Opposition Brief — United States v. Smith (No. 09-549)

Supreme Court, U.S.

FILEO

DEC 17 2009

No. 09-549 OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA, et al.,

Petitioners,

BYRON SMITH,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF IN OPPOSITION

SETH P. WAXMAN

JONATHAN E. NUECHTERLEIN

DANIEL S. VOLCHOK

Counsel of Record

JUDITH E. COLEMAN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Avenue N.W.

Washington, D.C. 20006

(202) 663-6000

QUESTION PRESENTED

In Carlson v. Green, 446 U.S. 14 (1980), this Court

held that an individual can normally maintain an Eighth

Amendment claim for damages—under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcot-

ics, 403 U.S. 388 (1971)}—against federal officials who

inflict cruel and unusual punishment on him. The ques-

tion presented here is whether such a claim is fore-

closed in cases covered by the Inmate Accident Com-

pensation Act, 18 U.S.C. § 4126.

TABLE OF CONTENTS

Page

PE) Fe EUPEe Fete 6 Ws vids ehissstviesvnsasnsnsisuaniasitapsadonesia i

CAE COP UTE EI 0 eee isis tnsesnccnissassitatxececcebianstonnen iv

SF Pa A EE OEE saiagrinsesanicsen nena aaiceauaiaa l

REASONS FOR DENYING THE PETITION ............ 2

CAPERS RIT ERPS sissncstcenes einen ein ena 16

(ii)

lv

TABLE OF AUTHORITIES

CASES

Page(s)

Bagola v. Kindt, 131 F.3d 632 (7th Cir. 1997)...... passim

Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S.

es crdieterec hte eerie wn sete aoaearneaninleiss i,3

Bewles v. Russell, 551 U.S. 205 (2007) ............sccecsssesvees 15

Bush v. Lucas, 462 U.S. 367 (1983) «0... eee 4, 5, 10, 12

Carlson v. Green, 446 U.S. 14 (1980) .........ceeeeeee passim

Chappell v. Wallace, 462 U.S. 296 (1983)............eescceseeees 5)

Chevron U.S.A. Inc. v. Natural Resources

Defense Coucil, Inc., 467 U.S. 887 (1984) ...... 7

Cooleen v. Lamanna, 248 F. App’x 357 (3d

ey NN Benes oecntsssaoicssersctvavcsracomreatendaesetbbunaan 8

Correctional Services Corp. v. Malesko, 534

ee ee I aed cae ssveceanenayvsedcces se rseamaenneitenal 4,9

Douglas v. Seacoast Products., Inc., 431 U.S.

BN RI acres acres pcaeencdesn us iersteaentniasoreadevmeaseonsss 8

Farmer v. Brennan, 511 U.S. 825 (1994) ......ccccccsccccsssoees ]

Federal Deposit Insurance Corp. v. Meyer,

ee ee ices tiasana arses ceseustrinsccnettesensiencnn 4

Feres v. United States, 340 U.S. 135 (1950)............... 7

Fromme V. SUE, SOS US. OTS CGD) visivesssevsciserscncecescorsernes ‘j

John R. Sand & Gravel Co. v. United States,

NU aes Se eI Se piscsacasencnsicessacunqnsupnnisaiy pseviveseonnes 15

Lawrence ex rel. Lawrence v. Chater, 516

re, ee I cao asda eases aicus ch casaciacasseus taavnsiceiaes 15

V

TABLE OF AUTHORITIES—Continued

Page(s)

