Minneci v. Pollard (10-1104)

argument 10-1104

Minneci v. Pollard

Supreme Court of the United States 55 min 5 speakers 8 chapters transcribed 4 days ago official recording ↗

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What is the Supreme Court’s current stance on extending Bivens remedies?

John G. Roberts 0:02

We'll hear argument next in case ten eleven oh four, Dominici versus Pollard. Franklin?

Unknown 0:09

Mr. Chief Justice, and may it please the Court. Over the last three decades, the Court has made clear that Bivens' remedies are disfavored. And will only be authorized. In narrow situations where there are no adequate alternative means for redressing a plaintiff's injuries and no other factor counsel's hesitation. Respondent has satisfied neither criterion. He has not shown that he lacked a traditional tort remedy for the injuries of which he complains, and petitioners' status as employees of a private contractor rather than the government at a minimum gives rise to factors counseling hesitation. if there's no alternative remedy. Vivens fills the the gap. Suppose we had a case just like Carlson. only the state law.

Unknown 1:04

allows survivor. actions. In in Carlson, I thought The rule emerging from Carlson is That Prison personnel. in peril prisons are subject to Bibbins liability. And we don't look in in each case to see whether There could have been a state choice. Is that so? In the rule the the the Carlson rule still applies, Your Honor, because that involved actual federal government employees. And since Carlson, Congress has uh preempted all tort claims against them. So whether Indiana law now which has been amended, but whether Indiana law provides a remedy or doesn't is immaterial because Congress has preempted all tort claims against actual employees of the government. But these this case involves uh The petitioners are not employees of the government.

Unknown 1:59

They are employees of a private contractor. And under the Westball Act, What Congress did was preempt all claims against actual government officials while preserving Vivens remedies. But it did the opposite for employees of private contractors. For them there are adequate alternative tort remedies. And uh it that's it's virtually undisputed in this case that there was such a remedy in here. And they are deliberately Congress expressly excluded them from the category of employees against whom it preserved Bivens remedies. So yes, in the Carlson situation there is still a Bivens claim because uh Congress has expressly preserved that. But here we have a different congressional policy that we are in effect asking the court to embrace here.

Unknown 2:42

What Congress did in the Westfall Act is it said what in effect we are asking this Court to recognize and what we believe the Court has recognized in cases like Malesco, and that is where there are adequate alternative tortrams.

Anthony M. Kennedy 2:55

Suppose, Mr. Franklin, that there weren't. I mean I think you have a good case about California law here. But suppose we were in a state where the law was very different from what California's law appears to be, where there was no special duty recognized for jailers and indeed where the basic negligence tort was unavailable to inmates because there was a a finding a a holding of the State Supreme Court that uh that there was no duty on the part of jailers to inmates. What would happen then?

Unknown 3:25

In that hypothetical instance, and we do think it's hypothetical, uh we think that that would be a different case, and the court could in that circumstance say there are no adequate alternative remedies. But the reason we think it's entirely hypothetical is there has nothing been shown in the briefing of this court, and as the Ninth Circuit uh dissenters made clear that any State doesn't afford the bedrock cause of negligence. And that cause, as the court held in Malesco quite expressly, is not only adequate to redress any uh actions that would violate the Eighth Amendment, but it's actually superior. It was it were some references to Mississippi law. That seemed to be um inconsistent with the notion that all states would provide an adequate

Unknown 4:14

Wait a minute. I believe that reference, if I'm correct, comes from an amicus brief and um that law uh does not would not on its face prohibit an action against a private managed prison holding federal prisoners. These laws and the Mississippi law is an example, there's a New York law