Amicus Curiae Brief — Christopher v. Harbury

No. 01-394 | = FEG 2 2ee2

IN THE

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Supreme Court of the nites States

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WARREN CHRISTOPHER, ET AL..,

Petitioners.

—_V—_

JENNIFER K. HARBURY,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE LAWYERS’ COMMITTEE FOR

CIVIL RIGHTS OF THE SAN FRANCISCO BAY AREA

AND THE AMERICAN CIVIL LIBERTIES UNION

AS AMICI CURIAE URGING AFFIRMANCE

ROBERT RUBIN ROBERT E. BORTON

LAWYERS’ COMMITTEE FOR -. ScoTT D. WIENER

CIVIL RIGHTS OF THE Counsel of Record

SAN FRANCISCO BAY AREA HELLER EHRMAN WHITE

301 Mission Street, Suite 400 & MCAULIFFE LLP

San Francisco, California 94105 333 Bush Street

(415) 543-9444 San Francisco, California 94104-2878

STEVEN R. SHAPIRO (415) 772-6000

LUCAS GUTTENTAG Attorneys for Amici Curiae Lawyers’

AMERICAN CIVIL LIBERTIES Committee For Civil Rights of

UNION FOUNDATION the San Francisco Bay Area and

125 Broad Street American Civil Liberties Union

New York, New York 10004

(212) 549-2500

BEST AVAILABLE COPY

INTEREST OF AMICI CURIAE

I.

Il.

Il.

TABLE OF CONTENTS

eS UI dcincdicistnitrinsensnistnancovnecenteccocinnoveneeveens

A. Despite Petitioners’

Mischaracterization Of The

Scope And Functionality Of The

Access-To-Courts Doctrine,

Respondent’s Claim Fits

Comfortably Within That

SOC ER EEE EEE EEE EEE EEE HEHEHE EEE

SERS RELTENIE hRS SE nE a 8

B. The Court Should Not Reach

The Bivens Argument That

Petitioners Advance For The

First Time In Their Opening

Brief And That No Court Of

Appeals Ever Has Addressed. ................000c000+8

C. ~ If The Court Does Reach

Petitioners’ Bivens Argument,

The Court Should Reject The

1. Implying A Bivens

Remedy Would

Effectively Deter

Egregious Affirmative

Misrepresentations By

Public Officials

14

IV.

Designed To Prevent

Citizens From Learning

The Truth And Filing

DUEL, «:nitmstdeoniniatiicstanibiiadiaaiiiicad 17

FOIA And Similar

Statutes Are Not

Remedial In Nature And

Do Not Provide

Respondent With An

Alternative Remedy In

Bee GDB ichicccinicticintitedinisnnteidesinaine te 18

A Bivens Remedy In

This Case — A Case Of

The Purported Impact

Of This Type Of Bivens

Claim On The Public

Fisc Provides No Basis

For Barring

Respondent’s Claim. .............c..ccc0ceec00e 22

CORTIIN ...cconesteyocsisssininitiintnasssaapiicmuatiaie 26

TABLE OF AUTHORITIES

CASES

Page

Bivens v. Six Unknown Named Agents,

I Michi eeentibiphsenannaumsensannenncnsecenoess 3, 15, 25

Boddie v. Connecticut,

en 9,10, 11

Bounds v. Smith,

ita nrc anna gnetemsnncengnasnsenenes 5,11

Bremiller v. Cleveland Psychiatric Inst.,

898 F. Supp. 572 (N.D. Ohio 1995) ...........ccccccccceeeeeeees 12, 13

Bush v. Lucas,

EE eee 19

Carlson v. Green,

hatin een rnastnnanteannnnnennsnnenscene 17, 24

Chappell v. Wallace,

ai cic enseenntatpanenezenenemnesnesenens 19

In re Cincinnati Radiation Litig.,

874 F. Supp. 796 (S.D. Ohio 1995) .........cccccccceeecereerereeees 13

Cornett v. Donovan,

IIE, TID ose nscenpnsnngnccnvenenssoceovecsnseasee 12

Corr. Servs. Corp. v. Malesko,

2 SON | RST | 16, 17

Csoka v. County of Suffolk ,

NE EE Rae 12

85 F. Supp. 2d 117 (E.D.N.Y. 2000)

-iv-

Daniels v. Williams,

Ss SF ee rcccrceticebininbiaantccntecaceansthmieiiansesitdiigil 25

Davis v. Passman,

ene IED atiniineencedeiinbtinetdeeanisinpentianiitentiiemtes 15, 22

Delew v. Wagner,

Ne 11

Don's Sod Co. v. Florida Dep't of Revenue,

661 So. 2d 896 (Fla. Dist. Ct. App. 1995) ..........cccccccccceeeee 12

E.I. duPont de Nemours & Co. v. Train,

gk, ERS CFR E EI. MESA AT e EO 16

FDIC v. Meyer,

ee Ce aittntnnttinctiliiindiarnrsaniett tial passim

Granfinanciera, S.A. v. Nordberg,

Se BP i atinnritndithinniiiciininaiettiiiniiivebeiintinindaie 15

Griffin v. Illinois,

SEED CE See caiinsttinnniencninnciariieniniscitisitiiapesitianttiniaiiichins ll

In re Howard Ins. Agency, Inc.,

109 B.R. 445 (Bankr. N.D. Okla. 1989) .000..0.....ccccccccecceees 12

Int'l Ass'n of Firefighters, Local 2069 v.