McCarthy v. Madigan, 503 U.S. 140 (1992)............... 6, 11

Owner-Operator Independent Drivers Ass’n

v. Federal Motor Carrier Safety Admini-

stration, 494 F.3d 188 (D.C. Cir. 2007)...........00......0. 8

Schweiker v. Chilicky, 487 U.S. 412 (1988).......... 4, 10, 11

Shepard v. United States, 544 U.S. 18 (2005)... 7

Taylor v. United States, 495 U.S. 575 (1990)... 7

United States v. Demko, 385 U.S. 149 (1966) .......... 3, 4, 9

United States v. Johnson, 481 U.S. 681 (1987)............ Le

United States v. Standard Oil Co. of Califor-

aN, Te Or ee TE etc coccttasccccccntnctacasescinsiosetorss 6

Vaccaro v. Dobre, 81 F.3d 854 (9th Cir. 1996)......... 3, 6, @

Wilkie v. Robbins, 551 U.S. 537 (2007)............. 4,5, 12,13

CONSTITUTIONAL PROVISIONS

Aes Sc, MEF CE eenssteatsarrinriaivnctonasiosanivens passim

STATUTES AND REGULATIONS

BO re EE sc ccvsiei es sctensenadicsersbsaateesstniaasamaeumell 14

Ss tI > 04 sds pdnccaccsencs pons ha tavendonnsatveovonenimaomientanind 7

ee si cadecetabinsuuscedinapentiads 13, 14

Federal Employees Compensation Act, 5

U.S.C. §§ 8101 et seq. ......... sJisssa dion ia tenceneceinareiam 14

Federal Tort Claims Act, 28 U.S.C. §§ 2671 et

Ws ssicr co dseusdesencausisakicspovavisusaencaseiniaannss Aavdlssiucidtaaie a

vl

TABLE OF AUTHORITIES—Continued

Page(s)

Inmate Accident Compensation Act, 18

Be We IEE cyakciicncisucinsssisish sin civceseiscivecnensanncnieces i, 3-5

28 C.F.R.

8 SST RO REE ERIE ET BE LSE ETN EEI ITER nn TET Te 5

SINT cs..05.ns asus pensscevadinsbasenbachsduscckserermesaenvinsiherasneheis 5

IETS ssa esiles dae cased gti deabinaiunanans capeveumeerenentaeianees 5

Se I RIIEIIIN ca ciensscni satasuece blind abashansenesacvraumnnssachncseiatanneustonebinds 6

OTHER AUTHORITIES

Brief for Petitioner Esther Hui, Hui v. Cas-

taneda, No. 08-1529 (U.S. Dec. 4, 2009),

available at 2009 WL 4709587 ........ccceeeeeeeeeeeeeeeeeees 14

Brief for Petitioner Stephen Gonsalves, //i

v. Castaneda, No. 08-1529 (U.S. Dec. 4,

2009), available at 2009 WL 4617184.................00... 14

Brief for the United States as Amicus Curiae

Supporting Petitioners, Hui v. Casta-

neda, No. 08-1529 (U.S. Dec. 11, 2009),

available at 2009 WIL 4759119 ........... ce eeeeeeeseeeeeeeeee 14

Brief for the United States in Opposition,

vohn R. Sand & Gravel Co. v. United

States, No. 06-1164 (U.S. Apr. 27, 2007),

GUUS GE BOUT Ws LZO TOS vesccsecsessesvccesonsscconenenees 15

Bureau of Prisons: Maps of Facilities, at

www.bop.gov/locations/locationmap.jsp ..............00+ 8

Huiv. Castaneda, No. 08-1529 (U.S.) wn. eee, 13

List of US. Federal Prisons, af

en.wikipedia.org/wiki/List_of_U.S._feder

Rae I eee ea ac alcoencasen bene

IN THE

Supreme Court of the United States

No. 09-549

UNITED STATES OF AMERICA, et al.,

Petitioners,

Vv.

BYRON SMITH,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF IN OPPOSITION

STATEMENT

Petitioners’ statement is correct in its essentials,

but it does not adequately describe respondent Byron

Smith’s allegations in this case. Mr. Smith charges that

he was repeatedly exposed to asbestos—and injured as

a result—because of petitioners’ deliberate indifference

to a substantial risk of serious harm to him. See Second

Am. Compl. (Dkt. No. 110), at 12-14 (Sept. 28, 2009); see

also Farmer v. Brennan, 511 U.S. 825, 828 (1994) (de-

scribing this as the relevant standard for Eighth

Amendment liability).'! More specifically, Mr. Smith

' All docket numbers cited herein pertain to case number

5:06-cv-306 1-J TM-DWB (D. Kan.).

2

alleges that each individual petitioner knew that there

was friable asbestos in a particular closet in the prison

where he was housed, and that petitioners nonetheless

sent him to perform work in the closet without first

removing the asbestos, providing him with protective

gear, or taking any other steps to address the serious

health threat that the asbestos posed (and even without

informing him of the threat). See Second Am. Compl.

14. During the administrative proceedings, the prison

warden, petitioner Eddie Gallegos, acknowledged that

a survey of the prison performed almost a decade be-

fore Mr. Smith’s exposures documented the presence of

the friable asbestos. See id. Ex. 10 (warden’s state-

ment); Opp. to Mot. To Dismiss (Dkt. No. 40), Ex. 2

(Feb. 1, 2007) (survey excerpts).

