Respondents Brief — Bush v. Lucas

Supreme Court brief1983

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ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT

QUESTION PRESENTED

Whether a federal employee who claims that he was

demoted in violation of the First Amendment, and who

is reinstated and awarded full back pay after pursuing

his civil service remedies, also has an implied constitu-

tional cause of action for damages against the official who

approved his demotion.

(1)

Page

Opinions below 1

Jurisdiction 1

Statement 2

Summary of argument 7

Argument:

A federal employee challenging a demotion who

can obtain reinstatement and back pay through

civil service remedies may not also seek damages,

under an implied constitutional cause of action,

from an official who approved the demotion .......... 12

A. Introduction 12

B. The civil service remedies available to peti-

tioner precluded an implied constitutional dam-

ages action 18

1. The differences between the civil service

remedies and the implied damages remedy

do not require that petitioner be allowed to

bring a damages action 18

2. The complexity of the civil service reme-

dies, and their frequent adjustment, re-

fleet Congress’s intent to occupy the field 26

8. When Congress established the civil serv-

ice remedies, it assumed that courts would

not play an active role in remedying fed-

eral employees’ grievances 34

4. Creating a personal damages remedy in

this context would thwart important con-

gressional policies 87

C. Special factors require the court to hesitate

before creating an implied damages remedy for

federal employees 42

(m)

Argument—Cont.nued Page

1. Federal employees challenging adverse per-

sonnel actions do not have a strong claim

to judicial protection 42

2. Disputes concerning the federal employ-

ment relationship are properly addressed,

in the first instance, in a specialized ad-

ministrative agency, not a court 45

Conclusion ; ae 49

TABLE OF AUTHORITIES

Cases:

Abood v. Detroit Board of Education, 431 U.S.

Aetna Life Insurance Co. v. Haworth, 300 U.S.

Alexander v. Gardner-Denver Co., 415 U.S. 36.... 47

Armstrong V. United States, 405 F.2d 1275, cert.

