# Reply Brief — Correctional Services Corp. v. Malesko > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0434%3A08 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 2001 - **Citation:** 534 U.S. 61 ## Text ; j 18) Supseme Court, U.S. No. 00-860 SEP 4 2001 | 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 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 ae Ace tA eA AA LD PTAA IE TIE WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001 rk SEP 07 2001 LIBRAH? Ju..viCieQBLE OF CONTENTS TABLE OF AUTEIORITIEG............ccscccsscssccccssescsssceess I. 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 « 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 15 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. 16 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”). 17 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); 18 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 19 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. ee 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). 20 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, 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 WooD (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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0434%3A08. Public record. Not legal advice.