HELEN JEAN GUERCIO, PETITIONER V. GEORGE BRODY AND JOHN FEIKENS,
FORMER JUDGES

   No. 90-1027

   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 Respondent Brody In Opposition

            TABLE OF CONTENTS
   Question Presented
   Opinion below
   Jurisdiction
   Statement
   Argument
   Conclusion

                            OPINIONS BELOW

   The decision of the court of appeals (Pet. App. 3a-29a) is reported
at 911 F.2d 1179.  The decision of the district court with regard to
respondent George Brody (App., infra, 1a-8a) is unreported.  The
decision of the district court with regard to respondent John Feikens
(Pet. App. 30a-42a) is also unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 13, 1990
(Pet. App. 2a).  A petition for rehearing was denied on September 25,
1990 (Pet. App. 1a).  The petition for a writ of certiorari was filed
on December 26, 1990.  The jurisdiction of this Court is invoked under
28 U.S.C. 1254(1).

                          QUESTION PRESENTED

   Whether the court of appeals properly held that a bankruptcy court
judge was entitled to qualified immunity from liability in damages in
a Bivens action against him arising out of the dismissal of his
secretary.

                               STATEMENT

   1. In the late 1970s, the U.S. Bankruptcy Court for the Eastern
District of Michigan (Bankruptcy Court) comprised four judgeships,
three of which were assigned to Detroit.  /1/ At that time, respondent
George Brody was a judge in the Detroit Division of the Bankruptcy
Court.  Respondent John Feikens was then Chief Judge of the Eastern
District of Michigan (District Court).  Petitioner was Judge Brody's
secretary from January 1979 through October 1981, when Judge Brody
dismissed her.

   During this period, corruption was uncovered in the Detroit
Division of the Bankruptcy Court.  Investigations by the
Administrative Office of the United States Courts (AO) and by law
enforcement officials led to the resignation of one of the Bankruptcy
Court judges and to the convictions of court personnel.

   On May 6, 1981, the Judicial Council of the Sixth Circuit ordered
the Bankruptcy Court placed under the direct supervision of the
District Court.  The Council's order stated that this action was
necessary for "the effective and expeditious administration of the
business of the courts within this circuit." Pet. App. 5a (quoting
Judicial Council order of May 6, 1981).  Under the order, the
supervision included "the oversight of the general operation of the
Bankruptcy Court Clerk's Office, the appointment of an Acting Clerk of
the Bankruptcy Court and the approval of all personnel actions
affecting employees of the Bankruptcy Court." Ibid.  By subsequent
order of May 18, 1981, the District Court delegated this supervisory
authority -- including authority over personnel actions -- to Judge
Feikens.  Id. at 6a.

   2. Petitioner brought a Bivens /2/ action against respondents in
the United States District Court for the Eastern District of Michigan,
alleging that, in violation of her rights under the First Amendment,
respondents had terminated her for her role in exposing corruption in
the Bankruptcy Court.  Petitioner sought civil damages and equitable
relief, including reinstatement.  Pet. App. 69a-78a.

   Petitioner alleged that in late 1979 she became aware of
improprieties in the Bankruptcy Court concerning the system for
assigning cases to judges.  Beginning in May 1980, petitioner reported
these and other irregularities /3/ to the AO, which began an
investigation in October 1980.  Petitioner also provided information
to the FBI, and at some point a criminal investigation began.  Pet.
App. 71-73a.

   Petitioner further alleged that, in June 1981, one of the three
Bankruptcy Court judges resigned.  Shortly thereafter, a committee of
District Court judges nominated George Woods to fill the vacancy.
Woods' nomination was then approved by a screening committee of
Michigan attorneys.  After Woods had been approved by the committee,
but before he was appointed, petitioner found some newspaper articles
about Woods' unsuccessful bid for a position as a United States
Attorney in 1969.  Petitioner sent copies of the articles to the
nominating committee, the AO, the FBI, and "various newspaper
reporters." Pet. App. 73a-74a.

   Petitioner alleged that Woods told Judge Brody that, if appointed,
Woods would not work with Brody unless Brody fired petitioner.
Petitioner also alleged that Judge Brody terminated her employment at
Judge Feikens' direction.  The termination was allegedly motivated by
"her participation in exposing corruption in the Bankruptcy Court and
her distribution of the 1969 newspaper articles." Pet. App. 74a.