denied, 395 U.S. 934 20

Arnett v. Kennedy, 416 U.S. 134.6, 17, 18, 28, 29, 28

Arrow Transportation Co. v. Southern Ry., 372

U.S. 658 45

Avitzur v. Davidson, 549 F. Supp. 899 17

Bailey v. Richardson, 182 F.2d 46, aff'd by an

equally divided court, 341 U.S. 91 86

Barr v. Matteo, 360 U.S. 564 4

Bell v. Hood, 327 U.S. 678 12

Bielec v. United States, 456 F.2d 690 — 20

Bishop v. Tice, 622 F.2d 349 17, 19, 25-26

Bivens v. Siz Unknown Named Agents of Fed-

eral Bureau of Narcotics, 408 U.S. 388 _.........passim

Bollman, Ex parte, 8 U.S. (4 Cranch) 77 12

Branti v. Finkel, 445 U.S. 507 34

Broussard v. United States Postal Service, 674

F.2d 1108 17

U.S. 820 ., 9, 16, 22, 27, 28, 86, 47

Cases Continued Page

Burnap v. United States, 252 U.S. 512

Butz v. Economou, 438 U.S. 478 20-21, 38, 39

Cafeteria Workers v. McElroy, 367 U.S. 886-....... 18

Cale v. City of Covington, 586 F.2d 3111 26

Cannon V. University of Chicago, 441 U.S. 677.... 35

Carlson v. Green, 446 U.S. 14 passim

Carey v. Piphus, 453 U.S. 247 44

Cary v. Curtis, 44 U.S. (3 How.) 233862 16

Chandler v. Roudebush, 425 U.S. 80 47

Charlton v. United States, 412 F.2d 390 20

City of Milwaukee v. Illinois, 451 U.S. 304..15, 16, 17, 24,

27, 28, 35

Dabney v. Freeman, 368 F.2d 583 — 20

Davis v. Passman, 442 U.S. 228 passim

Dean v. Gladney, 621 F.2d 1331, cert. denied, 450

U.S. 983 25

Decatur v. Pauling, 89 U.S. (14 Pet.) 497 36

D’Oench, Duhme & Co. v. Federal Deposit Insur-

ance Corp., 816 U.S. 477 14

Edmonds v. Compagnie Generale ———

448 U.S. 256 35

Egger v. Phillips, 669 F.2d 497 17

Ellis v. Blum, 643 F.2d 68 = * 25

Erie R.R. v. Tompkins, 304 U.S. 64 16

Fitzgerald v. United States Lines, 374 U.S. 16 14

Florida Avocado Growers v. Paul, 373 U.S. 132. 28

Givhan v. Western Line Consolidated School Dis-

trict, 489 U.S. 410

Gissen v. Tackman, 587 F.2d 784

Great American Federal Savings & Loan Associa-

tion v. Novotny, 442 U.S. 366

Gregoire v. Biddle, 177 F.2d 579, cert. denied,

339 U.S. 949

Harlow v. Fitzgerald, No. 80-945 (June 24,

1982)

Holden v. Finch, 446 F.2d 1311

Isbrandtsen Co. v. Johnson, 343 U.S. 779 — .

Jenkins v. Macy, 287 F. Supp. 60, aff’d, 357 F. 2d

Johnson v. Railway Express Agency, 421 U.S.

454

S 8 S888 N S&S 88

Cases—Continued |

Jones v. City of Memphis, 586 F.2d 622, cert.

denied, 440 U.S. 914 -..........................................

Kansas v. Colorado, 206 U.S. 46

Keim v. United States, 177 U.S. 290

Kremer v. Chemical Construction Corp., No. 80-

6045 (May 17, 1982)

Larson V. Domestic & Foreign Commerce Corp.,

337 U.S. 682

Lehman v. Nakshian, 458 U.S. 156

Mahone v. Waddle, 564 F.2d 1018

Maine V. Thiboutot, 448 U.S. 1 4

McCardle, Ex parte, 74 US. (7 Wall.) 5068

McDonnell Douglas Corp. v. Green, 411 U.S. 792

Merrill Lynch, Pierce, Fenner & Smith, Inc. v.

Curran, No. 80-208 (May 3, 19822

Middlesex County Sewerage Authority v. National

Sea Clammers Association, 453 U.S. 1 1

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618 25, 35,

8 SSSRBa & SER 5

Mohasco Corp. v. Silver, 447 U.S. 807 25

Molina v. Richardson, 578 F.2d 846, cert. denied,

PRE SO ee 25

Monell v. Department of Social Services, 436 U.S.

658

Montana-Dakota Utilities Co. v. Northwestern

Public Service Co., 341 U.S. 246 _..

Morton v. Mancari, 417 U.S. 535

Nadar v. Allegheny Airlines, Inc., 426 U.S. 290

National Railroad Passenger Corp. v. National As-

sociation of Railroad Passengers, 414 U.S. 458

Newman v. Piggie Park Enterprises, Inc., 390

US. 400

New Jersey v. New York, 283 U.S. 3309

New York Gaslight Club, Inc. v. Carey, 447 US.

Nixon v. Fitegerald, No. 79-1738 (June 24, 1982)

Northwest Airlines, Inc. v. Transport Workers

Union, 451 U.S. 77 15, 25,

Owen v. City Independence, 445 U.S. 622 —........

Parratt v. Taylor, 451 U.S. 527

Pennsylvania v. Mimms, 434 U.S. 106

5888 88 aS 8 FRE

vil

Cases—Continued Page

Pickering v. Board of Education, 391 U.S. 563........ 46

Purtill v. Harris, 658 F.2d 134, petition for cert.

pending, No. 81-1010 17, 22

Sampson V. Murray, .

Sheldon v. Sill, 49 U.S. (8 How.) 44444 —

Sonntag v. Dooley, 650 F.2d 904 2

Tarpley v. Greene, 684 F.2d 1 23, 25

Teras & Pacific Ry. v. Abilene Cotton Oil Co., 204

U.S. 426 34-35

Texas Industries, Inc. v. Radcliff Materials, Inc.,

451 U.S. 630 16, 24, 27, 28

Textile Workers Union v. Lincoln Mills, 353 U.S.

448 14

Toohey v. Nitze, 429 F.2d 1332, cert. denied, 400

U.S. 1022

Twiggs V. Small Business Administration, 541 F.2d

150

United States v. Carolene Products Co., 304 U.S.

