CARL LEIBOWITZ, PETITIONER V. UNITED STATES OF AMERICA, ET AL. No. 90-6328 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit Brief For The Respondents In Opposition OPINIONS BELOW The decision of the court of appeals (Pet. App. A) is unreported. The decision of the district court (Pet. App. B) is reported at 729 F. Supp. 556. JURISDICTION The judgment of the court of appeals was entered on August 31, 1990. The petition for a writ of certiorari was filed on November 26, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether petitioner's claim for money damages against the United States, two federal agencies, and three individuals acting in their official capacities is barred by sovereign immunity. 2. Whether petitioner's suit is also against the three individuals in their individual capacities, and, if so, whether petitioner's claims should prevail over the individuals' immunity defenses. STATEMENT 1. Petitioner was an attorney and promoter of tax shelters. In 1984, the United States began a grand jury investigation into one of his tax shelter schemes. By 1986, petitioner became concerned that his business partner would testify against him and he arranged for Donald Wrobel to murder the partner. After a number of abortive attempts on the business partner's life, Wrobel was arrested, convicted, and sentenced to a term of twenty years' imprisonment. Petitioner was subsequently convicted of conspiracy to commit interstate murder-for-hire, obstruction of justice, and witness tampering; the case against petitioner included Wrobel's testimony. Petitioner was sentenced to five years in prison. Wrobel's sentence was then reduced from twenty to five years. Pet. App. B2-B3. See also United States v. Leibowitz, 857 F.2d 373 (7th Cir. 1988) (affirming petitioner's conviction and detailing evidence). 2. Petitioner was initially incarcerated at the federal penitentiary at Terre Haute, Indiana. In 1988, his security classification was reduced and, on November 22, 1988, he was transferred to the federal prison at Milan, Michigan. Wrobel had been incarcerated at Milan since November 18, 1987. According to Bureau of Prisons policy, an inmate is not supposed to be placed in the same institution as an inmate who has testified against him; due to an administrative oversight, however, petitioner had been transferred to the same institution as Wrobel. Pet. App. B3 & n.2. At the Milan facility, petitioner spoke to Wrobel, who allegedly told petitioner that he had testified falsely at trial because Assistant United States Attorneys Thomas Plouff and Richard Cook told him he would serve a long sentence if he refused to cooperate. Wrobel later met with petitioner's attorney and signed an affidavit to that effect. Pet. App. B3. In March 1989, petitioner filed a motion for a new trial on the basis of Wrobel's affidavit. The district court eventually denied the motion, and the Seventh Circuit affirmed. See United States v. Leibowitz, 919 F.2d 482 (1990). After learning of the motion, Plouff called the Milan facility and determined that Wrobel and petitioner were in fact housed at the same institution. Consistent with Bureau of Prisons policy, Plouff told a case manager at Milan that petitioner and Wrobel should be separated. Petitioner was immediately placed in administrative segregation, pending his transfer to another institution. In June 1989, he was transferred to the federal correctional institution at Texarkana, Texas. Pet. App. B3-B4. 3. Petitioner brought suit against the United States; the Department of Justice; the Bureau of Prisons; Assistant United States Attorneys Plouff and Cook; and Warden John Gluch of the Federal Correctional Institute at Milan, Michigan. He claimed that respondents Plouff and Cook had coerced Wrobel into testifying falsely and had conspired with Warden Gluch to place petitioner in administrative segregation without good cause. He also complained that, in violation of his due process rights, he was denied a hearing upon being placed in segregation. Pet. App. B1-B2, B12. The district court dismissed the claims against the United States and its agencies for lack of jurisdiction. Finding that petitioner's claims did not arise under the Federal Tort Claims Act, or under any other statute providing a waiver of sovereign immunity, the court held that the claims against the United States and its agencies were barred by sovereign immunity. Pet. App. B4-B5. The court then considered the claims against the three individuals. With regard to the claim of allegedly perjured testimony, the court held that the federal prosecutors were entitled to absolute immunity under Imbler v. Pachtman, 424 U.S. 409 (1974). Pet. App. B7-B8. With regard to the claim of a due process violation for the administrative segregation, the court held that the prosecutors and the warden were entitled to qualified immunity. The court pointed out that it was the policy of the Bureau of Prisons to separate government witnesses from those against whom they have testified, and to place a prisoner in administrative segregation "when the inmate's continued presence in the general population poses a serious threat to * * * other inmates, or to the orderly running of the institution" and "when the inmate is pending transfer." 