Supplemental Memorandum — Butz v. Economou

OFr imi CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

EARL L. BUTZ, ET AL., Petitioners,

v.

ARTHUR N. ECONOMOU, ET AL., Respondents

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

SECOND CIRCUIT

SUPPLEMENTAL MEMORANDUM

FOR THE RESPONDENTS

LAW OFFICES OF DAVID C. BUXBAUM, P.C

Attorneys for Respondents

11 Broadway, Suite 1612

New York, New York 10004

(212) 425-4347

Of Counsel:

David C. Buxbaum

No. 76-709

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

EARL L. BUTZ, ET AL., PETITIONERS

v.

ARTHUR N. ECONOMOU, ET AL., RESPONDENTS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

SUPPLEMENTAL MEMORANDUM

FOR THE RESPONDENTS

PRELIMINARY STATEMENT

This memorandum is submitted pursuant to this Court's

direction. The petitioners have submitted a memorandum, a draft

of which was received by respondents today, and respondents re-

quested of the Chief Clerk an opportunity to submit their own

memorandum and were informed they could do so and that a type-

written copy would be acceptable.

I. THE DISTRICT COURT HAD JURISDICTION OVER

eae ee ee

Plaintiffs, in their complaint, paragraphs "1", "13",

"14", "15", "18", "19" and "20", alleged that they were deprived

matter in controversy. . .arises under the Constitution. . .of

the United States. ..."

-In the landmark case of Bivens v. Six Unknown Named

—— ~~ ee

Agents, 403 U.S. 388 (1971), this Court held that 28 U.S.C.

§ 1331 embraces civil damage actions brought as a result of the

deprivation of a Constitutional right. The Court in Bivens was

presented with a Fourth Amendment violation, but there is no

language in the opinion which limits the Court's holding to Fourth

Amendment cases.

Rather, the language of the opinion is broad enough to

encompass all Constitutional rights:

"Historically, damages have been regarded

as the ordinary remedy for an invasion of per-

sonal interest in liberty. See, Nixon v. Condon,

—-— —- 2

(1900); J. Landynski, Search and Seizure and

the Supreme Court 28 et seq. (1966); N. Lasson,

History and Development of the Fourth Amendment

to the United States Constitution 43 et seq.

(1937); Katz, The Jurisprudence of Remedies:

Constitutional Legality and the Law of Torts in

Bell v. Hood, 117 U. Pa. L. Rev. 1, 8-33 (1968);

cf. West v. Cabell, 153 U.S. 78 (1894); Lammon

v. Feusier, 111 U.S. 17 (1884). Of course, the

Fourth Amendment does not in so many words pro-

vide for its enforcement by an award of money

damages for the consequences of its violation.

But ‘it is. . .well settled that where legal

rights have been invaded, and a federal statute

provides for a general right to sue for such

invasion, federal courts may use any available

remedy to make good the wrong done.’ Bell v.

Hood, 327 U.S., at 684 (footnote omitted). ~

Bivens, supra, at 395-396,

Moreover, Mr. Justice Harlan's characterization of the

issue presented in Bivens as addressing the “power [of federal

of their First and Fifth Amendment Constitutional rights. Clearly courts) to award damages for violation of ‘constitutionally pro-

such an allegation is within the ambit of 28 U.S.C. § 1331, which tected interests'" such as the Fourth Amendment is further support

confers original jurisdiction on the district court "wherein the for a broad reading of Bivens. Id. at 399 (Harlan, J. concurring

in the judgment). Mr. Justice Harlan went on to state:

"The judiciary has a particular responsi-

bility te assure the vindication of constitu-

tion7l interests such as those embraced by the

Fourth Amendment. To be sure, ‘it must be re-

membered that legislatures are ultimate guardi-

ans of the liberties and welfare of the people

in quite as great a degree as the courts.’

Missouri, Kansas & Texas R. Co. v. May, 194 U.S.

267, 270 (1904). But it must also be recognized

that the Bill of Rights is particularly intended

to vindicate the interests of the individual in

the face of the popular will as expressed in

legislative majorities; at the very least, it

strikes me as no more propriate to await ex-

press congressional gethar ization of traditional

judicial relief with regard to these legal

interests than with respect to interests pro-

tected by federal statutes." Id. at 407

(Harlan, J., concurring in the judgment).

(emphasis supplied).

The overwhelming majority of the lower courts to consider

the question have held that Bivens is not so restricted, !

- _—-

Me see, Del Tuns, ve Powell, C.A.D.C. No. 75-1974, decided ~-y 4,

1975) (en bi me} Peten v. La Maney 524 F.2d 863 (3d Cir. 1975) (First Amnend-

ment); Yiamouy iannis A Service, 521 F.2d 1392 (6th Cir.