Mr. Smith states in the operative complaint that

since his exposures he has experienced numerous ail-

ments, including “recurring shortness of breath,

chronic obstructive pulmonary disease, various lung

infections, wheezing, bronchitis, ... [and] asthma, and

[he] has recently been diagnosed with left lower lung

linear atelectasis.” Second Am. Compl. 12. Mr. Smith

“did not suffer with any of these ... conditions prior to

being exposed to asbestos.” /d.

REASONS FOR DENYING THE PETITION

The court of appeals faithfully followea this Court’s

precedent in deciding this case. Petitioners do not con-

tend that the Tenth Circuit’s holding conflicts with a

published decision from another circuit—it does not—

and in fact petitioners do not argue that plenary review

by this Court is warranted for any reason. They do as-

sert that the Tenth Circuit’s ruling is inconsistent with

several of this Court’s cases, but that assertion is

meritless. Petitioners aiso ask that their petition be

3

held pending this Court’s decision in Hui v. Castaneda,

No. 08-1529 (cert. granted Sept. 30, 2009), but that re-

quest should be rejected because it is highly improb-

able that the decision in Hwi, which revolves around an

express preclusion clause unlike anything applicable

here, will affect this case. The petition should be de-

nied promptly.

1. The court of appeals correctly concluded that

under this Court’s case law, the Inmate Accident Com-

pensation Act ([ACA), 18 U.S.C. § 4126, does not fore-

close respondent Byron Smith’s Eighth Amendment

claim against the individual petitioners. Adopting the

extended analysis offered by the Seventh Circuit in

Bagola v. Kindt, 131 F.3d 682 (7th Cir. 1997), the Tenth

Circuit first observed that in Carlson v. Green, 446

U.S. 14 (1980), this Court held that an individual can

normally pursue an Kighth Amendment claim, under

Bivens v. Six Unknown Named Agents of Federal Bu-

reau of Narcotics, 403 U.S. 488 (1971), against federal

officials who inflict cruel and unusual punishment on

him, see Pet. App. l6a (citing Carlson, 446 U.S. at 18).

The Tenth Circuit recognized that this Court had ear-

lier held, in United States v. Demko, 385 U.S. 149

(1966), that when the [ACA applies it bars claims under

the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671

et seq. See Pet. App. 17a-18a (citing Demko). But the

court of appeals correctly noted that Demko was not

dispositive here because it addressed only the preclu-

sion of FTCA claims (i.e., common-law tort claims),

which serve a different purpose than Bivens claims (i.e.,

constitutional tort claims). See id.; see also Bagola, 131

F.3d at 642 & n.15; Vaccaro v. Dobre, 81 F.3d 854, 857

(9th Cir. 1996) (“Demko establishes that 18 U.S.C.

§ 4126 is the exclusive remedy ‘against the Govern

ment.’ [A] Bivens action is not against the government.

4

Also, the theories as well as the defendants in sec-

tion 4126 claims and in Bivens actions are different.”

(quoting Demko, 385 U.S. at 150)).

The court of appeals similarly took proper account

of this Court’s Bivens decisions since Carlson. The

Tenth Circuit discussed every one of the cases with

which petitioners contend its holding is inconsistent,

including Bush v. Lucas, 462 U.S. 367 (1983); Schweiker

v. Chilicky, 487 U.S. 412 (1988); and Wilkie v. Robbins,

551 U.S. 537 (2007). See Pet. App. 19a-20a & n.11; see

also Bagola, 131 F.3d at 638, 640-641, 643-644 (discuss-

ing Bush and Schweiker). Indeed, the court quoted at

length from Bush and Schweiker regarding when a

Bivens remedy is precluded. See Pet. App. 19a-20a.

The court then correctly explained why here those

cases do not warrant a departure from this Court’s ap-

proval in Carlson of an Eighth-Amendment-based

Bivens remedy.

Specifically, the court explained (as the Seventh

Circuit had in Bagola) that unlike in the cases in which

this Court declined to permit Bivens claims, the alter-

native remedy here does little or nothing to deter un-

constitutional conduct by federal officials: It offers no

damages remedy, see Carlson, 446 U.S. at 21 (“It is al-

most axiomatic that the threat of damages has a deter-

rent effect[.]”), and it provides no forum in which un-

constitutional conduct can be brought to light, thereby

deterring such conduct. See Pet. App. 23a, 24a; accord

Bagola, 131 F.3d at 644. Because this Court has “em-

phasized that ‘the purpose of Bivens is to deter the offi-

cer,” Correctional Servs. Corp. v. Malesko, 534 U.S.

