Opposition Brief — Nebraska Beef, Ltd. v. Greening (No. 04-1611)

6

6a-8a. The court explained that this Court has been

“wary of extending Bivens remedies into new contexts,”

particularly when Congress has established a “com-

prehensive regulatory regime.” /d. at 6a-7a (citing

Schweiker v. Chilicky, 487 U.S. 412, 421 (1988)). In

declining to recognize a Bivens remedy here, the court

of appeals relied on the fact that Congress has not

“explicitly created any direct right of action against

USDA employees alleged to have committed consti-

tutional violations”; that the “comprehensive regulatory

scheme” established by USDA “includes the right to

judicial review under the APA”; and that Congress

enacted “a stringent exhaustion requirement for grie-

vances filed against USDA employees” in 7 U.S.C.

6912(e). Pet. App. 7a-8a.

ARGUMENT

1. Petitioner contends (Pet. 12-18) that, on appeal

from an order denying qualified immunity, a court of

appeals lacks jurisdiction to decide whether a Bivens

cause of action should be recognized. The court below

correctly rejected that claim, and while the law in the

Ninth Circuit is arguably to the contrary, it would be

premature for the Court to resolve any circuit conflict

on the issue at this time. Further review is therefore

unwarranted.

a. The doctrine of qualified immunity, which pro-

tects public officials who have not violated a clearly

established constitutional right, is designed to ensure

that “the vigorous exercise of official authority” is not

deterred by the threat of personal monetary liability.

Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982). Because

that threat arises not only from the risk of a damages

award, but also from the burdens of trial and pretrial

7

proceedings, an order denying qualified immunity is

subject to immediate appeal. Mitchell v. Forsyth, 472

U.S. 511, 524-530 (1985). In Siegert v. Gilley, 500 U.S.

226 (1991), this Court held that, on appeal of a denial of

qualified immunity, a court of appeals is not limited to a

determination of whether the constitutional right

alleged to have been violated was clearly established.

Id. at 232. Siegert requires a court of appeals to address

first the threshold question whether there has been a

violation of “a constitutional right at all,” zbid., even

though the denial of a motion to dismiss for failure to

state a claim ordinarily would not be subject to im-

mediate appeal. As the Court explained, resolving that

“purely legal question,” a “necessary concomitant” to

the question whether the right at issue was clearly

established, serves the purposes of qualified immunity,

by sparing the defendant “not only unwarranted lia-

bility, but unwarrar.ted demands customarily imposed

upon those defending a long drawn out lawsuit.” /bid.

For the same reasons, it is appropriate for a court

hearing an appeal concerning a claim of qualified

immunity to consider the threshold question whether a

cause of action is even available under Bivens, and thus

whether the government-officer defendant is subject to

suit at all. As the court of appeals explained, that

question is “purely legal”; it is “analytically antecedent

to, and in a sense also pendent to, the qualified immunity

issue”; it is potentially “dispositive”; and deciding it

“serves the interests of judicial economy.” Pet. App. 5a-

6a (quoting Drake v. Scott, 812 F.2d 395, 399 (8th Cir.),

aff’d on reh’g, 823 F.2d 239 (8th Cir.), cert. denied, 484

U.S. 965 (1987)). Cf. Yamaha Motor Corp., U.S.A. v.

Calhoun, 516 U.S. 199, 204-205 (1996) (under 28 U.S.C.

1292(b), court of appeals can exercise jurisdiction over

8

any issue fairly included within certified order). The

court of appeals correctly recognized that federal

officers should not be burdened with “the cost and time

of litigating a lawsuit which, if no Bivens remedy exists,

is doomed from its inception.” Pet. App. 6a.