1975) (First Amendment); Creek 1 odge, Inc. vy ~Tni ted States, $15 F.2d 926,

932 and n.S (10th Cir. whys

Shultz, 498 F.2d 1146, 1186. 1157 (4th Cir. 1974) (Fifth ‘Anendinent) ; Sullivan v.

Murphy, 156 U.S. App.D.C. 28, 478 F.2d 938, 965 and n.47 (1973) (Fourth and

Fifth Amendments), cert. denied, 414 U.S, 880, 84 S.Ct. 162, 28 L.Bd.2d 125;

Bralen v. University of Pittsburgh, 477 F.2d i, 7.10 (X Cr. 1973) (Fourteenth

Anendment, dictum); United States ex rel. Moore v. Koelzer, 457 F.2d 1163, 1164-

1165 (3d Cir. 1971), cert. denied, 404 U.S. 1T06T, 92°S.Ct. 747, 30 L.Ed. 24 749

(Fourth and Fifth Amendments); Panzarella v. Bo le, 406 F.Supp. 787 (D.R.I.

197S) (Fourteenth Amendment); Revis v. “Latrd, TF, Supp. 1133, 1139 (E. D.Cal.

1975) (First and Fifth Amendments) ; “Patterson v. City of _Suaster, om F.Supp.

1093, 1096 (E.D.Pa. 1975) (First and Fourteenth Amendm nts); B . Board of

Haducat ion of City of Chicago, 386 F.Supp. 110, 121-122 and n.

urteenth Ame atter v. Wilson, 383 F. Supp. $54 (D. Colo. 1974)

(Fourth and Fifth juondanats); Caidels | Vv. Murphy, 377 F.Supp. 1389, 1398 (N.D.

111. 1974) (First Amendment); DahT v. _ City oO alo Alto, 372 F. Supp. 647 (N.D.

| Cal, 1974) (Fifth Amendment); Perzanowski v. Salvio, 369 F.Supp. 223, 229

().Conn, 1974) (Fourteenth Amendment); Batler 7 v. United States, 365 F. Supp.

105S (D.Haw. 1973) (First, Fourth and Fifth Amendments); ree v. City of

Chattanooga, 362 F.Supp. 1136, 1139 (F.D.Tenn. 1973 1973) — irteent ndment)

James v. United States, 358 F.Supp. 1381, 1386 (D.R.I. 1973), vacated, S02 F.2d

~~" 2? oer ee

~_—-—- <—

Rrantley, 352 F.Supp. 559, 564 (M.D.Fia. 1972) (Fourteenth Amendment

assumes arguendo that Bivens recognizes a cause of action for violation of all

constitutionally protected interests, dicta); Johnson v. Alldredge, 349 F.Supp.

ae 1231 (M.D.Pa. 1972) aff'd in part and rev'd in part on o ” grounds, 488

F.2d 820 (3d Cir. 1973) (Fifth Amendment); Howard v. Warden Peters

Re formato 348 F.:! . 1204 (F.D.Va. 1972) (First and Ninth Amendments). See

generally Dellinger, “Of Rights and Remedies: The "Constitution as a Sword,"

85 Harv.L.Rev. 1532, 1542-1543 (1972). Cf. Li v. Commonwealth of Massachu-

setts, 47S F.2d 565, 568 n.7 (1st Cir. 1973) (Fourteenth Amendment, dictum--no

1159 (ist Cir. 1974) (Fourth, Fifth and Bi ghth Amendments, dicta); Washington v.

——, |

As can be seen, every Circuit Court to pass on this ques4

tion has given Bivens a broad reading, and that includes the

Second, Third, Fourth, Fifth, Sixth, Tenth and District of Colunbial

Circuits (See cases cited n. 1, supra). The Second Circuit, the

circuit in which this case was originally brought, has held that

a cause of action exists for violations of the Fourteenth Amend-

ment. Brault v. Town of Milton, 527 F.2d at 732.

Moreover, of the four decisions giving Bivens a limited

reading, two of the opinions are authored by the same judge and

his sole reason for declining to so interpret Bivens is that

", . .the Court is aware of no cases which have so held. . . ."

Archuleto v. Callaway, 385 F.Supp. at 388 (per Matsch, D.J.). See

also, Moore v. Schlesinger, 384 F.Supp. at 165 (per Matsch, D.J.).

The court in Smothers v. Columbia Broadcasting System,

supra, also states as its reason for limiting Bivens that ". . .no

court has ever sustained a case awarding damages based on a viola-

tion of the First Amendment. . . .This Court is not going to be

the first to do so." 351 F.Supp. at 625-626.