City of Sylacauga,

436 F. Supp. 482 (N.D. Ala. 1977) ...........cccccccecsceeseseeeeeeees ll

Jiron v. Mahiab,

ry Cs Set cniaicrienidtinicpntnsanstntettensnniininesiitinais ll

Jones v. Clinton,

72 F.3d 1354 (8th Cir. 1996),

ae es ae i iicttsictilbittiantattetasiitecmatinnicii 12

-V-

Jones v. FBI,

Pp ky FS 20

Jun v. Myers,

88 Cal. App. 4th 117 (2001) ...........:ccccececceeeereseeneereeenenneees 12

La. Pac. Corp. v. Beazer Materials & Servs., Inc.,

842 F. Supp. 1243 (E.D. Cal. 1994) .........ccccccccseeeeeeeeeeeenes 12

Maryland v. Baltimore Radio Show, Inc.,

th Se cen cernsematenesciinenesnenenpusstesecensensneniicatatin 16

Moses v. Hoebel,

ee 13

Owasso Indep. Sch. Dist. v. Falvo,

No. 00-1073, __ U.S. __, 2002 WL 232853

OT} Se 14

Owens-Corning Fiberglas Corp. v. Rivera,

683 So. 2d 154 (Fla. Dist. Ct. App. 1996) ............ccccccccceeees 13

Roberts v. Galen of Va., Inc.,

GF een 15

Schweiker v. Chilicky,

gE ee 19, 22

Silver v. Cormier,

. fe f ffs 8 12

Swekel v. City of River Rouge,

SOR eb ll

United States v. Mendoza,

) -} en 16

United States v. Stanley,

Eee 22

-Vi-

Village of Lake Barrington v. Hogan,

649 N.E.2d 1366 (Ill. App. Ct. FRA Cadet 13

West v. Gibson,

og RR nee Ne eR 15

Williams v. Ill. State Scholarship Comm'n,

| Ue eee 13

STATUTES, REGULATIONS AND RULES

| TR ASM Rate Pie PEE 24

| Ne Scene: UNE. 24, 25

hE EPS DEIR te 25

SOE BIG wcticeccsceeenti 23

i itentntinsicisaibiiininial ictal cites I

INTEREST OF AMICI CURIAE’

Amicus curiae Lawyers’ Committee for Civil Rights of the

San Francisco Bay Area (“Lawyers’ Committee”) is a civil

rights and legal services organization devoted to advancing the

rights of people of color, low-income individuals, immigrants,

refugees, and other underrepresented yersons. The Lawyers’

Committee is affiliated with the Washington, D.C.-based

Lawyers’ Committee for Civil Rights Under Law, which was

created at the behest of President Kennedy in 1963. In 1968,

the Lawyers’ Committee was established by leading members

of the private bar in San Francisco.

Throughout its history, the Lawyers’ Committee has

dedicated itself to ensuring access to the judicial system,

particularly for the most vulnerable individuals and groups in

our society. Unreasonable obstacles to ensuring unfettered

access to legal redress must be closely scrutinized. The

Lawyers’ Committee is particularly concerned about any legal

precedent that might chill the ability of private citizens to seek

legal remedies against government officials who engage in

official misconduct.

Amicus curiae American Civil Liberties Union (“ACLU”) is

a national nonpartisan organization of almost 300,000

members dedicated to protecting the fundamental rights

guaranteed by the Constitution and laws of the United States.

' Pursuant to Rule 37.3 of the Rules of this Court, amici

curiae submit this brief urging affirmance of the judgment of

the court of appeals. The parties have consented to the filing of

this brief, and their written consents are being filed with the

Clerk of the Court simultaneously with this brief.

No counsel for a party authored this brief in whole or in

part. No person, other than amici curiae, their members, or

their counsel, made a monetary contribution to the preparation

or submission of this brief.

)

oMe

Since its founding, the ACLU has sought to ensure that the

protections of the Constitution and the Bill of Rights apply

equally to all persons. The issues presented in this case,

relating to the ability of citizens and others to seek redress

against public officials who engage in serious misconduct, are

of significant interest to the ACLU and its members.

I. INTRODUCTION

In deciding this case, it is important to keep in mind the

exceptional factual allegations that gave rise to Respondent’s

claim: deliberate and persistent lies by public officials that

induced (and that were designed to induce) Respondent not to

seek information pursuant to the Freedom of Information Act

(“FOIA”) and not to bring suit to save her husband’s life. In

light of the egregious nature of Petitioners’ alleged misconduct,

Respondent has tated a viable claim for relief, and Petitioners

are not entitled to qualified immunity. Respondent alleges that

government officials engaged in a prolonged and deliberate

pattern of misrepresentations for the very specific purpose of

preventing her from obtaining truthful information and filing a

lawsuit against the responsible government officials. In other

words, Petitioners are alleged to have engaged in a pattern of

misrepresentations against Respondent not simply to further

their view of government policy but also to induce Respondent

not to discover the truth and to file a lawsuit based on the truth.

This lawsuit is not, as Petitioners contend, about the ability

of government officials to refuse to disclose sensitive

information about the government’s foreign policy. Nor is it

about the ability of a citizen to intimidate government officials,

by threat of suit, into betraying their public trust by revealing

such information. That is not what Respondent is claiming,

Petitioners’ repeated mischaracterizations of her claim

Rather, v gomagie claim is quite narrow and focused and

concerns the extraordinary and egregious

misconduct at issue here. Respondent simply alleges ates

these Petitioners not lied to her and misled her, she would have

Be

pursued a FOIA request immediately, would have learned the

truth from that FOIA request, and would have brought a lawsuit

to save her husband’s life, among other things. Respondent

alleges that by lying to her for the specific purpose of inducing

her not to seek the truth and for the specific purpose of

preventing a lawsuit based on the truth, Petitioners succeeded in

preventing Respondent from seeking redress from the courts

until it was too late to save her husband’s life.

That claim comfortably fits into the well-established

doctrine of the constitutional right of access to courts.

Petitioners’ rigid and overly narrow recitation of the doctrine’s

scope is inaccurate. The doctrine is functional in nature and not

dependent upon the erection of physical or “institutional”

barriers to filing a lawsuit, as Petitioners argue. The doctrine is

implicated when government action — whether formal or

informal and whether pursuant to an official policy or an

unwritten practice — effectively prevents a person from filing

suit and thereby harms that person. As we describe below,

courts have applied the doctrine in a variety of contexts that

belie the rigidity of Petitioners’ analysis.

Nor should the Court accept the invitation of Petitioners and

the United States to decide whether a remedy pursuant to

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

should be implied here in light of FOIA and similar statutes.

That issue was neither raised nor decided below, was not

among the questions presented in the petition for certiorari, and,

to our knowledge, has never been addressed by any court of

‘appeals. Given the extreme nature of the argument — that

FOIA and similar statutes providing for access to government

documentary records somehow “remedy” intentional and

affirmative misrepresentations by government officials that

result in damages — the Court should not reach out to decide

the issue without fuller litigation in the lower courts and proper

presentation to this Court.

The Court should affirm the decision of the court of appeals,

but whatever the Court’s ultimate disposition of the case, it

should limit that disposition to the discrete issues that are

sic

before the Court and should refrain from reaching out for

complex and far-reaching issues that have not been presented

and that are not necessary to decide the viability of

Respondent’s claim.

Il. SUMMARY OF ARGUMENT °

For many years, this Court has held that citizens have a

constitutional right to access a judicial forum to pursue claims.

