Opposition Brief — Arnsberg v. United States

Supreme Court, U.S,

as a ee

DEC 27 1989

No. 85-596 JOSEPH F. SPANIOL, JR.

is | CLERK |

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

ROBERT L. ARNSBERG, PETITIONER

VU.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

BARBARA L. HERWIG

FRANK A. ROSENFELD

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

~ BEST AVAILABLE COPY ""§

QUESTIONS PRESENTED

1. Whether, in the c cumstances of this case, IRS

special agents may be held personally liable, under

Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388 (1971), for executing an arrest warrant

that was subsequently held to be invalid.

2. Whether the agents’ execution of the warrant

constituted a state-law tort, thus rendering the United

States liable under the Federal Tort Claims Act.

3. Whether, absent a waiver of sovereign immu-

nity, the United States may be held directly liable for

damages under Bivens.

4. Whether the Federal Tort Claims Act con-

stitutes a waiver of the sovereign immunity of the

United States with respect to constitutional torts

under Bivens.

(I)

TABLE OF CONTENTS

Page

ME ANS IS NOI OPE TTR POEDE De 1

EN IN SE ee NS Oe PP eee ARE ER! 1

SS Ee Oe ae ee eee Te 2

EEE NS EL a ae Paes Pe NON Ee Ee x

Conclusion ............. so eisanialaabbiiedbieasiveee i rucaak Risatutssn komo 16

TABLE OF AUTHORITIES

Cases:

Ames Vv. United States, 600 F.2d 183 . : 10

Art Metal—wU-.S.A., Inc. v. United States, 153 F.2d

Se EA I 13

Barr v. Matteo, 360 U.S. 564... oo... 12

Birnbaum v. United States, 588 F.2d 319 14

Bivens v. Six Unknown Fed. Narcotics Agents, 403

ECR RU ert nt I Aa we SF Eee Se

Brown V. United States, 653 F.2d 196, cert. denied,

456 U.S. 925 . ae séteisinkeSodeccececne: aaa

Butz v. Economou, 438 US. ‘478. eau eaas ; 12

Carison V. Green, 446 U.S. 14......................000000..... 14

Castro v. United States, 775 F.2d 399... 13

Eastern Transportation Co. v. United States, 272

if 2. Sa ARS RATER tte 13

Harlow v. Fitzgerald, 457 U.S. 800 .... ...........4, 5, 10

Jaffee Vv. United States, 592 F.2d 712, cert. denied,

ft | aes ee

Keene Corp. v. United States, 700 F.2d 836, cert.

RE, I I, gs sn ccnnconnnavuhsincuucaasiuhions 11

Laswell v. Brown, 683 F.2d 261, cert. denied, 459

am See ....;... 11

Lehman Vv. Nakshian, 453 U. Ss. 156 . rane ee 13

McMahon Vv. United States, 342 U.S. 25 Serer cena e? 13

Mitchell v. Forsyth, No. 84-335 (June 19, 1985) _.. 10

Norton v. United States, 581 F.2d 390, cert. denied,

eS RDS ener ee ian yerenrneen Ceneuenie Crane _ 14-15

(III)

IV

Cases—Continued : Page

Radin v. United States, 699 F.2d 681 ....................... 11

Sellfors v. United States, 697 F.2d 1362, cert. de-

nied, No. 82-1778 (July 2, 1984) _..... =O doe is Pe 14

United States v. Hopkins, 427 U.S. 123 .................. 12

United States v. Mitchell, 463 U.S. 206 _................ 11

United States v. Muniz, 374 U.S. 150 ....................... 14

United States v. Testan, 424 U.S. 392...........00.......... 12, 13

Constitution and statutes:

U.S. Const. :

SE vastness 2, 3, 8, 10, 11, 12, 18, 14, 15

Amend. V (Just Compensation Clause) —........ 13

Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671

cc i aes aacienmnintcna cea idesnedackaiais 2,3

I as I edi usenniinusuinas 2,14

I IE: I ag a nn Ce OS cee 14

28 U.S.C. 2680 (h) ............... 3, 5, 6, 10, 11, 18, 14, 15, 16

Tucker Act, 28 U.S.C. 1346(a) (2), 1491 _.............. 12

ry es I TE icc c tae ncstnccediniccconticnneen 3

gS A RAISER erate cond x eikr nn ininees caer esnoes cern edn 3

Miscellaneous:

