Transcript

CHIEF JUSTICE WILLIAM H. REHNQUIST: We'll hear argument now in No. 00-860, Correctional Services Corporation v. John Malesko. Mr. Phillips.

MR. CARTER G. PHILLIPS: Thank you, Mr. Chief Justice, and may it please the Court: The issue in this case is whether an action for damages under Bivens should be applied to a private corporation acting under color of Federal law. Like many cases, where you come out on a case like this,

I think in many ways depends on where you begin, and the parties have put forward to this Court fundamentally conflicting paradigms with respect to the best way to analyze Bivens based on this Court's prior decisions.

The respondent and the court below essentially concluded that Bivens is a ubiquitous remedy that ought, generally, to be available in order to maximize recoveries and to maximize, or at least optimize, deterrent values, and that it is our burden essentially to try to ascertain whether there might be some conflicting or some exception to the Bivens doctrine that would get us out from under liability in the -- in this particular case. The --

JUSTICE SANDRA DAY O'CONNOR: Mr. Phillips, do you -- this -- this involves only an action against the corporation not against its employees.

MR. PHILLIPS: That's correct, Justice O'Connor.

JUSTICE O'CONNOR: Would -- if the action were brought as a Bivens action against the employees, do you concede that there would be a Bivens action against them?

MR. PHILLIPS: We have always assumed, from the first day of this litigation, that a Bivens action would lie against the individual employees.

JUSTICE O'CONNOR: Well, there's a difference between assuming it arguendo and conceding it.

MR. PHILLIPS: Well, for purposes of this litigation and for purposes of my client, there's no question we would concede that an action would have legitimately been -- been raised against them.

To say in a future case whether or not a private employee might raise an argument as to whether Bivens should be extended is a separate question.

JUSTICE ANTHONY KENNEDY: Now, if that's -- if that's true and that concession holds, if the employee is sued for a wrongful act, under State law would it be permissible in your view, just under standard principles of derivative liability, to hold the corporation for that tort, for the tort of its own employee?

MR. PHILLIPS: You mean under a theory of respondeat superior.

JUSTICE KENNEDY: Yes.

MR. PHILLIPS: As a matter of State law, it's going to depend on the State. Most States I think do recognize respondeat superior liability.

JUSTICE KENNEDY: So, State courts -- State courts could do that without interference with any Federal policy or -- or without any superseding Federal law to the contrary.

MR. PHILLIPS: Well, obviously, there's going to be at least the potential argument raised with respect to Boyle and whether or not the -- the decision to hold the individual liable under those circumstances is preempted under Boyle.

But I think the argument here is slightly weaker than it was in Boyle, and it probably depends to a certain extent on -- on the -- on whether or not the Federal Government in fact is dictating what both the -- what the employer and the employee are doing with respect to --

JUSTICE KENNEDY: Well, if that's true, the employer, I assume, would routinely be named in the suit. So, you're not doing a whole lot by saying that the employer is independently liable for its own -- for its own participation in the -- or alleged participation in the tort.

MR. PHILLIPS: Well, I think you're doing an extraordinary amount, Justice Kennedy. And the Government's brief, I think quite rightly, points out at page 20 in footnote 10, that the availability of a corporate defendant significantly changes the mix with respect to any kind of litigation.

And actually, if you look at the three cases that postdate this Court's decision in FDIC v. Meyer, all of those are cases in which the only defendant who was named happened to be the corporation. The individuals were not named under any of those circumstances.

JUSTICE RUTH BADER GINSBURG: But Mr. -- Mr. Phillips, if the -- if the proper way of looking at this is the principal agency relationship, when you're dealing with the Federal Government, the Federal Government is the principal, the agent is the officer.

Here, when the Government contracts, the principal agency relationship exists with the corporation. So, I don't see why it doesn't follow that the agent -- the agent in this case is the corporation -- why the agency liability doesn't carry over.

MR. PHILLIPS: The -- the premise of your question, Justice Ginsburg, I think is where the -- where the mistake lies in the final outcome of the decision. This Court made quite clear in FDIC v. Meyer that it's not a principal agency relationship because there's no question that the Federal Deposit Insurance Corporation was the agent of the United States Government for purposes of what it did in that particular context. The Court said that's not the right analysis. The right analysis is to go back and look at the Bivens action and make a judgment with respect to whether or not the litigation, as it comes to this Court, adequately serves the two primary purposes of Bivens; that is, that there is relief available and that there is an effective deterrent in place.

If those -- if those are satisfied, then the issue of whether you should extend Bivens to a new category of defendants, this Court said, should be answered in the negative, saying that there is no reason to add additional defendants under those circumstances.

JUSTICE ANTONIN SCALIA: Mr. Phillips, I wish somebody here were arguing on behalf of the employee. It's -- it's certainly in your interest to say, well, of course, there's liability on the part of the employee. And it's -- it's in the interest of -- of your opponent to -- to say the same.

I'm not -- I can see us deciding this case on, you know, well, after all, there's a suit against the employee. Shouldn't we face that in a -- in a case in which somebody is -- is arguing that the employee is not liable?

MR. PHILLIPS: No, Justice --

JUSTICE SCALIA: And there are arguments to that effect. I mean, after all, the -- the employee you say is an agent of the United States, but if -- if he's acting under color of Federal law as an agent of the United States, he's only an agent of the United States because he's -- he's an agent of -- of your client. So, he's sort of an agent of an agent. It would seem very strange to me to hold -- to hold the employee and not to hold your corporation.

MR. PHILLIPS: Well, the question ultimately comes down to this, Your Honor, is that does it make any more sense in this context to resolve this issue at this point in time than it did to decide the FDIC v. Meyer case at that point in time. Because, again, we didn't have the employee involved in the litigation as it came to this Court. He had fallen out in that litigation, just as the employee had fallen out in this litigation. And what the Court said was, we should analyze and, indeed, have to resolve the conflict as to whether a private corporate defendant ought to be liable under these circumstances. So, that issue needs to be resolved. And, what's more, if the Court puts off for another day deciding the liability of the employee, it doesn't affect whether my client ought to be held not responsible in a Bivens action because either one of two things will happen. Either you will conclude that private employees are, in fact, susceptible to an action under Bivens, in which case the adequacy of the remedy and the adequacy of the deterrent by having that direct lawsuit means that there's no reason to extend Bivens to my client. Or you'll conclude that the distinction is between public and private actors and that we have special reasons giving us hesitation and caution into extending the Bivens action, since it's an implied cause of action and not a congressionally adopted one, into the sphere where the private actors are acting under color of Federal right.