The Court repeatedly has invalidated statutes and other

provisions that have impeded that protected access. Moreover,

courts have held on many occasions that government officials

may be liable in damages if they illegally prevent citizens from

accessing the courts.

The various types of claims falling within the doctrine belie

Petitioners’ contention that the doctrine is narrowly confined to

“institutional” barriers to filing a lawsuit and formal barriers to

lawsuits by prisoners. The doctrine applies to government

action — whether formal or informal and whether the result of

an official policy or an unwritten practice — that prevents

citizens from accessing a judicial forum.

The doctrine, therefore, is implicated not only in a narrow

set of factual categories (prisoner cases, cases involving

wrongful suppression of evidence, and the like), but in other

settings as well. For example, courts have applied the doctrine

in the bankruptcy/receivership setting, tax Itigation, medical

abuse cases, employment cases, divorce cases, products-

liability actions, antitrust actions, environmental enforcement

actions, contract actions, and other contexts.

The access-to-courts doctrine thus is functional in nature and

applies to government action that improperly prevents filing of

suit to pursue a claim for relief. The nature of the doctrine and

its variable application lead to two conclusions. First, the court

of appeals correctly held that Respondent’s claim fits within the

doctrine’s framework. Second, because of the varied contexts

in which the doctrine can arise, the Court need not and should

not go beyond a determination of whether, as presented in the

petition for certiorari, the type of claim that Respondent has

x A

asserted is maintainable. No one — not Petitioners, not the

United States — has questioned the continuing vitality of the

doctrine or of Bounds v. Smith, 430 U.S. 817 (1977), and its

progeny. Instead, Petitioners and the United States do no more

than argue that the specific facts that Respondent has alleged do

not give rise to a cause of action for violation of her right of

access to courts under the standards announced in Bounds and

its progeny. Given that no one is challenging the vitality of the

access-to-courts cases beyond the specific type of claim that

Respondent has asserted, the Court need not and should not go

beyond an assessment of that claim.

Nor should the Court reach the issue of remedy that

Petitioners raised for the very first time in their opening brief in

this Court — whether, assuming the existence of a

constitutional violation, the Court should imply a Bivens

remedy. Petitioners’ primary argument in this regard is that by

enacting FOIA and similar statutes, Congress has established a

comprehensive regulatory scheme governing requests by

citizens for information from the government. Based on that

premise, Petitioners conclude that the Court should not imply a

constitutional damages remedy for the fact pattern alleged in

this case — i.e., deliberate oral lies by federal officials designed

to induce Respondent not to file suit.

Petitioners never raised that argument below, the court of

appeals (understandably) did not address the issue, and

Petitioners did not present it in their petition for certiorari.

Moreover, we are unaware of any decision by any court of

appeals (and neither Petitioners nor the United States has cited

any such decision) that has addressed this issue. Thus, the

Court should not reach this novel question and should let the

lower courts address it in the first instance.

It is particularly appropriate to defer assessment of the

BivenS issue given the extraordinary nature of Petitioners’

argument. Petitioners, and the United States as well, assert that

Congress’s creation of a mechanism for citizens to obtain a

limited universe of official documentary material effectively

occupies the field with respect to the regulation of all

sie

information flow between government and citizens. According

to Petitioners, the availability of obtaining written documents

under FOIA and similar statutes effects a bar against damages

suits for direct oral misrepresentations by public officials.

Petitioners’ argument distorts the careful limitations that the

Court has placed on the Bivens doctrine and mischaracterizes

both FOIA and the nature of Respondent’s claim. The Court

has limited application of the Bivens doctrine in three

situations: (1) where a damages remedy would not deter

misconduct by individual government officials; (2) where an

adequate alternative remedy exists to satisfy the plaintiff's

claim for compensation and remediation; and (3) where

creation of a damages remedy would severely undermine an

area of government policy that is both sensitive and delegated

to the executive and/or le gislative branch.

None of those limitations denies a remedy to Respondent.

Indeed, the only ways that Petitioners and the United States are

able to support their argument that FOIA and similar statutes

provide Respondent with any “remedy” (and, indeed, an

“adequate remedy”) are to mischaracterize Respondent’s claim

as alleging breach of a duty to disclose information and to

mischaracterize FOIA and similar statutes as constituting the

sole methods of communication between government and

citizens. Given that Respondent’s claim is based on alleged

deliberate, repeated, and affirmative oral misrepresentations

‘designed t guovent her Gem discovering Ge tuts ond to

induce her not to file suit — and is not based on breach of a

duty to disclose that arguably could have been cured by a FOIA

request — and given that FOIA and similar statutes cover but

one discrete area of government-citizen communications and

say nothing about direct oral communications, Petitioners’

argument misses the mark. Petitioners have identified nothing

in FOIA or similar statutes that could have remedied

Petitioners’ alleged lies and the resulting harm to Respondent.

“For the same reason, Petitioners’ argument that a damages

remedy would undermine foreign policy also fails. Again,

I iat a a i)

we

disclose sensitive information that would have undermined

foreign policy. Instead, Respondent is alleging that Petitioners

lied to her in order to prevent her from discovering the truth and

to induce her not to file a lawsuit. Whether the government

was under any obligation to disclose information to Respondent

is a distinct issue from whether Petitioners were under an

obligation not to lie to Respondent with the purpose of

impeding her ability to sue. And, whether requiring the

government to disclose information would undermine foreign

policy says nothing about whether requiring government

officials not to lie would undermine foreign policy.

Finally, Petitioners’ argument that implication of a Bivens

remedy here would have significant financial consequences for

the United States Treasury is without basis. What Petitioners

ignore in advancing that argument is that Respondent’s access-

to-courts claim names individual federal employees in their

personal capacities and does not name either the United States

or any agency of the United States. ‘iiie United States may

choose to indemnify its employees for liability that they incur,

but it is factially inaccurate to state that Respondent’s claim

will automatically drain the U.S. Treasury. Her claim will do

no such thing unless the United States chooses to let it do so.

Indeed, to view a Bivens claim, as Petitioners suggest, as

directly and automatically implicating the U.S. Treasury would

undermine the very purpose of Jivens — the creation of a

deterrent to unconstitutional acts by individual public officials.

If Bivens is nothing more than an indirect way to sue the United

States (a basic premise of Petitioners’ public -fisc argument and

directly contrary to recent statements by this Court in FDIC v.

Meyer, 510 U.S. 471 (1994)), then that deterrent effect would

be significantly undermined.