61, 69 (2001) (emphasis omitted) (quoting Federal De-

posit Ins. Corp. v. Meyer, 510 U.S. 471, 485 (1994)), the

court of appeals concluded that the lack of any deter-

rent effect renders the LACA an inadequate substitute

5

for a Bivens action. See Wilkie, 551 U.S. at 550 (courts

addressing preclusion of a Bivens remedy first consider

“whether any alternative, existing process for protect-

ing the interest” is adequate to bar such a remedy).”

The court of appeals also embraced the Seventh

Circuit’s conclusion, see Bagola, 131i F.3d at 642-645,

that no “special factors” foreclose a Bivens remedy in

eases like this, see Wilkie, 551 U.S. at 550 (if no ade-

quate alternative process exists, courts next consider

whether any “‘special factors counsel[] hesitation’” be-

fore recognizing a Bivens remedy (quoting Bush, 462

U.S. at 378)). That conclusion was likewise correct and

consistent with this Court’s case law, for two related

reasons. First, this case does not involve any of the

contexts that, under this Court’s jurisprudence, suffi-

ciently “counsel[] hesitation” as to foreclose a Bivens

remedy, including: the military (e.g., Chappell v. Wal-

lace, 462 U.S. 296 (1983)), government employment

. Perhaps seeking to dispute the I[ACA’s failure to provide a

forum that can deter constitutional violations, petitioners note

(Pet. 5) that [ACA claimants can request a hearing on their claims.

To begin with, however, the law’s implementing regulations se-

verely restrict claimants’ ability to present (or challenge) evidence

at such hearings. See, ¢.g., 28 C.F.R. §§ 301.309(f), 301.310. More

fundamentally, as the Seventh Circuit observed, “because § 4126 is

a no fault compensation scheme, the conduct that caused the work-

related injury is not relevant and likely will not be exposed by the

claim evaluation process,” including at any hearing. Bagola, 131

F.3d at 644. And because an IACA claim based on physical im

pairment cannot be made until shortly before an inmate’s release,

see Pet. 5 (citing 28 C.F.R. § 301.303(a)), any such hearing might

not even occur until years after the injury, “when evidence likely

will have been lost, offenders may no longer be federal employees,

and other prisoners may have been subsequently subjected to

similar unconstitutional abuses,” Bagola, 131 F.3d at 644.

6

(Bush), federal fiscal policy (United States v. Standard

Oil Co. of California, 332 U.S. 301 (1947)), and non-

governmental or agency defendants (Malesko, F'DIC v.

Meyer). This case instead involves the same context

that the Court in Carlson held does not involve any

special factors precluding a Bivens remedy, namely the

allegedly unconstitutional mistreatment of inmates by

federal officials. See 446 U.S. at 19.

Second, the only special factor that petitioners

pointed to in their briefing below was the possibility

that permitting claims like Mr. Smith’s “may deter

[prison] employees from running work programs.” Ap-

pellees’ CA Supp. Br. 37. But as this Court has noted

(in a case post-dating Bush and Schweiker), “(ijn Carl-

son, the Court held that ‘special factors’ do not free

prison officials from Bivens liability, because prison of.

ficials ... are [not] likely to be unduly inhibited in the

performance of their duties by the assertion of a Bivens

claim.” McCarthy v. Madigan, 503 U.S. 140, 151 (1992)

(citing Carlson, 446 U.S. at 19). Petitioners offered

nothing below (and offer nothing in the petition) that

would support a different conclusion in cases covered

by the L[ACA. In particular, they offer nothing indicat-

ing that prison officials in the Seventh and Ninth Cir-

cuits have been deterred from running work programs,

even though for more than ten years it has been the law

in both circuits that the [ACA does not bar Bivens

claims, see Bagola, 131 F.3d 632; Vaccaro, 81 F.3d 854.

In sum, the decision below was faithful to all of this

Court’s case law. It was also consistent with the

IACA’s implementing regulations, which provide that

the statute precludes only common-law tort claims. See

28 C.F.R. § 301.319 (“Inmates who are subject to the

provisions of these Inmate Accident Compensation

regulations are barred from recovery under the

7

Federal Tort Claims Act, 28 U.S.C. [§$§] 2671 et seq.”).

Deference to the statutory interpretation reflected in

these regulations supports the Tenth Circuit’s view

that Mr. Smith’s Eighth Amendment claim is not fore-

closed. Cf. Howe v. Smith, 452 U.S. 478, 485 (1981)

(“Because the Attorney General, and through him the

Bureau of Prisons, are charged with the administration

of [18 U.S.C.] § 5003, their view of the meaning of the

statute is entitled to considerable deference.”). See

generally Chevron U.S.A. Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 842-844 (1984).