   3. The district court initially dismissed the action on grounds of
absolute immunity.  Pet. App. 43a-48a.  A panel of the Sixth Circuit
reversed, Guercio v. Brody, 814 F.2d 1115 (1987), but that decision
was later vacated pending rehearing en banc, 823 F.2d 166 (1987).
After this Court issued its decision in Forrester v. White, 484 U.S.
219 (1988), the Sixth Circuit vacated the order granting rehearing en
banc, reinstated its mandate, and remanded the case to the district
court for consideration in light of Forrester.  Pet. App. 63a-64a.  On
remand, the district court denied motions by each respondent to
dismiss on grounds of qualified immunity.  See id. at 30a-42a (order
denying Judge Feikens' motion);  App., infra, 1a-8a (order denying
Judge Brody's motion).  Each respondent appealed, and the appeals were
consolidated.

   4. The court of appeals reversed, relying on Harlow v. Fitzgerald,
457 U.S. 800 (1982), to hold that respondents were entitled to
qualified immunity.  Pet. App. 3a-29a.  /4/

   The court observed that petitioner's complaint depicted her as a
"disseminator of matters of ostensible public interest," and thus
implicated her rights under the First Amendment.  Pet. App. 9a.  The
court accordingly framed the issue as whether, accepting the
allegations in the complaint as true, "(petitioner's) rights were so
clearly established when she was terminated that Judge Feikens should
have understood that his conduct at the time he ordered her discharged
violated her first amendment right to free speech." Ibid. (citing,
inter alia, Anderson v. Creighton, 483 U.S. 635 (1987)).

   The court recognized (Pet. App. 10a) that, at the time of
petitioner's discharge, the right of a public employee to speak on
matters of public concern had been "clearly established" in Pickering
v. Board of Education, 391 U.S. 563 (1968).  Pickering had enunciated
a by-then "familiar rule of balance" that required weighing "a public
employee's interest in commenting on matters of public concern"
against "the employer's interest in 'promoting the efficiency of the
public services it performs through its employees.'" Pet. App. 10a
(quoting Pickering, 391 U.S. at 568).

   The court further recognized that, under Harlow, its inquiry could
not end at this point.  "(T)he Harlow test * * * in the first instance
require(s) a determination of whether a clearly established right was
alleged to have been violated, and, secondly, a determination of
whether a reasonable public official should have known that the
conduct at issue was undertaken in violation of that right." Pet. App.
11a;  see also id. at 12a (quoting Anderson v. Creighton for the
proposition that "(t)he contours of the right must be sufficiently
clear that a reasonable official would understand that what he is
doing violates that right.").  The second determination entailed
inquiry whether during the period 1979 through 1981

      judges of reasonable competence in the position of Judge Feikens
      * * * could have disagreed upon whether (petitioner's) right to
      exercise her * * * right to free speech without being terminated
      was * * * outweighed by the public interest in restoring morale,
      cooperation, dignity, public respect, and confidence to the
      United States Bankruptcy Court for the Eastern District of
      Michigan, a court that had been corroded by corruption and
      favoritism.

Pet. App. 14a.  /5/

   In considering petitioner's allegations, the court observed that
petitioner's reports prompted Judge Feikens to request the AO
investigation.  Pet. App. 16a.  The court noted that the AO
investigation and other investigative efforts led the Judicial Council
to place the Bankruptcy Court under the direct supervision of the
District Court.  Ibid.  By June 1981, a Bankruptcy Court judge
resigned, as did other court personnel implicated in the wrongdoing.
Ibid.  Thus, through the early summer of 1981, efforts to rehabilitate
the Bankruptcy Court were "progressing expeditiously and effectively."
Id. at 17a.  During this time, petitioner "was neither admonished for
nor discouraged from pursuing her activities." Id. at 16a.

   The court then considered the petitioner's further efforts to
distribute certain 1969 newspaper articles about nominee Woods.  The
court noted that petitioner circulated the articles after Woods had
been nominated and after the procedures required prior to appointment
had ended.  Pet. App. 19a.  The court also observed that "the
circulation was not accompanied by any newly discovered disclosures of
concealed past or current misdeeds or wrongdoing." Ibid.  Further, in
circulating the 1969 articles, petitioner did not attest to their
truthfulness or express any opinion on Woods' nomination.  Ibid.

   The court also assessed how a competent judge in Judge Feikens'
position would have viewed petitioner's activities.  The court noted
that the statutes in effect in 1981 created an "interdependent working
relationship * * * between the bankruptcy and district courts and the
judges thereof." Pet. App. 14a.  This relationship, coupled with the
Judicial Council order, posed a "potential for internecine conflict in
the court." Id. at 15a.  As a result, "(c)oncerns for inter-chamber
harmony, cooperation, and collegiality between judges and court
personnel * * * were in all probability central and indispensable to
the efforts of Judge Feikens to implement the Sixth Circuit's
mandate." Ibid.