b. Petitioner contends (Pet. 14-18) that the court of

appeals’ decision on the jurisdictional issue conflicts

with decisions of the Seventh and Ninth Circuits. The

Seventh Circuit case on which petitioner relies, however,

did not present the question whether, on appeal from a

denial of qualified immunity, the court of appeals has

jurisdiction to consider whether a Bivens cause of action

exists. That case, an action against state officials under

42 U.S.C. 1983, was a qualified-immunity appeal in

which the court of appeals was asked to decide a statute-

of-limitations issue and an issue of standing, neither of

which had any bearing on the facial validity of the com-

plaint or whether the defendant was subject to suit at

all. Triad Assocs., Inc. v. Robinson, 10 F.3d 492, 496 n.2

(7th Cir. 1993). The Ninth Circuit case on which peti-

tioner relies, Kwai Fun Wong v. United States, 373 F.3d

952 (2004), did address the question whether the court

had jurisdiction in a qualified-immunity appeal to decide

whether a Bivens cause of action exists, id. at 961, but

the court’s conclusion that it did not was not necessary

to the disposition of the case, because the Ninth Circuit

ultimately heid that the plaintiffs had not alleged the

violation of a clearly established constitutional right, and

that the defendants were therefore entitled to qualified

immunity, zd. at 966-977. Strictly speaking, therefore,

the Ninth Circuit’s resolution of the jurisdictional issue

in Kwai Fun Wong was dictum, and future panels of the

Ninth Circuit may treat it as such. The Ninth Circuit

reached the same conclusion in an earlier case, Pelletier

9

v. Federal Home Loan Bank, 968 F.2d 865, 871 (1992),

but an aspect of the court’s resolution of the juris-

dictional issues in Pelletier was rejected by this Court as

reflecting an unduly narrow view of the law, see Behrens

v. Pelletier, 516 U.S. 299, 308-309 (1996). It is possible,

therefore, that future panels of the Ninth Circuit will be

reluctant to follow the decision insofar as it addressed

the question presented here.’

Even if the rule in the Ninth Circuit is in fact con-

trary to the rule adopted by the Eighth Circuit in this

case, it would be premature for the Court to grant

certiorari at this time. As evidenced by the relatively

few decisions that have considered the issue, the

jurisdictional question in this case does not appear to

arise with much frequency.” If the Ninth Circuit holds

in a future qualified-immunity case that it has no juris-

diction to decide whether a Bivens cause of action exists,

the federal-officer defendants can petition for rehearing

en banc, and, if they prevail, any circuit conflict will be

eliminated.*. That would obviate the need for review by

this Court. And regardless of whether the Ninth Circuit

addresses the question en banc, “further consideration

Kwai Fun Wong was cited in a recent Ninth Circuit case, Sissoko

v. Rocha, 412 F.3d 1021, 1028 (2005), but the reason the court declined

to consider whether a Bivens cause of action existed in Sissoko was that

the question was not decided by the district court or certified for

interlocutory appeal, ibid.

* As far as we are aware, the only other court of appeals to address

the question is the Tenth Circuit, which, in a 1989 decision, reached the

same conclusion that the Eighth Circuit reached here. Hill v.

Department of the Avr Force, 884 F.2d 1318, 1320, cert. denied, 495 U.S.

947 (1990).

> The defendants in Kwai Fun Wong had no oceasion to petition for

en bane review on the jurisdictional issue, because the Ninth Circuit’s

decision on qualified immunity made them the prevailing parties.

10

* * * of the problem by other courts will enable [this

Court] to deal with the issue more wisely at a later

date.” McCray v. New York, 461 U.S. 961, 962 (1983)

(opinion of Stevens, J., respecting the denial of

certiorari).”

2. Petitioner also contends (Pet. 18-26) that it has a

Bivens cause of action against respondents. The court

of appeals correctly held otherwise, and its decision on

that point does not conflict with any decision of any

other court of appeals. Further review on that question

is therefore unwarranted as well.

a. In Bivens, this Court recognized a cause of action

for damages against federal law-enforcement agents

who allegedly violated the plaintiff's Fourth Amend-

ment rights. The Court’s more recent decisions, how-

ever, “have responded cautiously to suggestions that

Bivens remedies be extended into new contexts.” Cor-

rectional Servs. Corp. v. Malesko, 534 U.S. 61, 68-69

(2001) (quoting Schwevrker v. Chilicky, 487 U.S. 412, 421

(1988)). The Court has emphasized that the “absence of

statutory relief for a constitutional violation . . . does

not by any means necessarily imply that courts should

award money damages against the officers responsible

for the violation.” Jd. at 69 (quoting Schweiker, 487 U.S.

at 421-422). To the contrary, when “the design of a

* There is no need to hold the petition pending this Court’s decision

in Will v. Hallock, cert. granted, 125 S. Ct. 2547 (2005). The question

presented in that case is whether the “judgment bar” of the Federal

Tort Claims Act (FTCA), 28 U.S.C. 2676, prevents an unsuccessful

FTCA claimant from bringing a Bivens action against the federal

employee whose acts gave rise to the FTCA claim, and this Court has

directed the parties to address the additional question whether an order

denying a motion to dismiss on the basis of the judgment bar is

immediately appealable. The jurisdictional issue in Will v. Hallock,

supra, thus does not involve a qualified-immunity appeal.