Petitioners’ public-fisc argument fails for other reasons as

well. Respondent’s claim is exceptional, to say the least. It is

hardly the type of claim that would induce plaintiffs to inundate

the courts with similar lawsuits. Compared with ciaims for

which this Court has permitted Bivens chimes — for example,

»

scenario of an allegedly illegal search by federal law

enforcement officers — permitting people in Respondent’s

position to seek monetary damages would not have a significant

fiscal impact on the government.

lil. ARGUMENT

A. Despite Petitioners’ Mischaracterization Of

The Scope And Functionality Of The Access-

To-Courts Doctrine, Respondent’s Claim

Fits Comfortably Within That Doctrine.

The access-to-courts doctrine is designed to prevent

precisely the type of harm that Respondent alleges —

government conduct that prevents people from discovering the

truth and filing suit based on the truth to vindicate their legal

rights. It does not matter whether the conduct reflects formal

policy or informal practice or whether the barrier that the

government erects physically bars access a does so in other

ways. Nor does it matter what the specific subject of the claim

is. Respondent’s claim that Petitioners deliberately lied to her

for the specific purposes of preventing her from discovering the

truth and thereby inducing her not to pursue her legal claims

falls squarely within the doctrine’s framework.

Only by ignoring the functional basis of the access-to-courts

doctrine and by rigidly focusing on specific types of barriers

and specific subject-matter contexts are Petitioners able to

argue that Respondent’s claim falls outside the doctrine.

Petitioners would have the Court believe that the doctrine

applies only in two very narrow contexts: (1) “institutional

mechanisms that directly preclude access to the courts”; and (2)

“arbitrary restrictions on judicial access for prisoners held in

government custody.” Pet. Brief at 13. In other words,

according to Petitioners, the doctrine only applies to formal

policies that bar access to the courthouse and to prisoners who

are prevented from filing their complaints.

Access to courts, however, is not nearly as ossified as

Petitioners contend. Contrary to the formalistic categories that

Petitioners have fashioned, the doctrine’s development

. *

evidences a much more functional application arising from the

core principle that people should be permitted to access a

judicial forum to vindicate significant legal rights and that

denial of that access by government officials is improper. The

long development of the access-to-courts doctrine thus has

given rise to various types of claims in various different subject

areas and based on various forms of government action.

One key premise underlying Petitioners’ narrow definition

of the right of access to courts is that the doctrine is primarily

concerned with formal barriers to filing suit — “institutional”

barriers. That premise allows Petitioners to discount the

misconduct that allegedly occurred here, namely, informal and

perhaps isolated acts by public officials designed to prevent

Respondent from discovering the truth and from filing suit.

Yet, even if Petitioners’ conduct was informal and isolated, this

Court’s articulation of the doctrine is not so formalistic as to

exclude such real barriers to accessing the courts.

The Court’s decision in Boddie v. Connecticut, 401 U.S. 371

(1971), illustrates the point. In that case, the Court held that a

required fee for filing for divorce was unconstitutional in that it

prevented indigent persons from accessing the courts to

terminate their marriages. The fee was not designed to bar

access by indigents, but it effectively achieved that end by not

providing a waiver based on need. The statute thus was

The question then becomes whether the Boddie holding

would have been the same if Connecticut, to remedy the

constitutional defect, had provided court clerks with discretion

to waive the fee for indigents but if, as an unwritten practice

(perhaps because of a hostility to divorce), certain clerks

generally (but not always) declined to exercise that discretion.

Would the holding have been the same if the court clerk

arbitrarily had exercised discretion in refusing to waive Gladys

Boddie’s filing fee under that unwritten practice?

The answer must be “yes,” given that such a regime would

just as effectively have barred Ms. Boddie’s access to the

-10-

courts. From her perspective, it would not have mattered

whether the denial of her access to the courts resulted from a

rigid “barrier” erected by the legislature or from an informal

and flexible practice that only sometimes prevented access.

From her vantage point, the government still would have

prevented her from accessing a judicial forum. Justice Harlan,

writing for the Boddie Court, addressed the issue:

Just as a generally valid notice procedure may

fail to satisfy due process because of the

circumstances of the defendant, so too a cost

requirement, valid on its face, may offend due

process because it operates to foreclose a

particular party’s opportunity to be heard. The

State’s obligations under the Fourteenth

Amendment are not simply generalized ones;

rather, the State owes to each individual that

process which, in light of the values of a free

society, can be characterized as due.

Id. at 380. Thus, Boddie — consistent with the access-to-courts

doctrine generally — was not concerned with the formality of

the policy regarding fees. Boddie was concerned with the fact

that Gladys Boddie, as an individual in the particular

circumstances that she confronted, could not gain access to the

courts because she could not afford the filing fee and because

Connecticut (whether through formal policy or unwritten

practice) insisted that she pay it.

Policy or no policy, law or no law, formality or no formality,

government actions resulting in denial of access to the courts

are unconstitutional. Petitioners’ description of the doctrine, by

diverting focus from the policy underlying the doctrine to two

formalistic categories of claims comprising a subset of the

doctrine, is inaccurate.

Like Petitioners’ focus on formal and “institutional” barriers

to the courts, their focus on a very narrow set of factual

contexts in which the doctrine applies is also unsatisfying and

inaccurate. Petitioners focus on a limited array of access-to-

y -

courts cases, including cases in which prisoners are effectively

prevented from filing lawsuits, see, e.g., Bounds v. Smith, 430

U.S. 817; cases in which indigent persons are prevented from

accessing the courts, see, e.g., Boddie, 401 U.S. 371; Griffin v.

Illinois, 351 U.S. 12 (1956); and cases in which law

enforcement wrongfully suppresses evidence and thus delays or

destroys the ability of a party to file suit, see, e.g., Delew v.

Wagner, 143 F.3d 1219 (9th Cir. 1998); Swekel v. City of River

Rouge, 119 F.3d 1259 (6th Cir. 1997).

These cases, while important embodiments of the doctrine,

do not exhaust the types of governmental actions that

impermissibly interfere with access to the courts. The differing

contexts in which courts have applied the doctrine refute the

subject-matter limitations for which Petitioners advocate and

underline that the doctrine is defined not by narrow fact

patterns but rather by the fundamental principle that people

should not be prevented from seeking relief from the judicial

branch.