Bell, Proposed Amendments to the Federal Tort

Claims Act, 16 Harv. J. on Legis. 1 (1979) _...... 14, 15

ae CE, TE: Bre CIID cstatichiec ncstirceeccecdecctsanees 15

S. Rep. 93-588, 93d Cong., Ist Sess. (1973) Feet Ui Se 14

Tort Claims: Hearings on H.R. 24, H.R. 3060, and

H.R. 3799 Before the Subcomm. on Administra-

tive Law and Governmental Operations of the

House Comm. on the Judiciary, 97th Cong., 1st

3 Se RRR a eee 15

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-596

ROBERT L. ARNSBERG, PETITIONER

y.

UNITED STATES OF AMERICA, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. Al-

A42) is reported at 757 F.2d 971. The opinion of the

district court on liability (Pet. App. A97-A116) is

reported at 549 F. Supp. 55. The opinion of the dis-

trict court on damages (Pet. App. A91-A96) is un-

reported.

JURISDICTION

The opinion of the court of appeals, as modified on

rehearing, was issued on April 9, 1985. A subsequent

petition for rehearing was denied on May 30, 1985

(1)

ea

2

(Pet. App. A43-A44). The judgment of the court of

appeals was entered on June 10, 1985 (Pet. App.

A88-A89). The petition for a writ of certiorari was

filed on August 27, 1985. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner contends that two special agents of the

Internal Revenue Service committed a state-law tort

and violated his Fourth Amendment rights in execut-

ing an arrest warrant that was subsequently found to

be invalid. On that basis, he seeks damages from the

agents in their individual capacity under Bivens v.

Six Unknown Fed. Narcotics Agents, 403 U.S. 388

(1971), and from the United States under both

Bivens and the Federal Tort Claims Act, 28 U.S.C.

1346(b), 2671 et seg. The court of appeals held that

summary judgment should be granted in favor of the

agents and the United States in all respects.

1. Petitioner’s name arose in connection with an

IRS investigation into gambling activities in Portland,

Oregon. Respondents Maney and Weiler, IRS special

agents involved in the investigation, sought to obtain

information from petitioner voluntarily, but _peti-

tioner declined to testify unless he was subpoenaed by

a grand jury and stated that the agents would have

to find him in order to serve a subpoena. In Decem-

ber 1979, the grand jury issued a subpoena requiring

petitioner to appear on February 26, 1980. Despite

their efforts, however, the agents were unable to serve

this subpoena on petitioner, and petitioner did not

appear before the grand jury on February 26. Pet.

App. A4-A5, A129-A133.

Accordingly, the agents consulted the United States

Attorney’s office and explained the difficulties they

3

had encountered. Assistant United States Attorney

Robinson concluded that a warrant should be obtained

for the arrest of petitioner as a material witness pur-

suant to 18 U.S.C. 3149.’ Pet. App. A5-A6. Based

on an affidavit submitted by Agent Maney (id. at

A129-A133), Robinson obtained an arrest warrant

from a United States magistrate on February 27,

1985. The magistrate determined that the require-

ments for a material witness arrest warrant had been

satisfied (id. at A6). However, although he correctly

cited 18 U.S.C. 3149 as the statutory basis for the

warrant, the magistrate, in describing the offense

charged in the supporting affidavit, referred to a

charge of failure to appear before the grand jury

(Pet. App. A134). The agents later executed the

warrant and arrested petitioner (7d. at A7). There-

after, petitioner successfully moved to quash the

arrest warrant as invalid (id. at A136-A137).

2. After exhausting his administrative remedies

under the Federal Tort Claims Act (FTCA), 28

U.S.C. 1346(b), 2671 et seq., petitioner brought this

action in the United States District Court for the Dis-

trict of Oregon. Contending that his arrest pursuant

to the invalid warrant was both tortious under

Oregon law and violative of the Fourth Amendment,

petitioner sought damages from the individual agents

under Bivens and from the United States under

Bivens and the FTCA, 28 U.S.C. 2680(h).

On cross-motions for summary judgment, the dis-

trict court granted judgment for the agents on the

Bivens claim because they acted in good faith and

thus were entitled to qualified immunity (Pet. App.

' This provision, with minor changes not here relevant, is

now codified at 18 U.S.C. (Supp. II) 3144.