   Implementing the Sixth Circuit's mandate, the court noted, required
"expeditiously appointing a judge to the vacancy created by the
resignation." Pet. App. 19a.  In carrying out this responsibility, a
competent judge -- "(m)indful * * * of the incipient confrontation
manifested by the bitter resentment Woods displayed when he advised
Judge Brody that he would, if appointed, refuse to work with Brody
unless (petitioner's) employment were terminated" -- could reasonably
conclude that by the summer of 1981 "(petitioner's) expression and
activities had become a force counterproductive and disruptive to the
ongoing effort to rehabilitate and revitalize the operation of the
Detroit Bankruptcy Court." Id. at 19a-20a.

   In these circumstances, the court held, "(petitioner's) right to
protection under the first amendment was not so clearly established at
the time that Feikens ordered her termination that any judge of
reasonable competence * * * would have clearly understood that he was
under an affirmative duty to have refrained from such conduct." Pet.
App. 22a.  Judges of reasonable competence could reasonably have
disagreed on two issues:  (1) whether and to what extent petitioner's
various activities all involved matters of public concern;  and (2)
"where the Pickering scale, with all of the parties' competing
interests in the balance, would ultimately come to rest." Ibid.  Based
on this holding, the court, over Judge Wellford's dissent, reversed
and remanded the case with instructions to dismiss petitioner's claims
for money damages.  /6/

                               ARGUMENT

   The facts alleged in this case are exceptional, but the legal
issues are not.  The court of appeals applied well-settled principles
of qualified immunity to dismiss the claim of a public employee
alleging infringement of her right to free speech.  The court of
appeals' decision is correct and in any event presents no issue
warranting review by this Court.

   1. As the court of appeals recognized, respondents' defense of
qualified immunity required the court to apply the standard set forth
in Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982):

      (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.

The specific right allegedly violated here further required the court
"to seek 'a balance between the interest of the (petitioner), as a
citizen, in commenting upon matters of public concern and the interest
of the * * * employer, in promoting the efficiency of the public
services it performs through its employees.'" Connick v. Myers, 461
U.S. 138, 142 (1983) (quoting Pickering, 391 U.S. at 568).  The court
of appeals properly undertook this task, in light of petitioner's
claim of retaliatory action, within the framework of "objective legal
reasonableness" enunciated in Malley v. Briggs, 475 U.S. 335, 341
(1986).  The court correctly framed the issue as whether during the
relevant time period

      judges of reasonable competence in the position of Judge Feikens
      * * * could have disagreed upon whether (petitioner's) right to
      exercise her * * * right to free speech without being terminated
      * * * was outweighed by the public interest in restoring morale,
      cooperation, dignity, public respect, and confidence to the
      United States Bankruptcy Court for the Eastern District of
      Michigan * * *.

Pet. App. 14a.

   To resolve that issue on the facts of this case, the court of
appeals similarly relied on firmly established doctrine.  The court
recognized that the issue was to be decided "exclusively upon the
allegations incorporated into the complaint, which must, for purposes
of considering the motion to dismiss, be accepted as true." Pet. App.
9a (citing, inter alia, Hishon v. King & Spaulding, 467 U.S. 69, 73
(1984), and Walker Process Equip., Inc. v. Food Machinery & Chem.
Corp., 382 U.S. 172, 174-175 (1965)).  Contrary to petitioner's
contention (Pet. 8), it is not "unique" for a court to resolve a
question of qualified immunity on the basis of pleadings and prior to
discovery.  Indeed, "a defendant pleading qualified immunity is
entitled to dismissal before the commencement of discovery" where, as
here, the plaintiff's allegations do not demonstrate a violation of
clearly established law.  Mitchell v. Forsyth, 472 U.S. 511, 526
(1985).

   Petitioner also errs in suggesting (Pet. 7) that the distinctive
nature of the facts alleged justifies review by this Court.  On the
contrary, every case that presents a Pickering-type claim entails
"particularized balancing." Connick, 461 U.S. at 150.  The invariable
"difficult(y)" (ibid.) of striking this balance on the facts of each
case does not make each such case suitable for review in this Court.

   2. Petitioner contends (Pet. 12-16) that in several instances the
court of appeals incorrectly characterized the allegations set forth
in her complaint.  That fact-bound contention is incorrect and in any
event does not warrant further review.