Finally, in Davidson v. Kane, supra, which appears to be

the first case to consider the scope of Bivens, the court, without

presenting any analysis at ali, stated that: "The holding [in

Bivens] appears to be limited to the Fourth Amendment." 337

F.Supp. at 924.

In marked contrast to these cases which provide virtually

no insight into the basis of their conclusion that Bivens applies

solely to the Fourth Amendment, are the cases holding that it is

not so restricted (See cases cited n. 1, supra.) These latter

cases present persuasive and cogent analysis in support of the

position that Bivens is not limited to Fourth Amendment cases.

(footnote 1 continued--)

direct reference to Bivms). But see, Archuleta v. Callaway, 385 F.Supp. 584,

388 (D.Colo. 1974); Hore v. Schlesinger, 384 F.Supp -Colo. 1974);

suothere Colbie roalcasting Syste 381.6 Supp, 622, $26 2: 4 (C.D. Cal.

°@- |

For example, in Dellums v. Powell, supra, the court, in individual's first amendment interests is the

. same regardless of the perpetrator of the vio-

holding that a cause of action exists for redress of First Amend- lation.

ment violations, went through the following analysis pertinent to "Thus, we believe the extension of the

Bivens rule to violations of first amendment

the case at bar:

"In Bivens Mr. Justice Harlan, concurring

specially, indicated that ‘courts of law are

capable of making the types of judgment concern-

ing causation and magnitude of injury necessary

to accord meaningful compensation for invasion

of Fourth Amendment rights." Yet he opined that

‘[t]he same, of course, may not be true with

respect to other types of constitutionally pro-

tected interests, and therefore the appropriate-

ness of money damages may well vary with the

nature of the personal interest asserted.’ It

is apparently this language that has given courts

pause in analyzing whether a right of action should

be implied directly from the Constitution for

redress of violations of interests protected by

other than the Fourth Amendment. Given the intan-

gible nature of the liberty interests at stake in

many Fourth Amendment cases and the broad famili-

arity of federal courts with equitable relief for

First Amendment violations, it is difficult to

identify here the impediments feared by Mr. Justice

liarlan. Indeed, the Supreme Court has recently

approved in principle the award of reinstatement

rights to be both justifiable and logical."

$24 F.2d at 870-871.

In a case dealing with Fifth Amendment rights, States

Marine Lines, Inc. v. Shultz, supra, the court, in holding that

a cause of action existed, used language squarely applicable in

the instant case:

"With one possible exception, nothing said

in Bivens would limit the application of the

principles enunciated therein to the case at bar.

The single exception could be the court's state-

ment that '[hJistorically damages have been re-

garded as the ordinary remedy for an invasion of

personal interests in liberty." 403 U.S. at 388.

But subsequent to its decision in Bivens, the

court has rejected, albeit in a different con-

text, the artificial distinction between personal

and property rights. Lynch v. Household Finance

Corporation, 405 U.S. g58, at S52, 92 S.Ct. 113,

31 L.Ed.2d 424 (1972). In Lynch the court

allowed suit in federal court under 42 U.S.C.

and back pay relief for violation of First and

Fourteenth Amendment rights of a non-tenured

schoolteacher. [Mt. Healthy City School Dist. Bd.

of Educ. v. Doyle, 45 U.S. U.Week 4079, 4081-4083

(Jan. 11, 1977)})” The unanimous Court dealt expli-

citly with the problem of causation and apparently

found no difficulty in prescribing the elements of without due process of law by persons acting

a cause of action and defenses thereto." C.A.D.C. under color of state law and not permit a suit

No. 75-1974 at pp. 49-50. (footnotes omitted). for damages against a federal officer for identi-

cal acts in violation of the identical provision

in the Fifth Amendment can only be justified, if

at all, by the fact that Congress specifically

recognized the potential liability of state ofti-

cers for their allegedly unconstitutional acts in

42 U.S.C. $ 1983. But, in light of the court's

decision in Bivens, the fact that Congress has

not specifically recognized a cause of action for

damages against federal officers is no longer an

obstacle preventing federal courts from fashion-

ing a damage remedy, where appropriate, directly

from the Constitution. . . .The necessity and

appropriateness of judicial relief is no less

compelling in this case than it was in Bivens.

§ 1983 and its jurisdictional counterpart, 28

U.S.C. § 1343(3), for the alleged deprivation of

property pursuant to state law in violation of

the equal protection and due process clauses of

the Fourteenth Amendment. To permit a party to

sue for the alleged deprivation of his property

And, in Paton v. La Prade, supra, the court, again in

holding that a cause of action exists for redress of First Amend-

.

ment violations, stated that:

"First amendment rights must be as personal

to an individual as are fourth amendment rights.

