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SUPREME COURT DOCKET REPORT

Mayer Brown's Supreme Court and Appellate Practice Group distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community. We also email the Docket Report to our subscribed members and if you don't already subscribe to the Docket Report and would like to, please click here.

October Term 2010 - May 16, 2011

May 16, 2011

Today the Supreme Court granted certiorari in one case of interest to the business community:


Government Contractors—Bivens Actions

The Supreme Court granted certiorari today in Minneci v. Pollard, No. 10-1104, to decide whether an implied cause of action arises under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), when a federal prisoner alleges that individual employees of the private corporation operating the prison under contract with the government have violated his or her constitutional rights and state tort law affords the plaintiff an adequate, alternative remedy. Although it arises in the prison context, this case presents an issue of substantial importance to all government contractors that have been engaged to provide services or to perform functions that traditionally have been carried out by the government.

While incarcerated at a federal prison operated under contract by a private corporation, the plaintiff (respondent in the Supreme Court) allegedly sustained various injuries. Claiming that his Eighth Amendment right to receive constitutionally adequate medical care was violated by employees of the corporation, the plaintiff brought suit in federal district court against both the corporation and its individual employees.

The plaintiff’s claims against the corporate defendant were dismissed under Correctional Services Corp. v. Malesko, 534 U.S. 62 (2001), which holds that that private prison corporations are not subject to Bivens liability; those claims are no longer at issue. The claims against the individual defendants (petitioners in the Supreme Court) also were dismissed. The district court concluded that an implied cause of action under Bivens was not available because the individual defendants, who had no direct contractual or employment relationship with the federal government, did not act under color of law and because state law provided the plaintiff with alternative remedies.

The Ninth Circuit reversed. It concluded that the individual employees did act under of color of law for purposes of Bivens liability and that the availability of alternative, state-law tort remedies did not foreclose the existence of an implied cause of action under Bivens. The Ninth Circuit recognized that its holding on the former point conflicted with the Fourth Circuit’s decision in Holly v. Scott, 434 F.3d 287 (4th Cir. 2006), and that its holding on the latter point conflicted both with Holly and with the Eleventh Circuit’s decision in Alba v. Montford, 517 F.3d 1249 (11th Cir. 2008). The Ninth Circuit denied rehearing en banc.

Absent extensions, which are likely, amicus briefs in support of the petitioners are due July 7, 2011, and amicus briefs in support of the respondents are due August 8, 2011. Any questions about this case should be directed to Andrew Tauber (+1 202 263 3324) or Anthony Alexis (+1 202 263 3450) in our Washington, DC office.


Today the Court also invited the Acting Solicitor General to file briefs expressing the views of the United States in the following cases of interest to the business community:

Freeman v. Quicken Loans, Inc., No. 10-1042: The question presented is whether Section 8(b) of the Real Estate Settlement Procedures Act prohibits a real estate settlement services provider from charging an unearned fee only if the fee is divided between two or more parties.

Faculty Senate of Florida International University v. Florida, No. 10-1139: The questions presented concern whether Florida’s prohibition on universities’ use of state or private funds to support academic travel to Cuba and other disfavored nations is preempted by federal law.

Republica Bolivariana de Venezuela v. DRFP L.L.C., No. 10-1144: The question presented is whether a foreign state’s refusal to honor a demand for payment on the state’s alleged securities at a U.S. location causes a “direct effect” in the United States based merely on the failure of the securities to exclude the United States as a place of payment, such that the foreign state is not immune from suit in U.S. court under the Foreign Sovereign Immunities Act.


Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

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Mayer Brown's Supreme Court & Appellate practice distributes a Docket Report whenever the Supreme Court grants certiorari in a case of interest to the business community and distributes a Docket Report-Decision Alert whenever the Court decides such a case. We hope you find the Docket Reports and Decision Alerts useful, and welcome feedback on them (which should be addressed to Andrew Tauber, their general editor, at atauber@mayerbrown.com or +1 202 263 3324).

Mayer Brown Supreme Court Docket Reports provide information and comments on legal issues and developments of interest to our clients and friends. They are not a comprehensive treatment of the subject matter covered and are not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed. 



 
 
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