Amicus Curiae Brief — Correctional Services Corp. v. Malesko

No. 00-860 one

—

In the Supreme Court of the United States

CORRECTIONAL SERVICES CORPORATION, PETITIONER

DD.

JOHN E. MALESKO

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

BARBARA D. UNDERWOOD

Acting Solicitor General

Counsel of Record

STUART E. SCHIFFER

Acting Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor

General

BARBARA L. HERWIG

THOMAS M. BONDY

Attorneys

Department of Justice

Washington, DC 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether a private corporation operating a Community

Corrections Center that houses and provides services to

federal prisoners under a contract with the Bureau of Pris-

ons is subject to suit under the implied damages action this

Court recognized in Bivens v. Six Unknown Named Agents,

403 U.S. 388 (1971).

(I)

TABLE OF CONTENTS

Page

Interest of the United States 1

Statement 2

Summary of argument

Argument:

The implied damages action recognized in Bivens does

not properly extend to private entities operating

correctional facilities under federal contract 11

A. This Court does not lightly extend the limited

damages remedy recognized in Bivens into

new contexts 12

B. The deterrence and remedial rationales that

underlay the creation of a damages remedy

in Bivens do not support creating a damages

action against private correctional corporations 18

C. Expansion of judicially created liability is

particularly inappropriate in light of express

congressional policy

D. The court of appeals’ reliance on 42 U.S.C. 1983

was misplaced 28

Conclusion 30

TABLE OF AUTHORITIES

Cases:

Alexander v. Sandoval, 121 8. Ct. 1511 (2001) ................ 16

Austin v. Paramount Parks, Inc., 195 F.3d 715

(4th Cir. 1999) 29

Bell v. Hood, 327 U.S. 678 (1946) 13

Bivens v. Six Unknown Named Agents, 403 US.

388 (1971) passim

(IIT)

IV

Cases—Continued:

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

(1988)

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

Cannon v. University of Chicago, 441 U.S. 677

(1979)

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

Central Bank of Denver, N.A. v. First Interstate

Bank of Denver, N.A., 511 U.S. 164 (1994)

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

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

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

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

1998)

Idaho v. Coeur d Alene Tribe, 521 US. 261

(1997)

Iskander v. Village of Forest Park, 690 F.2d 126

(7th Cir. 1982)

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

Kauffman v. Anglo-American Sch. of Sofia,

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

Lugar v. Edmondson Oil Co., 457 U.S. 922

(1982)

Monell v. Department of Social Servs., 436 US.

658 (1978)

New York Cent. & Hudson River R. R. v.

United States, 212 U.S. 481 (1909)

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

Rojas v. Alexander's Dep't Store, Inc., 924 F. 2d

406 (2d Cir. 1990), cert. denied, 502 U.S. 809

(1991)

16

14, 15, 30

14, 22

passim

Cases—Continued: Page

Sanders v. Sears, Roebuck & Co., 984 F.2d 972

(8th Cir. 1993) 29

Schweiker v. Chilicky, 487 U.S. 412 (1988) . 8, 14, 15,

21-22, 30

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

443 (1993) 21

Transamerica Mortgage Advisors, Inc. v. Lewis, 444

US. 11 (1979) 16

United States v. Standard Oil Co., 332 U.S. 301

(1947) 13

United States v. Stanley, 483 U.S. 669 (1987) . 15

Wilson v. Layne, 526 U.S. 603 (1999) 30

Wyatt v. Cole, 504 US. 158 (1992) 22

Constitution, statutes, regulations and rule:

US. Const.: =

Amend. I 14

Amend. IV 8, 12, 13, 17

Amend. V (Due Process Clause) 13-14

Amend. VIII (Cruel and Unusual Punishment

Clause) 14

D.C. Appropriations Act of 2001, Pub. L. No. 106-553,

§ 115, 114 Stat. 2762A-68 (42 U.S.C. 4001 note) * 28

Federal Tort Claims Act:

28 U.S.C. 2402 24

28 U.S.C. 2671 et seq. 11, 24

28 U.S.C. 2674 24

28 U.S.C. 2675 24

28 U.S.C. 2680(a) 24

28 U.S.C. 2680(h) 24

VI

\

Statutes, regulations and rule—Continued: Page

National Capital Revitalization and Self-Government

Improvement Act of 1997, Pub. L. No. 105-33,

Subtit. C, § 11201(c), 111 Stat. 734 1-2, 28

Omnibus Consolidated and Emergency Supplemental

Appropriations Act, Pub. L. No. 105-277, § 111,

112 Stat. 2681-67 2

18 U.S.C. 3624 3

18 U.S.C. 3624(c) 3, 5, 27

18 U.S.C. 3651 (Supp. II 1972) 3

18 U.S.C. 4013 2

18 U.S.C. 4203 (1970) 3

42 U.S. C. 1983 8, 10, 24, 28, 29, 30

42 USC. 13901 1

28 C. F. R.:

Section 542.10 4-5, 24

Section 542.11 24

Section 542.12 24

Fed. R. Civ. P. 15(c) 18

Miscellaneous:

Bowman, Hakim, & Seidenstat, Privatizing

Correctional Institutions (1992) 2

Bureau of Prisons:

Community Corrections Manual (Jan. 2, 1998) .............. 3,4

Statement of Work for Community Corrections

Center (Dec. 2000) 4,6

Chin & Peterson, Deep Pockets, Empty Pockets

(1985) 20

Hans & Ermann, Responses to Corporate Versus

Individual Wrongdoing, 13 Law & Hum. Behav.

151 (1989) 20-21

VII

Miscellaneous Continued:

MacCoun, Differential Treatment of Corporate

Defendants By Juries, 30 L. & Soc'y Rev. 121

(1996)

McDonald et al., Private Prisons in the United

States (1998)

Saylor & Gaes, Training Inmates Through Industrial

Work Participation and Vocational and Apprentice-

ship Instruction, 1 Corrections Mgmt. Q. 32

(1997)

21

2,4

In the Supreme Court of the United States

No. 00-860

CORRECTIONAL SERVICES CORPORATION, PETITIONER

Vv.

JOHN E. MALESKO

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

| BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE UNITED STATES

This case concerns whether a private corporation that

operates a correctional facility for federal prisoners is sub-

ject to suit under the cause of action for damages this Court

recognized in Bivens v. Six Unknown Named Agents, 403

U.S. 388 (1971). Petitioner is a private company that, under

contract with the Bureau of Prisons (BOP or Bureau),

operates Community Corrections Centers and other facil-

ities for federal prisoners. Respondent was a prisoner

housed in such a facility. Congress has authorized the

Attorney General to contract with public and private entities

to house and provide support for prisoners in Community

Corrections Centers. See, e.g., 42 U.S.C. 13901. In addition,

Congress has authorized the placement of certain prisoners

in secure correctional facilities that are privately operated.

See, eg., National Capital Revitalization and Self-

(1)

2

Government Improvement Act of 1997, Pub. L. No. 105-33,

Subtit. C, 112010), 111 Stat. 734. The Immigration and

Naturalization Service and the United States Marshals

Service, like the BOP, also contract with private firms for

detention services. See, e.g., 18 U.S.C. 4013. The United

States has an interest in the extent to which the entities

with which it contracts are exposed to liability under Bivens

for the allegedly unconstitutional conduct of their agents, as

well as in ensuring proper deterrence of and appropriate

remedies for such conduct.