CHIEF JUSTICE REHNQUIST: Strictly speaking, Mr. Phillips, for you to say that you're making a concession that the employee -- I mean, that's like a lawyer representing A saying he concedes B would be liable.

MR. PHILLIPS: I was only --

CHIEF JUSTICE REHNQUIST: I mean, it's not much of a concession.

MR. PHILLIPS: I was simply answering Justice Kennedy and Justice O'Connor's question. They phrased it in the form of a concession, to be sure.

CHIEF JUSTICE REHNQUIST: I know they did.

MR. PHILLIPS: I'm not giving up much in that regard. But as I say, the important element here, at least in my judgment, about how all this plays out is that if the Court decides that employees are amenable to suit, there's no reason to sue the corporation. If they decide they are not amenable to suit, it's going to be because of the public/private distinction. And again, under that theory, we're not amenable to suit.

JUSTICE DAVID H. SOUTER: Mr. Phillips --

JUSTICE SCALIA: Well, it could be on -- on the basis that they're an agent of an agent, that we're not going to track it that far down. I mean, you -- it's your corporation that has been hired directly by the Government, not the individual employees of your corporation. I mean, that's certainly another basis on which one could draw --

MR. PHILLIPS: That would be an argument, but in order to do that, Justice Scalia, you would then have to abandon what was one of the principal legs of Bivens in the first instance, which is that the litigation against the private individual and the deterrent value of litigation against the private individual is the most significant way to achieve the overall objectives --

JUSTICE SOUTER: Well, I don't know that we would have to abandon that because the -- the concern, as I understand it, that the action against the individual has a more significant deterrent effect than the action against the agency, was a concern that was expressed in the context of dealing with a public agency. Here we're dealing, in the case of your client, with a private corporation. And I would suppose that the deterrent effect of holding the private corporation liable for the acts of its employee would be very significant. I assume that a private corporation like yours is going to be very careful about employees who, in effect, saddle it with significant liability. So, on the deterrence theory, it seems to me you -- you would lose the argument.

MR. PHILLIPS: I think the flaw in your analysis of the deterrence theory, Justice Souter, is that you're looking to figure out what is sort of the optimal answer for deterrence. And the way I read this Court's decision in FDIC v. Meyer is that what we satisfy ourselves about is, is there an effective deterrent and an effective damages remedy in place and available to the individual plaintiff in a particular instance. And that -- it seems to me that's the gap-filler role that Bivens calls on the Court to -- to provide. When you go beyond -- I'm sorry.

JUSTICE SOUTER: I'm sorry. You finish.

MR. PHILLIPS: But when you go beyond that, it seems to me you then assume much more of a legislative role. Then you're trying to balance the relative optimal deterrence values. Then you have to take into account the effect on the Federal fisc or the relationship between the -- the Federal contractor and the Federal Government. And that's a series of questions, I submit to Your Honors, you ought to leave to Congress. And that's exactly what the Court said in Meyer.

It analyzed and said, questions of optimal deterrence, questions of effect on the Federal treasury, those are issues that we think are better dealt with by Congress as long as we have an adequate --

JUSTICE SOUTER: Yes, but if you carry -- if the carry the logic of that argument far enough, then there would be no liability at all because we know that if we hold, for example, the individual liable, there is going to be a tendency there to shift that liability either by insurance or by respondeat superior and insurance, ultimately to the cost of contracting. And we know, even in the governmental situation, if you hold the individual liable, chances are there is going to be some kind of liability mitigating mechanism, whether it be insurance or whatnot, that ultimately is going to find its way into the wage structure. So, if -- if we start getting too fussy about that, we better call the whole thing off and -- and overrule Bivens.

MR. PHILLIPS: Well -- obviously, we don't ask the Court to overrule Bivens. At least, we make that argument in the brief. But the -- I think the answer to that is there are two components of Bivens. One is, is there in place the gap-filler adequate remedy?

Is there a damages remedy and a deterrent effect from that damages remedy? Is that in place? Then sometimes, even though that's in place, there will be a serious question as to whether or not, nevertheless, special circumstances suggest that there ought to be caution.

And it's frankly the -- the respondents burden to satisfy both elements of that. What I'm suggesting to you in this context is you don't have to look at what the impact would be on the Federal Government at the end of the day. What you have to look at is whether there is an adequate remedy in place, and if you didn't have that, I think there would be a serious --

JUSTICE STEPHAN GERALD BREYER: How is this adequate remedy? The -- as far as deterrence is concerned, I thought Richardson explains why the deterrence considerations with the private company work perfectly, but they don't work at all where the principal is the Federal agency. And that's what I think Justice Souter was pointing out.

MR. PHILLIPS: Right.

JUSTICE BREYER: As far as alternative remedy is concerned, which alternative remedy? If you mean would there be a remedy under State law, that of course exists in Bivens too.

If you mean that you could sue the private person under Bivens but not the company, if that's what you mean, the individual but not the company --

MR. PHILLIPS: Correct.

JUSTICE BREYER: -- well, the next case the individual, if we say you can sue the company, would say the same thing. So, I mean, you see it's six of one, half a dozen of the other. The private person would say you have an adequate -- do you see my point?

MR. PHILLIPS: Well, you made two -- you made two points, Justice Breyer.

JUSTICE BREYER: The private person -- you -- you could have -- if -- if you're going to allow corporations, they say, oh, no, you have a private remedy against the individual, which I'm sure you conceded for that reason. The individual would say, oh, no, you have a perfectly adequate remedy against the corporation.

JUSTICE SCALIA: I concede that you have a perfectly valid remedy, yes. (Laughter.)

JUSTICE BREYER: What?

JUSTICE SCALIA: He would say, I concede that you have a perfectly -- (Laughter.)

JUSTICE BREYER: Exactly. That's right.

MR. PHILLIPS: Indeed, I may be making the argument --

JUSTICE BREYER: So, why then, given that conundrum, deterrence: Richardson. Adequate remedy: the problem we stated. Conclusion: make it a parallel to 1983.

MR. PHILLIPS: Well, now you've made three points, Justice Breyer. And let me try to take them up in -- in turn. First of all, with -- with respect to Richardson, I mean, that's an immunity case, and the Court is in a world where it has to resolve optimization in the immunity context.

That's a judge-made set of rules, and this Court is obliged to resolve it in the best way that it can under those circumstances. It's a fundamentally different question about whether you hold the defendant liable in the first instance in a private -- privately implied cause of action derived directly under the Constitution. We could differ and disagree about what's the right method of -- of achieving optimization, but I don't think you can read Richardson as saying categorically that you will -- you will lose all your deterrent effect.

