face of legislative

silence because “the fact that the dog did not bark can itself be

significant”).

See Gov’t Br. 28. To say that a private entity’s protection of

constitutional rights is ome factor in the government’s

contracting decision is not, as the ACLU states, to denigrate

such rights. They are an important component in choosing

providers, and government choice should not be distorted by

adding in higher liability for private, but not public, entities.

Accordingly, the Court should refuse to extend Bivens to

private entities, just as it refused to extend Bivens to public

entities.

Ill. SECTION 1983 IS IRRELEVANT WHEN

DECIDING WHETHER TO EXTEND BIVENS.

Respondent and the ACLU seek to analogize Bivens actions

to Section 1983 actions to show that private corporations are

amenable to suit under Bivens. The analogy is totally inapt

for several reasons. See Pet. Br. 32-35.

1. Most importantly, Bivens is a narrow, judge-made gap

filler with a specific goal of deterring individual officers from

violating the Constitution. Section 1983, by contrast, is part

of an expansive congressionally created statutory scheme

providing an all-purpose action for “monetary, declaratory, or

injunctive relief,” Monell v. Department of Social Services,

436 U.S. 658, 690 (1978), against “[e]very person,” natural or

artificial.

2. The analogy to Section 1983 ignores the fundamental

distinction between the question of whether a defendant is

amenable to suit under Bivens and the question of how to

apply Bivens to a defendant covered by Bivens. Pet. Br. 34.

As a consequence of this distinction, Section 1983 is relevant

only to questions of application—not of amenability. /d;

Buiz v. Economou, 438 U.S. 478, 503 (1978). Respondent

and the ACLU’s failure to accept this core distinction is clear,

for all of the cases that they cite in support of their analogy

involve application—not coverage.’’

'” See Wilson v. Layne, 526 U.S. 603, 609 (1999) (qualified immunity),

Graham v. Connor, 490 U.S. 386, 394 & n.9 (1989) (excessive force);

3. Respondent and the ACLU also ignore CSC’s and the

Government’s strong showing that, while Bivens is limited to

officers, Section 1983 applies to the broader class of persons.

This analysis, grounded in Section 1983’s text and history,

illustrates the wisdom of the Court’s refusal to consider

Section 1983 in determining whether to extend Bivens. Pet.

Br. 32-33.'* Indeed, Monell, cited by Respondent and the

ACLU, relies on this analysis in holding that municipalities

may be found liable under Section 1983. 436 US. at 690.

4. Respondent and the ACLU also completely misunder-

stand the point the Government is making in its analysis of

Section 1983. As the Government explains, Section 1983

broadly imposes liability on any “person,” including legal

persons, and on anyone who “causes” another to be subjected

to a constitutional violation. This language, illuminated by its

legislative history and purposes, mandates the expansive

reach of Section 1983, and its imposition of liability on

entities that adopt unconstitutional policies, as well as

individuals who violate the Constitution. Bivens actions, in

marked contrast, are not based on a congressional text;

instead, they are inferred by the courts only where necessary

to deter natural persons from constitutional violations and

provide remedies where none otherwise exists. For that

prreay aoe ayer wating nipetinaess pe Ao maba? amr

who directly participate in constitutional violations either b y

making or implementing unconstitutional policies.”

Carlson v. Green, 446 U.S. 14, 22 (1980) (availability of punitive

damages); Butz v. Economou, 438 U.S. 478, 495-96 (1978) (qualified

immunity).

'* Cf. Ngiraingas v. Sanchez, 495 U.S. 182, 186-92 (1990) (relying on

“person” analysis to hold that Section 1983 does not apply to territories);

Will v. Michigan Dep't of State Police, 491 U.S. 58, 63-64 (1989) (relying

on “person” analysis to hold that Section 1983 does not apply to States).

'? Wilson, $26 U.S. at 614 (holding that the police violate the Fourth

Amendment by bringing unnecessary third parties into a home when

executing a warrant); Carlson, 446 U.S. at 16 n.1 (noting that plaintiff had

Moreover, the Court has never held any entity liable under

Bivens for direct or indirect constitutional violations. See

Gov’t Br. 28-29 (citing cases).

5. The ACLU asserts that it is improper to treat State and

federal prisoners held by private prison providers differently.

But Section 1983 and Bivens often treat otherwise similarly

situated defendants differently. For example, while municipal

prisoners may sue the county jail under Section 1983, Monell,

436 U.S. at 690, federal prisoners cannot sue the equivalent

federal agency under Bivens, see Meyer, 510 U.S. at 485.”

The Court cannot and should not attempt to eliminate all

potential inconsistencies, but, by refusing to extend Bivens to

private entities, the Court can ensure that all federal prisoners

enjoy the same rights. See Gov’t Br. 9, 12, 23.

6. Finally, Respondent and his amici ignore what this

Court has long recognized: while Congress is institutionally

well-suited to enact broad remedies, the judiciary properly

acts more cautiously in creating remedies. See Pet. Br. 33-34.

Neither the text of nor the caselaw interpreting Section

1983—a comprehensive, congressionally enacted scheme—

informs the Court as to the threshold question of whether

extending Bivens to private entities acting under color of

federal law is proper.

Bivens is a narrow gap-filler that this Court has refused to

extend unless extension would fulfill the remedy’s purposes

and special factors do not counsel hesitation. Meyer, 510

U.S. at 486; Pet. Br. 7-8. Here, neither of these requirements

claimed that the defendants “were deliberately indifferent to . . . serious

medical needs”).

° In fact, Section 1983 applies differently to various public entities.

Compare Monell vy. Department of Soc. Servs., 436 U.S. 658, 690 (1978)

(accepting Section 1983 liability for municipalities), with Will, 491 U.S. at

63-64 (rejecting Section 1983 liability for States), and Ngiraingas, 495

U.S. at 192 (rejecting Section 1983 liability for territories).

is met. Indeed, the proposed extension would both undermine

deterrence of individual officers (be they policymakers or

rogue actors) and distort federal fiscal and privatization

policies. Accordingly, the Court should reject the Second

Circuit’s unwise extension of Bivens to private entities.

CONCLUSION

For the foregoing reasons and those stated in the opening

brief and the brief of the United States, the decision of the

court of appeals should be reversed.

Respectfully submitted,