STATEMENT

1. Private organizations have long played a role in the

operation of correctional facilities. As this Court has ob-

served, Aplrivate individuals operated local jails in the 18th

century,” and “private contractors were heavily involved

in prison management during the 19th century.” Richardson

v. McKnight, 521 U.S. 399, 405 (1997). One of the most

significant roles for private organizations in adult corrections

has been in the provision of community-based correctional

facilities, such as halfway houses, designed to help prisoners

re-integrate into society. In fact, private organizations such

as e loncerned citizens and religious groups established the

first halfway houses and group homes for adult offenders,”

and “significant community corrections programs, including

probation, were started in the same manner.” Bowman,

Hakim, & Seidenstat, Privatizing Correctional Institutions

116 (1992). See also id. at 7, 118 (noting the “long * * *

established * * * use of private contracts * * * to operate

various forms of programs and services, including half-

way houses, work release programs, prerelease centers,

group homes, and treatment centers for alcohol and drug

offenders”). See also McDonald et al., Private Prisons in the

United States 5 (1998) (study required by Pub. L. No. 105-

277, § 111, 112 Stat. 2681-67).

— —

3

For nearly half a century, the Bureau of Prisons has

placed federal prisoners in halfway houses and similar facili-

ties (now called “Community Corrections Centers”) to assist

them in making a successful transition from confinement to

liberty. The placement of probationers and parolees in such

facilities was originally a discretionary matter.' However, in

1984, Congress enacted 18 U.S.C. 3624 to provide for more

extensive use of such facilities. In relevant part, Section

3624(c) provides:

[The Bureau of Prisons shall, to the extent practicable,

assure that a prisoner serving a term of imprisonment

spends a reasonable part, not to exceed six months, of

the last 10 per centum of the term * * * under con-

ditions that will afford the prisoner a reasonable op-

portunity to adjust to and prepare for the prisoner’s re-

entry into the community.

18 U.S.C. 3624(c).

Consistent with Section 3624, the BOP generally places

eligible “inmates who are nearing their release date” in a

Community Corrections Center, where they receive employ-

ment assistance, counseling, and supervision. See Bureau of

Prisons, Community Corrections Manual, Program State-

ment 7300.09, § 1.2 (Jan. 2, 1998) (Community Corrections

Manual) (available http://www.bop.gov/progstat/7300_09.pdf).

In addition, the BOP employs such facilities as an alternative

to “institutional confinement for certain short-term of-

fenders” and as “a structured environment for [those] pro-

bationers, parolees, and supervised releasees who need more

assistance and supervision than” would otherwise be

available. Ibid.; see also id. & 4.1.2.

See 18 U.S.C. 4203 (1970) (providing that the Parole Board could

require a federal parolee “to reside in or participate in the program of a

residential community treatment center, or both, for all or part of the

period of parole”); 18 U.S.C. 3651 (Supp. II 1972) (permitting court to

impose same conditions on probationers).

1

Since the late 1960s, the BOP has contracted with private

for-profit and not-for-profit companies to operate Commun-

ity Corrections Centers to help federal prisoners re-

integrate into society. McDonald, supra, at 5. The Bureau

has not itself operated such facilities since 1981; instead, it

relies exclusively on contracts with not-for-profit

institutions, state and local governments, and private for-

profit organizations.” The Bureau’s Community Corrections

Manual establishes an extensive program of pre-contract

inspections and post-contract performance monitoring,

evaluation, and correction, Community Corrections Manual

§§ 4.4.2, 4.5.5 to 4.5.14, to ensure that contractors provide a

safe, controlled environment with programs that help

offenders become law-abiding citizens. See Bureau of Pris-

ons, Statement of Work for Community Corrections Center 1

(Dec. 2000) (BOP Statement of Work) (available http://

www.bop.gov/ccdpg/cedece.pdf). The Bureau conducts full

monitoring—“a thorough, comprehensive review of the con-

tractor’s operation”—at regular intervals, and interim or

spot-check examinations more frequently. Community

Corrections Manual § 4.5.6.1. The BOP examines, among

other things, the center’s personnel, id. § 4.5.7.2, its facility

(with an emphasis on safety, sanitation, and environmental

health), id. §§ 4.5.7.3 to 4.5.7.4, and its provision of programs

in areas such as employment, housing and substance abuse,

id. § 4.5.7.6. The Bureau also offers its contractors training

and management assistance to “increase the quality of con-

tract corrections provided to Federal inmates.” Id.

§ 4.5.8. The BOP’s Administrative Remedy Program, 28

2 For example, the Bureau contracts not only with for-profit entities

like petitioner, but also with charitable organizations like Volunteers of

America (which operates facilities in Indiana, Louisiana, Maryland,

Minnesota, New York, and Texas), the Salvation Army (Arkansas,

Florida, Illinois, North Carolina, Tennessee, and Texas), Progress House

Association (Oregon), Triangle Center (Illinois), and Catholic Social

Services (Pennsylvania).

——

5

C. F. R. 542.10, is open to prisoners residing in contract

Community Corrections Centers.

2. Petitioner Correctional Services Corporation (CSC)

had operated the Le Marquis Community Correctional

Center in New York under a contract with the BOP since

the late 1980s. Respondent John Malesko is a former federal

inmate who, after his conviction for federal securities fraud

in December of 1992, was sentenced to a term of incar-

ceration of eighteen months. While in the custody and care

of the BOP, respondent was diagnosed with a heart condition

and treated with prescription medication. As respondent

neared his release date, the BOP transferred him to the Le

Marquis halfway house for the remainder of his sentence, as

contemplated by 18 U.S.C. 3624(c). Pet. App. 2a; J.A. 10-11.

According to his complaint, respondent was assigned to

living quarters on the fifth floor at Le Marquis. Respondent

alleges that, on or about March 1, 1994, CSC instituted a

policy requiring inmates residing below the sixth floor to use

the staircase rather than the elevator to travel from the

first-floor lobby to their rooms. Respondent claims that,

despite that alleged policy, CSC staff permitted him to use

the elevator because they knew of his medical condition. He

claims, however, that CSC employee Jorge Urena prevented

him from using the elevator to go to his fifth-floor room on

March 28, 1994. Pet. App. 2a-3a; J.A. 11. According to re-

spondent, Urena directed him to use the staircase, even

though respondent reminded Urena of his heart condition.

While climbing the stairs, respondent suffered a heart attack

and fell. J.A. 12. He alleges that the fall aggravated a pre-

existing “injury to his left ear,” causing a loss of equilibrium,

and that he endured bruising, pain and suffering as well.

Ibid. Respondent also claims that approximately ten days

before that incident, he had run out of the medication

6

prescribed for his heart condition, and that CSC had failed to

replenish it. Pet. App. 3a; J. A. 12.°

3. Almost three years later, on March 27, 1997, respon-

dent filed a pro se action against CSC and unnamed CSC em-

ployees in the Southern District of New York, claiming that

they had violated his rights. In 1999, respondent, with

counsel, filed an amended complaint which was identical to

the initial complaint in all material respects, except one: for

the first time, the complaint specifically named as a defen-

dant Urena, the CSC employee who had allegedly barred

respondent from using the elevator. Pet. App. 3a.

The district court dismissed the amended complaint. The

court treated the complaint as raising claims under Bivens v.