To say that is I think to both abandon what you said in Bivens and clearly abandon what you said in Meyer. With respect to the ability of the private person to come in and argue the next time around, his argument I think, frankly, is going to be a tough one because what he's got to say is even though you have now held the corporation not to be liable -- I'm assuming for purposes of the moment that I win here -- that -- that we, nevertheless, also ought not to be liable. And, again, as I said earlier,

I think the distinction there is between the -- having a remedy in place that is in any meaningful way effect or not, and therefore it is a tougher argument for the private employee under those circumstances to make that particular argument.

And then your last point with respect to section 1983 simply disregards what I perceive to be the fundamental difference between having a congressional enactment that comprehensively regulates a particular area provide liability against any person and sets up a set of rules in -- in order to effectuate that particular remedy and the situation we face in Bivens where, heretofore, we have never imposed -- this Court has never --

CHIEF JUSTICE REHNQUIST: And -- and --

MR. PHILLIPS: I'm sorry.

CHIEF JUSTICE REHNQUIST: -- in 1983, too, in Monell we rejected the idea there could be any sort of respondeat superior liability. You had to show that the -- there was a policy maker involved and that sort of thing.

MR. PHILLIPS: That's absolutely correct, Mr. Chief Justice.

JUSTICE GINSBURG: Is that not present here, Mr. Phillips? Because the policy of saying people who live above -- below the fifth floor, that's a policy set by the employer. So, this is a case where it's not an assault by a guard. This is a case of policies set by the corporation itself.

MR. PHILLIPS: Well, there are two answers to that, Justice Ginsburg. First of all, no policy gets set by a corporation as such. All -- all policies, just like all actions of corporations, have to be undertaken by individuals. Somebody had to have adopted that policy. But second of all,

I don't read the respondent's complaint here to have alleged any policy of the corporation was at fault here. The -- the complaint itself specifically says there was an exception made for the respondent so that he could take the elevator. A specific employee who was named as a defendant --

JUSTICE GINSBURG: Not in -- not in the written policy. It wasn't written down and that's why this guard didn't get it. But anyway, at this stage, we have to construe the complaint most favorably to the plaintiff. Is that not so?

MR. PHILLIPS: Well, I -- you can construe it most favorably to the plaintiff, but not necessarily to embrace a complete different theory of the case that is far from clear. And this is -- and remember, this was written by counsel. This is not a pro se complaint we're talking about.

This was counsel's complaint. I think if they had meant for this to be a policy or practice case, they would have said so. But I think the more fundamental point here is -- is that -- is that there has to be a policy maker. If that policy was unconstitutional, then it's still available to the plaintiff in a Bivens action to sue that policy maker directly for having adopted the unconstitutional policy and to sue the employee for having implemented the policy in an unconstitutional fashion.

So, there are adequate remedies, which means that the remedy against us is inappropriate. If there are no further questions, I'd reserve the balance of my time.

CHIEF JUSTICE REHNQUIST: Very well, Mr. Phillips. Mr. Lamken, we'll hear from you.

MR. JEFFREY A. LAMKEN: Mr. Chief Justice, and may it please the Court: When an inmate in a federally operated facility is subjected to a constitutional deprivation, that inmate has a remedy against the individual Federal officers who committed the constitutional deprivation. There is no indication that that Federal remedy is inadequate for --

JUSTICE GINSBURG: Are you making that as arguendo, or are you conceding that? Now, your brief seems to make a concession to that effect.

MR. LAMKEN: In the first instance, we think it should be assumed arguendo because if there's a reason not to subject the individuals, the private individuals, to liability under Bivens, it would be that private individuals have so few immunities and so few defenses, compared to their governmental counterparts, that there's no reason to infer a Federal cause of action. If it's true with respect to them, then it's a fortiori true with respect to the corporation as well.

JUSTICE BREYER: Why couldn't you say the same about joint tortfeasors?

MR. LAMKEN: Pardon? Oh.

JUSTICE BREYER: Why couldn't you make the same kind of argument about joint tortfeasors? You'd say there's no reason to hold two. We have one.

MR. LAMKEN: Well, in fact, with respect to joint tortfeasors, you have two separate actions. They're both liable for their --

JUSTICE BREYER: Why wouldn't the second -- you'd say we'd only give you one, whoever you sue first, because it's adequate.

MR. LAMKEN: Well, you need to deter both of the joint -- the actions by the joint tortfeasors.

JUSTICE BREYER: And here we have to deter the policies of the corporation.

MR. LAMKEN: Yes, but the corporation is an unusual tortfeasor in this sense, in that it cannot act except through other individuals, through its employees. So long as you deter --

JUSTICE KENNEDY: But that's true across the whole law of torts. I mean, I've been lumbering along for half a century under respondeat superior. I thought this -- this was a deterrent to the employer if the employer is liable for the employee's wrong. Why is it suddenly different?

MR. LAMKEN: Well, if this were a common law court or a legislature, I could certainly see adopting the common law rule. But the Court -- this is not a common law court, and what -- Congress has the principal role of establishing causes of actions, Federal cause of action, for damages. So, the role of the Court is not to establish --

JUSTICE KENNEDY: It just rings -- it just doesn't ring true to me that there's no deterrence by holding the corporation liable. I -- I thought the whole law of torts was based on a contrary assumption.

MR. LAMKEN: Well, in fact, Your Honor, if you look at, for example, the fifth edition of Prosser & Keeton on Torts, William Prosser tells us that that argument is makeweight, and that the real reason for holding the corporation liable under respondeat superior is to ensure that the costs of accidents are incorporated into the price of products and, therefore, spread to society at large. In a context like this one, where you have one purchaser, the Government, and the cause of action is unique to where the Government is the purchaser of the service, that type of rationale can't hold water. This Court is generally very cautious about imposing liability for the purpose of distributing money --

JUSTICE SCALIA: Except that one purchaser gets its money from everybody. I -- I think nobody can spread -- can spread the cost as well as the Government. (Laughter.)

MR. LAMKEN: Yes, Your Honor. But it is typically -- this Court is typically most cautious about establishing rules that would have the effect of taking money from the treasury, which is under Congress' control and to be spent for the public good and spending it according to --

JUSTICE SCALIA: That's -- that's a different argument which -- which you make, that we shouldn't --

JUSTICE JOHN PAUL STEVENS: May I ask you --

MR. LAMKEN: That -- that --

JUSTICE SCALIA: It would be, in effect, the same as holding the Government liable.

MR. LAMKEN: Well, in this case, where you have a uniquely governmental purchaser and a uniquely governmental cause of action, it does tend to have that effect, Your Honor.

