No. 99-1416
In the Supreme Court of the United States
DALE A. BROWN, R. SCOTT SATTERWHITE,
AND ANTHONY P. HODGSON, PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
BARBARA HERWIG
RICHARD MONTAGUE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTIONS PRESENTED
1. Whether the court of appeals properly dismissed petitioners' claims brought
pursuant to the Federal Tort Claims Act and Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), on the ground
that the claims were time-barred.
2. Whether the court of appeals properly applied Texas' two-year statute
of limitations applicable to personal injury claims to petitioners' claims
brought pursuant to Bivens.
3. Whether the court of appeals correctly dismissed petitioners' claims
against respondent federal agents on the ground that respondents were entitled
to qualified immunity, without affording petitioners discovery on that issue.
In the Supreme Court of the United States
No. 99-1416
DALE A. BROWN, R. SCOTT SATTERWHITE,
AND ANTHONY P. HODGSON, PETITIONERS
v.
UNITED STATES OF AMERICA, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENTS IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1-24) is reported at 188
F.3d 579. The opinion of the district court (Pet. App. 25-36) is unreported.
JURISDICTION
The judgment of the court of appeals was entered on September 8, 1999. A
petition for rehearing was denied on November 12, 1999 (Pet. App. 37-38).
On February 10, 2000, the time to file a petition for a writ of certiorari
was extended to February 24, 2000. The petition for a writ of certiorari
was filed on February 24, 2000. The jurisdiction of this Court is invoked
under 28 U.S.C. 1254(1).
STATEMENT
1. In the fall of 1991, the Federal Bureau of Investigation (FBI) initiated
an undercover investigation, code-named "Operation Lightning Strike,"
designed to uncover procurement-related fraud and other illegal activity
committed by National Aeronautic and Space Administration (NASA) employees
and aerospace contractors doing business with NASA. Pet. App. 48. NASA's
Office of the Inspector General and the Defense Contractor Investigative
Service (DCIS) also participated in the investigation. Id. at 49.
a. In May 1992, FBI Special Agent James H. Francis, posing as an investor
named "John Clifford," contacted petitioners Brown, Satterwhite,
and Hodgson. Pet. App. 50. Petitioners were not targets of the investigation.
Ibid. However, petitioners operated two companies that provided aerospace-related
products and services to private and governmental entities, id. at 48, and
petitioners were used by the FBI to meet potential targets within the NASA
community, id. at 50.
Francis claimed to be a wealthy businessman seeking to market "cutting-edge"
electronics to NASA and the aerospace industry. Pet. App. 49-50. He told
petitioners that he planned to develop a miniature medical device-a "lithotripter"-that
could help astronauts survive in space. Id. at 50, 53. Francis proposed
that petitioners' Houston, Texas, aerospace firm form a partnership with
Eastern Tech Manufacturing Corporation (ETMC), in order to gain valuable
contracts with NASA and its contractors. Id. at 50. Francis posed as vice-president
of ETMC, which was a legitimate company. Id. at 54. Francis also offered
Brown a high-level executive position at "Space, Inc," a front
company created by the FBI, and promised to commit venture capital to petitioners'
companies. Id. at 50-51. Petitioners agreed that it would be profitable
to establish a business relationship with Francis. Id. at 51.
In May and July 1992, petitioners contacted various banks and companies
in order to verify Francis' financial information. Pet. App. 51-53. Representatives
of those institutions, cooperating with the FBI, provided petitioners with
favorable, false information regarding the financial status of the fictitious
"John Clifford." Ibid. In addition, representatives of ETMC falsely
represented the company as a facility capable of and involved in the manufacture
of lithotripters, and a device called a Printed Wiring Assembly Robotic
Tinning System (PWARTS). Id. at 54, 56. Petitioners understood that the
PWARTS was a possible basis for a procurement contract with the Tobyhanna
United States Army base. Id. at 56. In reliance on these misrepresentations,
petitioners met with personnel from NASA, as well as companies within the
aerospace community and the private industry, and submitted proposals to
those entities representing that ETMC and Space, Inc., as well as petitioners'
own companies, could develop products and services meeting NASA's standards.
Ibid.
