# Paul Lawrence v. Vernon D. Acree > Court of Appeals for the D.C. Circuit · September 28, 1981 · 665 F.2d 1319 URL: https://www.frixlaw.com/law-library/cases/9468681 ## Case - **Full name:** Paul LAWRENCE, Appellant, v. Vernon D. ACREE, Et Al. - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** September 28, 1981 - **Citations:** 665 F.2d 1319; 215 U.S. App. D.C. 16; 1981 U.S. App. LEXIS 17362 - **Precedential status:** Published - **Opinion:** Concurrence by Wald - **Judges:** MacKinnon, Wald, Greene - **Cited by:** 51 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9468681 ## How later opinions describe it (automated extraction) - holding that where the plaintiff had voluntarily quit his competitive government service position, “[t]here [was] no nexus between the [negative performance evaluation he received] and any deprivation of a property interest . . . his voluntary retirement breaks any nexus betwe… - concluding plaintiff gave up any “constitutionally protected interest” when he voluntarily left his government service position ## Opinion text WALD, Circuit Judge, concurring: I agree that the complaint in this case should be dismissed, but I do not agree that the proper ground for dismissal is absolute immunity for executive officials' whenever they evaluate the performance of their subordinates. We need not, and should not, address the immunity question in this case, as plaintiff has not stated a valid cause of action under 42 U.S.C. § 1985 (1) 1 against his superiors, who he asserts entered into a conspiracy to remove him from his position in order to replace him with a person of their own choice. *1328 In essence, plaintiff alleged that his superiors made baseless charges of poor work performance against him and conspired in other ways to effect his premature retirement. See Complaint for Damages, Plaintiff’s Appendix at 4-11. There was no allegation that the conspiracy was based upon racial animus, or that it was intended to prevent plaintiff from properly performing his government duties, or that it was designed to injure him on account of the lawful discharge of his duties. On the contrary, the only plausible interpretation that can be drawn from plaintiff’s complaint is that defendants simply disliked him, or considered his job performance substandard, and therefore wanted him replaced. Plaintiff nevertheless asserts that § 1985(1) applies, and the panel opinion assumes ar-guendo that his position is correct. That assumption — necessary for the panel opinion to reach the immunity question — is unjustified. The controlling question, unaddressed by either the district court or the majority here, 2 is whether plaintiff has presented a valid cause of action under § 1985(1). The language of § 1985(1) nowhere suggests that it applies to a federal employee seeking damages from his supervisors who attempt to remove him simply because they dislike him or find his on-the-job performance substandard. Section 1985 is a systemic device, designed to protect against class-based discrimination, 3 or conspiracies seeking to impede the operations of government by interfering with an official in the discharge of his official duties. 4 It is not concerned with the very different, but ever-present problem of assuring that federal supervisors evaluate their subordinates objectively and fairly. Congress has provided an elaborate array of provisions designed to protect federal employees asserting individual interests only. See, e.g., 5 U.S.C. § 4301 , et seq. (remedies for employees who complain of unfair performance evaluations); see generally, Civil Service Reform Act of 1978, P.L. 95-454, 92 Stat. 1131 . It would be inconsistent with the carefully crafted Congressional scheme in this area to imply a new cause of action under an old statute, which for the first time would expose federal supervisors to personal liability for their decisions regarding subordinates which are based upon mere personal antipathy or incorrect work evaluations. I recognize that § 1985(1) should not be so restricted that it applies only in those precise situations contemplated in 1871 by its framers. In Stern v. United States Gypsum, Inc., 547 F.2d 1329 (7th Cir.), cert. denied, 434 U.S. 975 , 98 S.Ct. 533 , 54 L.Ed.2d 467 (1977) (hereinafter Stern), the court extensively reviewed the legislative history of this provision and noted that the Ku Klux Klan Act of 1871 — of which § 1985(1) was a part — was enacted by “a Congress acutely aware of the massive and frequently violent resistance in the southern states to federal Reconstruction after the Civil War.” Id. at 1334. But the Stern court’s analysis of the various federal civil *1329 rights statutes persuaded it that § 1985(1) should not be limited solely to eases where racial or group animus was present. It applied § 1985(1) to a case brought by an Internal Revenue Service agent against individuals outside of the government who conspired to injure him on account of the lawful performance of his official duties. Applying § 1985(1) to such a case is, of course, consistent with the terms and legislative intent of the section, which is directed against efforts to impede governmental operations by interfering with officials in the discharge of their duties. Stern, supra at 1334-35 . This analysis does not exempt federal officials from liability as defendants in actions brought by their subordinates under § 1985(1). See, Stith v. Barnwell, 447 F.Supp. 970 (M.D.N.C.1978) (dictum that federal officers may be defendants in § 1985(1) action); Alverez