WASHINGTON -- It's 9th Circuit smackdown season at the Supreme Court and, judging from Tuesday morning's oral arguments, Richard Lee Pollard could be the latest defendant caught in the middle.
Pollard was a federal prisoner on kitchen duty when he slipped, fell and broke both his elbows. He claims that the way prison employees treated him for the next several months caused him so much additional pain and suffering that they violated the Eighth Amendment's ban on cruel and unusual punishment. He sued the offending staff members under a 40-year-old Supreme Court case, Bivens v. Six Unknown Federal Narcotics Officers, that allows individuals to win money damages when federal officials violate their constitutional rights. The last time the Supreme Court actually allowed such a case to go forward was in 1980.
The justices' ambivalence about Bivens did not deter the U.S. Court of Appeals for the 9th Circuit from endorsing Pollard's case. Nor did the fact that the prison was privately run. For the San Francisco-based appeals court, the private prison's contract with the federal government meant that the employees being sued were operating "under color of federal law" -- a necessary element in all Bivens actions.
But what is necessary may not be sufficient, argued Washington lawyer Jonathan Franklin, who was defending the prison officials in Minneci v. Pollard. A successful Bivens action, he told the Court, also requires that the plaintiff have no other remedy. Pollard, however, could have sued the prison employees for negligence under state law and had a better shot at winning such a case, too.
An overwhelming majority of the justices seemed to agree with Franklin. Justice Elena Kagan was downright puzzled over Pollard's chosen path, asking both Franklin and Pollard's lawyer, University of Richmond law professor John Preis, why Pollard's claims were not brought under state law. Franklin did not try to answer for his opponent, while Preis attributed his client's choice to the fact that Pollard was "put in a federal prison by the federal government," so when "he sees himself injured, he thinks this is presumably a federal case."
"Well, that was just false consciousness that we can correct," Kagan said. "If the true appropriate remedy, and the better remedy from your client's point of view, is a state law action, we should just say, 'Bring a state law [action].'"
Answering a similar question from Justice Sonia Sotomayor, Preis stated that "we don't think the law is clear in California," where the prison is located, and a state court might not find Pollard's claims of deprivation of nutrition and hygiene as well as forced labor to be covered. This provoked a sustained show of disbelief from Justices Stephen Breyer and Antonin Scalia.
"So if there is one state that would not have an adequate remedy for any single bad thing that could happen in prison, there is a Bivens action for everybody for everything?" asked Scalia.
Yes, Preis answered.
"Wow," Scalia responded. "I certainly wouldn't want to hold that."
Without missing a beat, Preis shot back, "I'm not surprised that you wouldn't want to hold that, your honor."
This much, of course, was true: Scalia in past opinions has advocated abandoning Bivens altogether as a "relic of the heady days" of a more liberal Court. Preis' remark provided some comic relief for the audience, but all nine justices stared sternly back at him. Chief Justice John Roberts slowly pivoted his displeased glare from Preis to a similarly displeased Scalia and back to Preis, setting in motion a particularly intense round of questions from the chief apparently designed to prove that it's a grave mistake for any lawyer to defy the fiction that every justice is open to persuasion at oral argument.
Roberts pulled out Preis' brief and read aloud a section in which the lawyer had quoted an earlier case to support Pollard's argument. Roberts then produced the decision in that earlier case and read the full sentence containing the quote Preis had used, noting that the opposing lawyer had accused Preis of distorting the earlier case's meaning. Looking back up at Preis, Roberts said, "I just wanted to give you a chance to reply to what I think is a fairly serious assertion." Preis futilely tried to assuage the chief and finally sputtered out, "Your honor, I guess I certainly took part of the quote and didn't use all of the quote."
"That's known as misquoting," Scalia interjected, capping off the chief's dressing down of Preis for indecorously stating the obvious several minutes earlier.
Soon after, the chief, not one to let hostility linger, threw Preis a token softball question, but he could be forgiven for ducking instead of hitting it out of the park.
Still, no justice on the Court seemed unequivocally willing to bless Pollard's Bivens action. But at least the justices heard the case before reversing the 9th Circuit -- a privilege denied in a case decided Monday in which a six-member majority scolded the West Coast court for its repeated refusal to follow the justices' orders.
The Court will likely hand down its decision in Minneci v. Pollard by the end of June.