From December 1992 to March 1993, Francis sought to persuade Brown to abandon
his career plans in the commercial space industry. Pet. App. 58. He offered
Brown a job as a construction supervisor, responsible for the building of
a Bahamas hotel, with a large salary and attractive fringe benefits, including
a private plane. Ibid. In anticipation of this new position, Brown dissolved
his business relationship with petitioners Hodgson and Satterwhite. Id.
at 59.
On February 26, 1993, Francis instructed Brown's business associate, Neal
Jackson, to "entertain," with Brown's assistance, a procurement
official from the Army's Tobyhanna base who would be visiting Houston. Pet.
App. 59. On March 4, 1993, Francis told Jackson that the official did not
wish to be entertained, but requested that "entertainment funds"
be brought to his hotel. Ibid. Brown and Jackson drove to the official's
hotel in Houston, where Jackson handed Brown a sealed envelope, and told
Brown to deliver it to the official's room. Brown did so, and immediately
departed. Id. at 59-60. Audio and visual recording equipment had been installed
in the hotel rooms by the FBI. Id. at 60.
b. On August 4, 1993, FBI agents confronted Brown in a warehouse in Houston,
Pet. App. 60, where they informed him of the existence of the undercover
investigation, that Clifford was an FBI agent, and that the projects and
job offers Clifford had described did not actually exist. Pet. 8. According
to the Complaint, the agents intimidated, psychologically abused, and blackmailed
Brown, in order to coerce him into "going undercover and setting up
other stings on other aerospace contractors." Pet. App. 60. The agents,
inter alia, threatened to prosecute Brown for various crimes. Ibid. Brown
agreed to cooperate.1
On May 22, 1994, Francis disclosed publicly that the FBI had been directed
to abandon the undercover investigation. Pet. App. 62. On August 24, 1994,
a federal grand jury indicted Brown for one count of offering a $500 bribe
to a public official. Ibid. Brown's trial ended in a mistrial, and the United
States Attorney declined to retry him. Id. at 62-63.
2. On February 22, 1996, petitioners sued the United States, and the federal
agents who participated in the undercover investigation, in their individual
capacities, in the United States District Court for the Southern District
of Texas.2 Pet. App. 2. Petitioners brought claims against the United States
pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b) (1994
& Supp. IV 1998), 2401(b), 2671-2680, alleging false imprisonment, abuse
of process, malicious prosecution, assault, intentional infliction of emotional
distress, and invasion of privacy. Pet. App. 32. Petitioners also brought
claims against the federal agents alleging, inter alia, violations of their
due process and Fifth Amendment rights pursuant to Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and violations
of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C.
1961 et seq.3 Pet. App. 28, 34.
On July 30, 1997, the district court dismissed petitioners' claims against
the United States alleging malicious prosecution and abuse of process, brought
pursuant to the FTCA, on the ground that the claims were barred by the FTCA's
"discretionary function" exception. Pet. App. 34; 28 U.S.C. 2680(a).
The district court dismissed petitioners' other claims brought pursuant
to the FTCA, as well as petitioners' Bivens claims against the individual
FBI agents, on the ground that the claims were time-barred. Pet. App. 32-34.
The district court also dismissed petitioners' RICO claims against the agents
on the ground that the agents were protected by qualified immunity. Id.
at 29, 31.
3. Petitioners appealed, and the court of appeals affirmed. Pet. App. 1-24.
The court of appeals affirmed the dismissal of petitioners' allegations
of malicious prosecution and abuse of process, not on discretionary function
grounds, but on the ground that petitioners failed to state a claim upon
which relief could be granted. Id. at 10-12. The court affirmed the dismissal
of petitioners' other claims against the United States brought pursuant
to the FTCA alleging assault, false imprisonment, intentional infliction
of emotional distress, and invasion of privacy, on the ground that the claims
were time-barred. The claims involved events that took place in August and
September 1993 and had not been presented to the appropriate administrative
agencies within two years of their occurrence, as required by 28 U.S.C.
2401(b). Pet. App. 18-19.
