THEODORE CLEAVINGER, MARVIN MARCADIS, AND TOM P. LOCKETT, PETITIONERS V. DAVID SAXNER AND ALFRED CAIN, JR. No. 84-732 In the Supreme Court of the United States October Term, 1984 The Solicitor General, on behalf of Theodore Cleavinger, Marvin Marcadis, and Tom P. Lockett, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Seventh Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit TABLE OF CONTENTS QUESTION PRESENTED Opinion below Jurisdiction Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINION BELOW The opinion of the court of appeals (App., infra, 1a-26a) is reported at 727 F.2d 669. The opinion of the district court denying petitioners' motion for judgment notwithstanding the verdict (App., infra, 27a-34a) is unreported. JURISDICTION The judgment of the court of appeals (App., infra, 35a) was entered on February 13, 1984. A petition for rehearing was denied on June 8, 1984 (App., infra, 36a). On August 27, 1984, Justice Stevens extended the time for filing a petition for a writ of certiorari to and including November 5, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether members of an Institution Discipline Committee, who adjudicate cases in which prison inmates are charged with rules infractions, are entitled to absolute immunity from personal damages liability for actions taken in that quasi-judicial capacity. STATEMENT 1. In January 1975, prisoners in the federal correctional institution at Terre Haute, Indiana, engaged in a two-day strike to protest an inmate's death in the prison hospital (App., infra, 2a). On February 14, 1975, respondents, who were inmates at Terre Haute, were cited in separate incident reports with encouraging other prisoners to engage in another work stoppage (id. at 3a; PX 5, 12). /1/ The following day, each respondent received a copy of the incident report as required by the Bureau of Prisons Policy Statement 7400.5C (Oct. 4, 1974) (hereinafter cited as BOP Policy Statement) (App., infra, 3a; PX 5, 7, 12). In accordance with Bureau of Prisons practice, respondent Saxner was given and signed a notice explaining his rights at the disciplinary hearing to be held before the Institution Discipline Committee (IDC). /2/ These rights included the right to advance written notice to the charge, the right to be represented by a staff member of his choice, and the right, except where institutional safety would be impaired, to attend the hearing, to present testimony and documentary evidence, and to receive a written explanation of the IDC's decision. App., infra, 3a; PX 6. Following issuance of the incident reports, respondents were placed in administrative segregation (ibid.). /3/ Respondent Saxner appeared before the IDC on February 21, 1975. On that day, the IDC was composed of petitioner Cleavinger, an associate warden; petitioner Marcadis, a correctional supervisor; and petitioner Lockett, chief of case management. App., infra, 3a. /4/ Saxner was accompanied by a staff counselor, Ralph Smith, who represented him at the hearing. After reading the charge and reviewing Saxner's rights, the IDC introduced the incident report and three documents found in Saxner's cell. The first document (PX 4) was a cover letter from Saxner to Arpiar Saunders of the National Prison Project acknowledging that Saxner had written an enclosed "press release" entitled "Prisoners at Terre Haute Seek An Investigation" (PX 1). Among other things, the press release advocated administrative approval of a prisoner's union and amnesty for those who had participated in the strike. The letter also requested that Saunders keep an "important" enclosed memo entitled "Ideals and Proposals of the Prisoner Labor Union" (PX 14). At the hearing, Saxner admitted that he had written the press release and had mailed it to persons outside the prison without authorization. Exh. N to Complaint 3-4. No guards or inmates were called as witnesses, but Saxner was permitted to testify on his own behalf and to introduce affidavits of several inmates. App., infra, 3a. The IDC denied Saxner's request to permit certain inmates to testify that he had not encouraged them to stop working, because their testimony would have been cumulative (id. at 3a n.4). /5/ After adjourning and considering the evidence, the IDC found respondent Saxner guilty of encouraging a work stoppage, in violation of prison rule 255 (BOP Policy Statement 6). In addition, based upon the documents found in Saxner's cell and his admissions at the hearing, Saxner was also found guilty of unauthorized use of the mail, in violation of rule 701 (BOP Policy Statement 6), and possession of contraband (i.e., inflammatory material advocating an illegal prison union), in violation of rule 208 (BOP Policy Statement 5). The IDC ordered that Saxner be placed in administrative detention and forfeit 84 days of "good time" and recommended his transfer to another institution. App., infra, 4a; Exh. N to Complaint. Respondent Cain's IDC hearing occurred the same day before the same officers (App., infra, 4a). He was represented at the hearing by staff representative J.R. Alvarado (PX 13). The IDC advised Cain of his rights and then produced the incident report, which contained the particulars of the work stoppage charge. Two documents found in Cain's cell -- Saxner's letter to Saunders and the manuscript "Ideals and Proposals of the Prisoner Labor Union" -- were also introduced. App., infra, 4a; PX 14. Cain testified and denied that he had encouraged other inmates not to work. He also demanded the opportunity to cross-examine his accusers. 1 Tr. 102, 104, 105. No other witnesses were called. At the conclusion of the hearing, the IDC found Cain guilty of encouraging a work stoppage and of possessing contraband, i.e., "inflammatory material * * * supporting disruptive conduct in the institution." App., infra, 4a; PX 13. The IDC ordered that Cain be confined in administrative segregation and forfeit 96 days of good time and recommended his transfer to another institution. Ibid. 2. In accordance with the BOP Policy Statement (PX 7, Paragraph 10; see 28 C.F.R. 541.19), each respondent was informed of his appeal rights at the conclusion of the IDC hearing. Respondents appealed the IDC decisions to the warden, who provided virtually all of the relief they requested. The warden ordered respondents' release from administrative segregation, restored the forfeited good time, and directed that respondents' records carry a notation that the incident should not adversely affect their consideration for parole. He refused, however, to expunge their records (App., infra, 4a; 1 Tr. 61, 62, 123; PX 10, 15). Respondents appealed this one adverse ruling to the Regional Director of the Bureau of Prisons, and based upon the Regional Office's recommendation, the records of both respondents were expunged. App., infra, 4a-5a. Respondent Saxner was granted parole in April 1975; respondent Cain was paroled in June 1975 (1 Tr. 63, 125). 3. Meanwhile, in March 1975, respondents had brought suit in the United States District Court for the Southern District of Indiana against petitioners and other prison officials in their individual capacities. /6/ Respondents' complaint, as amended, alleged that the defendants had violated respondents' rights under the First, Fourth, Sixth, and Eighth Amendments. Respondents sought declaratory and injunctive relief and a total of $75,000 in compensatory damages. App., infra, 5a. Prior to trial, the district court granted petitioners' motion to dismiss the complaint on the ground that their function as IDC hearing officers entitled them to absolute immunity. Nearly two years later, however, the court reinstated the suit in light of the Seventh Circuit's decision in Mary & Crystal v. Ramsden, 635 F.2d 590 (1980), which held that members of a disciplinary committee at a state juvenile facility were entitled to only qualified immunity. App., infra, 5a. After reinstatement of the complaint, the case was tried to a jury in April 1981. In response to special interrogatories, the jury found that petitioners had violated respondents' Fifth Amendment due process rights (App., infra, 5a). /7/ The jury awarded each respondent $4500 as compensatory damages (ibid.; 2 R. 370-374). The district court denied petitioners' motion for judgment notwithstanding the verdict (App., infra, 27a-34a). The court appears to have found (id. at 29a-30a) that respondents' due process rights had been violated because (1) respondents were not given advance notice of some of the charges, (2) respondents were not allowed to call certain witnesses, and (3) the IDC relied on hearsay in support of the charges. Petitioners appealed on the grounds that they were entitled to absolute immunity and, in the alternative, that the verdicts were excessive. 