Six Unknown Named Agents, 403 U.S. 388 (1971). Relying

on this Court’s decision in FDIC v. Meyer, 510 U.S. 471, 483-

486 (1994), the district court held that CSC, as a private

corporation, is not subject to suit under Bivens. Pet. App.

21a. The district court dismissed the complaint with respect

to Urena on statute of limitations grounds. Id. at 22a-24a.

4. The court of appeals affirmed in part, reversed in part,

and remanded. Pet. App. la-18a. The court of appeals

affirmed dismissal of respondent’s claims against Urena as

barred by the statute of limitations. Id. at 15a-18a. Re-

spondent has not sought further review of that ruling, and it

is no longer at issue in this case.

With respect to CSC, however, the court of appeals re-

versed the district court’s judgment of dismissal. See Pet.

App. 5a-15a. The court of appeals observed that, in FDIC v.

Meyer, supra, this Court had declined “to expand the cate-

gory of defendants against whom Bivens-type actions may

be brought to include not only federal agents, but federal

Under the BOP’s contracts, residents are generally responsible for

the costs of their medical and dental care, although facilities are required

to ensure proper medical treatment in an emergency.” See BOP State-

ment of Work 88.

7

agencies as well.” Pet. App. 6a (quoting Meyer, 510 U.S. at

484 (emphasis omitted)). The court of appeals: also noted

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

F.3d 1223 (1994), the D.C. Circuit had relied on Meyer’s rea-

soning in refusing to extend Bivens actions to private cor-

porations like CSC. Pet. App. 7a. The court of appeals,

however, declined to follow Kauffman, attempted to distin-

guish Meyer, and followed the Sixth Circuit’s decision in

Hammons v. Norfolk Southern Corp., 156 F.3d 701 (1998),

which had concluded that private corporations acting under

color of federal law are subject to suit under Bivens. Pet.

App. 10a.

Although the court of appeals acknowledged that this

Court in Meyer had refused to recognize a Bivens action

that would not deter wrongdoing by individual government

agents and would result in an increased financial burden for

the government, the court of appeals stated that Meyer does

not control the outcome here. The court reasoned that,

“even absent a substantial deterrent effect, an extension

of [Bivens] liability [is] warranted * * * in order to

accomplish the more important Bivens goal of providing a

remedy for constitutional violations.” Pet. App. 10a. The

court of appeals also hypothesized that extending Bivens

liability to corporations might promote deterrence: “Even

assumir g a plaintiff would decline to sue the offending em-

ployee and sue only the employer, we believe that an em-

ployer facing exposure to such liability would be motivated

to prevent unlawful acts by its employees.” Id. at lla. The

court of appeals also acknowledged that private contractors

would pass on the increased costs associated with Bivens

actions to the federal government. Ibid. But the court was

of the view that this Court’s decision in Meyer was primarily

concerned with the financial burdens caused by “imposing

Bivens liability directly upon federal agencies.” /bid.

Finally, the court of appeals stated that its decision was

“influenced strongly by the law governing § 1983 claims.”

8

Pet. App. 12a. In the context of Section 1983 actions, the

court of appeals stated, this Court had recognized that pri-

vate corporations engaging in state action may be liable.

Ibid. (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-

937 (1982)). The court saw “no reason not to incorporate that

law into the Bivens context and permit suits against private

corporations engaging in federal action.” Ibid.

SUMMARY OF ARGUMENT

A. In 1971, in Bivens v. Six Unknown Named Agents, 403

U.S. 388, this Court recognized an implied private damages

action under the Fourth Amendment against federal officers.

In recognizing that right of action, the Court acknowledged

that Congress had not provided a damages remedy against

federal officers. 403 U.S. at 397. And the Court observed

that “the Fourth Amendment does not in so many words

provide for its enforcement by an award of money damages

for the consequences of its violation.” Jd. at 396. None-

theless, relying on the Court’s then-existing precedents

regarding implied private rights of action under federal

statutes, see id. at 397 (citing J.J. Case Co. v. Borak, 377

U.S. 426, 433 (1964)), the Court concluded that it had author-

ity to create a damages remedy under the Fourth Amend-

ment itself. In recognizing that damages action, the Court

specifically relied on, inter alia, the deterrent effect on

federal officers, the absence of any other available federal

remedy under the circumstances, and the lack of special

circumstances counseling hesitation in the face of congres-

sional silence. In recent times, however, the Court has

“responded cautiously to suggestions that Bivens remedies

be extended into new contexts.” Schweiker v. Chilicky, 487

U.S. 412, 421 (1988).

B. Caution is particularly warranted here. Respondent

seeks not one but two extensions of the limited damages

remedy recognized in Bivens. First, respondent requests

that Bivens be extended to permit federal prisoners housed

in private correctional institutions to bring suits against

private parties acting under color of federal law. Second, he

asks that Bivens be extended so that those prisoners may

seek damages not merely from the individuals who violate

their constitutional rights, but also from the correctional

institution that employs those individuals. That second ex-

tension would give prisoners in private correctional facilities

a federal Bivens damages remedy that their counterparts in

federally operated facilities do not possess. In light of FDIC

v. Meyer, 510 U.S. 471 (1994), prisoners in BOP-operated

facilities can sue individual BOP employees for constitutional

violations, but they have no Bivens action against the

correctional facility or the BOP itself. Nothing in Bivens’

rationale suggests that a prisoner in a private facility should

have a federal cause of action for damages against the

correctional institution itself when his counterparts in BOP-

operated facilities do not.

The logic of Bivens itself, moreover, counsels against the

extension of Bivens that respondent seeks. Like the pro-

posed extension this Court rejected in Meyer, respondent’s

proposed cause of action would give prisoners an incentive to

sue the correctional corporation rather than the individual

officers directly responsible for the constitutional violation.

It thus would, like the extension the Court rejected in

Meyer, undermine “the purpose of Bivens,” which is “to

deter the officer,” 510 U.S. at 485. The decision to recognize

a damages remedy in Bivens, moreover, rested in part on

necessity; absent a judicially crafted remedy, there would

have been no remedy for the constitutional violation. Id. at

484. Here, federal prisoners in private institutions have

extensive remedies even absent the extension of Bivens that

respondent seeks. In addition, because the BOP exercises

extensive oversight over the private facilities with which it

contracts, there is little reason why those facilities should be

treated differently for Bivens purposes than the facilities the

BOP operates itself.

10

C. Further considerations also counsel hesitation here.

Recognizing an additional Bivens damages action directly

against correctional corporations in this context has the po-

tential of impeding the BOP’s implementation of important

correctional programs—programs that long have been pro-

vided exclusively through contracts with private facilities,

and that Congress has statutorily encouraged the BOP to

pursue. In addition, because the government cannot be held

directly liable under Bivens when it provides correctional

services itself, imposing liability on private providers of

correctional services that step into the BOP’s shoes under

contract could distort the choice between contracting out

and providing services in house. Such choices should be

made in light of efficiency and the quality of services offered.

They should not be influenced by the unnecessary judicial

imposition of direct liability and thus increased costs on one

source (private facilities) that the other source (the govern-

ment) does not confront.

D. Finally, the court of appeals erred in relying on the

scope of liability under 42 U.S.C. 1983. Section 1983 is a

statute, and the scope of liability under it is a question of

Congress’s intent. As a result, this Court has construed

Section 1983’s scope in light of its specific language and

unique legislative history. Those considerations have no

application to the judicially crafted Bivens cause of action.