4

A113-A115).* However, concluding that the a:rest

warrant was defective because of the absence of prob-

able cause to believe that petitioner’s presence could

not be secured by subpoena (id. at A109-A112), the

court ruled that petitioner’s arrest was a state-law

tort for which the United States was liable under the

FTCA (id. at A107-A109): since this state-law tort

gave rise to FTCA liability against the United States,

it was unnecessary for the court to consider whether

the United States could be directly liable under Bivens

or whether the FTCA waived the government’s sover-

eign immunity for constitutional torts. In a later

opinion, the court awarded damages of $6,650 from

the United States (id. at A91-A96).

3. On cross-appeals, the court of appeals affirmed

the district court’s grant of summary judgment in

favor of the agents, and it reversed the summary

judgment against the United States and ordered that

judgment be entered for the government (Pet. App.

Al1-A42).

With respect to the Bivens claim against Agents

Maney and Weiler, the court of appeals held that

although the arrest warrant was in fact invalid be-

cause it failed to show probable cause that petitioner’s

grand jury appearance could not be obtained by sub-

poena (Pet. App. A12-A13), the agents had not acted

unconstitutionally in executing it (id. at A28-A82).

The court rejected petitioner’s arguments that the

agents should have known that the warrant was not

* The district court’s opinion was issued shortly after this

Court’s decision in Harlow v. Fitzgerald, 457 U.S. 800 (1982).

The district court, apparently applying pre-Harlow law, found

that the agents had established their good faith and were

entitled to summary judgment on their defense of qualified

immunity (Pet. App. A113-A115).

5

validly issued in the circumstances of this case and

should not have executed the warrant because of the

facial discrepancy concerning the offense charged.

Finding that the agents had “reasonably relied on the

advice of counsel that the arrest was constitutional,

and on the issuance of a warrant by a magistrate”

(id. at A8), the court explained that it would be

“plainly unreasonable” to require the agents to “take

issue with the considered judgment of an assistant

United States Attorney and the federal magistrate”

and “at their own risk second-guess the legal assess-

ments of trained lawyers” on questions of probable

cause as to which “[{r]easonable attorneys could dis-

agree” (id. at A29-A30). The court also reasoned

that the Constitution neither was violated by a facial

discrepancy that was “not * * * serious” (id. at A380)

nor “demand[ed] that arresting officers regularly

scrutinize warrants for such technical discrepancies”

(id. at A381). In addition, the court determined that

the agents were entitled to qualified immunity both

under Harlow vy. Fitzgerald, 457 U.S. 800 (1982), be-

ce.use they had not violated a clearly established con-

stitutional standard, and under pre-Harlow law, be-

cause they had reasonably believed in good faith that

the arrest pursuant to the warrant was constitutional

(Pet. App. A32-A384, A41-A42 n.10).

The court of appeals further held that petitioner

was not entitled to damages from the United States.

The court first ruled that the United States was not

liable to petitioner under the FTCA for the alleged

state-law tort.’ Recognizing that 28 U.S.C. 2680(h)

imposes liability on the government for false arrest

or false imprisonment only “with regard to acts or

3 The court of appeals assumed but did not decide that peti-

tioner’s arrest was a tort under Oregon law (Pet. App. Al5).

a

6

omissions of investigative or law enforcement officers

of the United States Government,” * the court found

that the IRS agents, as the “investigative or law en-

forcement officers” here, were not responsible for the

invalid warrant on which the alleged tort was based.

As the court explained (Pet. App. A21-A24), the un-

controverted facts showed that the agents had “acted

nearly perfectly” in making “diligent attempts” to

serve the subpoena on petitioner, in reporting to the

United States Attorney’s office the difficulties they en-

countered, and in submitting “‘an accurate affidavit to

the magistrate”; ° that the discrepancy in the warrant

concerning the offense charged was “a relatively

minor and a relatively technical one,” and the law did

not “impose upon law enforcement officers like Weiler

and Maney the obligation of scrutinizing arrest war-

rants for such minor discrepancies”; and that the

agents “acted properly under the general common

law.” Rather, “the facts show that * * * [it was the

magistrate who] made an erroneous determination of

probable cause and thereby caused [petitioner] to be

subject to an unreasonable seizure” (id. at A26).

Concluding that “the district court erred in failing to

Jimit its inquiry to whether the government law en-

4 Section 2680(h) defines “investigative or law-enforcement

officer” to mean “any officer of the United States who is em-

powered by law to execute searches, to seize evidence, or to

make arrests for violations of Federal law.”