4. The court of appeals affirmed by a divided vote (App., infra, 1a-26a). The majority opinion, written by Judge Wood and joined by Judge Cudahy, held (App., infra, 1a-2a) that petitioners' claim of absolute immunity was foreclosed by prior Seventh Circuit decisions denying such immunity to state correctional officers serving in a similar capacity. See Redding v. Fairman, 717 F.2d 1105, 1117 (1983); Chavis v. Rowe, 643 F.2d 1281, 1288, cert. denied, 454 U.S. 907 (1981); Mary & Crystal v. Ramsden, supra. /8/ Judge Celebrezze, sitting by designation, dissented. In his view, the court of appeals failed to follow this Court's analysis of the absolute immunity issue in Butz v. Economou, 438 U.S. 478 (1978). Under Economou, Judge Celebrezze contended, an official is entitled to absolute immunity if (1) his decisions are "functionally comparable" to those of a judge, (2) the controversies he resolves are "sufficiently intense to spawn harassing or intimidating litigation," and (3) "the adjudicatory process over which the official presides contains sufficient safeguards to lessen the 'need for individual suits to correct constitutional error'" (App., infra, 18a-19a (footnote omitted), quoting Economou, 438 U.S. at 512). IDC members, Judge Celebrezze maintained, meet all of these requirements. He noted (App., infra, 22a) that they perform "the classic judicial function" of "determin(ing) whether an accused person is guilty or innocent of the charges brought against him." He also pointed out (id. at 23a) that IDC members face a severe threat of harassing or intimidating litigation, since "(t)he ability of prisoners to generate litigation is substantial and well documented." Finally, he argued (ibid.) that IDC procedures are sufficiently formal to assure that any constitutional error will either be corrected in the course of the proceeding, or avoided entirely. In response to Judge Celebrezze's dissent, the majority opinion stated (App., infra, 2a n.2) that it "recognize(d) and respect(ed)" his "thoughtful contrary analysis" and added: "His arguments suggest that in due time the issue may merit reconsideration in this circuit." In view of this statement in the majority opinion, Judge Cudahy wrote a concurring opinion in support of the prior Seventh Circuit decisions (App., infra, 10a-16a). Judge Cudahy maintained (id. at 10a) that the activities and procedures of the IDC officers are "so dissimilar in form and substance from those of judges granted absolute immunity that reliance on an all-encompassing similarity of quasi-judicial function will not wash." He also argued (id. at 14a-15a) that "(i)t would be poor policy to extend absolute immunity to these defendants' because "they are accorded adequate protection against harassment by the enlarged safeguards of qualified immunity as announced in Harlow (v. Fitzgerald, 457 U.S. 800 (1982))." Petitioners' request for rehearing en banc was denied, with four of the nine active judges voting for en banc review. App., infra, 36a. REASONS FOR GRANTING THE PETITION This case presents an important and frequently recurring question concerning the personal liability of correctional officials who sit on bodies that adjudicate prison disciplinary cases. Without applying the functional analysis prescribed by this Court in Butz v. Conomou, 438 U.S. 478 (1978), the court below concluded that prison officials who serve on disciplinary tribunals are not entitled to absolute immunity from suits for damages based upon alleged constitutional defects in the adjudicatory proceedings. The courts of appeals are divided on this question. Compare Ward v. Johnson, 690 F.2d 1098 (4th Cir. 1982) (en banc) (absolute immunity), with the present case and Jihaad v. O'Brien, 645 F.2d 556, 561 (6th Cir. 1981) (no absolute immunity). The personal liability of correctional officers who sit on prison disciplinary tribunals is a question of considerable practical importance. In the federal system alone, Institution Discipline Committees adjudicate more than 30,000 cases annually. If only a fraction of these cases results in Bivens actions alleging a deprivation of due process, correctional officials will be demoralized and intimidated, prison discipline will be impaired, and the courts will be overwhelmed with additional prisoner suits. 