}1

Government program suggests that Congress has

provided what it considers adequate remedial mec-

hanisms for constitutional violations that may occur in

the course of its administration,” the Court has not

created additional remedies under Bivens. Schweiker,

487 U.S. at 423. Thus, in Bush v. Lucas, 462 U.S. 367

(1983), the Court refused to create a Bivens cause of

action for federal employees seeking to challenge

personnel decisions even though “existing remedies

[did] not provide complete relief,” id. at 388, and there

was no remedy at all for short suspensions or adverse

personnel actions against probationary employees, id.

at 385 n.28.

The court of appeals correctly applied these prin-

ciples in holding that the comprehensive scheme for

review of actions by federal food-safety inspectors under

the FMIA precludes the creation of a Bivens cause of

action against the inspectors personally. Congress has

provided through the APA the means of raising

challenges—including constitutional challenges—to the

type of agency actions at issue here. See 5 U.S.C.

706(2)(B). Final agency action (such as a suspension) is

subject to judicial review; review of non-final action

(such as an NR) is precluded by congressional design.

See, e.g., Bennett v. Spear, 520 U.S. 154, 177-178 (1997);

see also Rochester Tel. Corp. v. United States, 307 U.S.

125, 131 (1939) (“ever since the first Judiciary Act,

Congress has been loath to authorize review of interim

steps in a proceeding”). Judicial review is based on the

record compiled before the agency. See Florida Power

& Light Co. v. Lorion, 470 U.S. 729, 743-744 (1985). And

under 7 U.S.C. 6912(e), exhaustion of administrative

remedies is a prerequisite to APA review. The court of

appeals correctly recognized that creating a Bivens

12

cause of action under these circumstances would cir-

cumvent the statutory constraints on judicial review of

the agency’s actions.

b. Contrary to petitioner’s contention (Pet. 19-20),

no court of appeals has reached a contrary conclusion.

Indeed, no other court of appeals has addressed the

question presented here. That includes the Sixth

Circuit, in Krusinski v. USDA, No. 92-4026, 1993 WL

346858 (Sept. 10, 1993) (4 F.8d 994) (per curiam), the

case on which petitioner principally relies (Pet. 19-20).

Although a Bivens action against USDA inspectors was

allowed to proceed in Krusinski, the Sixth Circuit did

not address the question whether the cause of action was

precluded by the statutory scheme, and there is no

indication in the dvinion that any such argument was

even made. In any event, Krusinsk2 is an unpublished

decision and therefore is “not binding precedent.” Bell

v. Johnson, 308 F.3d 594, 611 (6th Cir. 2002).

Nor does the other court of appeals decision on which

petitioner relies (Pet. 20), Love v. United States, 915

F.2d 1242 (9th Cir. 1990), conflict with the decision

below. In Love, which involved a challenge to the liqui-

dation of farm property after the plaintiffs defaulted on

an agricultural loan, the Ninth Circuit held only that the

availability of a remedy against the United States under

the Federal Tort Claims Act, 28 U.S.C. 2671-2680, did

not prevent the plaintiffs from suing employees of

USDA’s Farmers Home Administration under Bivens as

well. 915 F.2d at 1248-1249 (citing Carlson v. Green, 446

U.S. 14 (1980)). Like Arusznski, Love did not address

the question whether the applicable regulatory scheme

precluded recognition of a Bivens cause of action, and it

certainly did not address the question whether that was

true of the regulatory scheme at issue here, because the

13

case did not involve the inspection of meat-processing

plants.

Petitioner also relies (Pet. 20, 24, 25-26) on a number

of district court decisions. But only two of them, Sheehy

v. Wehlage, No. 02-CV-592A, 2004 WL 951367

(W.D.N.Y. Feb. 3, 2004), and Veal Connection Corp. v.