28 C.F.R. 541.22. Thus, the three individual respondents could have reasonably believed that their conduct conformed to due process principles. Pet. App. B8-B10. Finally, with regard to the claim of entitlement to a hearing, the district court concluded that it lacked jurisdiction to review petitioner's claim because he had failed to exhaust his administrative remedies. Id. at B12-B13. 4. The court of appeals affirmed. After reviewing various conceivable sources of statutory waiver -- including 28 U.S.C. 1331 (federal question jurisdiction), 28 U.S.C. 1346(a)(2) (Tucker Act), and 42 U.S.C. 1985 (Civil Rights statute) -- the court agreed with the district court that the United States and its agencies had not waived immunity from suit with regard to petitioner's claims. Pet. App. A1-A2. With regard to the individual defendants, the court of appeals held that petitioner had failed to indicate in his complaint that he was suing the three remaining defendants other than in an official capacity and, thus, they were also protected by sovereign immunity. Pet. App. A2. The court did not reach the issues of absolute and qualified immunity and administrative exhaustion. /1/ ARGUMENT Petitioner raises a variety of objections and maintains that he is entitled to proceed with his claim against the United States and its employees for alleged constitutional violations. Petitioner's contentions do not warrant review. First, without an express waiver of sovereign immunity, petitioner's claims for money damages against the United States, its agencies, and its employees acting in their official capacities must fail. Second, petitioner's attempt to raise claims against the individual respondents in their individual capacities is unavailing because (1) petitioner did not indicate that the employees were being sued in their individual capacities, (2) petitioner has failed to overcome the defense of absolute immunity relating to the allegedly perjured testimony, and (3) petitioner has failed to overcome the defenses of qualified immunity to the claims concerning administrative segregation. 1. The court of appeals properly dismissed the claims against the United States, its agencies, and its employees acting in their official capacities for lack of a statutory waiver of sovereign immunity. /2/ It is well established that, absent such a waiver, the United States and its agencies are immune from suit. See, e.g., United States v. Shaw, 309 U.S. 495, 500-501 (1940). The same principle applies to individuals sued in their official capacities. As this Court recently pointed out in the related context of 42 U.S.C. 1983, "a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. * * * As such, it is no different from a suit against the State itself." Will v. Michigan Dept. of State Police, 109 S. Ct. 2304, 2311-2312 (1989). As the court of appeals and district court concluded, the only conceivably relevant statutes either do no constitute waivers of sovereign immunity (28 U.S.C. 1331; 42 U.S.C. 1985) or do not apply to petitioner's claims (28 U.S.C. 1346(b); 28 U.S.C 1346(a)(2)). Pet. App. A1-A2, B4. 2. Petitioner also contends that he is suing the federal employees in their individual as well as their official capacities. Pet. 8-12. The court of appeals concluded, however, that "(n)othing on the face of (petitioner's) complaint suggests that the three employees have been sued other than in an official capacity." Pet. App. A2. In a series of cases, this Court has emphasized the important differences between individual and official capacity in determining liability. See, e.g., Brandon v. Holt, 469 U.S. 464 (1985) (suits against employees acting in their official capacity impose liability on the entity they represent); Kentucky v. Graham, 473 U.S. 159 (1985) (attorney's fees not available against a government entity when plaintiff sues employees in individual capacities); Will, 109 S. Ct. at 2311 (state officers acting in official capacity not liable under 42 U.S.C. 1983). To distinguish between actions against the person and actions against the sovereign, the Sixth and Eighth Circuits have required that plaintiffs indicate in their complaints if they intend to sue government employees in their individual capacities. See Wells v. Brown, 891 F.2d 591, 592 (6th Cir. 1989); Nix v. Norman, 879 F.2d 429, 431 (8th Cir. 1989). Since sovereign immunity is a limitation on subject matter jurisdiction in official capacity cases, these courts have relied, in part, on Rule 9(a) of the Federal Rules of Civil Procedure, which requires plaintiffs to aver