JUSTICE STEVENS: May I ask you a hypothetical that Mr. Phillips' last argument suggested to me? Supposing you have a case in which an executive sets the policy that everybody has to climb the -- the six flights of stairs every day. Then the executive quits. Five years later, an employee is compelled to climb the steps because that policy is in place. Whom can he sue?

MR. LAMKEN: Well, Your Honor, when -- when prisoners in public institutions, federally operated institutions, encounter precisely that situation --

JUSTICE STEVENS: No. I'm assuming, of course, there's a corporation involved here.

MR. LAMKEN: But it shows that this -- that type of situation is hardly unique to a private corporation. It -- it occurs all the time in Federal institutions. And he would be able to sue first any employee who enforced the -- the policy.

JUSTICE STEVENS: All the employee is doing is carrying out his instructions.

MR. LAMKEN: Right, but there is under Bivens no Nuremberg defense. Each -- one of the teachings of Bivens is that the responsibility for respecting constitutional rights is personal and individual, and therefore, liability for violating constitutional rights is also personal and individual.

It ill-serves that notion of personal responsibility to shift the liability from the -- from individual -- individuals who violate constitutional rights to some other source of money such as the shareholders or the Government.

JUSTICE STEVENS: Supposing the policy also said any employee who fails to carry out this policy gets fired forthwith.

MR. LAMKEN: That would be the same thing if a -- if an individual Bureau of Prisons employee --

JUSTICE STEVENS: -- the individual liable for --

MR. LAMKEN: Individually liable. Plus you also get to sue the policy maker and anybody who exhibited deliberate indifference in carrying on that policy. It's precisely the same rule that exists in the Federal context when you have a -- a Bureau of Prisons-run facility.

JUSTICE GINSBURG: Why does it make a large difference whether you sue the CEO or the corporation itself? Practically in terms of your interest as the Government money, if the corporation is going to pick up the tab, why does the Government care?

MR. LAMKEN: Well, Justice Ginsburg, I think the rub is in the question, if the corporation is going to pick up the tab. The corporation will not necessarily pick up the tab. The Government, for example, does not routinely indemnify its employees before a judgment or even necessarily after judgment. On occasion, we both decline to indemnify them. Sometimes we decline to represent them. Sometimes we criminally prosecute them ourselves. The point of the matter is to avoid moral hazard, to ensure that there is that deterrent effect, both corporations and the Government alike are wise not to indemnify their employees in advance and refer only to indemnify in those circumstances where it's both in the corporate interest and in the interest of ensuring that the corporation or the individuals --

JUSTICE SCALIA: You also may get larger judgments against the corporation than -- than against Jack Armstrong personally. No?

MR. LAMKEN: That is one of the difficulties and that is one of the reasons why there is concern that individuals, if given the opportunity, will choose to sue only the corporation and not the individuals.

And as Mr. Phillips pointed out, in the three post-Meyer cases where this issue has come up, in each of them, the individual chose to sue only the corporation and not the individual. And, therefore, the direct deterrent effect on the individual, the direct deterrent effect that exists and operates within the Federal Government, would be absent in the other context if the Court were to recognize a Bivens against corporations as well as the individuals who violate --

JUSTICE GINSBURG: If -- if the Government --

JUSTICE KENNEDY: If we reject your position and impose Bivens liability on the corporation, I assume Congress can't do anything about that absent some supplemental scheme that's equally effective?

MR. LAMKEN: Your Honor, it's not clear the degree to which Congress can replace Bivens liability. I would believe that Congress would have the ability to either -- if this Court were to decide not to have corporate liability, Congress could act to establish that liability, or if the Court were to say that there is --

JUSTICE SCALIA: The other way around.

MR. LAMKEN: The other way around is a more difficult question. I don't believe this Court's cases are clear. However, if Congress does establish an alternative remedy, I believe the Court would be very likely to respect it unless it is clearly inadequate for the purposes.

JUSTICE SCALIA: I don't understand that. If Congress established an alternative remedy, we might say that the Constitution no longer requires the Bivens -- the Bivens remedy.

MR. LAMKEN: No, Your Honor. As I read Bivens --

JUSTICE SCALIA: But if Congress just -- just decides that we're wrong in saying that there's a Bivens remedy here, what could -- what could Congress possibly do about it? I mean, if -- if there is a Bivens remedy here, it's one that's demanded by the Constitution. Right?

MR. LAMKEN: Well, Your Honor, it depends on how you read Bivens. Bivens itself doesn't purport to be compelled by the Constitution, that the Constitution requires it. It very much relied on cases like J.I. v. Borak where the Court felt that it was in a position to sort of assist in the vindication of constitutional rights, even if it were not mandated or compelled by the Constitution. Where the Court -- where the Court uses its discretion to do that, however, the Court must be particularly cautious about it so that it does not usurp the role of Congress as the principal creator of -- of causes of action for damages under the Constitution. If there are no further questions.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Lamken. Mr. Pasternak, we'll hear from you.

MR. STEVEN PASTERNAK: Mr. Chief Justice, and may it please the Court: The question before the Court today is whether the Bivens cause of action is applicable to a for-profit corporation carrying out a core function of the Federal Government.

There's no dispute that in operating the Le Marquis Prison, CSC was performing a core governmental function. There's an important distinction, both as a matter of history, constitutional law, and common sense, between Government and private corporations, between the Government way of doing things or the Government model and the private market model. The Solicitor General so recognized 4 years ago in the oral argument in Richardson v. McKnight. And the distinction exists due to the differences in accountability, its mission, and the degree of control that exists over the employees. As far as accountability, the Bureau of Prisons, as a Federal Government agent, is accountable to Congress and to the public, as opposed to a private for-profit corporation, like CSC, which is responsible to its shareholders. It has no one appointed onto its board from either Congress or the President.

JUSTICE O'CONNOR: Well, Mr. Pasternak, if Bivens remedies are available against the employees of the corporation, why isn't that enough?

MR. PASTERNAK: Because of the mentality that exists as far as the corporation, Your Honor. It's the corporation that has a direct relationship with the Federal Government. It's the one that has the contract.

JUSTICE O'CONNOR: Yes, but the corporation can only act through its employees, and if those employees are subject to Bivens liability, if they are, why isn't that enough to deter any unconstitutional conduct?

MR. PASTERNAK: It wouldn't be sufficient because the employees are at-will employees. Their job is on the line. Their promotions are on the line. They're following the directions as far as the corporation in order to get ahead. While the --

CHIEF JUSTICE REHNQUIST: How can you generalize that the employees are at-will employees? I mean, that would vary perhaps from case to case.

MR. PASTERNAK: In the State of New York, they're at-will employees.