Instead, this Court must consult the same broad considera-

tions of policy that led to the judicial recognition of a

limited damages action in Bivens itself. Those considera-

tions counsel against the extension of Bivens liability that

respondent seeks, and the extension should be rejected.

11

ARGUMENT

THE IMPLIED DAMAGES ACTION RECOGNIZED IN

BIVENS DOES NOT PROPERLY EXTEND TO

PRIVATE ENTITIES OPERATING CORRECTIONAL

FACILITIES UNDER FEDERAL CONTRACT

In this case, respondent invites this Court to extend the

implied damages remedy recognized in Bivens v. Six Un-

known Named Agents, 403 U.S. 388 (1971), so that federal

prisoners housed in privately run correctional facilities may

seek damages not only from the individuals who violate their

constitutional rights, but also from the correctional insti-

tution employing those individuals. In requesting that

extension, respondent does not seek merely to place federal

prisoners who reside in private correctional facilities in the

same position as those residing in the BOP’s own facilities.

Rather, he asks the Court to extend Bivens to afford pris-

oners in private facilities an additional implied federal dam-

ages remedy that their counterparts in federally operated

facilities do not possess.

That request should be denied. The rights of federal pris-

oners in BOP-operated facilities are adequately protected

through, inter alia, the availability of two damages actions—

a Bivens action against any individual officer who violates

the prisoner’s constitutional rights, and a statutorily con-

ferred tort suit (subject to certain limits) against the govern-

ment under the Federal Tort Claims Act, 28 U.S.C. 2671 et

seg. As FDIC v. Meyer, 510 U.S. 471 (1994), makes clear,

prisoners in BOP institutions have no Bivens action against

the correctional facility or the BOP itself. The parties do not

4 For purposes of this case, we assume that CSC and its employees

were, in relevant respects, acting under color of federal law. Bivens

recognized an action against federal officers for violation of constitutional

rights. If such an action lies against private individuals or entities, it can

extend only to actions taken under color of federal law.

12

dispute that federal prisoners in private facilities may bring

equivalent actions: a Bivens claim against the individuals

responsible for the constitutional violation and a tort suit

against the correctional entity that employed those individ-

uals. The question before this Court is whether prisoners in

private correctional facilities, unlike their governmentally

housed counterparts, should also have an implied federal

damages action against the correctional facility itself. They

should not. There is no reason why federal prisoners in

privately run institutions should enjoy an additional implied

federal damages action that prisoners in governmental facili-

ties do not possess. To the contrary, the damages remedies

designed to serve deterrence and remedial goals in the con-

text of government-operated facilities fulfill those same

goals in private correctional institutions as well. There is

neither need nor justification for the courts to infer an

additional damages remedy in the absence of congressional

action here.

A. This Court Does Not Lightly Extend The Limited

Damages Remedy Recognized In Bivens Into New

Contexts

1. In its 1971 decision in Bivens v. Six Unknown Named

Agents, this Court recognized an implied private damages

action under the Fourth Amendment against federal officers

alleged to have violated a citizen’s rights. In recognizing

that implied damages action, the Court acknowledged that

Congress had not specifically provided a damages remedy

against federal officers for Fourth Amendment violations.

403 U.S. at 397. And the Court agreed that “the Fourth

Amendment does not in so many words provide for its en-

forcement by an award of money damages for the conse-

quences of its violation.” Id. at 396. Nonetheless, relying on

its earlier decisions recognizing implied private damages

actions under federal statutes, see id. at 397 (citing J.J. Case

Co. v. Borak, 377 U.S. 426, 433 (1964)), the Court concluded

13

that it had authority to recognize such a remedy under the

Fourth Amendment: IWihere federally protected rights

have been invaded,” the Court stated, “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. at 392

(quoting Bell v. Hood, 327 U.S. 678, 684 (1946)); id. at 396

(“where legal rights have been invaded, * * * federal

courts may use any available remedy to make good the

wrong done”) (internal quotation marks omitted).

The Court also concluded that a damages remedy would

be appropriate in the Fourth Amendment context. “Histori-

cally, damages have been regarded as the ordinary remedy

for an invasion of personal interests in liberty.” Bivens, 403

U.S. at 395. More importantly, the Court found no “special

factors counselling hesitation in the absence of affirmative

action by Congress.” Id. at 396. The case did not deal “with

a question of ‘federal fiscal policy.’” Ibid. (quoting United

States v. Standard Oil Co., 332 U.S. 301, 311 (1947)). Nor

was an implied cause of action inconsistent with an alterna-

tive remedial scheme established by Congress. Id. at 397.

Justice Harlan concurred in the judgment. Relying on the

Court’s then-existing cases inferring damages remedies “to

effectuate statutory policies,” 403 U.S. at 406; see also id. at

402 & n.4, Justice Harlan also viewed the question before the

Court as “whether compensatory relief is ‘necessary’ or

‘appropriate’ to the vindication of the interest asserted.” Id.

at 407. In concluding that a damages action would be appro-

priate in the Fourth Amendment context, Justice Harlan

emphasized that, because the government itself is immune

from suit, an action for damages against an individual officer

offered the only potential avenue for redress. “For people in

Bivens’ shoes,” Justice Harlan stated, “it is damages or

nothing.” Id. at 410.

Although Bivens itself arose under the Fourth Amend-

ment, in the following decade the Court relied on Bivens to

recognize an implied damages remedy under the Due Pro-

14

cess Clause of the Fifth Amendment, Davis v. Passman, 442

U.S. 228 (1979), and the Cruel and Unusual Punishment

Clause of the Eighth Amendment, Carlson v. Green, 446

U.S. 14 (1980). “In each of these cases, as in Bivens itself,

the Court found that there were no ‘special factors counsell-

ing hesitation in the absence of affirmative action by Con-

gress.’” Chilicky, 487 U.S. at 421 (quoting Bivens, 403 U.S.

at 396). See also Carlson, 446 U.S. at 18-20; Davis, 442 U.S.

at 246-247.

2. This Court’s “more recent decisions,” however, “have

responded cautiously to suggestions that Bivens remedies be

extended into new contexts.” Chilicky, 487 U.S. at 421. In

Bush v. Lucas, 462 U.S. 367 (1983), for example, the Court

declined to create a Bivens-like remedy against individual

government officials for a First Amendment violation arising

in the federal employment context. In that case, a federal

employee claimed that he was demoted in violation of the

First Amendment for making public statements critical of

his employer. Concluding that the administrative review

mechanisms crafted by Congress provided meaningful re-

dress, the Court refused to create a damages action, even

though it assumed a violation of the First Amendment and

the absence of a complete remedy. /d. at 372-373, 386, 388.

As this Court later observed, the Court in Bush relied on the

fact “that the Legislature is far more competent than the

Judiciary to carry out the necessary ‘balancing [of] govern-

mental efficiency and the rights of employees,’” and “refused

to ‘decide whether or not it would be good policy to permit a

federal employee to recover damages from a supervisor who

has improperly disciplined him for exercising his First

Amendment rights.’” Chilicky, 487 U.S. at 423 (quoting

Bush, 462 U.S. at 389, 390).