1. In Butz v. Economou, 438 U.S. at 508-514, this Court analyzed the factors to be considered in determining whether a government official who performs an adjudicatory function is entitled to absolute immunity. /9/ The Court explained (id. at 512) that participants in legal proceedings, such as judges, prosecutors, and grand jurors, have traditionally enjoyed absolute immunity because of the high likelihood of retaliatory lawsuits and because "the safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct." The Court then held (ibid.) that federal administrative law judges are likewise entitled to absolute immunity because their role is "functionally comparable" to that of a judge. The Court in Economou did not purport to set out inflexible rules for determining whether an official is entitled to absolute immunity from personal damages liability on the ground that he performs a quasi-judicial function. However, we agree with the dissenting judge below that an official is clearly entitled to absolute immunity if it can be shown, as it was in Economou, that (1) the official's responsibilities, regardless of his formal position in the government hierarchy, are functionally comparable to those of a judge; (2) performance of his duties will make him a likely target for harassing or intimidating litigation; and (3) the adjudicatory process includes sufficient safeguards that "tend to reduce the need for private damage actions as a means of controlling unconstitutional conduct" (438 U.S. at 512). Application of these guidelines to the present case compels the conclusion that petitioners are entitled to absolute immunity. As the dissenting judge below observed (App., infra, 22a), "IDC members are involved in the classic judicial function: they are required to determine whether an accused person is guilty or innocent of the charges brought against him." See BOP Policy Statement Paragraph 9(b); see also 28 C.F.R. 541.16(c); Wolff v. McDonnell, 418 U.S. 539, 571 (1974). In carrying out this responsibility, IDC members hear testimony and receive other proof, judge the credibility of witnesses, weigh the evidence, and render a final written decision. Their function is closely analogous to those of judges, grand jurors, and administrative law judges, who are absolutely immune from suit for damages. Butz, 438 U.S. at 512-517; Bradley v. Fisher, 80 U.S. (13 Wall.) 335 (1871). IDC members also face a severe threat of harassing or intimidating litigation unless they are protected by absolute immunity. Prisoners as a group are prodigious and indiscriminate litigators. /10/ See Ward v. Johnson, 690 F.2d at 1108. If prisoners may sue IDC members for damages based upon alleged constitutional defects in the IDC proceedings, every IDC ruling adverse to the prisoner -- e.g., every piece of evidence that is admitted or excluded, every continuance that is granted or denied, and every unfavorable finding that is made -- will be a potential count in a Bivens suit seeking extravagant sums in compensatory and punitive damages. See Imbler v. Pachtman, 424 U.S. 409, 425 (1976). This problem will be exacerbated because of the "flexible and variable" nature of the requirements imposed by the Due Process Clause, particularly in the prison disciplinary setting. See Hewitt v. Helms, 459 U.S. 460, 472 (1983). It is clear that prison disciplinary proceedings need not be conducted like trials. Ibid.; Wolff v. McDonnell, 418 U.S. at 560. But the flexible nature of due process requirements will leave prisoners ample opportunity to argue that, under the circumstances of the case, the disciplinary committee departed too far from trial procedures in this or that particular. Finally, as the present case illustrates, the procedural safeguards of an IDC proceeding provide sufficient assurance that constitutional errors will be avoided or corrected. /11/ To insure impartiality, no staff member who reports or investigates an incident may sit on an IDC considering the charge. BOP Policy Statement Paragraph 9(a); see 28 C.F.R. 541.16(b). In addition, the chairman and at least one other member of the committee must have the rank of department head or higher. Ibid.; see also notes 4 & 7, supra. /12/ An inmate accused of misconduct is entitled to prior notice of all charges at least 24 hours before his hearing. He may select a correctional staff member as his advocate, and the IDC may grant a continuance to allow the advocate to prepare. BOP Policy Statement Paragraph 9(c)(1) and (2); see 28 C.F.R. 541.17(a) and (b). At the hearing, the inmate has the right to make a statement, to present documentary evidence, and, under certain circumstances, to call witnesses. BOP Policy Statement Paragraph 9(c)(3); see 28 C.F.R. 541.17(c). If the IDC refuses to call a witness requested by the inmate, the reasons must be reflected in the record (ibid.). The inmate is generally entitled to be present at all phases of the hearing except the deliberations. BOP Policy Statement Paragraph 9(c)(5); see 28 C.F.R. 541.17(d). The IDC is required to keep a detailed record of its actions sufficient to show, inter alia, the Committee's findings and decision, the