LYNN JAY FERRIN, PETITIONER V. HERMAN DI MARTINI

   No. 90-660

   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 Ninth Circuit

   Reply Brief For The Petitioner

   Shortly before we filed the petition in this case, this Court
granted certiorari in Siegert v. Gilley, No. 90-96 (Oct. 15, 1990).
Although the issues in the two cases are not identical, both cases
involve questions regarding the appropriate standards for pretrial
adjudication of qualified immunity claims in Bivens actions.  The
decision in Siegert therefore could affect the proper disposition
here.  Accordingly, our petition urged the Court to grant certiorari
and to set this case for oral argument in tandem with Siegert.  That
course is no longer possible, since Siegert has been scheduled for
oral argument on February 19, 1991.  We therefore believe that this
petition should be held pending the decision in Siegert.

   Plenary review may be unnecessary depending on the Court's decision
in Siegert.  If the Court's decision in Siegert bears on the Fed. R.
Civ. P. 56 question resolved by the Ninth Circuit in this case, the
appropriate course may be to vacate the judgment below and remand this
case to the Ninth Circuit for reconsideration in light of the
decision.  But if this Court does not address the Rule 56 question in
Siegert, we believe that plenary review of this case would still be
warranted.  For that reason, this petition should be held pending the
decision in Siegert and should then be disposed of as appropriate in
light of the Court's decision.

   Respectfully submitted.

   JOHN G. ROBERTS, JR.

      Acting Solicitor General /*/

   FEBRUARY 1991

   /*/ The Solicitor General is now disqualified in this case.