Defense Bar Supports Defendants’ Petition for Certiorari
CHICAGO, IL (Law Firm Newswire) April 13, 2011 – DRI – The Voice of the Defense Bar filed an amicus curiae brief in the United States Supreme Court in the case of Minneci, et al. v. Pollard. In its brief DRI attacks a decision in the Ninth Circuit that overturned the dismissal of the case. See Pollard v. The GEO Group Inc. et al., 629 F.3d 843 (9th Cir. 2010). DRI believes that the Ninth Circuit’s decision overstepped the boundaries established by Supreme Court precedent and conflicts with decisions out of other circuits.
In this case Pollard, a federal prisoner in the Taft Correctional Institution, operated by a private corporation, GEO, sued GEO and several individual defendants, including some GEO employees, alleging violation of his Eighth Amendment rights. On appeal the Ninth Circuit overturned the dismissal of the case, holding that (1) GEO employees acted “under color of federal law for purposes of Bivens liability,” in conflict with Holly v. Scott, 434 F.3d 287, 294 (4th Cir. 2006), and (2) an available state tort remedy did not bar redress under Bivens, 403 U.S. 388 (1971), in conflict with both Holly and Alba v. Montford, 517 F 3.d 1249, 1254 (11th Cir. 2008). Pollard, 629 F.3d at 852. In addition to conflicting with other circuit decisions, the Ninth Circuit decision also overstepped the boundaries established by Supreme Court precedent holding that other available adequate remedial schemes barred courts from allowing Bivens actions and limiting Bivens to federal actors. Corr. Serv. Corp. v. Malesko, 534 U.S. 61 (2001). Although GEO contracted with the government, the GEO employees had no contracts, nor had the government directly employed them. The GEO employees were private actors.
DRI is concerned that the Ninth Circuit decision will “reverberate beyond the private prison setting.” “If the Supreme Court lets this decision stand, plaintiffs could maintain Bivens actions even if state laws already provided them with redress,” said Minneapolis attorney Diane B. Bratvold, vice chair of DRI’s Amicus Committee and an appellate lawyer with expertise on a wide range of issues, including constitutional law, employment law and tort liability. “The Ninth Circuit decision imposes liability on private actors that is in addition to their liability under state tort law, raising the specter of parallel liability based on different standards of conduct,” Bratvold continued. The Ninth Circuit decision would unleash potential Bivens actions against all private corporations contracting with the government by characterizing those contractual practices as falling “under the color of federal authority.” Given the extent to which the government now contracts with private companies to carry out traditional government work, DRI members and their clients would face a significant increase of Bivens actions.
For these reasons DRI – The Voice of the Defense Bar identified this case as one of great importance to the interests of DRI’s membership. In supporting the defendants’ petition for certiorari, DRI sends a message to the Supreme Court that this case presents an important issue worthy of its review. DRI asks the Supreme Court to accept the case to resolve conflicts in circuit rulings and to uphold Supreme Court precedent limiting Bivens actions. Bratvold added, “The decision to impose new legal liability belongs to Congress and not the courts.”
The DRI brief was authored by Raymond A. Cardoza and David J. deJesus of Reed Smith LLP in San Francisco. The brief is available in its entirety at www.dri.org.
About DRI – The Voice of the Defense Bar
DRI – The Voice of the Defense Bar is an international organization of defense attorneys and corporate counsel that is recognized as a thought leader and an advocate for the defense bar at the national and state level, as well as in Europe. With more than 22,000 members, DRI provides members and their clients with access to world-class education, legal resources and numerous marketing and networking opportunities that facilitate career and law firm growth. For more information log on to www.dri.org.
Vicki Bendure, APR
DRI – The Voice of the Defense Bar
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