specific evidence on which it relied, and an explanation for the sanctions imposed. BOP Policy Statement Paragraph 9(c)(4); see 28 C.F.R. 541.17(g). As an additional safeguard, inmates may seek administrative review at three levels -- from the warden, the regional director, and the assistant director (general counsel) of the Bureau of Prisons. BOP Policy Statement Paragraph 10; see 28 C.F.R. 541.19 and 28 C.F.R. Pt. 542. And as this case demonstrates, an inmate's right to administrative review is not an empty one. "(T)he efficiency of the review is demonstrated by the decision to modify, and, ultimately, to reverse the IDC's decision in this case." App., infra, 26a (Celebrezze, J., dissenting). Finally, a prisoner dissatisfied with the disposition of his administrative appeal may seek review under 28 U.S.C. 2241 in federal court. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 487-488, 499 (1973) (state habeas corpus); Johnson v. Avery, 393 U.S. 483 (1969) (state habeas corpus); Dawson v. Smith, 719 F.2d 896 (7th Cir. 1983); Jackson v. Carlson, 707 F.2d 943, 946 (7th Cir. 1983); Kyle v. Hanberry, 677 F.2d 1386 (11th Cir. 1982). For these reasons -- the functional comparability of IDC members to judges, the certain prospects of harassing or retaliatory litigation, and the safeguards designed to prevent and correct constitutional defects -- IDC members are entitled to absolute immunity from personal damages liability in suits challenging the committee's proceedings. 2. The court of appeals did not attempt to apply the absolute immunity analysis of Butz v. Economou. Instead, the court simply relied without discussion on its own precedents holding that state correctional officials who serve on disciplinary committees enjoy only qualified immunity. App., infra, 1a-2a; see page 6, supra. Moreover, none of these prior decisions discussed the important question of absolute immunity in any detail. Indeed, the only Seventh Circuit decision containing any analysis of the issue is Mary & Crystal v. Ramsden, 635 F.2d at 600, which merely stated that members of the disciplinary committee at a state juvenile facility performed a function "more similar to that of the school board members in Wood v. Strickland, 420 U.S. 308 * * * (1975), than to that of a judge." Whatever merit this analogy may have with respect to officials in a juvenile facility, it is far-fetched when applied to officials in a prison. As Judge Celebrezze aptly put it (727 F.2d at 678 n.5): "The difference between the function performed by prison officials and the function performed by school board members is as great as the difference between prisoners and schoolchildren." Furthermore, the procedures followed by the school officials in Wood (see 420 U.S. at 312-313) share none of the formality of IDC proceedings. Finally, the Court stated in Wood (id. at 320) that "absolute immunity * * * would not sufficiently increase the ability of school officials to exercise their discretion in a forthright manner." The same is emphatically not true of IDC members. 3. a. The court of appeals' decision in this case is consistent with that of the Sixth Circuit in Jihaad v. O'Brien, 645 F.2d 556, 561 (1981) -- a decision that is likewise devoid of supporting analysis. However, the decision below conflicts with that of the Fourth Circuit sitting en banc in Ward v. Johnson, 690 F.2d 1098 (1982). /13/ In Ward, a state prison inmate filed an action for damages under 42 U.S.C. 1983 claiming that his federal constitutional rights had been violated in the course of a disciplinary hearing conducted by the prison Adjustment Committee, a body analogous in function, composition, and procedure to a federal prison IDC. The alleged constitutional violation was the refusal by the chairman of the Adjustment Committee to call the inmate's witnesses on the ground that their testimony would be repetitive of the written statements they had already provided. 