Thompson, No. C 96-04486 CW (N.D. Cal. Dec. 12,

2001), involved a Bivens action against USDA inspec-

tors, and in those cases, as in Krusinski and Love, there

is no indication that the court addressed the question

presented here. In any event, any conflict between a

district court decision and the decision below would not

provide a basis for certiorari. See Sup. Ct. R. 10.

Finally, petitioner relies (Pet. 21) on USDA’s policy

on employee indemnification, 7 C.F.R. 1.501. But publi-

cation of that policy hardly presupposes, as petitioner

contends, that “the agency itself” has been unable to

“form a consensus” on “whether a Bivens remedy

exists” in a case of this type. Pet. 21. The policy applies

to all USDA employees (not merely food-safety

inspectors), and simply reflects the agency’s recognition

that “actions against Federal employees in their

personal capacity,” if they are recognized in particular

contexts, tend to “intimidate employees” and “stifle

creativity,” thereby “hinder[ing| the Department’s ef-

fectiveness.” Indemnification of Department of Agri-

culture Employees, 69 Fed. Reg. 28,041 (2004). This

Court made a similar observation in declining to

recognize a Bivens cause of action in Schweiker v.

Chilicky, supra, where it noted that “[t]he prospect of

personal liability for official acts * * * would

undoubtedly lead to new difficulties and expense in

recruiting administrators for the programs Congress

has established.” 487 U.S. at 425.

14

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

MARK B. STERN

ALISA B. KLEIN

Attorneys

AUGUST 2005

FILED

Y SEP 13 2095

OFFICE OF THE ©).£8%

No. 04-1611

In the Supreme Court | of the United States

NEBRASKA BEEF LTD., PETITIONER

Vv.

DENNIS GREENING, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SUPPLEMENTAL BRIEF FOR THE RESPONDENTS

PAUL D. CLEMENT

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

In the Supreme Court of the Gnited States

No. 04-1611

NEBRASKA BEEF LTD., PETITIONER

Vv.

DENNIS GREENING, ET AL.

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

SUPPLEMENTAL BRIEF FOR THE RESPONDENTS

Pursuant to Rule 15.8 of the Rules of this Court, the

Solicitor General, on behalf of respondents, respectfully

calls the Court’s attention to an intervening matter not

available when the brief in opposition was filed.

The second question presented in the petition is

whether, on appeal from an order denying qualified

immunity, a court of appeals has jurisdiction to consider

whether a cause of action should be recognized to

subject the government-officer to suit under Bivens v.

Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971). In Hartman v. Moore,

cert. granted, No. 04-1495 (June 27, 2005), the Court

will decide whether law enforcement agents may be

liable under Srvens for retaliatory prosecution in

violation of the First Amendment when the prosecution

was supported by probable cause. In the merits brief in

(1)

2

Hartman, which was filed on August 26, 2005, the

federal law enforcement officer-petitioners argue that a

criminal defendant has no right under the First

Amendment to be free from a prosecution supported by

probable cause that was motivated by the defendant’s

speech. 04-1495 Pet. Br. 19-36. The Hartman peti-

tioners also point out that, if the Court wished to reserve

the broader First Amendment question, it could decide

the case on the narrower ground that the absence of

probable cause is an element of a damages cause of

action for retaliatory prosecution under Bivens. Id. at

36-37. In a footnote, the Hartman brief notes that

limiting the holding to the context of a Bivens cause of

action could implicate the jurisdictional question that is

presented in this case (because Hartman, too, was an

appeal from an order denying qualified immunity). /d.

at 37 n.12. The footnote goes on to say that, although

courts have provided different answers to the juris-

dictional question, the decision of the court of appeals in

this case is correct. /bid.

There is no need for the Court to hold the petition in

this case pending its decision in Hartman. First, the

principal issue in Hartman is the broader issue of

whether the respondent has a claim under the First

Amendment at all. The Court would have no need to

reach the jurisdictional question in that case unless it

limited its holding to the Bivens/Section 1983 context.

Second, the court of appeals in this case correctly held

that there is no cause of action under Bivens. See Br. in

Opp. 10-13. The ultimate outcome is therefore likely to

be the same regardless of whether the court of appeals

should have decided that question on appeal from an

order denying qualified immunity.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

SEPTEMBER 2005