For example, courts have applied the doctrine where a time -

consuming administrative prerequisite to filing suit could

effectively prevent the plaintiff from obtaining personal

jurisdiction over the defendant;? where a municipal defendant

amended a regulation and thereby prevented public access to

documents that could prove the municipality's liability;> where

a tax statute required that before challenging a tax, the taxpayer

prepay the tax and commence an administrative proceeding in

2 See Jiron v. Mahlab, 659 P.2d 311 (N.M. 1983).

> Int'l Ass'n of Firefighters, Local 2069 v. City of

Sylacauga, 436 F. Supp. 482, 491 (N.D. Ala..1977) (“[T]he

timing and substance of the amendment suggest that its purpose

is to quell lawsuits against defendants which could otherwise

result from access to the . . . records.”).

--

which constitutional claims could not be raised;* where a

bankruptcy regulation required bankruptcy trustees to obtain

approval from the United States Trustee before filing a final

accounting for the bankruptcy estate; where a trial court

refused to allow a party to intervene in a receivership

proceeding to sue the receiver and refused to allow an

independent suit; where a proposed consent decree in a

CERCLA enforcement action would have imposed severe daily

penalties for violation by the private party without adequate

judicial review;’ and where a stay would require a plaintiff to

delay suing the President of the United States for conduct

occurring before the President took office. *

These are only a few of the contexts in which the access-to-

courts doctrine provides a crucial safeguard against government

barriers that deny recourse to the judicial process. There are

numerous others. See, e.g., Cornett v. Donovan, 51 F.3d 894

(9th Cir. 1995) (access to courts by civilly committed

individuals); Silver v. Cormier, 529 F.2d 161 (10th Cir. 1976)

(action in which government official threatened to withhold

certain payments that were due and owing if citizen brought

suit to enforce contractual obligation); Csoka v. County of

Suffolk, 85 F. Supp. 2d 117 (E.D.N.Y. 2000) (divorce

proceeding); Bremiller v. Cleveland Psychiatric Inst., 898 F.

* See Don's Sod Co. v. Florida Dep't of Revenue, 661

So. 2d 896 (Fla. Dist. Ct. App. 1995).

> See In re Howard Ins. Agency, Inc., 109 B.R. 445

(Bankr. N.D. Okla. 1989).

® See Jun v. Myers, 88 Cal. App. 4th 117 (2001).

” See La. Pac. Corp. v. Beazer Materials & Servs., Inc.,

842 F. Supp. 1243, 1252 (E.D. Cal. 1994).

® See Jones v. Clinton, 72 F.3d 1354 (8th Cir. 1996),

aff'd, 520 U.S. 681 (1997).

= >

Supp. 572 (N.D. Ohio 1995) (destruction of documents in sex-

discrimination suit); Jn re Cincinnati Radiation Litig., 874 F.

Supp. 796, 824 (S.D. Ohio 1995) (medicakabuse case); Owens-

Corning Fiberglas Corp. v. Rivera, 683 So. 2d 154 (Fla. Dist.

Ct. App. 1996) (access to courts violated by products liability

statute of limitations); Village of Lake Barrington v. Hogan,

649 N.E.2d 1366 (Ill. App. Ct. 1995) (property-rights context);

Williams v. Ill. State Scholarship Comm'n, 563 N.E.2d 465 (Ill.

1990) (invalidating on access-to-courts ground statute

restricting venue for particular suits to one county in large

state); Moses v. Hoebel, 646 P.2d 601 (Okla. 1982) (setting

aside on access-to-courts ground court order that prevented

plaintiff from refiling voluntarily dismissed lawsuit without

paying certain significant fees).

What these cases make clear is that the right of access to

courts is not limited to “institutional mechanisms” that prevent

access to courts and to restrictions on access by prisoners.

Other forms of government action — and particularly egregious

government action such as that alleged in Respondent’s narrow

claim — that deny access to a judicial forum implicate the

doctrine. Accordingly, the principle of ensuring access, rather

than the narrow fact patterns that Petitioners propose, should

guide the Court. When viewed in that light, Respondent's

claim falls well within the principled framework underlying the

right of access to courts.

Courts’ longstanding application of the doctrine to a variety

of impediments points to two conclusions. First, Respondent’s

claim is the functional equivalent of the many cases in which

this Court and other courts have applied the access-to-courts

doctrine. Like the cases cited above and those cited in

Respondent’s brief, this case concerns alleged conduct — lies

— by public officials that were designed to prevent Respondent

from discovering the truth and suing and that did in fact prevent

her from discovering the truth and suing util it was too late.

The informal and perhaps aberrational nature of Petitioners’

conduct and the fact that the claim arises from a fairly unique

fact pattern do not undermine the core nature of the claim.

- 14-

Second, the Court need not draw broad conclusions about

the doctrine as a whole but rather should limit its inquiry to the

particular claim that Respondent is asserting. The Court should

decide whether this claim is viable and need not extend its

inquiry to applications not presented here. Respondent’s claim

is narrow in nature and should be addressed accordingly.

B. The Court Should Not Reach The Bivens

Argument That Petitioners Advance For The

First Time In Their Opening Brief And That

No Court Of Appeals Ever Has Addressed.

Until they submitted their opening brief nm this Court, at no

point during the litigation did Petitioners raise as an issue the

possibility that, even assuming the existence of the

constitutional violation that Respondent alleges, the Court

should not fashion a Bivens damages remedy. Petitioners did

not raise the issue in the district court, did not raise it in the

court of appeals, and did not raise it in their petition for

certiorari. Only when submitting their opening brief did they

inject this entirely new and significant issue — one that, to our

knowledge, no court of appeals ever has addressed.

The Court should decline the invitation to consider

Petitioners’ novel argument that no Bivens remedy should be

fashioned for a claim of intentional and affirmative

misrepresentation by public officials resulting in significant

harm. First, Petitioners did not properly present the issue or

raise and preserve it below. The Court rejected a similar effort

just last week. See Owasso Indep. Sch. Dist. v. Falvo, No. 00-

1073, _. U.S. __, 2002 WL 232853, a *3 (Feb. 19, 2002)

(“The parties, furthermore, did not contest the § 1983 issue

before the Court of Appeals. That court raised the issue sua

sponte, and petitioners did not seek certiorari on the question.

We need not resolve the question here as it is our practice to

decide cases on the grounds raised and considered in the Court

-15-

of Appeals and included in the question on which we granted

certiorari.” (citation and quotations omitted).’

Indeed, in Bivens itself and that case’s progeny, the Court

declined to consider arguments that the lower courts did not

address. See Davis v. Passman, 442 U.S. 228, 236 n.11 (1979)

(“The en banc Court of Appeals did not decide whether the

conduct of respondent was shielded by the Speech or Debate

Clause. In the absence of such a-degision, we also intimate no

view on this question.”); Bivens, 403 U.S. at 398 (“In addition

to holding that petitioner’s complaint had failed to state facts

making out a cause of action, the District Court ruled that in

any event respondents were immune from liability by virtue of

their official position. ... This question was not passed upon

by the Court of Appeals, and accordingly we do not consider it

here.”).