CHIEF JUSTICE REHNQUIST: But we're deciding a case not just on the basis of the State of New York, but maybe in some other States, they have a 3-year contract.

MR. PASTERNAK: It may vary from State to State. It may vary from individual to individual, but the focus still has to be that it's the corporation that has the control, and to determine whether or not there's a breach as far as the employee's contract or whatever, it's the one that's setting the policies that the individuals have been following.

JUSTICE SCALIA: Mr. Pasternak, do you think running a municipally owned utility is a core governmental function?

MR. PASTERNAK: It's possible that it may be.

JUSTICE SCALIA: May be. What about running a national park or a public park? Is that a core governmental function?

MR. PASTERNAK: Getting further removed. I think it might be, but again, it's not a prison situation.

JUSTICE SCALIA: We're going to develop a whole new area of constitutional or quasi-constitutional law deciding case by case what is a core governmental function and what isn't a core government -- you assert that only -- only those corporations that are performing core governmental functions would -- would be subject to Bivens liability, not all corporations who are under contract with the Government.

MR. PASTERNAK: If I may respond. As far as the 1983 analysis or under the Federal Tort Claims Act, the same type of analysis has to be done to determine whether or not you have a Government actor and then whether or not there was a violation that takes place.

In our fact pattern here, there's no real question that in operating the prison, it is a core governmental function. They are authorized to act because the -- the Government has contracted with the corporation and has embodied it with the power, in order to act and to run that facility.

JUSTICE SCALIA: Have -- is there a whole line of cases under section 1983 dealing with this subject of what is a core governmental function?

MR. PASTERNAK: There's not a whole line of cases, but there is -- there are cases, Your Honor, that have to be addressed as far as either a Federal Tort Claims Act case or a section 1983 as to the issue of whether or not Amtrak, for instance -- whether it would be acting as a Government agent or not.

JUSTICE SCALIA: Does it have to do with whether it's performing a core governmental function or not? It has to do with whether it's a Federal agency or not. That's quite a different question from whether it's performing a core governmental function.

I'm talking about a concededly private corporation, and -- and you want us to decide case by case when -- when you hire a private corporation to manage concessions at a -- at a national park, whether that is a core governmental function or not.

MR. PASTERNAK: I think anytime you're dealing with a corporation as opposed to a Government agency, there are different things that come into play as far as what their motives are.

JUSTICE GINSBURG: I thought you just wanted us to decide a case involving prisons, which can be run by a State, by the Federal Government, or can be contracted out by either.

MR. PASTERNAK: That is what our fact pattern is.

JUSTICE GINSBURG: And this is a substitute for a Federal prison just as sometimes Federal prisoners are housed in State prisons.

MR. PASTERNAK: That's correct.

JUSTICE GINSBURG: And would there be liability in that situation? Suppose this halfway house had been run by the State of New York.

MR. PASTERNAK: Then there would be liability for the violation of the Federal Constitution, and there would be no difference. In fact, this particular facility housed both State and Federal prisoners --

JUSTICE GINSBURG: And as to the -- so, if -- if Mr. Malesko had been a State prisoner?

MR. PASTERNAK: Then he would have his claim. We would literally have to be checking the dog tags of the individual housed at this particular facility under the same fact pattern to determine, under the CSC's argument, whether or not there would be liability.

And we submit that that's the wrong analysis to make, that a Federal prisoner should certainly have equal, the same rights as a State prisoner.

JUSTICE GINSBURG: May I clarify a point that I raised to Mr. Phillips? Is your complaint one of a pattern or practice attributable to the corporation as distinguished from the action of the individual guard? He said that you did not plead any kind of policy on behalf of the corporation.

MR. PASTERNAK: There are different elements as far as what was pleading in the complaint. There was initially a pro se complaint that was filed. The only substitution that really took place at the time of the pleading was to name the individual guard.

That was ruled to be untimely by the court because Mr. Malesko should have known -- arguably should have known or should have been trying to find out who that individual was.

The problem that exists, obviously, is trying to identify who the individuals are that set the corporate policy. As far as the specific policy, there was the policy of putting Mr. Malesko up on the firth floor, as opposed to a lower floor.

CHIEF JUSTICE REHNQUIST: Was that pleaded as a policy?

MR. PASTERNAK: Not pleaded directly as a policy, no.

CHIEF JUSTICE REHNQUIST: You say not pleaded directly as a policy. What do you mean by that?

MR. PASTERNAK: Well, again, we're going back to the language of the pro se complaint.

CHIEF JUSTICE REHNQUIST: Yes. And that's what I was asking you about. What did the pro se complaint say about it?

MR. PASTERNAK: He did not allege it as a policy per se. He alleged it that it was improper as far as the housing. We have the situation where you have him housed --

JUSTICE STEVENS: In fact, he did allege that he was permitted to use the elevator usually, didn't he?

MR. PASTERNAK: He did.

JUSTICE STEVENS: Yes. So, he couldn't have been complaining about the policy then.

MR. PASTERNAK: Well, there's still a complaint that would exist -- I mean, there is a possible claim as far as the ADA and just the general logic of housing somebody with a known heart condition on the fifth floor where he would be susceptible to being ill in the event of a fire.

I mean, it doesn't make any sense, as they acknowledged in discovery, in order to have someone housed on that higher floor if there's a danger that exists. It just doesn't make any sense.

JUSTICE STEVENS: I thought his heart attack made it hard to climb stairs, but going down stairs might be different (Laughter.)

JUSTICE BREYER: I would like to hear directly your -- your response. The Chief Justice had a point I hadn't thought of, which is true, that in Monell, there isn't direct respondeat superior liability in a case involving an entity that does not have sovereign immunity, namely the municipality. All right. How -- how does that play out here?

MR. PASTERNAK: Here --

JUSTICE BREYER: What is that -- should there be respondeat superior? Is it necessary to parallel the Monell? What's your opinion?

MR. PASTERNAK: I would argue that under either situation, we would satisfy the requirement. Under the respondeat superior, we would certainly satisfy it. Under the Monell standard, it's the failure to adequately train and supervise the guards.

JUSTICE BREYER: All right. So, you can go either way. But what in your opinion is the correct rule of law?

MR. PASTERNAK: If we're looking for parallelism between the two, then it would make sense to have the Monell standard, but it not necessarily has to follow because under common law, we would have the respondeat superior. I would argue for the respondeat superior and to have it as a normal liability as you do in normal cases.

JUSTICE KENNEDY: Well, we rejected parallelism in Richardson. Parallelism -- symmetry is very difficult to achieve in this area as of this point, no matter what we do.