Finally, the Tenth Circuit’s ruling is almost cer-

tainly in line with Congress’s intent regarding the

JACA’s preclusive effect—which is of course what ul-

timately controls. It has been over a decade since the

Seventh and Ninth Circuits reached the same conclu-

sion about the IACA’s impact on Bivens actions that

the court of appeals did here. See Bagola, 131 F.3d 6382;

Vaccaro, 81 F.3d 854. Yet Congress has not acted to

overturn those courts’ rulings. As this Court has ex-

plained, such congressional inaction in the wake of a ju-

dicial construction of a statute strongly suggests that

the construction is correct. See Shepard v. United

States, 544 U.S. 13, 23 (2005) (“[T]lime has enhanced

even the usual precedential force [applicable in cases of

statutory interpretation], nearly 15 years having

passed since Taylor [v. United States, 495 U.S. 575

(1990),] came down, without any action by Congress to

modify the statute.”); United States v. Johnson, 481

U.S. 681, 686 (1987) (“Nor has Congress changed this

standard in the close to 40 years since it was articulated

[by the Court!, even though ... Congress ‘possesses a

ready remedy’ to alter a misinterpretation of its in-

tent.” (quoting Feres v. United States, 340 U.S. 135, 138

(1950))).

&

That Bagola and Vaccaro were decided by courts

of appeals rather than this Court does not alter this

conclusion, because Congress sometimes reacts to the

decision of even a single court of appeals. See, e.g.,

Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 282 n.19

(1977) (“Acting to reverse a Circuit Court of Appeals

decision, Congress authorized issuance of licenses for

the ‘coasting trade and mackerel fishery.’” (citation

omitted)); Owner-Operator Indep. Drivers Ass’n v.

Federal Motor Carrier Safety Admin. (FMCSA), 494

F.3d 188, 197 (D.C. Cir. 2007) (“After our [prior] deci-

sion ... vacated the 2003 Rule, FMCSA sought and re-

ceived temporary relief from the vacatur in Con-

gress.”). Here, there were two published circuit deci-

sions that applied to roughly a score of federai prisons

(likely employing hundreds or thousands of potential

Bivens defendants). See List of U.S. Federal Prisons,

at en.wikipedia.org/wiki/List_of_U.S._federal_prisons

(last visited Dec. 17, 2009); Bureau of Prisons: Maps of

Facilities, at www.bop.gov/locations/locationmap.jsp

(last visited Dec. 17, 2009). Under these circumstances,

Congress’s prolonged inaction is highly instructive, and

it confirms the correctness of the decision below.

2. Petitioners nevertheless challenge the Tenth

Circuit’s IACA holding. Petitioners do not assert,

however, that it conflicts with an authoritative decision

from any other circuit. To the contrary, they mghtly

acknowledge that each of the other two circuits to ad-

dress the question presented in a published opinion—

the Seventh and the Ninth—reached the same conclu-

sion that the court of appeals reached here (as did an-

other circuit in an unpublished opinion). See Pet. 12 n.6

(citing Bagola, Vaccaro, and Cooleen v. Lamanna, 248

F. App’x 357, 362 n.5 (3d Cir. 2007)). Petitioners in-

stead contend that the Tenth Circuit’s decision and rea-

9

soning are inconsistent with Demko, Bush, Schweiker,

and Wilkie. That contention is without merit.

To begin with, petitioners concede (Pet. 13) that

Demko “does not strictly control the outcome of this

case” because it involved preclusion of common-law

(i.e., FTCA) claims against the United States, rather

than constitutional (.e., Bivens) claims against federal

officials. In fact, this Court made the limit of its holding

in Demko quite clear, stating that “[u)ntil Congress de-

cides differently we accept the prison compensation law

as an adequate substitute for a system of recovery by

common-law torts.” 385 U.S. at 153 (emphasis added);

see also, e.g., id. at 151 (“[C]ompensation laws are prac-

tically always thought of as substitutes for ... common-

law tort actions.”). Petitioners argue, however (Pet.