690 F.2d at 1102. Applying the guidelines in Economou, the Fourth Circuit held that the chairman was entitled to absolute inmunity. The court of appeals found (690 F.2d at 1106) that there was an "obvious 'functional comparability'" between the chairman's duties on the Adjustment Committee and a judge's responsibilities in a judicial proceeding. The court also concluded (id. at 1106-1108) that the Adjustment Committee's procedures, which are generally similar to those of the federal IDC's, provided sufficient safeguards against unconstitutional conduct. The court noted (id. at 1106) that the proceedings are adversarial in nature and that the prisoner may secure representation, introduce evidence, and question adverse witnesses (ibid.). The court also pointed out (id. at 1107-1108) that prison officials familiar with the events at issue are disqualified from serving on the Adjustment Committee and that prisoners have the right to two levels of administrative review. Finally, the Fourth Circuit observed (690 F.2d at 1108) that the denial of absolute immunity would create "a real threat of burdensome and expensive litigation." The court continued (ibid.; footnote omitted): The proclivities of prison inmates to engage in litigation are prodigious. It has been estimated that between 30 and 40 percent of our appeals in this Circuit concern proceedings by prison inmates. That burden on the courts will be immeasurably increased by allowing suits arising out of disciplinary hearings which have been as carefully structured as this one has been in order to provide every reasonable "safeguard" of an inmate's right to a fair and impartial hearing within the prison context. * * * Moreover, lawsuits, whether meritorious or not, are always burdensome, harassing, and time-consuming. It is difficult enough to secure qualified prison employees. That task will be made more difficult, particularly in securing officials to serve on Adjustment Committees, if, however fair they try to be, such officials are subjected to the hazards of repeated litigation by disappointed defendants in disciplinary hearings. Ordinarily, prison officials are not generously rewarded for their services and the threat of an award against them personally would be a hazard many would feel themselves not justified in risking. The prison system itself will also likely be seriously hampered by a denial to the members of the Adjustment Committee (of) absolute immunity, since prison employees will unquestionably be resistant to accepting appointment as members of an Adjustment Committee if acceptance entails the serious hazard of being sued personally for their actions strictly as members of the Committee. b. The situation in Ward cannot be meaningfully distinguished from that in the present case. The mere fact that Ward involved a state, rather than a federal, prison official obviously does not matter, especially since the court of appeals' decision in this case was founded upon its prior decisions involving state officers. /14/ It is true that the procedures of the state prison Adjustment Committee in Ward differ somewhat from those of the federal IDC's, /15/ but there is no hint in the Fourth or Seventh Circuit decisions that these differences were responsible for the conflicting results. On the contrary, in Redding v. Fairman, 717 F.2d at 1117, the Seventh Circuit rejected Ward as not representing "the better view." Similarly in this case, the majority followed Redding (App., infra, 1a-2a), and Judge Cudahy, in concurrence, specifically rejected Ward once again (App., infra, 10a-11a & n.3). /16/ 4. The immunity of prison officials who serve on disciplinary committees is an issue of substantial practical importance that requires prompt resolution by this Court. "The administration of a prison * * * is 'at best an extraordinarily difficult undertaking.'" Hudson v. Palmer, No. 82-1630 (July 3, 1984), slip op. 9, quoting Wolff v. McDonnell, 418 U.S. at 566. See also Hewitt v. Helms, 459 U.S. at 467. "Prisons, by definition, are places of involuntary confinement of persons who have a demonstrated proclivity for antisocial, criminal, and often violent, conduct." Hudson v. Palmer, slip op. 8. "Prison life, and relations between the inmates themselves and between the inmates and prison officials or staff, contain the ever-present potential for violent confrontation and conflagration." Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 132 (1977). Thus, "central to all other corrections goals is the institutional consideration of internal security." Pell v. Procunier, 417 U.S. 817, 823 (1974). However, maintaining order, safety, and discipline in a prison is a formidable task, as events in recent years have dramatically illustrated. In an effort to enforce the disciplinary rules in federal prisons in accordance with due process requirements, more than 30,000 IDC hearings are held each year, and in almost half of these cases the sanction of disciplinary segregation is imposed. The meting out of punishment naturally produces resentment among those punished. As the Court has noted (Wolff v. McDonnell, 418 U.S. at 562), disciplinary proceedings take place against a