5 The court rejected petitioner’s contention that the affidavit

was misleading, finding that it had “no such misleading

tendency” (Pet. App. A22). In particular, the court found (as

defense counsel and the magistrate had recognized, see id. at

A147-A148) that the affidavit ““made clear that the agents had

not previously served the subpoena on [petitioner]” (id. at

A22) and did not suggest that petitioner had a duty to appear

before the grand jury in the absence of a subpoena.

7

forcement officers * * * acted tortiously,” the court of

appeals held that in this case those officers “committed

no tort under Oregon [l]aw” (id. at A25). Accord-

ingly, it ordered that summary judgment be entered

for the government on this issue (ibid.).

Moreover, the court of appeals upheld the district

court’s ruling that the doctrine of sovereign immunity

precluded the imposition of liability directly on the

United States for constitutional torts (Pet. App. A25-

A28). Although assuming that the United States

would be liable under such a theory for the magis-

trate’s legal error in issuing the arrest warrant (id.

at A26), the court concluded that Bivens could not be

extended to provide a cause of action against the

United States in light of the government’s sovereign

immunity (id. at A27). The court did not decide

whether the FTCA applies to constitutional as well

as state-law torts, thus waiving the sovereign immu-

nity of the United States with respect to such consti-

tutional violations (id. at A35-A36 n.2).*

®In its initial opinion, the court of appeals had concluded

that there was a genuine issue of materia] fact as to whether

the IRS agents had made deliberate misrepresentations to the

Assistant United States Attorney and the magistrate; accord-

ingly, it had remanded the case to the district court for further

proceedings on both the Bivens claim against the agents and

the FTCA state-law tort claim against the United States (Pet.

App. A70-A71, A80). However, in response to respondents’

petition for rehearing, the court revised its opinion and judg-

ment; finding that the uncontroverted record provided no sup-

port for the assertion of delinerate misrepresentation, the

court directed that judgment be entered for respondents on

all counts (id. at A21-A22, A31-A34).

8

ARGUMENT

1. The district court rejected petitioner’s Bivens

claim against the individual respondents, holding that

the agents were entitled to qualified immunity. The

court of appeals agreed, and further concluded that

the agents had committed no Fourth Amendment vio-

lation.

Petitioner asserts (Pet. 16-22) that the courts be-

low misunderstood the factual record and that, as

properly understood, it demonstrates that the agents

were not entitled to qualified immunity because they

acted in bad faith and their conduct violated clearly

established constitutional standards. Petitioner’s fact-

bound contention does not warrant this Court’s re-

view, however, and in any event, for the reasons

stated by the courts below, it is without merit. In-

deed, both courts below were in agreement that the

record was sufficiently clear and uncontroverted to

justify summary judgment against petitioner in this

regard.

As the court of appeals observed (Pet. App. A22),

the IRS agents in this case “acted nearly perfectly.”

After their “diligent attempts” (ibid.) to serve the

subpoena on petitioner proved unsuccessful, the agents

consulted the United States Attorney’s office and “‘ac-

curately recounted the difficulties they [had] encoun-

tered” (id. at A32). An Assistant United States

Attorney concluded that an arrest warrant was justi-

fied (id. at A6, A32), and pursuant to the Assistant’s

directions one of the agents submitted an “accurate

affidavit” to the magistrate (id. at A22).’ In subse-

7 Petitioner’s complaints about the accuracy of the affidavit

were correctly rejected below. For example, Agent Maney’s

statement that petitioner “did not appear before the grand

jury” does not imply that petitioner had any duty to appear;