Two years later, in Chappell v. Wallace, 462 U.S. 296

(1983), this Court reached a similar result in the military

context. In that case, the Court refused to create a Bivens

action against superior officers alleged to have injured en-

— cs

15

listed personnel through unconstitutional conduct, even

though the enlisted personnel had no remedy against the

government itself. Noting the unique nature of military life,

the Court again found “special factors counselling hesitation”

in the absence of affirmative action by Congress. Id. at 298,

304. See also United States v. Stanley, 483 U.S. 669, 681

(1987) (disallowing Bivens actions by military personnel

“whenever the injury arises out of activity ‘incident to

service“).

One year later, in Chilicky, the Court declined to rely on

Bivens to infer a damages action against individual govern-

ment employees alleged to have violated due process in their

handling of social security disability benefits applications.

Emphasizing that Congress had provided meaningful (albeit

incomplete) remedies by statute, the Court observed that its

recent decisions “have responded cautiously to suggestions

that Bivens remedies be extended into new contexts.” 487

U.S. at 421. In any event, the Court explained, At he ab-

sence of statutory relief for a constitutional violation * * *

does not by any means necessarily imply that courts should

award money damages.” /bid.

Most recently, in FDIC v. Meyer, supra, this Court de-

clined to extend Bivens to permit suit against a federal

agency, even though the agency—because Congress had

waived its sovereign immunity—was otherwise amenable to

suit. See 510 U.S. at 484-486. The Court emphasized that

“the logic of Bivens” contemplates only a limited action

against individuals, not against federal agencies. See id. at

485. The Court also observed that allowing a Bivens suit

against an agency would undermine the deterrent effect that

Bivens has on individual employees. If the Court “were to

imply a damages action directly against federal agencies,”

the Court explained, “there would be no reason for ag-

grieved parties to bring damages actions against individual

officers.” Ibid. Finally, the Court noted the threat to federal

fiscal interests: “If we were to recognize a direct action for

16

damages against federal agencies,” the Court explained, “we

would be creating a potentially enormous financial burden

for the Federal Government.” Id. at 486. Against that back-

drop, the Court saw “special factors counselling hesitation”

in the absence of affirmative action by Congress, ibid. (quot-

ing Bivens, 403 U.S. at 396), and concluded that a cause of

action against a federal agency should not be recognized

absent express congressional direction, ibid.“

The considerations that informed the Court’s refusal to

extend the judicially created Bivens remedy in FDIC v.

Meyer counsel the same result here. Respondent’s claim, in

5 This Court's increasingly cautious attitude toward recognition of

additional implied damages actions for constitutional violations under

Bivens’ reasoning parallels the Court's increasing reluctance to establish

or extend implied rights of action for statutory violations. At the time

Bivens was decided, the Court had an expansive view of its authority to

create causes of action to effectuate statutory goals, even absent any

textual or structural basis for inferring that such a right of action was

intended. “[I}t is the duty of the courts,” the Court stated in J. IJ. Case Co.

v. Borak, “to be alert to provide such remedies as are necessary to

make effective the congressional purpose,” 377 U.S. at 433. This Court

“abandoned that understanding” of its role decades ago, and has declined

to “revert” to “the understanding of private causes of action that held

sway 40 years ago.” Alexander v. Sandoval, 121 S. Ct. 1511, 1520 (2001).

Instead, the Court now confines itself to “interpretation of the text and

structure of the Act,” Central Bank of Denver, N.A. v. First Interstate

Bank of Denver, N.A., 511 U.S. 164, 188 (1994), to discern whether Con-

gress meant not only to establish a right but also “to create the private

remedy asserted,” Transamerica Mortgage Advisors, Inc. v. Lewis, 444

U.S. 11, 15-16 (1979). As the Court observed in Cannon v. University of

Chicago, 441 U.S. 677, 688 (1979), “the fact that a federal statute has been

violated and some person harmed does not automatically give rise to a

private cause of action in favor of that person.” Instead, the Court must

coneludle] that Congress intended to make a remedy available to [that]

special class of litigants.” Ibid. See also id. at 717-718 (Rehnquist, J.,

concurring) (“I think the approach of the Court * * * is quite different

from the analysis in earlier cases such as J.J. Case Co. v. Borak, 377 US.

426 (1964). * [Federal courts * * * must surely lookto * * *

whether there was an intent to create a private right of action.”).

17

fact, rests on two proposed extensions of Bivens. First, al-

though this Court has never held that private individuals

acting under color of federal authority may be held liable

under Bivens, both respondent and petitioner appear to

assume that such an extension would be proper. For present

purposes, we assume such an extension of Bivens is proper

as well.“ After all, if Bivens does not authorize an action

against the individuals who directly commit the consti-

tutional violation, a fortiori it does not authorize the imposi-

tion of damages on the institution that employed those

individuals. Second, respondent urges the Court to extend

Bivens liability further, beyond the individuals directly re-

sponsible for the constitutional deprivation, to the corpora-

tion for whom those individuals acted as agents. As we

demonstrate below, that second extension of Bivens is not

supported.

6 The same rationales that supported the creation of a Bivens remedy

against federal employees—deterring individuals from engaging in

unconstitutional conduct, and ensuring the availability of a remedy

separate and apart from state tort law, see pp. 18-23, infra—support the

recognition of such a remedy against private individuals who violate

constitutional rights under color of federal law. Bivens itself, moreover,

provides no reason to distinguish between employees and non-employees

who exercise federal authority. The Court’s decision to recognize a

federal cause of action in Bivens did not rest on the fact that the defen-

dants there were formally employed by the United States; it rested on the

fact that they exercised federal power. See 403 U.S. at 391-392. See also

id. at 392 (Fourth Amendment guarantees “the absolute right to be free

from unreasonable searches and seizures carried out by virtue of federal

authority”) (emphasis added). Of course, private-sector employees

generally have greater exposure to state law claims and fewer immunities

than their public-sector counterparts, which may lessen the imperative of

inferring a constitutional cause of action.

18

B. The Deterrence and Remedial Rationales That Under-

lay The Creation Of A Damages Remedy In Bivens Do

Not Support Creating A Damages Action Against

Private Correctional Corporations

The Bivens cause of action is, in origin and by nature, a

limited remedy against the individuals directly responsible

for the constitutional deprivation. In Bivens itself the claim-

ant “sued the agents of the Federal Bureau of Narcotics who

allegedly violated his rights, not the Bureau itself.” Meyer,

510 U.S. at 484. Similarly, the parties in this case do not

dispute that respondent could have sued the individual CSC

agents who allegedly violated his rights.’ So long as

claimants like respondent can bring a Bivens claim directly

against the individuals responsible for a constitutional in-

jury, the recognition of an additional implied damages action

against the correctional institution is neither “‘necessary’

[njor ‘appropriate’ to the vindication of” their interests. 403

U.S. at 407 (Harlan, J., concurring). To the contrary, as in

FDIC v. Meyer, the “logic of Bivens” counsels against such

an extension.

1. As an initial matter, this Court “implied a cause of

action against federal officials in Bivens in part because a

direct action against the Government was not available.”

510 U.S. at 485. As Justice Harlan observed in Bivens, “[flor

people in Bivens’ shoes, it [wa]s damages” against the

individual agents “or nothing.” 403 U.S. at 410 (Harlan, J.,

In fact, respondent did sue one of the individuals, Urena, under

Bivens. Two years after filing the initial complaint, respondent sought to

amend it to name Urena as a defendant. Respondent’s decision to amend

the complaint to name Urena as a defendant, however, came after the

statute of limitations had run. Because the proposed amendment did not

“relate back” to the original filing date of the complaint under Federal

Rule of Civil Procedure 15(c), the district court and court of appeals both

concluded that the claim against Urena was barred by the statute of

limitations. See Pet. App. 15a-18a, 22a-24a.