The court of appeals affirmed the dismissal as time-barred of two of petitioners'
claims against the respondent federal agents pursuant to Bivens. The court
of appeals applied the two-year statute of limitations applicable to personal
injury claims under Texas law, and concluded that Brown's and Satterwhite's
claims accrued in August 1993, when they learned of the government's sting
operation, and therefore their claims were barred by the statute of limitations.
Pet. App. 19. The court could not ascertain from the record when petitioner
Hodgson's Bivens claims accrued, but affirmed the dismissal of his claims
on the alternative ground that he did not allege a violation of "clearly
established" constitutional rights and thus respondent federal agents
were entitled to qualified immunity from suit. Id. at 20, 24. The court
of appeals affirmed the dismissal of petitioners' RICO claims on the ground
that petitioners failed to assert a violation of "clearly established"
statutory rights, and therefore respondent federal agents were entitled
to qualified immunity from suit. Id. at 14-15. The court of appeals subsequently
denied a petition for rehearing. Id. at 37-38.
ARGUMENT
The court of appeals' decision to affirm the dismissal of petitioners' claims
was correct and does not conflict with any decision of this Court or any
other circuit. Petitioners contend that the court of appeals erroneously
decided when their Federal Tort Claims Act and Bivens claims accrued; that
the court should have applied a longer limitations period to their Bivens
claims; and that the court should have afforded them discovery before holding
that respondents were entitled to qualified immunity from suit. Petitioners'
claims are without merit, and do not warrant this Court's review.
1. Petitioners contend that the court of appeals erred in deciding that
their claims brought pursuant to the Federal Tort Claims Act, as well as
their claims that respondent federal agents violated their Fifth Amendment
rights, brought pursuant to Bivens, accrued in August and September 1993,
when the events which form the basis of petitioners' allegations occurred.
Pet. 21; Pet. App. 18-20. Contrary to petitioners' contention, the court
of appeals correctly applied settled principles of law governing the accrual
of federal claims, and that decision does not warrant review.
a. Prior to bringing an action in district court pursuant to the Federal
Tort Claims Act, a prospective plaintiff must present his claim in writing
to the appropriate federal agency. See 28 U.S.C. 2675(a). If a claim is
not presented within two years after it accrues, it is barred. See 28 U.S.C.
2401(b). A tort claim "accrues" within the meaning of Section
2401(b) when the plaintiff is aware both of the existence of the injury
and its cause, that is, the connection between the injury and the defendant's
action. See United States v. Kubrick, 444 U.S. 111, 122 (1979). The same
accrual analysis applies to claims brought pursuant to Bivens, which, as
we explain below, have a two-year statute of limitations. See Moore v. McDonald,
30 F.3d 616, 620-621 (5th Cir. 1994); Piotrowski v. City of Houston, 51
F.3d 512, 516 (5th Cir. 1995).
The court of appeals correctly applied these accrual principles to petitioners'
claims. Petitioners presented their claims brought pursuant to the Federal
Tort Claims Act to the FBI, NASA, and DCIS on January 8 and 10, 1996. Pet.
App. 19, 46. They filed suit alleging violations of constitutional rights
pursuant to Bivens on February 22, 1996. Id. at 7. Petitioners do not dispute
that their Complaint "unmistakabl[y]" reflects that Brown, Satterwhite,
and Hodgson suffered injuries more than two years prior to presenting their
FTCA claims in writing, Pet. 23; see also Pet. App. 61-62, and thus, also
more than two years before bringing claims under Bivens. Applying the FTCA
rules on claim presentation and the two-year statute of limitations applicable
to Bivens claims, the court of appeals correctly determined that petitioners'
claims were time-barred. Pet. App. 18-20.
b. Petitioners contend, however, that their Complaint did not state that
they knew "the identity of the specific agents involved in this matter
more than two years before they presented their claim in writing."
Pet. 23. They therefore take the position that the district court and the
court of appeals erred in determining that their claims accrued at that
time. Ibid.
Contrary to petitioners' argument, a claim accrues when a party has knowledge
of the fact of injury and its cause, not when a party is aware of the identity
of the specific agents involved. See, e.g., Gibson v. United States, 781
F.2d 1334, 1344 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). In
any event, petitioners may not have known the names of the individuals who
allegedly harmed them, but they concede that they were aware of their identities
as law enforcement officials more than two years prior to presenting their
claim in writing, and more than two years prior to bringing suit under Bivens.