background in which "(g)uards and inmates co-exist in direct and intimate contact. Tension between them is unremitting. Frustration, resentment, and despair are commonplace." As a result, "(t)he reality is that disciplinary hearings and the imposition of disagreeable sanctions necessarily involve confrontations between inmates and authority * * *. Retaliation is much more than a theoretical possibility." Ibid. In some instances, the retaliatory urge is so great that physical force is used. If prisoners are empowered to strike out against IDC members by suing them personally for damages based upon alleged procedural defects in the disciplinary proceedings, "(s)uch suits could be expected with some frequency" (Imbler v. Pachtman, 424 U.S. at 425). The urge to turn the tables on prison officials -- to make them the accused and to disrupt their personal lives -- will frequently prove irresistible. /17/ The predictable result will be most unfortunate, not only for IDC members, but also for the prison system and the courts. Exposing IDC members to a civil suit for damages "would seriously cripple" (Spalding v. Vilas, 161 U.S. 483, 498 (1896)) the viability of the prison dispute resolution system by threatening the freedom and independence of these decision makers. Only the most stalwart or foolhardy prison officials would willingly serve on IDC's. Harlow, 457 U.S. at 814; Economou, 438 U.S. at 509-510: Ward v. Johnson, 690 F.2d at 1108; Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1948), cert. denied, 339 U.S. 949 (1950); see Taylor v. Kavanagh, 640 F.2d 450 (2d Cir. 1981). And those who do serve would inevitably be influenced in their rulings by the threat of retaliatory lawsuits. In defending the decision below, Judge Cudahy lightly dismissed these concerns by observing (App., infra, 15a) that IDC members "are accorded adequate protection against harassment by the enlarged safeguards of qualified immunity as announced in Harlow." Of course, this same argument could be made in an effort to show that judges should not be absolutely immune from damages liability. Unless protected by absolute immunity, however, judges would be swamped and demoralized by suits brought by disgruntled litigants, even if it appeared likely that all or most of those suits would ultimately be dismissed on qualified immunity grounds. The psychological burden, as well as the real economic effects, of defending against such suits would be considerable. The same is true for IDC members, who need and deserve the same protection if the prison disciplinary system is to continue in its present form. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General STEPHEN S. TROTT Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General SAMUEL A. ALITO, JR. Assistant to the Solicitor General GLORIA C. PHARES Attorney NOVEMBER 1984 /1/ "PX" stands for plaintiffs' exhibit. /2/ The record does not reflect whether respondent Cain received a similar notice at that time (App., infra, 3a). /3/ Administrative segregation results in a prisoner's removal from the general inmate population for a temporary period (2 Tr. 226; 28 C.F.R. 541.20). /4/ IDC's at Terre Haute were generally composed of three members. By regulation, at least two of these members were senior correctional officers with a rank of department head or higher. The third member was normally a less senior member of the correctional staff. Staff members who witnessed the incident were excluded from membership on the IDC unless application of that rule would preclude the impanelling of an IDC (App., infra, 3a n.3; PX 7, Paragraph 4; see 28 C.F.R. 541.16(b)). /5/ Compare Real v. Superintendent, Massachusetts Correctional Institution, 390 Mass. 399, 456 N.E.2d 1111 (1983) (due process requires support in record of prison disciplinay disciplinary proceeding for denial of prisoner's request to call witnesses), cert. granted sub nom. Ponte v. Real, No. 83-1329 (Oct. 1, 1984). /6/ Also named as defendants were the warden (Charles Benson) and the administrative supervisor (C.D. Wilson). App., infra, 3a n.3. /7/ Judgment was entered in favor of the other defendants (see note 6, supra; 2 R. 370-374). Respondents did not contest this aspect of the judgment on appeal. /8/ The court also stated (App., infra, 7a) that the damages awards might be "somewhat excessive," but it refused to disturb them. /9/ The Court made clear (438 U.S. at 511) that absolute immunity depends upon "the special nature of (the official's) responsibilities" rather than his rank or his "particular location within