~~ — — Cae age

i

ll

19

concurring). Cf. Carlson, 446 U.S. at 22-23 (noting limita-

tions on government’s tort liability under the Federal Tort

Claims Act). Here, in contrast, it is not damages against the

corporate contractor or nothing. Instead, like the re-

spondent in Meyer, respondent in this case by hypothesis can

bring a Bivens action against the individuals directly respon-

sible for his constitutional injury.“ Respondent thus appears

to ask the Court to do precisely what it properly declined to

do in Meyer to imply a damages action based on a decision

that presumed the absence of that very action.” 510 U.S. at

485.

Respondent's proposed cause of action against the cor-

poration, moreover, would tend to undermine the goal of

individual deterrence on which the Bivens damages remedy

rests. “It must be remembered,” this Court stated in Meyer,

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

at 485.° In Meyer, the Court concluded that recognizing an

implied damages action directly against the agency might

leave aggrieved parties “no reason * * * to bring damages

actions against individual officers. Under [such a] regime,

the deterrent effects of the Bivens remedy” on individual

officers “would be lost.” Ibid. The same reasoning applies

here as well. Here, as in Meyer, providing a damages action

against the corporate employer would undermine the incen-

tive for aggrieved parties to sue the individual directly

responsible for their constitutional injuries. Consequently,

here, as in Meyer, the “provision of a damages remedy

against a private entity would actively diminish the deter-

8 In addition, respondent could have brought a common-law tort

action against the responsible individuals and the correctional corporation

that employed them. Cf. Meyer, 510 U.S. at 485 n.10.

9 This is not to suggest that the Bivens remedy is perfectly calibrated

to achieve optimal deterrence. But the goal of deterrence has been, from

the outset, one of the principal rationales underlying Bivens and its pro-

geny.

20

rent value of the remedy against the individual.” Kauffman

v. Anglo-American Sch. of Sofia, 28 F.3d 1223, 1227 (D.C.

Cir. 1994). For that very reason, the D.C. Circuit has ob-

served:

If such additional [corporate] defendants were available

(often with deeper pockets than the individual offenders),

plaintiffs might make the same choice as the Kauffmans,

who brought their Bivens actions only against the pri-

vate entity and not against the individualls l.. * To

the extent that plaintiffs make such choices with any

regularity, Meyer indicates that the deterrent effect of

the Bivens remedy would be weakened. In sum, on

Meyer’s deterrence rationale there is no affirmative rea-

son to recognize Bivens actions against private entities,

and there is some reason not to do so.

Ibid."

10 In Meyer, the Court expressed concern that plaintiffs would have a

special incentive to sue the agency but not the individuals. In particular,

the Court explained, such a strategy would permit plaintiffs to avoid the

individual officer’s qualified immunity defense. 510 U.S. at 485. That

specific concern, of course, may not be present here; this case does not

involve qualified immunity, and private prison guards may not enjoy the

same qualified immunity protection as government employees. See

Richardson v. McKnight, 521 U.S. 399 (1997). But there remains a signifi-

cant incentive to bypass suit against—and thus diminish the deterrent

effect on—the individual officer. Rather than risk suit against potentially

sympathetic individual defendants with limited resources, plaintiffs may

well prefer to bring suit against an abstract corporate defendant with

ample resources and little claim to the sympathies of the jury. Indeed, it

is well documented that corporations fare worse before juries than do

individuals. See Chin & Peterson, Deep Pockets, Empty Pockets at vii, 43

(1985) (Rand Institute for Civil Justice study indicating that corporate

defendants typically must pay awards that are “30 percent more than

what an individual defendant would pay in the same case,” and that they

pay 4.4 times as much if the case involves a serious injury; also noting that,

in some categories of cases, corporations are more likely to be found liable

in the first place); Hans & Ermann, Responses to Corporate Versus

21

2. The court of appeals’ initial response was to discount

the importance of the deterrence rationale and declare that

“an extension of [ Bivens] liability [is] warranted” in this con-

text “even absent a substantial deterrent effect in order to

accomplish the more important Bivens goal of providing a

remedy for constitutional violations.” Pet. App. 10a. That

assertion is mistaken in law and fact. First, as a matter

of law, this Court has explained that “the purpose of Bivens

is to deter the officer,” Meyer, 510 U.S. at 485, and that

“(t]he absence of statutory relief for a constitutional vio-

lation * * * does not by any means necessarily imply that

courts should award money damages,” Chilicky, 487 U.S. at

Individual Wrongdoing, 13 Law & Hum. Behav. 151, 162 (1989) (experi-

ments indicating that jurors treat corporations less favorably); MacCoun,

Differential Treatment of Corporate Defendants By Juries, 30 L. & Soc’y

Rev. 121, 140 (1996) (“corporations were indeed treated differently”). See

also TXO Prod. Corp. v. Alliance Res. Corp., 509 U.S. 443, 464 (1993)

(plurality) (noting “the risk that” awards may be “influenced by prejudice

against large corporations”); id. at 490-492 (O’Connor, J., dissenting)

(tracing similar concerns through history).

1! The court of appeals speculated that corporate liability would

promote Bivens’ deterrent goal because “an employer facing exposure to

* * * liability would be motivated to prevent unlawful acts by its

employees,” Pet. App. lla, but that is the analysis this Court rejected in

Meyer. Recognizing a cause of action against the corporate émployer

shifts the burdens of standing trial and (in cases where the agents and

officers err) providing compensation from the individual agents and

officers themselves to the corporation and its shareholders. As this Court

observed in Meyer, 510 U.S. at 485, and as explained above, pp. 19-20,

supra, that shift decreases the deterrent effect on the individual agents

and officers that Bivens attempts to create. Moreover, a corporation “can

only act through its agents and officers.” New York Cent. & Hudson

River R.R. v. United States, 212 U.S. 481, 495 (1909). Consequently, so

long as all of the corporation’s agents and officers—the corporation’s

decision- and policy-makers—confront potential personal liability for

constitutional deprivations, anyone who could cause the corporation to act

unconstitutionally should, by Bivens’ rationale, be deterred from doing so

by the prospect of individual liability under Bivens.

22

421. Cf. Cannon v. University of Chicago, 441 U.S. 677, 688

(1979) (“As our recent cases * * * demonstrate, the fact

that a federal statute has been violated and some person

harmed does not automatically give rise to a private cause of

action in favor of that person.”). This Court’s qualified im-

munity decisions, moreover, belie the notion that Bivens

rests on a need to ensure that there is a monetary remedy

for all constitutional injuries. Those decisions recognize that,

even where government officers violate the Constitution,

society’s need for decisive action by government officers will

often counsel against providing a monetary remedy.”

Second, the court of appeals’ suggestion that it is appro-

priate to extend Bivens in this context to “provid[e] a

remedy,” Pet. App. 10a, is mistaken as a matter of fact.