144

United States v. Fisher, 6 U.S. (2 Cranch) 858

United States v. Hudson & Goodwin, 11 U.S. (7

Cranch) 32

United States v. Lee, 106 U.S. 196

United States v. Little Lake Misere and Co., 412

U.S. 580

United States v. Standard Oil Co., 382 U.S. 3801.

United States v. Testan, 424 U.S. 392 31,

United States v. Utah Construction & Mining Co.,

384 U.S. 399

United Steelworkers v. Warrior & Gulf Navigation

Co., 363 U.S. 574

Universal Camera Corp. v. NLRB, 340 U.S. 474

Universities Research Association, Inc. v. Coutu,

450 U.S. 754

Vigil v. ee ee 1

Wathen v. United States, 527 F.2d 11911

White v. Berry, 171 U.S. 866

Wren v. Merit Systems Protection Board, 681 F.2d

867

Yerger, Ez parte, 76 US. (8 Wall.) 88

Young v. Hampton, 568 F.2d 1253

a& 8 8

SSS S88" 88 & SES 88

Constitution, statutes and regulations:

United States Constitution :

Article III, Section 2

Page

First Amendment l 4, 5, 9, 11, 18, 19, 30, 46

Fourth Amendment 12, 13, 43

Act of Aug. 24, 1912, ch. 389, Section 6, 37 Stat.

eer tr er)

Back Pay Act of 1948 (Act of June 10, 1948, ch.

447, 62 Stat. 354)

Back Pay Act of 1966, 5 U.S.C. (& Supp. IV) 5596..

Civil Rights Act of 1964, Title VII, 42 U.S.C. (&

Supp. IV) 2000 et seq. :

42 U.S.C. 20000-2(a) (1) ..................................

42 U.S.C. 2000-16 (a)

Civil Service Reform Act of 1978, Pub I. No. 9-

454, 92 Stat. 1111, 5 U.S.C. (Supp. V) 1101 et

r ß

Section 907, 92 Stat. 1227 od

5 U.S.C. (Supp. V) 1205

& U.S.C. (Supp. V) 12906 —.............................

5 U.S.C. (Supp. V) 1206(c)(1)(A) —.......

5 U.S. C. (Supp. V) 1206(c)(1)(B) —........

5 U.S.C. (Supp. V) 1206 (8)

5 U.S. C. (Supp. V) 1207 ()

5 U.S.C. (Supp. V) 02 (b) (06400 —

5 U.S.C. (Supp. V) 5401 et seg

5 U.S.C. (Supp. V) 7513(a)

5 U.S.C. (Supp. V) 7701

5 U.S.C. (Supp. V) 7701(c) 9h) 2

5 U.S. C. (Supp. V) 7703

6 U.S.C. (Supp. V) 7703 (e) 17)

Federal Courts Improvement Act of 1982, Pub. L.

No. 97-164, 96 Stat. 25

Federal Tort Claims Act:

28 U.S.C. 1846(b)

28 U.S.C. 2671 et seq.

. 18,22

= 8 8 88888888888

Constitution, statutes and regulations—Continued Page

Federal Water Pollution Control Act Amendments

of 1972, 33 U.S.C. (& Supp. [V) 1261 et % 27

Labor-Management Relations Act, 29 U.S.C. 185

Re SE SE ha AS ee Se 14

Lioyd-LaFollette Act, 5 U.S.C. 7601 _...18, 28, 29-30, 33

Pendleton Act of 1883 (Act of Jan. 16, 1888, ch. 27,

0.0 ——— 29

Section 1, 22 Stat. 408 ........................... 29

Section 2, 22 Stat. 408-404 29

Veterans Preference Act of 1944 (Act of June 27,

1944, ch. 287, Section 14, 86 Stat. 391, 5 U.S.C.

( Se! Sane 31

2) ˖· FR 3

e NN 12

r ES SET Ss CoE. 35

42 U.S.C. (Supp. TV) 1983 a Case 26, 27

5 C.F.R. (1976):

e 18

er 19

Section 752.202 (b) 19

«ä IC eee 2,19

Section 752.203 3, 19

. 19

Zr 31

D 20

.. 4. 20

Miscellaneous: Page

P. Bator, P. Mishkin, D. Shapiro &. H. Wechsler,

Hart & Wechsler's The Federal Courts and the

Federal System (2d ed. 1978) 14

Bell, Proposed Amendments to the Federal Tort

Claims Act, 16 Harv. J. on Leg. 1 (197909 41

Chaturvedit, Legal Protection Available to Federal

Employees Against Wrongful Dismissal, 88 Nw.