MR. PASTERNAK: It was rejected and symmetry is difficult to achieve. However, we are seeking symmetry in the sense that a private corporation should be held accountable the same way it is acting under a contract with the Government and the same way a State prisoner would have the same remedy against the corporation --

JUSTICE O'CONNOR: Well, you're arguing the so-called parallelism with section 1983 actions. But it's been pointed out that was a congressional enactment, and there is no parallel enactment for Bivens type claims. That was a Court-created doctrine and it's been rather limited.

MR. PASTERNAK: It has been limited. It is Court-created, in order to address deterrence, but it has been applied to the situation of a nongovernmental -- nongovernment or to a nongovernment agency. In this situation, the question that arises is where does a private for-profit corporation fall on the spectrum. Is it more akin to a Government agency which has to be responsible to Congress, to the President, and to the public, or is it more akin to a regular Federal employee? We would submit that it's closer to a Federal employee, only it has certain negatives worse than a Federal employee in the sense that it has a duty, a fiduciary duty, to try and maximize profits, a factor that would not normally enter into the situation of a Federal employee who's just going along and doing his job and fulfilling his requirements.

But here you have a specific fiduciary duty to maximize the profits. They also -- the person who were in control. There, the corporation is the one that controls its employees and sends the directives as far as hiring, firing, promotions, benefits. It is the one that has the control and can send the signals on to each individual employee. So, as far as where it falls in the scheme, we would submit it is more akin to a Federal employee, only there are greater dangers which would warrant the imposition of the Bivens liability in order to have the proper deterrence.

JUSTICE SCALIA: Why shouldn't we leave this to the Federal Government, to the Congress, to determine, rather than doing it ourselves?

MR. PASTERNAK: For the same --

JUSTICE SCALIA: I mean, we can say this is a totally different situation from what Bivens, whether it was right or wrong, decided. That decided a case where you have a Federal officer acting.

These are not technically Federal officers. If there is going to be a cause of action, Congress can create it. If Congress hasn't created it, there's no cause of action, which is the usual situation in the world, isn't it?

MR. PASTERNAK: Oftentimes. However, the issue here is the Federal employee under Bivens is acting because the Government has delegated that responsibility to him to act.

In a sense it's a contract. He's been hired to act. So too, you have the corporation who has been hired by the Federal Government pursuant to the contract in order to act and to satisfy what the requirements are.

JUSTICE SCALIA: It may be logical to extend it. It may well be. And if it's logical, presumably Congress will do it.

JUSTICE O'CONNOR: And also, there -- there is undoubtedly a State law cause of action in negligence that would lie against both the employee and the employer under respondeat superior.

MR. PASTERNAK: There would be a common law cause of action. However, that would not necessarily address the separate constitutional violation that occurred that needs its own deterrence.

JUSTICE SCALIA: Would there have been a State cause of action against Federal agents acting under -- under Federal law?

MR. PASTERNAK: You would have the issue as far as normally you would have the immunity that would be granted under the State law, and you would have the problems in that direction. But we do not have --

JUSTICE SCALIA: Which means that there's a special reason for the court to invent a cause of action that does not appear anywhere in the Constitution or in a statute for Federal agents who perhaps can't be sued under State law. But when you're not talking about Federal agents -- you're talking about private employees -- normal tort law undoubtedly applies. And why -- why can't we leave it there? And -- and if Congress wants to extend an additional cause of action, let -- let Congress do it.

MR. PASTERNAK: Since we are dealing with a violation of the Federal Constitution, we would submit that there should be one uniform body of decisions coming out as far as what that Federal law should be and how it should be interpreted, that we should not be subjected to the vagaries of the differences in the various States as to their rules as far as procedure, discovery, but there should be one -- one body of law encompassing, from the Federal side, a violation of a Federal constitutional right. It's not sufficient to just leave it to the States.

JUSTICE KENNEDY: Well, is it clear that the employee would be liable under State law in light of Boyle v. United Technologies?

MR. PASTERNAK: In McKnight, the argument -- rejected the argument of Boyle, as far as a corporation being -- not being liable and a danger as far as the public fisc. In this type of a situation, we would submit that it would be appropriate to find the corporation liable and that the dangers to the public fisc are minimal, certainly more minimal than you would have in the normal Bivens case, we would submit.

JUSTICE KENNEDY: Well, of course, McKnight rejected parallelism, and -- and you -- you want it. McKnight is not your best precedent.

MR. PASTERNAK: Not entirely, but we are seeking to have the parallelism also as far as a -- rights of a Federal prisoner and a State prisoner, to both be able to go and sue the corporation that is --

JUSTICE GINSBURG: But you have an anomaly either way because why shouldn't the symmetry be between someone who is a Federal prisoner in the Federal prison and someone who's a Federal prisoner in a private prison?

You recognize that there would be no action against the Bureau of Prisons if the Bureau of Prisons had been the jailer. So, why should it be -- why shouldn't that be the symmetry?

MR. PASTERNAK: Because the Correctional Services Corporation is not the Government. It operates under a different set of rules and regulations.

JUSTICE GINSBURG: But you want it to be like the State [*40] government, because if it were a State -- if a State were running this prison, then there would be liability.

MR. PASTERNAK: Yes, but what I'm looking for is it for not -- for it to be recognized by this Court that the private corporation, just like the State, is not the Federal Government. There is no Federal Government immunity that applies. That's the reason we can sue the States if there's a violation.

So too, we should certainly be able to sue a private corporation, a private corporation which is operating under a different set of rules and regulations than is the norm for the Federal Government and for a Federal agency.

JUSTICE GINSBURG: With respect to the adequacy of a remedy in the State court, is it not so that the liability would be greater as to a private employee because the private employee would not have a defense of qualified immunity that would be available to a Federal officer?

MR. PASTERNAK: There would be less defenses raised as far as a private individual. That's correct.

JUSTICE GINSBURG And that would tend to make the State law remedy more adequate?

MR. PASTERNAK: Possibly more adequate but still inadequate in order to address a Federal constitutional violation.

JUSTICE SOUTER: Well, you're saying that -- I think you're saying the State law remedy simply doesn't address the constitutional violation. The State law remedy may be a State tort remedy, but it's not an Eighth Amendment remedy. Is that you're --

MR. PASTERNAK: That is correct.

JUSTICE STEVENS: You know, there's one puzzling thing about this case. You don't really cite the Eighth Amendment in your complaint, as I read it, do you? That is, it isn't an Eighth Amendment claim where you're claiming deliberate indifference on behalf of the prison officials? Is that the nature?

MR. PASTERNAK: It does -- it is an Eighth Amendment, but it is not cited.

