Hasty v. Iqbal - Response (Hold)

No. 07-827

In the Supreme Court of the United States

DENNIS HASTY, FORMER WARDEN, PETITIONER

v.

JAVAID IQBAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENTS JOHN D. ASHCROFT
AND ROBERT MUELLER

PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
CURTIS E. GANNON
Assistant to the Solicitor
General
BARBARA L. HERWIG
ROBERT M. LOEB
SHARON SWINGLE
Attorneys

In the Supreme Court of the United States

No. 07-827

DENNIS HASTY, FORMER WARDEN, PETITIONER

v.

JAVAID IQBAL, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

BRIEF FOR RESPONDENTS JOHN D. ASHCROFT
AND ROBERT MUELLER

1. STATEMENT

The decision of the United States Court of Appeals for the Second Circuit at issue in this petition is also the subject of a separate petition for a writ of certiorari filed on behalf of John D. Ashcroft, former Attorney General of the United States, and Robert Mueller, Director of the Federal Bureau of Investigation, who, like petitioner Hasty in this case, were each defendants-appellants in the court of appeals. See Ashcroft v. Iqbal, petition for cert. pending, No. 07-1015 (filed Feb. 6, 2008).

The facts and procedural background of this case are summarized (at 2-8) in the petition in No. 07-1015.

ARGUMENT

1. The question presented by petitioner-the war den for the detention center where respondent Iqbal was held during the period at issue-overlaps with the first question presented in No. 07-1015, concerning whether or in what circumstances conclusory allegations may state a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against supervisory officials with no direct in volvement in alleged constitutional violations by others. As explained in the petition in No. 07-1015 (at 11-24), that question warrants this Court's review.

The Court may wish to consider that important ques tion from the standpoint of high-ranking officials like the Attorney General and the Director of the FBI (i.e., the petitioners in No. 07-1015) as well as the lower-level supervisors like the warden of a detention facility (i.e., petitioner Hasty). At a minimum, however, the question warrants review with respect to claims that are directed against high-ranking officials like the Attorney General and the Director of the FBI, who could easily be added to Bivens complaints on the basis of a conclusory allega tion that they "knew of or condoned" actions by others, which, in turn, could subject such high-ranking officials to the prospect of discovery, as petitioners Ashcroft and Mueller now face here, and thereby disrupt critical gov ernment operations-in conflict with this Court's prece dents and the vital principles underlying the doctrine of qualified immunity. See Pet. at 21-24, Ashcroft v. Iqbal, supra (No. 07-1015).

Judge Cabranes underscored in his separate opinion the unique institutional concerns presented by allowing such claims to proceed on the basis of conclusory allega tions against such high-ranking officials. See, e.g., Pet. App. 214a-215a; see also id. at 188a (court of appeals opinion; contrasting "Hasty and the mid-level Defen dants" with "Ashcroft and Mueller," whom it called "se nior officials of the Department of Justice"). As Judge Cabranes explained, "[e]ven with the discovery safe guards carefully laid out in Judge Newman's opinion, it seems that little would prevent other plaintiffs claiming to be aggrieved by national security programs and poli cies of the federal government from following the blue print laid out by this lawsuit to require officials charged with protecting our nation from future attacks to submit to prolonged and vexatious discovery processes." Id. at 214a-215a. The amici former Attorneys General and FBI Directors have likewise demonstrated the added concerns and disruptive effects that the decision below threatens for high-ranking government officials. Barr Amicus Br. at 10-14, Ashcroft v. Iqbal, supra (No. 07- 1015).

2. The petition in No. 07-1015 also presents an addi tional question-not presented by petitioner Hasty and implicating a clear circuit split-on whether actual knowledge, as opposed to constructive knowledge, of the actions of subordinates is necessary for the imposition of supervisory liability in a Bivens action. See Pet. at 25- 33, Ashcroft v. Iqbal, supra (No. 07-1015). As explained in the petition in No. 07-1015, that question is also of substantial importance and independently warrants cer tiorari. See also Barr Amicus Br. at 20-24, Ashcroft v. Iqbal, supra (No. 07-1015). Indeed, by exposing super visory officials to liability based on a constructive notice theory, the Second Circuit's decision in this case inap propriately expands the inferred Bivens cause of action to encompass something approaching respondeat supe rior liability, which this Court itself has rejected in the analogous context of Section 1983 actions. See Pet. at 28, 32, Ashcroft v. Iqbal, supra (No. 07-1015). The com bined effect of the Second Circuit's broad conception of supervisory liability under Bivens and its lenient plead ing standard poses a serious threat to the ability of high- ranking officials to carry out their duties and therefore warrants this Court's review.

CONCLUSION

For the foregoing reasons, the Court should, at a minimum, grant a writ of certiorari in No. 07-1015. If the Court wishes to consider the sufficiency of conclu sory allegations against a broader range of governmen tal defendants, it should also grant a writ of certiorari in No. 07-827. Otherwise, the petition for certiorari in No. 07-827 should be held pending the disposition of No. 07- 1015.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
GREGORY G. GARRE
Deputy Solicitor General
CURTIS E. GANNON
Assistant to the Solicitor
General
BARBARA L. HERWIG
ROBERT M. LOEB
SHARON SWINGLE
Attorneys

APRIL 2008