Pet. 8, 23. The court of appeals therefore correctly dismissed petitioners'
claims as time-barred.4
2. a. Petitioners also contend that the court of appeals erred in applying
a two-year statute of limitations to their Bivens claims. Contrary to petitioners'
contention, the court of appeals correctly concluded that petitioners' Bivens
claims are governed by Texas' two-year personal injury statute of limitations.
See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a) (Vernon 1986 &
Supp. 2000). Courts of appeals that have addressed the issue generally agree
that for the purposes of determining the applicable statute of limitations,
the same rule applies to claims against federal officials brought pursuant
to Bivens as applies to claims against state officials brought pursuant
to Section 1 of the Act of Apr. 20, 1871, ch. 22, 17 Stat. 13, currently
codified at 42 U.S.C. 1983 (1994 & Supp. III 1997). Pet. 14. This Court
has held that the limitations period for claims brought pursuant to Section
1983 is determined by reference to the statute of limitations applicable
to personal injury claims in the relevant State. See Wilson v. Garcia, 471
U.S. 261, 280 (1985), see also Owens v. Okure, 488 U.S. 235, 249-250 (1989);
Pet. 14. Accordingly, the court of appeals correctly determined that Texas'
two-year limitations period applicable to personal injury claims applied
to petitioners' claims brought pursuant to Bivens.
b. Petitioners contend that a different statute of limitations should apply
to their Bivens claims because the constitutional wrongs they allege sound
in the nature of "fraud," rather than personal injury. Pet. 14-15.5
Petitioners therefore argue that the court of appeals should have applied
Texas' four-year fraud statute of limitations to their Bivens claims. See
Tex. Civ. Prac. & Rem. Code Ann. § 16.004(a)(4) (Vernon Supp. 2000);
Pet. 15.
Petitioners' claim lacks merit. This Court recognized in Wilson v. Garcia
that almost every Section 1983 claim can be analogized to one of the many
common law forms of action, or to a claim arising under statute. Wilson,
471 U.S. at 272-273. If the statute of limitations applicable to Section
1983 claims turned on the particular facts of each claim, "uncertainty
and time-consuming litigation" would inevitably result. Id. at 272.
Therefore, this Court determined that one statute of limitations should
apply to all Section 1983 claims. Because those claims are most appropriately
characterized as personal injury claims, the relevant state statute of limitations
applicable to personal injury actions should apply. Id. at 275, 278, see
also Owens, 488 U.S. at 249-250. Petitioners do not dispute that claims
brought pursuant to Bivens should be treated the same as claims brought
pursuant to Section 1983 for statute of limitations purposes. The court
of appeals' application of Texas' limitations period for personal injury
claims to petitioners' claims brought pursuant to Bivens is therefore consistent
with Wilson and Owens and does not warrant review by this Court.
3. Petitioners also contend that the court of appeals erred in holding that
respondent federal agents were entitled to qualified immunity from suit
and in dismissing their Bivens claims on that ground, without allowing petitioners
discovery on that issue. Pet. App. 16-20. Because on this record the court
of appeals' resolution of the immunity issue was fully consistent with this
Court's immunity jurisprudence, no further review is warranted.
a. "[G]overnment officials performing discretionary functions, generally
are shielded from liability for civil damages insofar as their conduct does
not violate clearly established statutory or constitutional rights of which
a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). This rule provides officials with immunity from suit, rather
than a mere defense to liability. Mitchell v. Forsyth, 472 U.S. 511, 526
(1985). For that reason, a defendant pleading qualified immunity is entitled
to dismissal before discovery commences, unless "the plaintiff's allegations
state a claim of violation of clearly established law." Ibid.; Behrens
v. Pelletier, 516 U.S. 299, 308 (1996) (qualified immunity allows government
officials to avoid not only trial but pretrial burdens such as discovery).