v. Wilson, 431 F.Supp. 136, 142 (M.D.Ill.1977) (“the text, context, and history of the statute, though not totally free from doubt, lead to the conclusion that federal officials may be sued under § 1985(1) ... if the complaint alleges racial discrimination”). While there is no basis to exclude federal officials from liability under § 1985(1) for conspiracies involving racial animus, or some other kind of invidious discrimination akin to racial bias, such as discrimination based upon religion or national origin, or for conspiracies to interfere with the operations of government by impeding another official in the discharge of his duties, no court has ever extended § 1985(1) so far as to provide a cause of action for every federal employee dissatisfied with his evaluation and convinced that his supervisors are trying unfairly to get rid of him. 5 Absent a clearer indication of Congressional intent to provide a cause of action directly against federal supervisors under such circumstances, I would not stretch an 1871 Ku Klux Klan statute to find such intent. 6 I find the majority opinion dangerously precipitous in holding that all federal officials performing evaluations must be absolutely immune from suit by their subordinates because such immunity is allegedly essential to the proper functioning of the government. Maj.Op. at 15. This court has been given no factual or testimonial basis concerning why government supervisors of all kinds require absolute immunity for their evaluations in all circumstances; the trial judge did not even attempt to resolve this difficult question. Before finding that such immunity is “essential to the conduct of public business,” Butz v. Economou, 438 U.S. 478, 507 , 98 S.Ct. 2894, 2911 , 57 L.Ed.2d 895 (1978), this court should have a more complete record regarding the effects of such a rule and the necessity for it in these and other circumstances. In my judgment this barren record represents a completely inappropriate vehicle for announcing a major precedent concerning immunity for federal officials. In addition, holding that absolute immunity is required in this case seems to me inherently inconsistent with the notion, accepted arguendo by the majority, that Congress provided this plaintiff with a § 1985(1) action in the first place. The majority cannot logically assume that a section 1985(1) action would ordinarily lie, 7 and at the same time find an implicit absolute immunity from such action. To assume the existence of a § 1985(1) remedy in this case is to deny the existence of absolute immunity. As Judge Leventhal has written, “it is patently inconsistent with [the] federal [statute] to apply a federal common law rule of absolute immunity for executive officials subjected to suit by the statute.” Expeditions Unlimited v. Smithsonian Institution, 566 F.2d 289, 293 (D.C.Cir.1977) (en banc) (discussing why absolute immunity *1330 cannot apply to a § 1983 remedy against state executive officials). If the majority is convinced that federal supervisors should not be burdened with personal liability for their performance evaluations, then its primary task should be to discern whether Congress actually provided for such liability under § 1985(1) in the first place, rather than assuming it did so and plunging forward to negate that presumed intention by establishing absolute immunity. For these reasons, although I concur in the dismissal of the complaint, I cannot do so based upon the rationale set forth in the majority opinion. . The text of § 1985(1) is found in the Maj. Op. at 1321 n.2. . See Lawrence v. Acree, Civ. Action No. 78-1794 (D.D.C. March 12, 1979), App. at 28; Lawrence v. Acree, Civ. Action No. 78-1794 (D.D.C. April 30, 1979), App. at 74; Maj. Op. at 1322. . See, e.g., Arnold v. Tiffany, 487 F.2d 216 (9th Cir. 1973), cert. denied, 415 U.S. 984 , 94 S.Ct. 1578 , 39 L.Ed.2d 881 (1974); Denman v. Leedy, 479 F.2d 1097 (6th Cir. 1973); Hughes v. Ranger Fuel Corp., 467 F.2d 6 (4th Cir. 1972). . In Perry v. Golub, 400 F.Supp. 409 (N.D.Ala. 1975) (hereinafter Perry), an employee of the Equal Employment Opportunity Commission (EEOC) sought injunctive relief against his superiors, who he alleged were unfairly attempting to reassign him to another position. Plaintiff alleged that his reassignment was motivated by his “whistleblowing” activities — reporting irregularities in the handling of EEOC cases to the United States Treasury. The district court found that plaintiff had established a reputation as one of the most outstanding officials in the EEOC, id. at 418 , and that defendants’ actions were arbitrary and an abuse of administrative discretion. Id. at 417 . Finding that it was “in the public interest that [plaintiff] should not be penalized for having had the courage and conscience to speak out,” id. at 419 , the court issued a preliminary injunction against the reassignment. Although defendants were not accused of harboring any racial or group animus, the district court opined that their actions in all likelihood violated 42 U.S.C. § 1985 (1). Id. at 417 . . Cf. Perry, supra. . This does not preclude the possibility that an aggrieved federal employee may seek relief under state or District of Columbia law for the tortious acts of his supervisors. The possibility of recovering in such an action, of course, is contingent upon the extent of immunity to which the supervisors are entitled, and we need not make that determination here. . Maj.Op. at 1322. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468681. Public record. Not legal advice.