the Government." This "functional" analysis has been repeatedly reaffirmed. See, e.g., Briscoe v. LaHue, 460 U.S. 325, 342 & n.28 (1983) ("(I)mmunity analysis rests on functional categories, not on the status of the defendant."); Harlow v. Fitzgerald, 457 U.S. 800, 810 (1982). Thus, the present case is not controlled by Procunier v. Navarette, 434 U.S. 555 (1978), which held that prison officials are entitled to qualified immunity when performing the administrative task of handling prisoner mail. /10/ For example, in the year ending June 30, 1984, prisoner suits (591 cases) comprised 35% of the Seventh Circuit's civil docket (1649 cases) and 26% of its entire docket (2254 cases). Unpublished information, Administrative Office, United States Courts, Washington, D.C. /11/ BOP regulations governing inmate discipline have been amplified since 1975, but even at that time the regulations "were fairly extensive." App., infra, 24a (footnote omitted) (Celebrezze, J., dissenting). Compare PX 7 with 28 C.F.R. 541.10-541.23 (App., infra, 37a-60a). Respondents' disciplinary hearing occurred less than one year after the decision in Wolff v. McDonnell, 418 U.S. 539 (1974), and only six months after promulgation of the first regulations governing the procedures at IDC hearings. /12/ Since June 1, 1983, only BOP personnel who have passed a written examination on IDC procedures may be certified to serve on an IDC. /13/ For district court decisions in agreement with Ward, see Anderson v. Luther, 521 F. Supp. 91, 97 (N.D. Ill. 1981) (Bivens suit); Breedlove v. Cripe, 511 F. Supp. 467 (N.D. Tex. 1981) (Bivens suit); Fitchette v. Collins, 402 F. Supp. 147 (D. Md. 1975) (action under 42 U.S.C. 1983). See also Stewart v. Thigpen, 730 F.2d 1002, 1006 n.1 (5th Cir. 1984) (district court decision held prison officials on disciplinary committee entitled to absolute immunity; court of appeals did not reach issue). Cf. Simons v. Bellinger, 643 F.2d 774 (D.C. Cir. 1980) (granting absolute immunity to individuals appointed to serve on the District of Columbia Court of Appeals Committee on Unauthorized Practice). /14/ It would be "untenable to draw a distinction for purposes of immunity law between suits brought against state officials under Section 1983 and suits brought directly under the Constitution against federal officials." Butz v. Economou, 438 U.S. at 504; Harlow v. Fitzgerald, 457 U.S. at 809. /15/ For example, under the Virginia system, an inmate has the right to be represented by counsel and to confront and cross-examine adverse witnesses. Neither the Due Process Clause (Baxter v. Palmigiano, 425 U.S. 308, 320-323 (1976); Wolff v. McDonnell, 418 U.S. 539, 567-570 (1974)) nor federal prison rules (see pages 11-12, supra) provide such rights. /16/ The Fourth Circuit suggested in Ward that absolute immunity might not be available if a prison disciplinary hearing denied any semblance of due process. 690 F.2d at 1108-1109. There is no reason to believe that the Fourth Circuit would view that exception as applicable here. The judgments against petitioners were based on three alleged violations of due process. One of these -- the refusal to call defense witnesses whose testimony was believed to be cumulative -- was the same violation alleged in Ward. Another alleged defect -- the failure to call live witnesses in support of the charges -- was no violation at all. Baxter v. Palmigiano, 425 U.S. at 320-323; Wolff v. McDonnell, 418 U.S. at 567-569. The final alleged defect was the failure to provide adequate notice of the charges of possessing contraband and unauthorized use of the mail. This defect was surely not so great as to distinguish the present case from Ward. While an inmate's right to 24 hours notice of disciplinary charges was established in Wolff, it is at least arguable that Wolff does not apply to the situation here. In this case, the evidence supporting the new charges was originally introduced to prove the charges on the incident reports. Respondent Saxner then admitted that he had committed the additional offenses; and in any event, respondents' possession of the documents was essentially incontrovertible. Moreover, the new charges were no more serious than those in the incident reports, and there is no indication that the new charges resulted in the imposition of any additional punishment. /17/ Moreover, since prisoners are generally barred by sovereign immunity from suing the United States or the Bureau of Prisons for damages, the IDC members will bear the full brunt of the prisoners' resentment. APPENDIX