The court of appeals correctly concluded that petitioners' complaint should
be dismissed on the basis of respondents' qualified immunity, because the
complaint failed to allege a violation of any clearly established constitutional
right. Pet. App. 20-24. Discovery has no bearing on the complaint's sufficiency
in this respect.
b. Petitioners suggest that Wilson v. Layne, 526 U.S. 603 (1999), and Crawford-El
v. Britton, 523 U.S. 574 (1998), require that the court of appeals allow
them discovery as to (1) whether the conduct at issue was commonplace, or
an isolated incident; (2) whether the FBI maintained policies that authorized
or prohibited the conduct at issue; and (3) the specific information that
each federal agent possessed, regarding whether they knew their conduct
was inappropriate. Pet. 18-19. Contrary to petitioners' suggestion, the
court of appeals properly resolved the immunity issue without allowing petitioners
discovery.
When plaintiffs' allegations fail to state a claim of clearly established
law, defendants pleading qualified immunity are entitled to dismissal before
the commencement of discovery. See Mitchell, 472 U.S. at 526; see also Anderson
v. Creighton, 483 U.S. 635, 646 n.6 (1987). Crawford-El is not to the contrary.
See Crawford-El, 523 U.S. at 598 (stating that if the defendant pleads the
immunity defense, "the district court should resolve that threshold
question before permitting discovery."). Wilson, on which petitioners
also rely, simply recognized that whether official action is unique or commonplace,
and whether an agency policy authorizes that action, may bear on the question
whether the conduct at issue was reasonable, in "light of clearly established
law." Wilson, 526 U.S. at 615; Mitchell, 471 U.S. at 534. The frequency
of official action, and the existence of an agency policy are not relevant
here, where petitioners agree that this case is the first to address the
parameters of due process protection afforded innocent third parties in
the context of undercover investigations, and thus that the relevant law
was not clearly established at the time the conduct occurred. Pet. 18.6
Moreover, Wilson does not suggest that petitioners are entitled to discovery
on those issues. In any event, even if discovery revealed that respondents
were acting in violation of agency policy, or that their actions were not
commonplace, they would not thereby lose their qualified immunity. See Davis
v. Scherer, 468 U.S. 183, 194 (1984) (officials sued for constitutional
violations do not lose their qualified immunity merely because their conduct
violates an administrative provision).7 The court of appeals appropriately
determined that respondents were entitled to qualified immunity because
petitioners allege violations of rights that were not "clearly established"
at the time the conduct at issue occurred. That decision is correct, and
does not warrant this Court's review.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Assistant Attorney General
BARBARA HERWIG
RICHARD MONTAGUE
Attorneys
MAY 2000
1 The Complaint alleges that as part of his cooperation, Brown was forced
to settle a pending lawsuit against a company that he agreed to investigate,
and then was coerced to sign a waiver stating that the FBI had not pressured
him to settle. Pet. App. 61-62.
2 Petitioners also sued the private businesses who assisted in the investigation.
Pet. App. 2. The district court dismissed the claims against those parties
and the court of appeals affirmed. Id. at 12, 16-18. Those determinations
are not at issue here.
3 Petitioners also brought a number of state tort law claims against respondents.
Pet. App. 15. The district court dismissed those claims; the court of appeals
affirmed, id. at 30-32, 15-16, and that determination is not at issue here.
4 Petitioners state that the general public was not aware of the investigation
until February 1994, Pet. 23, but petitioners do not claim that they were
unaware of the agents' true identities once the investigation was revealed
to them, nor that the agents concealed their identities after that point.
5 Although petitioners attempt to distinguish their claim from a typical
Bivens or Section 1983 claim, they recognize that the circumstances of this
case are "hardly unique." Pet. 16.
6 The third factor proposed by petitioners suggests that the immunity analysis
rests in part on each individual agent's subjective belief as to the lawfulness
of his or her actions. Harlow and its progeny establish that the agents'
subjective belief is irrelevant. See Anderson, 483 U.S. at 641.
7 Petitioners also claim that the district court and court of appeals erred
in dismissing their RICO claims on grounds of qualified immunity without
affording them discovery. Pet. 20. Petitioners do not explain why this is
so, or how discovery bears on whether their rights under RICO were "clearly
established." In any event, the court of appeals correctly determined
that petitioners failed to allege a violation of clearly established statutory
rights and therefore that respondents were entitled to qualified immunity,
and that determination does not warrant review. Pet. App. 12-14.