JUSTICE STEVENS: And then, therefore, your burden in the Federal claim under the Eighth Amendment is heavier than an ordinary negligence case, isn't it? So, by going into Federal court, you -- you've assumed a higher burden than if you brought a negligence case. Am I correct in that?

MR. PASTERNAK: Well, both theories would be applicable as far as being -- bringing the suit. There would be a higher standard in the Federal court as far as the deliberate in difference --

JUSTICE STEVENS: Right.

MR. PASTERNAK: -- a standard which we submit we would - my client, in filing the suit pro se, satisfied. He would also be satisfying a lower standard as far as the negligence as well.

JUSTICE GINSBURG: Was this complaint ever amended since your client gained representation, or are we still operating under the pro se complaint?

MR. PASTERNAK: It was amended only for the purposes of -- of attempting to name Mr. Urena as a defendant, and then there was a proposed second amended complaint which would be naming additional defendants, which -- and I believe also different causes of actions, but that was denied at that time.

JUSTICE GINSBURG: At -- at -- it's puzzling why there wasn't enough time to identify that individual, that Mr. Urena. I could understand the pro se litigant having a limited ability, but once lawyers came into it, why wasn't -- why was it so hard to find out who was John Doe I?

MR. PASTERNAK: My appearance came after the time period. Mr. Malesko had the case, and there was a motion that was initially made to dismiss the case. It was only after that case, that that motion was denied, that my -- that I came into the case.

So, he had the case pro se for the entire time period where he would have had to identify who the John Doe was and would have had to know how to conduct the discovery in order to ascertain who the John Does were and the difficulty that he would have, as far as the corporation's responsiveness to identifying who Mr. Urena was, who set the policy as far as the elevator, who set the policy as far as the medication, who set all of the policies. It's not an easy burden for someone to try and identify who the specific person is that would have to be sued, which is why the suing of the corporation is a more manageable one from the plaintiff's point of view. It would also be a more manageable one from the defendant's point of view, we would submit, also because it would allow the corporation to be the one who's controlling the litigation. It would be avoiding potential conflicts that exist by naming the individual employees and having them go out and retain their own counsel. It would limit the -- it would reduce the cost of the litigation for the defendant because you're ultimately looking at the corporation, and it would only have to have one set of attorneys as opposed to a multiple set of attorneys. So, the cost to defend would go down as far as the corporation. If we're also operating under a claim under Federal law, then the rules of the game, as far as the discovery, as far as the motion practice and general procedure, would also be under the Federal law as opposed to the State law, so that it would be easier for the corporations to control their costs because they would know how to be defending this type of an action And in fact, hopefully, these types of actions would be decreasing as the liability would be there. There are certain programs that would be going into place by the companies to make certain that everybody has the proper training in order to avoid these types of constitutional violations. Indeed, that's one of the reasons that we submit that there would really be no danger to the public fisc. In the normal situation, you have a suit against a Government employee where the Government afterwards comes in and it either has provided counsel and will also pay any judgment that exists.

JUSTICE GINSBURG: Mr. Lamken said that's not necessarily so, that the Government would pay.

MR. PASTERNAK: Not necessarily so, but it is usually the case that happens. So too, you have a situation where CSC has acknowledged that it normally does indemnify its employees. And in our situation, there's a contract that exists between the Bureau of Prisons, which is a Federal agency here, and the private for-profit corporation, CSC, which required CSC to indemnify the Bureau of Prisons. In addition, it required CSC to have insurance. So, before any danger could take place to the public fisc, the first thing that would happen, as far as a judgment which would be rendered, is that it would be coming from the insurance company. The insurance company would then have to make a determination, is this something that would justify an increase in premiums or can it be more properly addressed solely by the implementation of special programs and trainings and seminars to the individual employees? If it were to increase its premiums, then the corporation would have to make a determination whether or not to pay it or to seek other insurance to get a better rate.

Only if that rate is increased, then the corporation would then have to turn around and say, well, is this a cost that we should be absorbing or to try and pass it along to the Federal Government?

JUSTICE SCALIA: All insurance companies are going to increase rates if the corporation -- if they know that the corporations are going to be liable.

MR. PASTERNAK: Well, right now, respectfully --

JUSTICE SCALIA: I mean, you know, they're -- they're not dumb and they're competitive. If corporations are not liable, the rates are going to be lower. If corporations are liable, the rates of all the insurance companies are going to be higher. That's going to be passed on to the United States Government. I mean, you know, that has to be -- that has to be the outcome.

MR. PASTERNAK: But no one is -- respectfully, no one is arguing that there could not be a theory for CSC to be liable under common law, respondeat superior, or under the ADA or any other theory for the corporation to be liable. It's only a question under what theory the corporation would become liable. So, that the damages, or the claims against the private corporation, would still exist. They would still have to be defending the claims. They would still ultimately, we would submit, be found liable for it.

JUSTICE SCALIA: You can't have it both ways. You're now telling me that you don't really need these cause of action -- causes of action because there -- there are other ways to get relief out there, which the insurance companies are already taking into account.

I mean, there's either a substantial difference in what you're urging this Court to adopt or not. If there's a substantial difference, it's going to come out of the Government's pocket.

If there isn't a substantial difference, why should -- why do we have to create a cause of action that does not appear in the Constitution or in a statute?

MR. PASTERNAK: If I may, I don't think that it necessarily comes out of the Government, because, A, you have the insurance, and B, if the rates get increased to the company, then the company then has to turn around and bid it out to the Federal Government, and the Federal Government can turn around and go through a different contractor. So, you have a different situation as far as the ability to pass it along, as opposed to the Federal Government where it comes in and indemnifies the employees --

JUSTICE SCALIA: This other contractor that it would pass it on to would not be subject to the same law that -- that we hold today?

MR. PASTERNAK: He would be subject to the same law.

JUSTICE SCALIA: And therefore, his rates would be higher too, wouldn't it?.

MR. PASTERNAK: Well, we would also -- anytime an insurance company is setting rates, they're going to be looking to the past history of the individual applicant to ascertain what the potential is and what programs are in place in order to try and control what those potential dangers are.

CHIEF JUSTICE REHNQUIST: Mr. Pasternak, compare for a moment, if you will, the elements of damages you would be seeking under the kind of claim you have in mind and the elements of damages you might be seeking under a State --

State law negligence action as -- as to amounts, amounts of money. Are there elements that you could recover for under the Federal claim that you couldn't recover for under a State negligence claim?

MR. PASTERNAK: As far as amounts, it's difficult to quantify as to what it is. As far as the Federal claim, we would have the claim of violation of the Federal Constitution.