The second reason that the Court should decline to consider

Petitioners’ belated Bivens argument is because of the

argument’s extraordinary nature (as discussed below) — that a

9 See also Roberts v. Galen of Va., Inc. , 525 U.S. 249,

253-54 (1999) (“Although respondent presents two alternative

grounds for the affirmance of the decision below, we decline to

address these claims at this stage in the litigation. The Court

granted certiorari on only the EMTALA issue, and these claims

do not appear to have been sufficiently developed below for us

to assess them in any event.”) (footnote omitted); West v.

Gibson, 527 U S. 212, 223 (1999) (“These matters fall outside

the scope of the question presented in the Government's

petition for certiorari. .. . We remand the case so that the Court

of Appeals can determine whether these questions have been

properly raised and, if so, decide them.”); Granfinanciera, S.A.

v. Nordberg, 492 U.S. 33, 38 (1989) (“We decline to address

this argument because respondent failed to raise it below and

because the question it poses has not been adequately briefed

and argued.”).

» tts

constitutional damages claim based on _ affirmative

misrepresentations to citizens by public officials should be

displaced by a statutory scheme that provides no remedy

whatsoever for those misrepresentations. Before wading into

that fray, the Court should allow this significant issue to be

addressed by the lower courts in the first instance. See, e.g.,

United States v. Mendoza, 464 US. 154, 160 (1984)

(Rehnquist, J.) (“Allowing only one final adjudication would

deprive this Court of the benefit it receives from permitting

several courts of appeals to explore a difficult question before

this Court grants certiorari.”); E.J. duPont de Nemours & Co. v.

Train, 430 U.S. 112, 135 n.26 (1977) (“This litigation

exemplifies the wisdom of allowing difficult issues to mature

through full consideration by the courts of appeals. By

eliminating the many subsidiary, but still troubling, arguments

raised by industry, these courts have vastly simplified our task .

.”); Maryland v. Baltimore Radio Show, Inc., 338 U.S. 912,

918 (1950) (on denial of certiorari) (“It may be desirable to

have different aspects of an issue further illumined by the lower

courts. Wise adjudication has its own time for ripening.”’).

Petitioners belatedly are seeking to insert a significant and

complicated issue into this litigation. Because neither the lower

courts in this case nor any court of appeals has addressed the

issue in the first instance, the Court should forego decision.

of If The Court Does Reach Petitioners’ Bivens

Argument, The Court Should Reject The

Argument. ~

In assessing Petitioners’ argument that the Court should not

imply a Bivens remedy for the constitutional violation forming

the basis for Respondent’s claim, it is important to focus on the

underlying policy of the Bivens rule: that legal remedies should

exist to deter individual federal officials from committing

constitutional violations and that a damages remedy that acts as

policy. See Corr. Servs.

Corp. v. Malesko, _ U.S. _, 122 S. Ct. 515, 521 (2001) (“The

——_——e—

~i7-

purpose of Bivens is to deter individual federal officers from

committing constitutional violations.”); id. at 523 (noting that

federal inmates in privately operated institutions had “full

access to remedial mechanisms established by the [Bureau of

Prisons]”’).

Providing Respondent with a damages remedy for

Petitioners’ misconduct would fulfill the policy objectives of

the Bivens doctrine, and the Court should reject Petitioners’

argument.

1. Implying A Bivens Remedy Would

Effectively Deter Egregious

Affirmative Misrepresentations By

Public Officials Designed To Prevent

Citizens From Learning The Truth

And Filing Suit.

A damages remedy for Respondent’s claim would act as a

deterrent to misconduct by public officials such as that alleged

in this case. Respondent is suing the specific officials who

allegedly lied to her and is seeking to hold them liable in their

personal capacities. The Court repeatedly has noted that the

purpose of the Bivens remedy is to deter individual officers

from violating the Constitution. See Meyer, 510 U.S. at 485

(“It must be remembered that the purpose of Bivens is to deter

the officer.”); Carlson v. Green, 446 U.S. 14, 21-22 (1980).

This case is a prototype of an effective Bivens deterrent.

Respondent alleges that Petitioners communicated directly with

her and lied to her in order to prevent her from discovering the

truth and from commencing a lawsuit against the responsible

government officials. A damages remedy against Petitioners in

their personal capacities provides the most effective deterrent

against further behavior of that sort.

Conversely, failure to imply a Bivens remedy here would

result in no deterrent at all to this type of misbehavior.

Petitioners and the United States describe FOIA and similar

statutes in great detail, including the punishment that federal

employees can receive for violating the statute. However, at no

x *

point do Petitioners or the United States explain how those

mechanisms would deter affirmative lies by public officials

occurring outside of the FOIA process that are designed to

impede access to the courts. While an official may be

disciplined for not complying with FOIA, oral

misrepresentations by government officials are not covered by

FOIA or the other statutes that Petitioners and the United States

have cited. Thus, failure to imply a Bivens remedy would

eliminate any real deterrent to this type of misconduct with

respect to individual officers.

Accordingly, the Court should imply a Bivens remedy absent

an adequate alternative remedy or other special factors

counseling hesitation. As described below, neither Petitioners

nor the United States has provided a justification for not

implying a damages remedy.

2. FOIA And Similar Statutes Are Not

Remedial In Nature And Do Not

Provide Respondent With An

Alternative Remedy In This Case.

Without a damages remedy, Respondeiit would be left with

no remedy for Petitioners’ constitutional violations. FOIA and

similar statutes say nothing about the harm suffered as a result

of oral affirmative lies by public officials. Petitioners and the

United States do not explain how, in light of what is alleged

here (i.e., affirmative and deliberate misrepresentations

designed to induce Respondent not to sue), Respondent could

“remedy” her harm by resorting to FOIA.

The whole basis for Respondent’s claim, after all, is that,

regardless of other information that might have existed,

Respondent relied on Petitioners’ alleged direct oral

misrepresentations in refraining from filing a FOIA request and

filing suit. FOIA does not speak to that harm and, indeed,

could not speak to that harm in light of Respondent’s allegation

that Petitioners’ alleged misrepresentations induced her not to

file a FOIA request in the first place. It is hard to imagine how

= *

FOIA could remedy harm suffered because of conduct that

induces a plaintiff not to seek FOIA’s benefits.