And '[h])istorically, damages have been regarded

as the ordinary remedy for an invasion of personal

interests.' Bivens, supra, 403 U.S. at 395, 91

$.Ce. at 2004. .

“Were there no cause of action for federal

infringement of first amendment rights, an

aggrieved individual could seek damages for vio-

lations of his first amendment rights by state

officials, 42 U.S.C. 8 1983, but not by federal

officials. There is no reason to allow. federal

officials to act with impunity in this context

and to bar state officials. The damage to the

-——-— —

=

2/ In Lynch the court stated:

"Property does not have rights. People have rights. The right to

enjoy property without unlawful deprivation, no less than the right to speak or

the right to travel, is in truth a ‘personal’ right, whether the ‘property’ in

question be a welfare check, a home or a savings account. In fact, a fundamen-

tal interdependence exists between the persongl right to liberty and the per-

sonal right in property. Neither could have meaning without the other. That

° §- rights in property are basic civil rights has long recognized."" at 552.

| ee | °@-

As in Bivens: A common law or state tort remedy

may or may not afford a means of redressing this

wrong, but in any case, will not be tailored

specifically to cases of lawlessness pursuant to

federal authority; the claim presented is obvi-

ously appropriate for money damages; and other

remedies such as injunctive or relief in the

nature of mandamus are no longer viable alterna-

tives." 498 F.2d at 1155-1156 (footnote supplied).

In Davis v. Passman, supra, the Court also used language

appropriate to the instant case:

"Although Davis's claim arises under the

fifth amendment, not the fourth, we find no

basis in Bivens' language or rationale for

according any significance to this distinction.

The rights protected by the fifth amendment due

process clause are every bit as fundamental as

fourth amendment rights. Here, as in Bivens,

damages simply constitute ‘a particular remedial

mechanism normally available in the federal

courts." 403 U.S. at 397, 91 S.Ct. at 2005."

544 F.2d at 873.

In addition, this Court, in a case claiming a violation

of the Fourth Amendment, held that on the face of the complaint

the tederal court had jurisdiction because

" -the right of the petitioners to recover

under their complaint will be sustained if the

Constitution and laws of the United States are

given one construction and will be defeated if

they are given another. For this reason the

District Court has jurisdiction." Wheeldin v.

Wheeler, 373 U.S. 647, 649 (1963), quoting Bell

v. Hood, 327 U.S. 678, 685 (1946).

That this reasoning applies to the instant case is clear

and therefore the district court had jurisdiction over this case.

The case of Jacobs v. United States, 290 U.S. 13 (1933),

is worthy of mention. There the Supreme Court was faced with the

question of whether claimants, in a suit under the Tucker Act,

were entitled to interest on their damage award. In holding that

the interest must be paid, the court stated:

"The suits were based on the right to re-

cover just compensation for property taken by

the United States for public use in the exer-

cise of its power of eminent domain. The right

was guaranteed by the Constitution. The fact

that condemnation proceedings were not insti-

tuted and that the right was asserted in suits

by the owners did not change the essential

nature of the claim. The form of the remedy

did not qualify the right. It rested upon the

Fifth Amendment. Statutory recognition was not

necessary. Such a promise was implied because

of the duty to pay imposed by the amendment.

The suits were thus founded upon the Constitu-

tion of the United States." at — = 9

“(emphasis Supplied). ~

In addition to the violations of respondents' First and

Fifth Amendment rights by petitioners, respondents also allege, in

paragraph 19 of their complaint, that petitioners violated Section

9(a) of the Administrative Procedure Act, 5 U.S.C. 558(b), which

provides that "[a] sanction may not be imposed or a substantive

rule or order issued except within jurisdiction delegated to the

agency and as authorized by law." This allegation is also within

the ambit of 28 U.S.C. § 1331, which confers original jurisdiction

on the district court ". . .wherein the matter in controversy. ..

arises under the. . .laws. . .of the United States. ..."

980 (1977), this Court, in holding that the Administrative Pro-

cedure Act “does not afford an implied grant of subject-matter

jurisdiction permitting federal judicial review of agency action,"

97 S.Ct. at 985, also stated .hat "[t]Jhe obvious effect of" elimi-

nating the amount in controversy requirement for actions brought

against the United States, any agency thereof, or any officer or

employee thereof in his official capacity “is to confer juris-

diction on federal courts to review agency action, regardless of

whether the APA of its own force may serve as a jurisdictional

predicate." 97 S.Ct. at 984. In the case at bar, the District

Court is in part asked to review allegedly wrongful acts of

a federal agency and its employees and determine the consequences

ot those wrongful acts.

Dated: New York, New York Respectfully submitted,

November 21, 1977

LAW OFFICES OF DAVID C. BUXBAUM, P.C

Attorneys for Respondents