13), that the reasons underlying the Court’s decision in

Demko should have led the court of appeals to conclude

that the IACA bars a Bivens remedy. But those rea-

sons do not apply equally to preclusion of Bivens ac-

tions, because FTCA and Bivens claims serve different

purposes. The purpose of FTCA claims is to ensure

compensation for injured plaintiffs. See, e.g., Johnson,

481 U.S. at 689-690. By contrast, “[t]he purpose of

Bivens is to deter individual federal officers from com-

mitting constitutional violations,” Malesko, 534 U.S. at

70. Hence, while the fact that Congress “‘created a

comprehensive system to award payments for inju-

ries,” Pet. 13 (emphasis added) (quoting Demko, 385

U.S. at 151), does suggest an intent to bar FTCA

claims, which serve the same purpose, it does not sug-

gest an intent to foreclose Bivens claims, which serve a

very different purpose.

Petitioners next assert (Pet. 13) that the Tenth

Circuit “placed undue reliance” on this Court’s state-

ment in Carlson that Congress can bar a Bivens rem-

10

edy by expressly declaring an alternative remedy to be

an equally effective substitute. The court of appeals

did no such thing. To be sure, on the pages petitioners

cite the court properly recounted this Court’s holding

in Carlson. See Pet. App. 18a-19a. But that hardly

constitutes “undue reliance” on that holding. And as

explained, see supra pages 4-5, the Tenth Circuit went

on to recount (and apply) this Court’s later Bivens deci-

sions, including those to which petitioners point. See

Pet. App. 19a-24a. In doing so, the court noted that the

IACA does not explicitly foreclose a Bivens action, see

id. at 23a—and that observation was proper, because

an express congressional declaration, while not neces-

sary to preclude a Bivens remedy, is certainly one way

in which congressional intent to bar Bivens actions can

be revealed. See Bush, 462 U.S. at 378 (“When Con-

gress provides an alternative remedy, it may, of course,

indicate its intent, by statutory language, ... that the

courts’ power [to recognize a Bivens remedy] should

not be exercised.”); see also id. at 373, 378 (noting the

absence in that case of any express preclusion). No-

where, however, did the court of appeals say or even

imply, as petitioners suggest, that it was rejecting peti-

tioners’ position solely because such express preclusion

was absent. Nor did the court in Bagola, which the

Tenth Circuit followed here, say or imply anything of

the sort. To the contrary, the Seventh Circuit stated

that it could not “consider Carlson’s dictates alone in

deciding whether Bagola can properly state a Bivens

claim,” because “(t]he Suprerne Court subsequently has

refined this [preclusion] inquiry.” 131 F.3d at 6389 (cit-

ing Schweiker, 487 U.S. at 423). And Bagola then went

on to discuss and apply the cases that made those re-

finements. Put simply, nothing in the decision below

supports petitioners’ claim that the court of appeals

11

“placed undue reliance” (Pet. 13) on the “explicitly de-

clared” and “equally effective” language in Carlson.’

Petitioners likewise go astray in asserting (Pet. 15)

that the Tenth Circuit “stressed that the remedies pro-

vided in the IACA do not provide full relief for plain-

tiffs’ alleged constitutional injuries.” Petitioners pro-

vide no concomitant cite to the Tenth Circuit’s opinion

in making this charge, and in actuality the court of ap-

peals did not mention this fact, let alone “stress[]” it.

The closest the court came was its statement that an

IACA claim “would be a far different, less inclusive

23a. But as its use of the word “system” makes clear,

the court was referring to the fact that under the

IACA, relief is afforded through an administrative

rather than a judicial process, one that does not provide

the same procedural protections (full discovery, for ex-

ample), nor permits recovery against those who caused

the harm. In any event, here again petitioners’ argu-

ment suggests that the court of appeals placed disposi-

tive weight on this factor. That is manifestly wrong.

At most the court regarded the minimal relief available

under the IACA as one factor—which the court prop-

erly considered along with many others—that is rele-

vant in ascertaining Congress’s intent. See Schweiker,

487 U.S. at 425 (pertinent consideration for courts is

: Even were it otherwise, that would not establish a clear con-

flict between the Tenth Circuit’s decision and Bush or Schweiker,

as petitioners suggest: In McCarthy, which post-dated Bush and

Schweiker, this Court reiterated and applied Carlson’s “equally

effective” and “explicitly declared” standard. See 503 U.S. at 151

(citing Carlson, 446 U.S. at 18-19). McCarthy, moreover, unlike

any of the Court’s other post-Carlson Bivens cases, involved the

same highth Amendment claim at issue here (and in Carlson).

12

whether Congress has “failed to provide meaningful ...

remedies”); accord Bush, 462 U.S. at 368, 386.