In each instance in which this Court has held that a Bivens

action is precluded by an adequate alternative remedial scheme,

that alternative remedy has provided the plaintiff with some

sort of relief for the injury suffered. The alternative remedial

scheme need not provide the plaintiff's entire measure of

damages, but it must provide some sort of relief in lieu of a full

damages remedy. For example, in Schweiker v. Chilicky, 487

U.S. 412 (1988), the Social Security recipients whose benefits

had been improperly terminated had received substantial relief

from the administrative appeal process, including restoration to

disabled status and an award of full retroactive benefits. Sve id.

at 417. Thus, although imperfect (for example, the statutory

scheme did not provide for consequential damages or damages

for emotional distress), the Court held that Congress had

created an adequate alternative remedy. See id. at 425

(“Congress, however, has not failed to provide meaningful

safeguards or remedies for the rights of persons situated as

respondents were.”).

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

improperly terminated federal employee had received, through

the administrative process, restoration to his former position

and back pay. See id. at 371. The scheme was intended to “put

the employee in the same position he would have been in had

the unjustified or erroneous personnel action not taken place.”

Id. at 388 (quotations and footnote omitted). That remedial

scheme, although it did not provide every possible remedy, was

adequate and thus precluded a Bivens damages remedy. See id.

at 388-89; see also Chappell v. Wallace, 462 U.S. 296 (1983)

(declining to imply Bivens remedy because, in part, soldiers had

several remedies for misconduct by superiors, including award

of retroactive back pay and retroactive promotion).

Thus, when the Court has held that an alternate remedial

scheme precludes a Bivens damages remedy, the alternate

remedy is one that, after the harm occurs, ameliorates to a

significant degree the harm suffered. The alternate remedy

- 20 -

need not be perfect or complete, but it must do something to put

the plaintiff in the position (or close to the position) in which he

or she would have been absent the wrongdoing.

FOIA and similar statutes do not come close to fitting that

bill, given that FOIA is not and never has been a remedial

statute. The Sixth Circuit has recognized as much in affirming

the withholding of FOIA materials that the plaintiff argued

would support his claim that his constitutional rights were

violated:

To the extent that the agency violates the

constitutional rights of citizens, there are

remedies such as Bivens actions, or § 1983 in

the case of state and local law enforcement

agencies. FOIA was intended as a sunshine

measure to bring agency operations to public

knowledge within specified limits, not as the

primary vehicle for prosecuting agency

misbehavior.

Jones v. FBI, 41 F.3d 238, 246 (6th Cir. 1994). Thus,

Petitioners’ description of the “intricate” FOIA “rights,

remedies, and procedures,” see Pet. Brief at 35-36, is irrelevant.

Even if an individual may sue to enforce FOIA and may

recover attorneys fees and costs and even if federal employees

may be disciplined for violating that statute, that scheme does

nothing to deter federal employees from lying to citizens

outside of the FOIA process and does nothing to compensate

the victims of those misrepresentations.

Respondent’s factual allegations prove the point regarding

FOIA’s inadequacy as a “remedy” in this context.

Respondent’s claim is that, because of Petitioners’ repeated lies

to her, she did not file an immediate FOIA request. Rather, she

relied on those lies to her detriment by not conducting further

investigation, including resort to FOIA. Petitioners, of course,

are entitled to dispute as a factual matter the reasonableness of

Respondent’s reliance. But assuming the truth of Respondent’s

allegations, as we must at this stage of the litigation,

Ae a eit,

a

Petitioners’ lies induced her not to take further action until it

was too late.

Congress, in enacting FOIA and similar statutes, hardly

intended to provide a remedy for plaintiffs victimized by

affirmative misrepresentations by government on which they

rely to ther detriment. Nor does the existence of FOIA and

similar statutes do anything to deter public officials from lying

to citizens and thereby harming them. Petitioners and the

United States have identified no meaningful alternative

remedial scheme to defeat implication of a Bivens remedy for

the constitutional violation that Respondent alleges.

3. A Bivens Remedy In This Case — A

Case Of Affirmative

Misrepresentation — Would Not

Jeopardize American Foreign Policy.

Implying a remedy here would not have a detrimental

impact on foreign policy. Again, this is not a duty-to-disclose

claim, as Petitioners and the United States repeatedly and

inaccurately assert. See, e.g., Pet. Brief at 38 (“In this case, the

allegations in respondent’s Bivens action raise issues about

whether the highest-ranking State Department and NSC

officials may legitimately withhold information from her —

even if necessary through deception . . . .”); Brief of Amicus

Curiae United States at 37 (“Supplementation of that elaborate

and interlocking system of disclosure obligations would be

doubly inappropriate here, because respondent predicates her

claim for constitutional relief on an alleged intentional

withholding of information pertaining to foreign affairs and.

intelligence operations.”).

Rather, the case involves an allegation of affirmative lies by

public officials designed to prevent a citizen from filing suit.

Deterring public officials from engaging in that type of conduct

would not negatively impact United States foreign policy. If

public officials do not wish to disclose sensitive foreign-

relations information, they need not do so. Moreover, if they

wish to assert a defense to a FOIA request or FOIA lawsuit on

a. -

the ground that disclosure would jeopardize foreign policy, they

can raise that defense.

That prerogative, however, should not become a license to

lie to citizens in order to prevent them from discovering the

truth and filing suit. We do not disagree with the assertions of

Petitioners and the United States about the importance of

allowing the government to conduct an effective, and at times

secretive, foreign policy. Imposing liability for the affirmative

misrepresentations in this case, however, will not undermine

the government’s ability to do so.

This case is much closer to Davis v. Passman, where the

Court implied a Bivens remedy for conduct occurring within

Congress itself, than to Schweiker and United States v. Stanley,

483 U.S. 669 (1987), where the Court held that the need for

military cohesion and the harm that could result from

interference by the judiciary in military operations precluded

such a remedy. As the Court made clear in Davis, it does not

reflexively defer to coordinate branches in deciding whether to

imply a remedy. Instead, a presumption exists that all public

officials are under a duty to obey the law, see Davis, 442 U.S.

at 245 (quoting Butz v. Economou, 438 U.S. 478, 506 (1978)),

and that violations of the law by public officials trigger the

jurisdiction of the courts to remedy those violations, see id.

Only where implication of a remedy would cause significant

harm to some articulable federal policy or function is it

appropriate to deny a damages remedy. Here, given the nature

of Respondent’s claim, Petitioners’ foreign-policy argument

provides no basis to deny Respondent a remedy.

