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Document Type

Amicus Brief

Publication Date

6-2-2015

Case Name

McGowan v. United States of America

Abstract

Plaintiff-Appellant Daniel McGowan submits this reply in response to the Brief for Defendants-Appellees United States of America and Tracy Rivers (“Defs.’ Br.”). Defendants concede that Plaintiff was placed in solitary confinement without any statutory or regulatory authorization and solely because he authored a blog post, speech protected by the First Amendment. Nonetheless, Defendants maintain that there is no remedy for this violation of Mr. McGowan’s constitutional and common law rights. None of the reasons offered by Defendants for their position is compelling or supported by relevant law. When one steps back and considers Defendants’ brief as a whole, it is an invitation to disregard Supreme Court and Second Circuit precedent, well-reasoned decisions from other circuits, and New York State law.

First, Defendants argue that Plaintiff may not bring an action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), because such an action has not been recognized before and it should not be recognized now. For the reasons Plaintiff detailed in his opening brief and here, Defendants’ position has no merit. Indeed, Defendants cannot identify a single appellate court opinion that rejected a Bivens cause of action under circumstances similar to the instant case. If Defendants’ position is adopted in this Circuit, federal prisoners will have no judicial remedy, damages or otherwise, that will operate as a realistic barrier to First Amendment retaliation.

Second, Defendants argue in the alternative that Plaintiff’s claim is barred by qualified immunity, an issue that the District Court never reached. Even if this Court addresses qualified immunity here, Defendants’ argument is primarily premised on the proposition that controlling Supreme Court precedent has been implicitly overruled. The remainder of Defendants’ position fares no better, because it rests on a disregard for Second Circuit authority.

Finally, Defendants’ arguments in support of the District Court’s dismissal of Plaintiff’s Federal Tort Claims Act (“FTCA”) claims for negligence and false imprisonment fail for similar reasons. Defendants again suggest that Supreme Court authority has been overruled, despite the fact that this Court has explicitly relied on that authority in an opinion cited by Defendants. Defendants’ attempt to distinguish this Court’s precedent is also unavailing, as is Defendants’ mischaracterization of New York State law that bears on the question.

As Plaintiff established in his opening brief, the District Court’s decision was premised on a disregard of Supreme Court, Second Circuit, and New York State authority. Unfortunately, Defendants’ opposition brief invites this Court to repeat and expand on the District Court’s errors. For these reasons, Defendants’ arguments should be rejected and the District Court’s decision should be reversed.

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