Minneci v. Pollard - Oral Argument - November 01, 2011

Minneci v. Pollard

Media for Minneci v. Pollard

Audio Transcription for Opinion Announcement - January 10, 2012 in Minneci v. Pollard

Audio Transcription for Oral Argument - November 01, 2011 in Minneci v. Pollard

John G. Roberts, Jr.:

We will hear argument next in Case 10-1104, Minneci v. Pollard.

Mr. Franklin.

Jonathan S. Franklin:

Mr. Chief Justice, and may it please the Court:

Over the last 3 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 counsels hesitation.

Respondent has satisfied neither criteria.

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.

Ruth Bader Ginsburg:

Can we go back to what you said initially, that is if there's no alternative remedy Bivens fills the gap.

Suppose we had a case just like Carlson, only the State law allows survivor actions.

In Carlson, I thought the rule emerging from Carlson is that prison personnel in Federal prisons are subject to Bivens liability, and we don't look in each case to see whether they could have been a State tort.

Jonathan S. Franklin:

Well, the rule--

Ruth Bader Ginsburg:

Is that so?

Jonathan S. Franklin:

--The the rule -- the Carlson rule still applies, Your Honor, because that involved actual Federal government employees.

And since Carlson, Congress has 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 -- the Petitioners are not employees of the government.

They are employees of a private contractor.

And under the Westfall Act, what Congress did was preempt all claims against actual government officials while preserving Bivens remedies.

But it did the opposite for employees of private contractors.

For them there are adequate alternative tort remedies.

And it's virtually undisputed in this case that there was such a remedy 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 Congress has expressly preserved that.

But here we have a different congressional policy that we are, in effect, asking the Court to embrace here.

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 Malesko, and that is, where there are adequate alternative tort -- excuse me, where there are no adequate--

Elena Kagan:

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 jailors, and indeed where the basic negligence tort was unavailable to inmates because there was a finding of -- a holding of the State supreme court that there was no duty on the part of jailors to inmates.

What would happen then?

Jonathan S. Franklin:

--In that hypothetical instance -- and we do think it's hypothetical -- we think that would be a different case and the Court could in that circumstance say there were 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 dissenters made clear, that any State doesn't afford the bedrock cause of negligence.