As for Wilkie, petitioners never directly explain

the supposed inconsistency between that decision and

the Tenth Circuit’s ruling. In their Statement, how-

ever, they assert (Pet. 10) that the court of appeals “re-

jected petitioners’ argument that the court should ...

us{e] the analysis ... in Wilkie” and “adopted instead

the pre-Wilkie Bagola court’s analysis of ‘special fac-

tors.’”’ The premise of this assertion—left implicit here

but stated explicitly in petitioners’ briefing below—is

that Wilkie changed the framework for analyzing the

preclusion of Bivens actions, such that the “pre-Wilkie

Bagola court’s analysis of special factors” is no longer

appropriate. That premise is false. Wilkie employed

the same basic analysis that this Court has used for

decades, explaining that a Bivens action may be fore-

closed when Congress provides adequate alternate re-

medial mechanisms for constitutional violations or

when there are “special factors” suggesting that a

Bivens remedy is inappropriate. See Wilkie, 551 U.S.

at 550; compare Bush, 462 U.S. at 378; Carlson, 446

U.S. at 18-19 & n.5. Wilkie introduced the labels “step

one” and “step two,” but it did not substantively change

the doctrinal framework. Wilkie itself makes this clear,

both by stating that its “consideration of a Bivens re-

quest follows a familiar sequence,” 551 U.S. at 550, and

by citing Bush in describing both step one and step

two, see id. Bagola’s analysis, and hence that of the

Tenth Circuit, was thus fully consistent with Wilkie.’

4 ene r we “40 ‘

Petitioners also note the Tenth Circuit's statement “that no

analysis of whether to recognize a new Bivens remedy was neces-

sary because this Court in Carlson had already recognized a

13

In short, there is no merit to petitioners’ claim that

the Tenth Circuit’s decision is inconsistent with any of

this Court’s holdings or reasoning. The Seventh Cir-

cuit’s analysis in Bagola—repeated in part and adopted

in full by the Tenth Circuit here—involved both an ex-

tended discussion of this Court’s relevant decisions and

a careful application of those decisions to the question

presented here. Further review is unwarranted.

3. Petitioners themselves appear to recognize

this, as they do not ask this Court to undertake plenary

review. They instead ask the Court to hold their peti-

tion pending the decision in Hui v. Castaneda, No. 08-

1529. According to petitioners (Pet. 15-16), the decision

in Hui “will likely illuminate the circumstances in

which an existing statutory remedy precludes recogni-

tion of a Bivens remedy when Congress has not explic-

itly stated its preclusive intent.” That is incorrect, and

hence a hold is not warranted.

As petitioners state (Pet. 11), Hui presents the

question whether 42 U.S.C. § 233(a) bars certain Bivens

claims against members of the Public Health Service

(PHS). But of central importance in Hw is the fact that

§ 233(a) expressly provides that an FTCA action for

injuries resulting from specified conduct by a PHS offi-

Bivens remedy for ‘an Eighth Amendment violation by prison offi-

cials.’” Pet. 10 (quoting Pet. App. 20a n.11). That statement was

entirely correct; the Court in Carlson did recognize the precise

Bivens remedy that Mr. Smith seeks to invoke. See, e.g., Wilkie,

551 U.S. at 549-550 (“(W]e have recognized [a Bivens remedy] ...

for an Eighth Amendment violation by prison officials.” (citing

Carlson)). But of course that fact did not relieve the court of ap-

peals of its obligation to analyze whether, under Carlson and later

decisions, the IACA bars the remedy that this Court has held is

normally available. The Tenth Circuit fulfilled that obligation.

14

cer or employee “shall be exclusive of any other civil

action or proceeding” based on the same injuries. The

IACA contains no remotely similar clause—or, indeed,

any preclusion clause.’ There is thus no merit to peti-

tioners’ vague assertion that “[tJhis Court’s disposition

of [Hu] will likely illuminate the circumstances in

which an existing statutory remedy precludes recogni-

tion of a Bivens remedy when Congress has not explic-

itly stated its preclusive intent.” Pet. 15-16 (emphasis

added); accord Pet. 12. In reality, the Court’s decision

and reasoning in Hui will almost certainly be grounded

entirely in the express preclusion ciause in § 238(a).

This is confirmed by the fact that the text, purpose,

and history of that clause are (not surprisingly) the

overwhelming focus of the merits briefs filed in this

Court in Hui both by the petitioners and by the United

States as amicus curiae.® In fact, the United States ar-

gues in its brief that “(t]he plain language of Section

233(a) resolves this case.” U.S. Amicus Br. 7, Hui v.