4. The Purported Impact Of This Type

Of Bivens Claim On The Public Fisc

Provides No Basis For Barring

Respondent’s Claim.

Petitioners’ argument regarding the public fisc is equally

unpersuasive. As an initial matter, Respondent’s Bivens claim

is against Petitioners in their personal capacities and not against

the United States. Although the United States may choose to

-%-

indemnify Bivens defendants, it is not obligated to do so. The

relevant Department of Justice regulation provides

that neither the Department of Justice nor any

agency of the U.S. Government is obligated to

pay or to indemnify the defendant employee for

any judgment for money damages which may

be rendered against such employee; but that,

where authorized, the employee may apply for

such indemnification from his employing

agency upon the entry of an adverse verdict,

judgment, or other monetary award... .

28-C.F.R. § 50.15(a)(8)(iii). Thus, any impact on the Treasury

would be because the United States chooses to indemnify

Petitioners and not because the United States is required to pay

a damages judgment. '°

'© Thus, FDIC v. Meyer, far from supporting

Petitioners’ public -fisc argument, actually undermines it. In

Meyer, the Court refused to imply a Bivens remedy against a

federal agency, as opposed to against an individual federal

officer, in part because “if we were to recognize a direct action

for damages against federal agencies, we would be creating a

potentially enormous financial burden for the Federal

Government.” Meyer, 510 U.S. at 486 (emphasis added).

Respondent, of course, is not asserting her Bivens claim against

the United States or any agency of the United States.

At no point did Meyer so much as suggest that its

“financial burden” rationale barred Bivens claims against

federal officials being sued in their personal capacities. Quite

to the contrary, the Court noted that a significant problem with

allowing a Bivens claim against federal agencies was that such

a claim would effectively supplant Bivens claims against

individual officers and thus undermine the deterrent effect of

such claims. See id. at 485 (“If we were to imply a damages

(Footnote continued)

-24-

Moreover, even assuming the fundamental predicate of

Petitioners’ public -fisc argument — that Respondent’s Bivens

claim actually impacts the public fisc — Petitioners have not

identified any meaningful financial distinction between

implying a damages remedy here and implying one in Bivens

and its progeny. The factual scenario in Bivens itself — a

Fourth Amendment violation by law enforcement — is a much

more common fact pattern than the factual context here and

thus is much more likely to generate a significant number of

damages awards. Apart from general assertions, Petitioners do

not explain why Respondent’s particular claim is likely to harm

the government’s finances. |

Petitioners also assert that because the Federal Tort Claims

Act (“FTCA”) does not permit a damages remedy against the

United States for misrepresentations, the Court should not

expose the Treasury to Bivens liability for the same

misrepresentations. Petitioners’ reliance on FTCA is

misplaced, given that the Court has held in no uncertain terms

that FTCA does not preempt Bivens claims. See Carlson, 446

U.S. at 17-23. Thus, for example, FTCA bars punitive damages

against the United States and does not permit jury trials. See 28

U.S.C. §§ 2402, 2674. Yet, despite those strict rules — which

likely were motivated by a desire to protect the public fisc —

this Court has permitted punitive damages and jury trials for

Bivens claims. See Carlson, 446 U.S. at 21-22.

Permitting a somewhat larger scope of liability for Bivens

actions makes sense because it is more difficult for plaintiffs to

action directly against federal agencies, thereby permitting

claimants to bypass qualified immunity, there would be no

reason for aggrieved parties to bring damages actions against

individual officers. Under Meyer’s regime, the deterrent effects

of the Bivens remedy would be lost.”). Meyer’s public -fisc

rationale has no bearing at all on Respondent’s claim against

these Petitioners in their personal capacities.

o%-

recover under Bivens than under FTCA. To obtain damages

based on a Bivens claim, a plaintiff must overcome qualifie d

immunity and often must show intent. See Meyer, 510 U.S. at

485 (noting that qualified immunity could be defense to Bivens

action); Daniels v. Williams , 474 U.S. 327 (1986) (holding that

due-process violation required deliberate indifference). FTCA,

by contrast, permits liability based on negligent conduct and

does not cloak the government with qualified immunity. See 28

U.S.C. §§ 2674, 2680; Meyer, 510 U.S. at 485. Thus, a

limitation on FTCA liability — the rationale for which may be

to limit the scape of government liability based on FTCA’s

lower threshold — does not apply with the same force in the

context of harder-to-obtain Bivens liability. And, again, it bears

repeating that Bivens liability is imposed on individual officers,

not the government, meaning that FICA’s policy

considerations are less relevant in the Bivens context.

In addition (and perhaps most fundamentally), Petitioners’

FTCA argument turns the rationale for Bivens on its head by

asking the Court to refuse to imply a Bivens remedy because

Congress, in a different statutory scheme pertaining to the

liability of the United States itself (as opposed to the personal

liability of individual public employees), may have chosen to

bar similar claims arising from misrepresentations. Yet, if as

Petitioners argue, Respondent lacks a non-Bivens claim for

Petitioners’ misrepresentations (i.e., she lacks an adequate

alternative remedy), then under the Bivens rationale,

Respondent should, if anything, be permitted to assert a

constitutional damages remedy. See Bivens, 403 U.S. at 410

(“For people in Bivens’ shoes, it is damages or nothing.”)

(Harlan, J., concurring in judgment).

Petitioners’ public-fisc argument is a red herring, and the

Court should reject it.

IV. CONCLUSION

For the foregoing reasons, the judgment of the court of

appeals should be affirmed.

ROBERT RUBIN

LAWYERS’ COMMITTEE

FOR CIVIL

RIGHTS OF THE SAN

FRANCISCO BAY AREA

301 Mission Street, Suite 400

San Francisco, CA 94105

Telephone: (415) 543-9444

STEVEN R. SHAPIRO

LUCAS GUTTENTAG

AMERICAN CIVIL

LIBERTIES UNION

FOUNDATION

125 Broad Street

New York, NY 10004

Telephone: (212) 549-2500

Respectfully submitted,

ROBERT E. BORTON

SCOTT D. WIENER

Counsel of Record

HELLER EHRMAN WHITE

& McAULIFFE LLP

333 Bush Street

San Francisco, CA 94104

Telephone: (415) 772-6000

Attorneys for Amici Curiae

LAWYERS’ COMMITTEE

FOR CIVIL RIGHTS OF

THE SAN FRANCISCO

BAY AREA and

AMERICAN CIVIL

LIBERTIES UNION