CHIEF JUSTICE REHNQUIST: Yes, but what you want as a result of the claimed violation is money damages, I take it.

MR. PASTERNAK: That is correct.

CHIEF JUSTICE REHNQUIST: And I'm -- I'm asking you would the money damages be any different under -- under a theory of negligence as opposed to the theory you're proposing. Could some element of damages be permitted under one and not under the other, or would they be the same?

MR. PASTERNAK: I think it would depend on how a jury viewed the elements --

CHIEF JUSTICE REHNQUIST: Well, but I -- I mean -- I realize one jury can give you one result and one another. But let's suppose it's the same jury. Or just -- just -- I mean, the testimony as -- as to physical suffering and that sort of thing, it would be pretty much the same, wouldn't it?

MR. PASTERNAK: That would be.

JUSTICE SCALIA: Except you might have punitive damages under State law, mightn't you, if -- if indeed it was -- it was gross negligence or indeed virtually -- an intentional harming of -- of the prisoner? Under many State laws, you'd be able to get punitive damages, wouldn't you?

MR. PASTERNAK: There would be a potential under certain situations under State law to obtain punitive damages.

JUSTICE SCALIA: And you can't -- as far as I know, we haven't held that punitive damages are available under Bivens, have we?

MR. PASTERNAK: That's correct.

JUSTICE KENNEDY: A State cause of action -- could -- could a State just incorporate the Eighth Amendment standard as a matter of State tort law?

MR. PASTERNAK: I'm sorry. I didn't --

JUSTICE KENNEDY: Could the State, as part of a State cause of action, simply incorporate the Eighth Amendment as part of a State tort standard? There could be no reckless indifference or you're -- you're liable under State law.

MR. PASTERNAK: It could. The States would have the power to do whatever it pleased. Each State would have its own decision making.

JUSTICE KENNEDY: So, then you don't need the Bivens cause of action even for the Eighth Amendment because States are free to enact it if they choose.

MR. PASTERNAK: But that would leave to each individual State to ascertain and decide whether or not there should be a remedy that exists as far as a Federal constitutional violation, which is a separate and distinct harm that needs to be addressed.

JUSTICE BREYER: Is the same thing true about other Bivens actions?

MR. PASTERNAK: This Court -- yes, it is. And this Court has routinely held that just the fact that there is a common law claim that might exist is not sufficient in order to find that there should not also be Bivens liability.

JUSTICE KENNEDY: Well, you have no authority to say that a State can create a cause of action against a Federal officer.

MR. PASTERNAK: Not as to a Federal officer, correct. In here, though, where we have a private corporation, who is operating pursuant to its contract with the Government, where it has a separate motive, a fiduciary duty in order to maximize its profits, and there the danger to the Federal fisc is less, we submit, or certainly no greater than if there were an additional Bivens situation, we would submit that the greatest deterrence that could exist is to go and permit the suit against the corporation and not impose the duty in order to try and ascertain which employee would it be, whether or not it's a former employee who set a policy who's no longer there, but to permit it because it is the corporation who has control of its individual employees based on the relationship, whether it be for a limited contract and what contract terms are or whether it be an at-will employee, and also based on respondeat superior, that we need to recognize that we are dealing with a private corporation. We are not dealing with the FDIC or the Government or a Government agency.

In light of the fact that there's a direct relationship of contract that exists between the Government and the corporation, which is allowing it to act, that this Court should find that there is Bivens liability and the case should be permitted to proceed on that basis. Thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Pasternak. Mr. Phillips, you have 3 minutes remaining.

MR. PHILLIPS: Thank you, Mr. Chief Justice. I'd like to address what I think are sort of two pivotal points here. One, derive -- I derive from Justice Kennedy's question asking Mr. Pasternak about the effect of the Richardson decision because it seems to me the Court, obviously, should be concerned about what its prior precedents tell us about the appropriate way to proceed. He concedes, too, that Richardson, a case on which he relied very heavily in his brief, frankly does not provide him with much comfort.

I would have asked him, in -- in turn, the extent to which he derives comfort from the FDIC v. Meyer decision in which this Court, it seems to me, essentially addressed the same issue we have here and told litigants going forward look to the private employee, look to the employees as the primary source to obtain remedies and to obtain maximum deterrence. And once you satisfy that, then you're done with the inquiry because the Court specifically addressed in Meyer the -- the question of do you -- do you extend Bivens to a new category of defendants.

And that takes me to the second point I think is worth keeping in mind, and that was the question that Justice Scalia asked, which is why don't we simply leave this to Congress to resolve at the end of the day. And it seems to me a -- an intricate debate about questions of indemnification, where we don't know what the final answer is about who has what rights of indemnification, questions of respondeat superior where we don't even know specifics about what -- what causes of action may or may not be available, questions of the availability of punitive damages, all of these questions are left on the table completely unknown at this point. It seems to me, in the context of that kind of a circumstance, the Court was correct in Meyer in saying that we should leave these questions to Congress, and if Congress acts, then you can seek out the kind of parallelism between 1983 and a Federal cause of action, or if you don't, presumably Congress will have explained to you why there are disparities between the various approaches. It seems to me that the best solution for this Court is to recognize that a hands-off approach is the final answer.

JUSTICE STEVENS: Mr. Phillips, can I ask one quick question? Do you concede, for purpose of -- of review of the case and based on your question presented, that the complaint states a cause of action?

MR. PHILLIPS: For purposes of where the case is right at the moment, yes.

JUSTICE STEVENS: Yes.

MR. PHILLIPS: I think on remand, obviously we would fight -- if -- if the case were to go forward, we would continue to fight that issue.

JUSTICE SCALIA: Mr. Phillips, is it, -- is it correct -- and some of the questions, including my own, have assumed that you can't sue a Federal offer in State -- you can't sue a Federal officer for a tort committed in the course of his official duties. I'm not sure that's right. You can't sue him in State -- or you can sue him in State court, but it is removable to Federal court.

MR. PHILLIPS: It's immediately removable.

JUSTICE SCALIA: But there's -- there's no Federal prohibition against the suit, is there?

MR. PHILLIPS: Well, there will be a preemption issue that's going to immediately arise as to whether or not he's immune -- whether he's immune. And -- you know, if it's within the scope of his responsibilities, then he'll have -- he'll have an immunity --

JUSTICE SCALIA: Qualified immunity, but -- but you -- if it's not, you -- you can sue him and -- and the only prohibition is, if he wants, he can remove it to Federal court.

MR. PHILLIPS: That's correct.

JUSTICE SCALIA: Okay,

MR. PHILLIPS: Thank you, Your Honor.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Phillips. The case is submitted.