WILLIAM FRENCH SMITH, ET AL., PETITIONERS V. ANTHONY J. PRISCO,
JR., ET AL.

   No. 88-1039

   In The Supreme Court Of The United States

   October Term, 1988

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Third Circuit

   Reply Memorandum For The Petitioners

   Respondent concedes that the first question presented in the
petition is the subject of an express conflict among the circuits and
warrants review by this Court.  But respondent contends that the
petition should be denied nonetheless (or should be granted only on
the first question) because, he claims, the second question does not
merit plenary review.  In respondent's view, the second question
involves nothing more than an inquiry into the state of the law in
October 1983.

   Respondent's claim rests on a misunderstanding of our second
question.  That question warrants plenary review because the Third
Circuit's decision on the merits of petitioner Smith's qualified
immunity claim erroneously decided two important, practical, and
often-recurring issues regarding the implementation of the qualified
immunity defense.  First, this Court has repeatedly made clear that a
federal official cannot be held liable for damages unless preexisting
law made "apparent" the illegality of his challenged conduct.
Anderson v. Creighton, 107 S. Ct. 3034, 3039 (1987);  Pet. 14 & n.15.
Applying that principle, the District of Columbia and Fourth Circuits
have held that a disagreement within the same circuit entitles a
defendant to qualified immunity.  Pet. 18 n.18.  By contrast, the
Third Circuit in this case held that government officials can be held
liable for damages when there is a marked disagreement among the
circuits.  The ruling below therefore is inconsistent with the
approach followed in the District of Columbia and Fourth Circuits, and
cannot be reconciled with this Court's teachings.

   Respondent's only answer to our argument is to treat as dictum the
Second Circuit's statement in Leonhard v. Mitchell, 473 F.2d 709, 713,
cert. denied, 412 U.S. 949 (1973) (Leonhard I), that a noncustodial
parent has no clear constitutional rights to custody or visitation.
That contention is wrong.  Not only was the Second Circuit's
conclusion essential to its holding that mandamus was inappropriate in
that case, Pet. 18-19, but the Second Circuit itself has taken the
position that the statement in Leonhard I was part of the holding in
that case.  Leonhard v. United States, 633 F.2d 599, 605 (1980), cert.
denied, 451 U.S. 908 (1981) (Leonhard II), quoted at Pet. 19 n.19.
Moreover, respondent overlooks the fact the Eighth Circuit expressly
rejected the proposition that a noncustodial parent has a due process
right to notice before his or her child is admitted into the Witness
Protection Program.  Ruffalo v. Civiletti, 702 F.2d 710, 715 (1983).
The circuits therefore were clearly in disagreement on the procedures
required by due process in the circumstances of this case.

   Second, this Court has recognized that public officials are
entitled to qualified immunity unless "their conduct" violated the
plaintiff's clearly established rights.  Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982).  And the courts of appeals have uniformly
rejected the contention that a public official may be held liable on a
respondeat superior theory.  Pet. 21.  In circumstances identical to
those in this case, the Second Circuit held that several federal
officers, including then-Attorney General Bell, were properly
dismissed from a lawsuit because "they were not alleged to have
participated personally in the removal and concealment of the
children." Leonhard II, 633 F.2d at 621 n.30.  By contrast, the Third
Circuit in this case refused even to consider the claim advanced by
petitioners Meese and Morris that they cannot be held liable since
respondent has not alleged that they took any action that violated his
rights.  The Third Circuit's decision therefore is inconsistent with
settled law in the other circuits.

   Respondent's only answer is that petitioners Meese and Morris are,
at most, entitled to no relief other than a remand to the district
court for it to determine whether respondent should be permitted to
amend his complaint to allege such facts.  Br. in Opp. 7 n.3.  That
response is inadequate.  At no time throughout this lawsuit has
respondent claimed that he can allege any such facts, and we are aware
of none.  Indeed, petitioner Meese was not even Attorney General
during the relevant period.  Pet. 20 n.20.  Allowing a plaintiff to
sue a public official for damages in the hope that he can later
develop some factual support for his claim threatens precisely the
type of harm that the qualified immunity doctrine was designed to
avoid.  Respondent's failure to allege that petitioners Meese and
Morris took any action to violate his rights entitles them to a
dismissal of respondent's claims under qualified immunity principles,
not simply a remand for further proceedings.

   In sum, the Third Circuit held that a Cabinet Officer is not
entitled to qualified immunity for actions taken by subordinates --
actions in which he had no personal involvement, and as to which the
courts of appeals are in disagreement on the correct rule of
constitutional law.  And if that official is named in a prayer for
equitable relief, according to the Third Circuit, he cannot take an
interlocutory appeal under Mitchell v. Forsyth, 472 U.S. 511 (1985),
to avoid the threat of damages liability.  Because all three rulings
eviscerate the qualified immunity doctrine recognized by this Court
and conflict with the decisions of other courts of appeals, all three
rulings warrant plenary review.

   For the foregoing reasons and those given in the petition, it is
respectfully submitted that the petition for a writ of certiorari
should be granted.

   WILLIAM C. BRYSON

      Acting Solicitor General

   APRIL 1989