# Amicus Curiae Brief — Christopher v. Harbury

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0500%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2002
- **Citation:** 536 U.S. 403

## Text

No. 01-394 | = FEG 2 2ee2

IN THE
j ol. 4 4
Supreme Court of the nites States
<> >

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0500%3A10. Public record. Not legal advice.