   Contrary to petitioner's assertions here (Pet. 12-13), the court of
appeals correctly observed that petitioner conceded in her complaint
that her activities "affected to some degree the operation of the
Bankruptcy Court." Pet. App. 19a.  The portion of the complaint to
which the court was referring alleged:

         27. The disruption in the Bankruptcy Court workplace, if any,
      that may have resulted from plaintiff's disclosures * * * was
      minor, and such disruption, if any, was in fact caused only by
      those associated with or sympathetic to the persons whose
      illegal activities plaintiff had participated in exposing.

Id. at 75a.  The court of appeals clearly was correct to understand
these allegations as acknowledging some workplace disruption traceable
to petitioner's activities.  /7/

   Petitioner is also mistaken in asserting (Pet. 13) that the court
below "assume(d) knowledge of Judge Feikens' subjective motivations."
Petitioner relies for this assertion on the court's discussion of
Judge Feikens' responsibilities under the Judicial Council order of
May 6, 1981.  Pet. App. 15a.  Petitioner's reliance is misplaced.  The
court properly analyzed Judge Feikens' mandate under the Sixth
Circuit's order to discern the "factual backdrop" (ibid.) for the
judge's decision to terminate petitioner.  That analysis, as the court
emphasized, was a necessary part of "an informed assessment * * *
focus(ing) on the objective reasonableness of an official's act." Id.
at 21a (emphasis added).  /8/

   Petitioner's other fact-specific objections to the court of
appeals' opinion are likewise without merit.  /9/

                              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 L. HERWIG

   KATHERINE S. GRUENHECK

      Attorneys

   APRIL 1991

   /1/ 28 U.S.C. 152 (1978);  28 U.S.C. 152(a)(1)-(2) and (b)(1)
   (1984).

   /2/ Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388
(1971).

   /3/ The other irregularities alleged were that the Clerk of the
Court "was abusive toward women, accepted favors from lawyers, was
often drunk on the job, and engaged in patronage activities in the
Clerk's Office." Pet. App. 71a.

   /4/ The court of appeals understood petitioner to allege that Judge
Brody terminated petitioner "only upon direction from Feikens, and not
for independent reasons or on (Brody's) own initiative." Pet. App. 22a
n.6.  Based on this understanding, the court analyzed the "qualified
immunity question * * * from the perspective of Judge Feikens, only."
Ibid.  With respect to Judge Brody, the court held:  "Having concluded
that Feikens is entitled to immunity, then Brody, too, benefits from
that determination." Ibid.  Petitioner does not challenge that
approach here, nor does petitioner dispute the court of appeals'
characterization of her allegations in this regard.

   /5/ The public interest so identified derived from the Judicial
Council order and the subsequent order of the District Court;  the
District Court order, which implemented the Council's order, "was
directed primarily at rehabilitating the Court, and expressly
conferred upon Judge Feikens * * * responsibility for approving all
personnel actions." Pet. App. 16a (internal quotation marks omitted).

   /6/ The court of appeals went on to address petitioner's claims for
equitable relief against respondents in their official capacity.
Petitioner advises (Pet. 6) that these claims have now been dismissed
by stipulation.

   /7/ Elsewhere in the complaint (Pet. App. 75a (Compl. para. 26)),
petitioner alleged that her distribution of newspaper articles did not
disrupt "her performance of her duties or her ability to work with
others." Nothing in the opinion below suggests that the court of
appeals doubted this separate allegation.

   /8/ It appears that the court of appeals, in its analysis of the
qualified immunity issue, assumed the truth of petitioner's
allegations as to respondents' motivation.  See Pet. App. 15a-21a.
Thus, this case does not raise any of the questions currently pending
before this Court in Siegert v. Gilley, No. 90-96 (argued Feb. 19,
1991).

   /9/ Contrary to petitioner's assertion (Pet. 14), the court of
appeals correctly observed (Pet. App. 19a) that petitioner circulated
newspaper articles about nominee Woods after Woods had been nominated
and had gone through the screening procedure for nominees.  The court
also recognized that the circulation allegedly occurred "prior to
(Woods') confirmation" (id. at 6).  Petitioner is misguided when she
criticizes the court (Pet. 14) for inferring (Pet. App. 17a) that,
through the early summer of 1981, efforts to rehabilitate the
Bankruptcy Court were paying off.  That inference was justified by
petitioner's own allegations of her significant role in these efforts
and their success.  Id. at 71a-73a.  Finally, petitioner is wrong to
take issue with the court's observation (id. at 16a) that the "(AO)
initially withheld formal action on (petitioner's) original
submissions." That is what petitioner's complaint says.  Id. at
71a-72a.

   APPENDIX