9

quently executing the warrant issued by the magis-

trate, the agents were entitled to rely on the determi-

nations by the magistrate and the Assistant United

States Attorney that probable cause existed to arrest

petitioner as a material witness (id. at A3); espe-

cially where, as here, “[r]easonable attorneys could

disagree” on the question of probable cause (id. at

A29), there is no requirement that agents “take issue

with the considered judgment of an assistant United

States Attorney and the federal magistrate” and “at

their own risk second-guess the legal assessments of

trained lawyers” (id. at A29-A30). Nor was the

agents’ conduct rendered unreasonable by the fact

that the warrant contained a discrepancy between the

statutory citation to the material witness arrest pro-

vision and the description of the offense as failure to

appear before the grand jury; as the court of appeals

correctly stated, this discrepancy was “minor” and

“technical” (id. at A23; see also id. at A30), and “it

is not constitutionally required * * * that arresting

officers regularly scrutinize warrants for such tech-

nical discrepancies” (id. at A31).*

on the contrary, the affidavit sets forth the agents’ repeated

but unsuccessful efforts to serve a subpoena on petitioner, and

the magistrate surely understood, as he later expressly stated

(Pet. App. A148), that petitioner had not been served. Agent

Maney’s statement that petitioner “would not cooperate” was

also justified in light of petitioner’s insistence on a subpoena

rather than voluntary acceptance of a more informal arrange-

ment and the agents’ inability to locate petitioner for service

of the subpoena even though their extensive efforts plainly

afforded him reasonable notice that he was being sought. Fi-

nally, the statement that petitioner had not been to his store

in a month was a fair conclusion based on the explanations

that petitioner’s employees gave the agents for his absence.

8 Malley v. Briggs, No. 84-1586 (argued Nov. 13, 1985),

presents the question whether a police officer who obtains an

10

Petitioner further argues (Pet. 14-16) that this

Court should overturn its recent decision in Harlow

v. Fitzgerald, 457 U.S. 800 (1982), to restore, at

least in certain circumstances, the subjective “good

faith” requirement for qualified immunity that ex-

isted prior to Harlow. However, petitioner has of-

fered no reason for the Court to revisit this question

or to reject the analysis that it unanimously adopted

only four Terms ago.’ See also Mitchell v. Forsyth,

No. 84-335 (June 19, 1985), slip op. 18. And in any

event, as the concurrent findings below establish, the

agents here acted in good faith under the pre-Harlow

standard (see page 4 note 2 & page 5, supra).

2. Petitioner also appears (Pet 18-24) to seek re-

view of the court of appeals’ holding that the United

States was not liable under the Federal Tort Claims

Act for the alleged state-law tort. Petitioner does not

contest the court’s ruling that, pursuant to the ex-

press language of 28 U.S.C. 2680(h), the United

States is subject to liability for such torts only if they

arise out of the “acts or omissions of investigative or

law enforcement officers of the United States Govern-

ment.” See also Ames v. United States, 600 F.2d 183,

185 & n.3 (8th Cir. 1979); Jaffee v. United States,

arrest warrant from a judge is subject to liability for execut-

ing the warrant on the ground that he knew or should have

known that the facts recited in his affidavit did not establish

probable cause. Because in the instant case the court of ap-

peals held that the agents neither knew nor reasonably could

have been expected to know that the warrant was invalid, this

petition need not be held pending decision in Malley v. Briggs.

® We agree with petitioner (Pet. 15) that Harlow does not

afford qualified immunity for violations of clearly established

Fourth Amendment rules. But for the reasons already out-

lined, that proposition has no application to the present case.

11

592 F.2d 712, 716 n.6 (3d Cir.), cert. denied, 441

U.S. 961 (1979). Rather, focusing on the conduct of

the IRS agents, petitioner argues that “[t]he same

facts which defeat the good faith immunity of the

agents also show that the agents acted tortiously”’

(Pet. 22).

For the reasons already discussed, petitioner’s ar-

gument is without merit and does not call for further

review. Even assuming that the warrant was not

supported by probable cause and that petitioner’s ar-

rest pursuant to an invalid warrant was tortious

under Oregon law (see Pet. App. A15), the dispositive

fact is that the IRS agents acted properly and were

not responsible for the tort. Rather, it was the

“fmjagistrate * * * [who] made an erroneous deter-

mination of probable cause” in issuing the warrant

(id. at A26). Because the alleged tort was not com-

mitted by the agents, the United States is not liable

under Section 2680 (h).

3. Petitioner also argues (Pet. 28-35) that under

Bivens the United States should be directly liable in

damages for violations of the Fourth Amendment.

However, as the court below and other courts of ap-

peals have recognized (see Pet. App. A27-A28),"°

principles of sovereign in»munity prevent the United

States from being sued without its consent. See, e.g.,

United States v. Mitchell, 463 U.S. 206, 212 (1983) ;

10 See also Keene Corp. v. United States, 700 F.2d 836, 845

n.13 (2d Cir.), cert. denied, 464 U.S. 864 (1983); Radi v.

