# Opposition Brief — Arnsberg v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1010

## Text

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

WW ov. 8. GOVERNMENT PRINTING OFFICE; 1985 491507 20115

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0856%3A2. Public record. Not legal advice.