Castaneda, No. 08-1529 (U.S. Dec. 11, 2009), available

at 2009 WI, 4759119. Even if that argument is correct,

it is irrelevant to the Tenth Circuit’s decision here, as

° This also distinguishes the [ACA from the Federal Employ-

ees Compensation Act (FECA), 5 U.S.C. §§ 8101 et seg., which

likewise contains an express preclusion clause, see id. § 8116(c); see

also Pet. 3 (attempting to link the IACA and FECA).

° Por example, the first (and longest) argument section in one

petitioner’s brief is entitled “The Plain Language of § 233(a) Bars

Respondents’ Bivens Claims Against Petitioners.” Br. for Pet.

Gonsalves 23-42, Hui v. Castaneda, No. 08-1529 (U.S. Dec. 4,

2009), avatlable at 2009 WL 4617134; see also Br. for Pet. Hui 19-

33, Hui (Dec. 4, 2009), available at 2009 WL 4709537 (similar); U.S.

Amicus Br. 9-19, Hui (Dec. 11, 2009), available at 2009 WL

4759119 (plain-text and legislative-history arguments).

15

are virtually all of the other arguments that the peti-

tioners and the United States advance in Hw. for re-

versal of the Ninth Circuit’s ruling. Contrary to peti-

tioners’ unelaborated contention here, then, Hw is ex-

tremely unlikely to have any application to cases—such

as this one—that involve no express preclusion clause.

Even if the Court in Hui were to speak to cases like

this one, moreover, there is no reason to expect that it

would do so in a way that departs from prior Bivens

ease law. Again, neither the United States nor the pe-

titioners in Hui propose such a departure. And as dis-

cussed, the court of appeals here properly considered

that prior case law. There is thus no “reasonable prob-

ability” that a remand to the Tenth Circuit following

the decision in Hui would lead to a different result.

Lawrence ex rel. Lawrence v. Chater, 516 U.S. 163, 167

(1996) (per curiam). A hold is therefore not warranted.’

’ The United States itself has argued against a hold in similar

circumstances. In its brief in opposition in John R. Sand & Gravel

Co. v. United States, 552 U.S. 130 (2008), the United States con-

tended that there was no need to hold the petition for certiorari

pending the decision in Bowles v. Russell, 551 U.S. 205 (2007). The

government acknowledged that the two cases presented similar

issues “[aJt a general level.” U.S. Br. in Opp. 15, John R. Sand &

Gravel Co. v. United States, No. 06-1164 (U.S. Apr. 27, 2007),

available at 2007 WL 1257289. “But,” the United States asserted,

“because Bowles does not involve a statutory provision governing

the time for filing suit against the United States, the Court should

have no oceasion to address the question presented here[.j” Jd.

The same logic applies here: Both Hui and this case involve a

similar issue “[a]t a general level,” zd., namely whether an other-

wise-available Bivens remedy is precluded by a particular statute.

But because Hui involves—and indeed revolves around—an ex-

press preclusion clause unlike anything in the IACA, the Court’s

decision in Hui will very tikely have little or no bearing here.

16

Furthermore, an unnecessary hold would cause

prejudice to Mr. Smith, because proceedings in the dis-

trict court have effectively been stayed—at petitioners’

behest—pending the Court’s disposition of the petition.

Following the Tenth Circuit’s remand, Mr. Smith filed a

second amended complaint. See Dkt. No. 110. Rather

than answer, petitioners moved to stay the proceedings

in light of the filing of their petition for certiorari. See

Defs.’ Mot. To Stay Proceedings & Notice of Pet. for

Writ of Cert. (Dkt. No. 115) (Nov. 6, 2009). The district

court has not acted on the motion, even though it was

filed over a month ago, and the deadline for petitioners

to answer the complaint likewise passed well more than

a month ago. In effect, then, proceedings have been

stayed, thereby delaying the time when Mr. Smith may

finally receive relief for the constitutional violations he

alleges. Given the extreme unlikelihood that the deci-

sion in Hui will affect this case, the Court should not

impose an additional delay of several months on Mr.

Smith by holding the petition until it decides Hz.

CONCLUSION

The petition for a writ of certiorari should be denied.

17

Respectfully submitted

SETH P. WAXMAN

JONATHAN E.. NUECHTERLEIN

DANIELS. VOLCHOK

Counsel of Record

JUDITH E. COLEMAN

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Avenue N.W

Washington, D.C. 20006

(202) 663-6000

DECEMBER 2009