the capacity of the party to be sued "to the extent required to show the jurisdiction of the court." See Wells, 891 F.2d at 593; Nix, 879 F.2d at 431. These courts have also stressed that requiring specific designation of an individual capacity suit ensures that public servants receive clear notice that they face personal financial exposure. Wells, 893 F.2d at 593; Nix, 891 F.2d at 593. The court of appeals' holding in this case does not warrant review. First, the reasons and concerns emphasized in Wells and Nix are sound. Second, the principle articulated in Wells and Nix is relatively recent, and its precise contours are not entirely clear at this point. Cf. Nix, 879 F.2d at 433 n.3 (noting the possibility that district court, in its discretion on remand, might permit complaint to be amended). Third, the issue is currently a subject of active consideration by various courts of appeals, and thus there is no need for this Court to address it at this juncture. /3/ Finally, review is particularly unwarranted in this case because the district court's decision provides an adequate and independent basis for sustaining the judgment. 3. Assuming arguendo that there were no procedural deficiencies in petitioner's pleadings, the three federal employees in this case nevertheless were entitled to summary judgment. a. Petitioner has maintained that respondents Plouff and Cook coerced perjured testimony. /4/ Petitioner's allegations raise claims concerning either the prosecutors' use of the testimony or the prosecutors' negotiation with a prospective defendant (Wrobel) regarding his co-operation with the government. As the district court concluded, the attorneys were clearly entitled to absolute immunity for such activities. In Imbler v. Pachtman, 424 U.S. 409, 431 (1974), this Court held that prosecutors are absolutely immune for actions taken in "initiating a prosecution and in presenting the State's case." The charge that these Assistant United States Attorneys coerced false testimony comes squarely within the Imbler holding. That absolute immunity may "leave the genuinely wronged defendant without civil redress" is outweighed by the benefit of a "vigorous and fearless performance of the prosecutor's duty." Id. at 427. /5/ b. Petitioner also asserts that respondent Gluch, warden of the Milan facility, along with respondents Plouff and Cook, violated his due process rights by placing him in administrative segregation without good cause. Pet. 13-15. A government official is entitled to qualified immunity if a reasonable person would not have believed that his conduct violated clearly established statutory or constitutional rights. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The defendant's subjective intent is irrelevant. Anderson v. Creighton, 483 U.S. 635, 641 (1987). As the district court concluded, a reasonable person would have concluded that placing petitioner in segregation was lawful for the simple reason that the decision was in accordance with established Bureau of Prisons policy. Pet. App. B9-B10. Bureau of Prisons regulations provide that a prisoner may be placed in administrative segregation if his presence in the prison population "poses a serious threat to life, property, self, staff, other inmates, or to the security or orderly running of the institution" and when the inmate "(i)s pending transfer." 28 C.F.R. 541.22. /6/ As the district court explained, Bureau of Prisons policy also provides that government witnesses and the individuals against whom they have testified should not be incarcerated in the same institution (Pet. App. B3 n.2; see also 28 C.F.R. 524.72(h)); the reason for the policy is the "serious and constant risk that prisoners will attempt to retaliate against government witnesses or coerce them into falsely recanting their trial testimony" (Pet. App. B10). Accordingly, petitioner's placement in administrative segregation was entirely justified, and the individual respondents are entitled to qualified immunity. /7/ c. Finally, petitioner appears to object to absolute immunity for respondents Plouff and Cook on the basis of their actions concerning the administrative segregation. Pet. 16-18. Petitioner's objection is irrelevant, however, because the district court specifically held that respondents Plouff and Cook were entitled only to qualified immunity for their actions concerning the placement in administrative segregation. Pet. App. B8-B10. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General STUART M. GERSON Assistant Attorney General BARBARA C. BIDDLE LORI M. BERANEK Attorneys FEBRUARY 1991 /1/ The court of appeals noted that the district court would have had jurisdiction to entertain a claim of injunctive relief, but that petitioner's claim for injunctive relief (which was based on petitioner's administrative segregation before his transfer) had been rendered moot. Pet. App. A3. /2/ Petitioner does not discuss the basis for his claim that he should be entitled to proceed against the United States, the agencies, and the individuals in their official capacities; he simply contends that summary judgment should be reversed with respect to all respondents. See, e.g., Pet. 20. /3/ The Seventh Circuit, for instance, has held that, if individual capacity is not alleged, there is a rebuttable presumption that an individual is sued in his official capacity. See, e.g., Yeksigian v. Nappi, 900 F.2d 101, 104 (7th Cir. 1990); Duckworth v. Franzen, 780 F.2d 645, 649 (7th Cir. 1985), cert. denied, 479 U.S. 816 (1986). Additionally, the Third Circuit has recently noted that its approach is "more flexible" than the requirement in Nix and Wells, but has also stressed that "(i)t is obviously preferable for the plaintiff to be specific in the first instance to avoid any ambiguity." Melo v. Hafer, 912 F.2d 628, 636 n.7 (1990). In the past, this Court has explained that, if a complaint is ambiguous regarding the capacity in which a defendant is sued, the "course of proceedings" will illuminate the issue. See Kentucky v. Graham, 473 U.S. at 167 n.14; Brandon v. Holt, 469 U.S. at 469. Graham and Brandon, however, do not prohibit a rule of construction regarding allegations of individual capacity, particularly in light of the notice and jurisdictional issues emphasized by the Sixth and Eighth Circuits. /4/ Petitioner does not specifically raise the perjured testimony allegation in his discussion of the issues presented. See Pet. 7-20. We address it, however, because the district court rested its grant of summary judgment in part on absolute immunity and because the district court's holding is an alternative basis for defending the judgment of the court of appeals. See also United States v. Leibowitz, 919 F.2d at 483 (emphasizing, in affirming denial of petitioner's new trial motion, that Wrobel's affidavits "are not worthy of belief"). /5/ Presentation of testimony and negotiation with a co-operating prospective defendant are core prosecutorial functions entitled to absolute immunity under Imbler v. Pachtman, supra; this issue thus will not be affected by Burns v. Reed, No. 89-1715 (argued Nov. 28, 1990), which concerns the applicable immunity for legal advice to police officers and for presentation of testimony at a probable cause hearing. /6/ In Hewitt v. Helms, 459 U.S. 460, 467-468 (1983), this Court held that an inmate's liberty interest in remaining in the general prison population is derived solely from statutes or regulations setting forth the requirements for confining an inmate to administrative segregation. /7/ In order to "preserve()" the issue, petitioner also objects to the requirement of administrative exhaustion concerning his "due process claims" (Pet. 7), but fails to point out that the district court's exhaustion holding relates only to the claim that he was denied a hearing (Pet. App. B12-B13). Petitioner maintains that the requirement of exhaustion creates an intra-circuit conflict with the decision in Goar v. Civiletti, 688 F.2d 26 (6th Cir. 1982). In Goar itself, however, the court distinguished a situation (like the present case) in which "administrative consideration of the possibility of corrective action and a record would have aided a court in measuring liability and determining the extent of damages" (id. at 29). Thus, the district court's conclusion that the present case is consistent with Sixth Circuit precedent does not merit review. We note that the Third Circuit has interpreted Goar as excusing exhaustion for claims solely for money damages and has adopted that rule (Muhammad v. Carlson, 739 F.2d 122 (3d Cir. 1984)). We note also that two other circuits have similarly interpreted Goar, criticized it on that basis, and held that money damage claims may be subject to exhaustion (see McCarthy v. Maddigan, 914 F.2d 1411, 1412 (10th Cir. 1990), petition for cert. pending, No. 90-6861; Hessbrook v. Lennon, 777 F.2d 999, 1007 (5th Cir. 1985)). But this is clearly not an appropriate case in which to resolve any disagreement. In the first place, petitioner may not have properly preserved the point. See Pet. App. B13. Moreover, since the district court's exhaustion decision applies only to petitioner's claim that he was denied a hearing, his success on that claim would appear at most to entitle him only to nominal damages. See Carey v. Piphus, 435 U.S. 247 (1978). In the context of this case, then, the exhaustion holding is of minimal significance. Finally, petitioner has pointed to no evidence that the three individual respondents were personally involved in the claimed failure to accord a hearing; indeed, Warden Gluch's affidavit stating that he was not involved in the particular administrative decisions (C.A. J.A. 12) is uncontroverted. Accordingly, it appears that petitioner cannot ultimately prevail on this claim against these individual respondents.