United States, 699 F.2d 681, 684-685 (4th Cir. 1983) ; Laswell

Vv. Brown, 683 F.2d 261, 268 (8th Cir. 1982), cert. denied, 459

U.S. 1210 (1983) ; Jaffee, 592 F.2d at 717-718.

12

United States v. Testan, 424 U.S. 392, 399-401

(1976)."

It is specious to argue, as petitioner does, that sov-

ereign immunity is inapplicable where the government

has exceeded its authority by acting unconstitution-

ally; that argument would essentially eviscerate the

doctrine of sovereign immunity (cf. Barr v. Matteo,

360 U.S. 564, 572 (1959) ) and has been rejected as a

limitation on the immunity of the United States from

suit. See Butz v. Economou, 488 U.S. 478, 504

(1978); United States v. Hopkins, 427 U.S. 123, 130

(1976). Indeed, in Testan, the Court stated that not

“all substantive rights of necessity create a waiver of

sovereign immunity” (424 U.S. at 401) and that such

a Waiver must be found even where “the basis of the

federal claim * * * [is] the Constitution” (ibid.).

Likewise, Testan also rejected the argument sug-

gested by petitioner here (Pet. 34-35) that the Court

should “tamper with these established principles [of

sovereion immunity] because it might be thought that

they should be responsive to a particular conception

of enlightened governmental policy” (424 U.S. at

400). Finally, the availability of monetary relief un-

der the Tucker Act (28 U.S.C. 1346(a) (2), 1491)

11 Petitioner contends (Pet. 11, 28 n.4) that there is a con-

flict among the circuits on the issue whether the Fourth

Amendment establishes a cause of action for damages against

the United States. However, the cases on which he relies

involve the question of suits for constitutional torts under the

Federal Tort Claims Act (by which the government has

waived sovereign immunity), not a direct claim under the

Constitution regardless of sovereign immunity. We discuss

the FTCA question at pages 13-16, infra: as to the consti-

tutional issue, the court of appeals correctly noted (Pet. App.

A27-A28) that the circuits are in accord in holding that the

Fourth Amendment does not provide a direct damages action

against the United States.

13

and the Just Compensation Clause of the Fifth

Amendment does not, contrary to petitioner’s argu-

ment (Pet. 33-34), establish that other constitutional

provisions render the United States liable for dam-

ages irrespective of sovereign immunity; the Court so

held in Testan, relying on the unique nature of the

Just Compensation Clause in terms of its specific

“language” and “purpose” requiring compensation

and its “self-executing aspects” (424 U.S. at 401).

4. As demonstrated above, petitioner does not have

a cause of action against the United States either un-

der the Federal Tort Claims Act for the alleged state-

law tort or directly under the Constitution for the

violation of his Fourth Amendment rights. In an ef-

fort to circumvent the effect of those conclusions, peti-

tioner argues (Pet. 24-27) that the 1°74 amendment

to 28 U.S.C. 2680(h) waives the government’s sover-

eign immunity for constitutional torts and therefore

that the United States is liable for the Fourth

Amendment violation in this case.”

As petitioner acknowledges, this argument was

squarely rejected in Brown v. United States, 653 F.2d

196, 199-201 (5th Cir. 1981), cert. denied, 456 U.S.

925 (1982). See also Castro v. United States, 775

F.2d 399, 405 (1st Cir. 1985); Art Metal—u-.S.A.,

Inc. v. United States, 753 F.2d 1151, 1160 (D.C. Cir.

12 Of course, waivers of sovereign immunity must be strictly

construed and may not be “‘enlarge[d] * * * beyond what the

language requires.” Eastern Transportation Co. v. United

States, 272 U.S. 675, 686 (1927). Rather, “statutes which

waive immunity of the United States from suit are to be con-

strued strictly in favor of the sovereign.”” McMahon v. United

States, 342 U.S. 25, 27 (1951) (footnote omitted). “The ap-

propriate inquiry * * * is whether Congress clearly and

unequivocally” waived sovereign immunity. Lehman Vv.

Nakshian, 453 U.S. 156, 162 (1981).

14

1985); Birnbaum v. United States, 588 F.2d 319,

327-328 (2d Cir. 1978); Bell, Proposed Ainendments

to the Federal Tort Claims Act, 16 Harv. J. on Legis.