Even if one were to assume (contrary to Chilicky’s ob-

servation) that the absence of other remedies would by itself

necessarily justify the creation of an implied cause of action,

that hypothetical cireumstance does not exist here. Simply

put, inmates in private institutions already have remedies—

remedies that parallel those available to (and adequate for)

their publicly housed counterparts. “For people in [respon-

dent’s] shoes, it is” not “damages” against the corporation

“or nothing.” Bivens, 403 U.S. at 410 (Harlan, J., concurr-

ing); Passman, 442 U.S. at 245 (“For Davis, as for Bivens, ‘it

is damages or nothing,’” since “there are available no other

alternative forms of judicial relief.”). To the contrary, the

parties do not dispute that respondent had a Bivens action

against the individuals who violated his constitutional

rights. See pp. 17, 18 & note 6, supra. Nor do they dispute

that respondent had a state tort action against both the

12 As this Court has explained, Iq lualified immunity strikes a balance

between compensating those who have been injured by official conduct

and protecting government's ability to perform its traditional functions.”

Wyatt v. Cole, 504 U.S. 158, 167 (1992) (citations omitted). This case, of

course, does not involve any qualified immunity questions.

individual defendants and the corporation. See p. 19 note 8,

supra; p. 24 note 14, infra. Respondent thus does not seek

merely to ensure the availability of remedies; rather, he

seeks their multiplication.

In so doing, respondent seeks to provide federal prisoners

in privately run institutions with a federal damages action

that their counterparts in BOP-operated institutions lack. A

federal prisoner housed in a BOP facility who suffers a

constitutional deprivation has a Bivens remedy against the

individual employee involved, subject to the defense of

qualified immunity. As Meyer makes clear, however, a BOP-

housed inmate has no Bivens remedy against that in-

dividual’s employer, the United States and the BOP. With

respect to the constitutional deprivation, his only remedy

lies against the offending individual, a remedy Meyer found

to be sufficient. See 510 U.S. at 485-486. Respondent

nonetheless asks the Court to permit prisoners in private

facilities to bring an implied federal damages action against

not only the individual responsible for the violation (per-

haps without a qualified immunity defense) but also his

employer—the correctional institution—which is precisely

what BOP-housed inmates cannot do. There is nothing in

Bivens to suggest that federal prisoners housed in private

contract facilities should have a federal cause of action that is

not available to their governmentally housed counterparts.

To the contrary, just as a potential Bivens action against the

responsible individual, and a claim based on state tort law

against the institution, are sufficient for inmates housed in

BOP facilities, they are sufficient for inmates in contract

facilities. That is particularly true because, even without the

federal corporate liability that respondent demands, pris-

oners in privately run institutions in many respects have a

superior Bivens remedy compared to their federally housed

24

counterparts,” a more extensive tort remedy,” and equal

access to remedial mechanisms such as suits for injunctive

relief and grievances filed through the BOP’s Administrative

Remedy Program.” |

Finally, the court of appeals ignored the special status of

the private for-profit and not-for-profit entities that contract

with the Bureau in this context. To the extent those entities

Ia Prisoners in federally operated facilities must, as part of their

Bivens action, overcome the prison guards’ defense of qualified immunity;

prisoners in private facilities presumably do not. Richardson v. Me-

Knight, supra (holding that private-sector prison guards acting under

color of state law do not enjoy qualified immunity under 42 U.S.C. 1983).

A prisoner confined in a privately run facility may bring a tort suit

against the facility directly under state law. A federal prisoner, in

contrast, is confined to suit under the Federal Tort Claims Act (FTCA), 28

U.S.C. 2671 et seq., which generally incorporates the tort law of the State

in which injury occurs, but creates numerous exceptions. In particular,

the FTCA provides that the United States “shall be liable, respecting

* * * (certain) tort claims, in the same manner and to the same extent as

a private individual under like circumstances,” 28 U.S.C. 2674, subject to

certain procedural requirements, 28 U.S.C. 2675, and exceptions, such as

the discretionary function exception, 28 U.S.C. 2680(a), and an exclusion

for certain intentional torts, 28 U.S.C. 2680(h). In addition, the FTCA

bars jury trials, 28 U.S.C. 2402, and awards of punitive damages and

interest, 28 U.S.C. 2674. Thus, although both a prisoner in a private

facility and in a federally operated facility have, in theory, a remedy

grounded in local state tort law, prisoners in private facilities are not

subject to the limits, exclusions, and procedural requirements imposed by

the FTCA.

1 Like inmates “confined in institutions operated by the Bureau of

Prisons, * * * inmates designated to contract Community Corrections

Centers” may invoke the Bureau’s “Administrative Remedy Program,” a

“process through which inmates may seek formal review of an issue which

relates to any aspect of their confinement.” 28 C.F.R. 542.10. See also 28

C. F. R. 542.12 (excluding certain matters, which are subject to an alterna-

tive procedural mechanism, from the grievance mechanism). Once a

complaint is filed, the Community Corrections Manager, Warden, Re-

gional Director, and General Counsel are responsible for ensuring that

complaints are properly investigated. 28 C.F .R. 542.11.

— —

exereise federal authority, they exereise that authority on

behalf of—they stand in the shoes of—the BOP itself in

pursuit of the Bureau's penological mission. The BOP does

not itself confront Bivens liability for the conduct of the

agents through whom it pursues that mission; nor should the

not-for-profit and for-profit corporations to whom the BOP

contractually delegates its important duties. That is espe-

cially true in light of the oversight and enforcement role the

BOP retains when it delegates its authority. The Bureau

continues protecting prisoners in Community Corrections

Centers by, among other things, making its administrative

grievance process available to them. See p. 24 & note 14,

supra. And it oversees the Community Corrections Centers

themselves through extensive contract monitoring and per-

formance evaluation, as provided in the Community Correc-

tions Manual, to ensure that such facilities meet contract

goals and provide federal prisoners with the quality care and

support they require during their transition from confine-

ment to liberty. See p. 4, supra (describing oversight and

inspections). The BOP’s current Statement of Work—the

model contract that provides the minimum requirements for

Community Corrections Centers—contains 24 chapters and

spans 108 pages. It covers requirements that range from

staff training and qualification, to facilities, to food, to em-

ployment counseling and assistance. See p. 4, supra. That

extensive oversight makes it particularly difficult to justify a

differential rule for BOP-regulated and BOP-operated insti-

tutions.

Indeed, the BOP’s extensive administrative and contrac-

tual oversight provide an additional source of deterrence

that obviates the need to create further Bivens-like liability.

While the BOP’s oversight may not be able to ensure that

each individual employee always observes constitutional

norms, the oversight can ensure that the corporation itself

complies with the BOP’s regulations and avoids systematic

practices or policies that violate the Constitution. The

combination of BOP oversight over the corporation, indi-

vidual officer liability under Bivens, and potential tort

liability under state law leaves no remedial gap to be filled

through the judicial creation of a further remedy.

C. Expansion Of Judicially Created Liability Is Parti-

cularly Inappropriate In Light Of Express Con-

gressiona! Policy

The court of appeals acknowledged that judicial expansion

of Bivens liability would affect federal fiscal interests, be-

cause contracting parties subjected to direct Bivens liability

would pass on those additional expenses to the government.

Pet. App. lla. However, the court discounted that effect

because it read this Court’s decision in Meyer as focusing

only on the impact of “imposing Bivens liability directly

upon federal agencies.” bid. That truncated analysis of the

effect of increased liability was not sufficient. This Court’s

“Bivens line of cases reflect a sensitivity to varying con-

texts,” and t he range of concerns” that may be taken into

account is broad.“ Idaho v. Coeur d’Alene Tribe, 521 U.S.