1, 4-5 (1979) ; ef. Sellfors v. United States, 697 F.2d

1362, 1365 (11th Cir. 1983), cert. denied, No. 82-

1778 (July 2, 1984). Petitioner contends, however,

that Brown is in conflict with Norton v. United

States, 581 F.2d 390, 394-395 (4th Cir.), cert. de-

nied, 439 U.S. 1003 (1978). For the reasons stated

in our brief in opposition in Brown (No. 81-1200

(1981 Term) ), a copy of which is being sent to coun-

sel for petitioner, we submit that the decision in

Brown is correct “ and does not conflict with Norton."

18 As discussed in our opposition in Brown, the 1974 amend-

ment to Section 2680(h) was intended ‘“‘to provide a remedy

against the United States for the intentional torts of its in-

vestigative and law enforcement officers.” S. Rep. 93-588,

93d Cong., Ist Sess. 1 (1973) ; see also id. at 3. As the Senate

Report indicates, that remedy extends to intentional torts

that are also violations of the Fourth Amendment. At the

same time, the 1974 amendment, which the Department of

Justice did not oppose (id. at 4), does not establish that the

United States would be liable for constitutional violations that

are not also state-law torts. On the contrary, 28 U.S.C.

1346(b) and 2674, which are incorporated by reference in the

1974 amendment (see 28 U.S.C. 2680(h)), specifically pro-

vide that the United States is liable only if a private person

would be liable under the circumstances (see United States v.

Muniz, 374 U.S. 150, 153 (1963)) in accordance with the

law of the place where the tortious conduct occurred (see

Carlson Vv. Green, 446 U.S. 14, 23 (1980)). Since a private

party cannot violate the Constitution, and since state law

provides the governing legal standard fer liability, these stat-

utory provisions make clear that the United States is not liable

for a constitutional violation that is not a tort under local

law.

14 The “‘sole issue” in Norton was whether under the FTCA

the United States could assert the immunity of its officials as

15

The issue of the applicability of the FTCA to constitu-

tional torts and the asserted conflict between Brown

and Norton were expressly presented in the petition

for a writ of certiorari in Brown; the Court denied

certiorari in Brown, and there is no reason for a

different result here.”

Indeed, review would be particularly inappropriate

in the circumstances of this case. First, neither court

below addressed the matter (see Pet. App. A35-A36

n.2). Moreover, whatever kinds of torts are encom-

passed within Section 2680(h), that provision is ex-

a defense to its own liability (581 F.2d at 391; see also id. at

393). In fact, the government did not contest the applica-

bility of Section 2680(h) to the Fourth Amendment violation

involved in that case (581 F.2d at 392). However, in describ-

ing the government’s concession that Section 2680(h) was

applicable there, the court commented that the 1974 amend-

ment to that provision was “intended to waive the federal

government's sovereign-immunity defense in suits brought

to redress violations of the fourth amendment committed by

federal law enforcement officers” (581 F.2d at 392-393; see

also id. at 394-395 & n.8). It is that statement—which does

not even refer to the issue of constitutional violations that

are not also state-law torts—that is alleged by petitioner to

conflict with Brown.

15 We also note that Congress has considered bills to make

the United States liable for constitutional torts. These bills

reflect the settled understanding that Section 2680(h) does

not extend beyond state-law torts and thus does not impose

liability on the government for constitutional violations that

are not also tortious under state law. See, e.g., 125 Cong. Rec.

5274 (1979) (remarks of Sen. Kennedy) ; Tort Claims: Hear-

ing on H.R. 24, H.R. 3060, and H.R. 3799 Before the Subcomm.

on Administrative Law and Governmental Operations of the

House Comm. on the Judiciary, 97th Cong., Ist & 2d Sess.

23, 24, 32 (1982) (statement of Deputy Attorney General

Schmults) ; Bell, supra, 16 Harv. J. on Legis. at 10, 16.

16

pressly limited to those torts committed by “‘investiga-

tive or law enforcement officers of the United States

Government.” Since the constitutional violation here

arose from the erroneous legal determination of prob-

able cause by the magistrate and not from the acts of

the IRS agents, liability could not be imposed on the

United States regardless of whether Section 2680(h)

subsumes constitutional torts as such, and hence the

outcome of this case would be unaffected by the res-

olution of the issue that petitioner seeks to present.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

BARBARA L. HERWIG

FRANK A. ROSENFELD

Attorneys

DECEMBER 1985

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