261, 280 (1997). See also 403 U.S. at 407 (Harlan, J.,

concurring) (noting the “broad” range “of policy con-

siderations” the Court “may take into account”). In this

context, the increased liability contemplated by the court of

appeals would place inappropriate burdens on important

federal programs and improperly skew government

decisionmaking.

Here, as in other contexts, It he financial burden of judg-

ments against” government contractors “would ultimately

be passed through, substantially if not totally, to the United

States itself, since * * * contractors will predictably raise

their prices to cover, or to insure against” liability. Boyle v.

United Techs. Corp., 487 U.S. 500, 511-512 (1988). But here,

unlike some other contexts, the increased costs to the

government are of particular concern, and not merely be-

cause they represent a drain on the Treasury. For the past

27

two decades, all Community Corrections Centers have been

operated by private contractors, and not the BOP. In 1984,

Congress nonetheless established an express policy,

embodied in 18 U.S.C. 3624(c), that “to the extent practi-

cable” prisoners serve a “reasonable part” of the last ten

percent of their sentences (but no more than six months) in

such environments, to “afford [them] a reasonable opportun-

ity to adjust to and prepare for * * * re-entry into the

community.” In an era of limited budgets, a judicial decision

that increases the cost of placing inmates in Community

Corrections Centers may affect the extent to which it is

“practicable” to achieve Section 3624(c)’s goal: The BOP

could be forced either to acquire its own community-based

facilities or to reduce the period of time prisoners spend in

such facilities, with a corresponding increase in the time

prisoners must spend in already over-capacity but mostly

government-run (and hence less costly) secure facilities.“

The broad range of concerns the Court may consider when

deciding whether to extend Bivens surely encompasses the

potential adverse impact on such an important federal

program—a program associated with a 35% reduction in

recidivism, Saylor & Gaes, Training Inmates Through

Industrial Work Participation and Vocational and Appren-

ticeship Instruction, 1 Corrections Mgmt. Q. 32, 39-40

(1997)—and on the efficient operation of the prison system

generally. The Court should be particularly hesitant to

extend a judicially created remedy where, as here, the re-

sulting financial burden has the potential of impeding an

explicit congressional policy.

In addition, a more expansive Bivens remedy on the part

of privately housed prisoners would distort the govern-

1% The BOP advises that, even without the imposition of Bivens-like

liability on contractors, the marginal cost of housing an additional inmate

in existing secure facilities is lower than the cost of placing that inmate in

a Community Corrections Center.

28

ment’s decisions regarding whether and under what circum-

stances to contract with private providers for the housing of

federal prisoners. Congress has consistently expressed a

policy of including private facilities among the available

options for prisoner housing. See, e.g., National Capital

Revitalization and Self-Government Improvement Act of

1997, Pub. L. No. 105-33, Subtit. C, § 11201(c), 111 Stat. 734,

as modified, D.C. Appropriations Act of 2001, Pub. L. No.

106-553, § 115, 114 Stat. 2762A-68 (42 U.S.C. 4001 note). In

determining whether to use public or private facilities for

particular prisoners or functions, the government to date

has appropriately focused on considerations of quality and

efficiency—that is, the cost and quality of the confinement

facilities and program support for the inmate population.

This Court should not distort that calculus by imposing

additional costs in the form of corporate liability on private

facilities alone.

D. The Court Of Appeals’ Reliance On 42 U.S.C. 1983

Was Misplaced

Finally, the court of appeals’ decision to create a Bivens-

like damages remedy against private correctional corpora-

tions was “influenced strongly” by the fact that liability

under 42 U.S.C. 1983 extends to private corporations acting

under color of state law. Pet. App. 12a (citing Lugar v.

Edmondson Oil Co., 457 U.S. 922 (1982)). That reliance on

Section 1983, however, was misplaced. The damages remedy

under Section 1983 was created by Congress, and the scope

of liability under it is therefore a question of statutory

construction. Consequently, when this Court construed that

statute as creating limited liability for municipal corpora-

tions in Monell v. Department of Social Services, 436 U.S.

658 (1978), the Court relied on Section 1983’s language and

unique legislative history. In particular, the Court empha-

sized Section 1983’s imposition of liability on any person!

a term that has been understood to include legal persons like

corporations. Jd. at 688-689. Moreover, as the Court

explained, the text of Section 1983 provides an express

standard of vicarious liability. It creates a cause of action

not only against anyone who “subject{s] another” to a consti-

tutional deprivation, but also against anyone who “cause[s]”

another “to be subjected” to such a deprivation. Id. at 690-

692. Viewing that language in light of Section 1983’s

legislative history, the Court interpreted Section 1983 as

rendering municipalities liable for the constitutiona) de-

privations they “cause”—i.e., those deprivations committed

by municipal agents pursuant to an “official policy.” Id. at

691-692. Following that decision, the lower federal courts

have similarly concluded that private corporations engaging

in state action may be liable under Section 1983 to the extent

the deprivation results from the corporation’s unconsti-

tutional policies. See, e.g., Austin v. Paramount Parks, Inc.,

195 F.3d 715, 727-728 (4th Cir. 1999); Sanders v. Sears,

Roebuck & Co., 984 F.2d 972, 975-976 (8th Cir. 1993); Rojas

v. Alexander's Dep't Store, Inc., 924 F.2d 406, 408 (2d Cir.

1990), cert. denied, 502 U.S. 809 (1991); Iskander v. Village

of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982). See also

Lugar v. Edmondson Oil Co., 457 U.S. 922, 936-937 (1982).

That reasoning, however, has no place under Bivens. The

damages action against federal officers recognized by Bivens

was judicially inferred to fill a perceived remedial gap and to

enforce a constitutional mandate. While it bears some re-

semblance to the remedy against state officers that Con-

gress provided in Section 1983, this Court’s decision in

Meyer implicitly rejected the claim that Bivens and Section

1983 actions are precisely parallel. In Meyer, the Court

refused to infer a cause of action against a federal agency

notwithstanding Monell’s recognition that local government

agencies can be liable under Section 1983. The statutory

language and legislative history that informed Monell were

irrelevant in Meyer—and are similarly irrelevant

here—because the Bivens remedy is founded not on an Act

30

of Congress but on a judicial decision.“ Consequently, when

this Court decides whether to create or extend Bivens

liability, it does not consult statutory text; instead, the Court

consults the same policy considerations that underlay Bivens

itself. See 403 U.S. at 407 (Harlan, J., concurring) (“The

range of policy considerations we may take into account is at

least as broad as the range of those a legislature would

consider with respect to an express statutory authori-

zation.”). As explained above, those policy considerations do

not support creating a Bivens remedy against private cor-

rectional institutions in this context. See pp. 18-28, supra.

Accordingly, the Court should decline to extend Bivens, just

as it did in Meyer, 510 U.S. at 484-486; in Chilicky, 487 U.S.

at 423; in Chappell, 462 U.S. at 298, and in Bush, 462 U.S. at

377.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

BARBARA D. UNDERWOOD

Acting Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney

General

PAUL D. CLEMENT

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor

General

BARBARA L. HERWIG

THOMAS M. BONDY

Attorneys

MAY 2001

7 Of course, this Court has held that the scope of immunity defenses

under Bivens is the same as under Section 1983. See, e.g., Wilson v.

Layne, 526 U.S. 603, 609 (1999). But this case does not concern immunity;

it concerns the scope of the Bivens remedy itself.

2

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