U.L. Rev. 287 (1968) 36

48 Cong. Rec. (1912) :

p. 4518 30

p. 4658 30

p. 4738 30

111 Cong. Rec. 2476 (196

129 Cong. Rec. (daily ed. Aug. 11, 1978) :

Dellinger, Of Rights and Remedies: The Constitu-

tion as a Sword, 85 Harv. L. Rev. 1532 (1972)

J. Ely, Democracy and Distrust (1980) —

T. Emerson, The System of Freedom of Expres-

sion (1970

Exec. Order No. 10988, 27 Fed. Reg. 551 (1962)

Exec. Order No. 11491, 34 Fed. Reg. 17605 (1969)

Hart, The Power of Congress to Limit the Juris-

diction of Federal Courts: An Ezercise in Dia-

SSG GR BS TTTTTTTITITT TE

lectic, 66 Harv. L. Rev. 1362 (1953) _............. 16, 48

Hill, Constitutional Remedies, 69 Colum. L. Rev.

1109 (1969) 15

H.R. Rep. No. 32, 89th Cong., Ist Sess. (1966) 32

H.R. Rep. No. 95-1408, 95th Cong. 2d Sess.

(1978) 33, 37, 39, 41

H.R. Rep. No. 1436, 80th Cong., 2d Sess. (1948)... 81

H.R. Rep. No. 1826, 47th Cong., 2d Sess. (1882)... 29, 37

Johnson & Stoll, Judicial Review of Federal Em-

ployee Dismissals and Other Adverse Actions,

57 Cornell L. Rev. 178 (1972)

Katz, The Jurisprudence of Remedies: Constitu-

tional Legality And The Law Of Torts In Bell v.

Hood, 117 U. Pa. L. Rev. 1 (1968)

Miscellaneous—Continued Page

Landes & Posner, The Private Enforcement of

Law, 4 J. Legal Stud. 1 (1975) 25

Merrill, Procedures for Adverse Actions Against

Federal Employees, 59 Va. L. Rev. 196 (1978). 21, 36

Monaghan, The Supreme Court, 1974 Term—Fore-

word: Constitutional Common Law, 89 Harv. L.

Rev. 1 (1975) 14

Note, “Damages or Nothing”—The Efficacy of the

Bivens-Type Remedy, 64 Cornell L. Rev. 667

(1979) 35

Note, Dismissal of Federal Employees—T he

Emerging Judicial Role, 66 Colum. L. Rev. 719

c 36

Sager, The Supreme Court, 1980 Term-Foreword:

Constitutional Limitations on Congress’ Author-

ity to Regulate the Jurisdiction of the Federal

Courts, 95 Harv. L. Rev. 17 (1981) 2 23

Schuck, Suing Our Servants: The Court, Congress,

and the Liability of Public Officials for Damages,

1980 Sup. Ct. Rev. 281 38

S. Rep. No. 95-696, 95th Cong., 2d Sess. (1978). 33, 37, 38

S. Rep. No. 1062, 89th Cong., 2d Sess. (1966 — 31-32

Stewart & Sunstein, Public Programs and Private

Rights, 95 Harv. L. Rev. 1195 (198222 37

Sunstein, Section 1983 and the Private Enforce-

ment of Federal Law, 49 U. Chi. L. Rev. 394

rr 27, 45

R. Vaughn, Principles of Civil Service Law

(1976) ss 29

In the Supreme Court of the United States

OCTOBER TERM, 1982

No. 81-469

WILLIAM C. BUSH, PETITIONER

WILLIAM R. Lucas

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The opinion of the court of appeals on remand from

this Court (Pet. App. a-1 to a-12) is reported at 647

F.2d 573. The order of this Court vacating the initial

judgment of the court of appeals and remanding the

ease for further deration (Pet. App. b-l) is re-

ported at 446 U.S. 914. The initial opinion of the court

of appeals (Pet. App. cl-1 to cl-14) is reported at 598

958. The opinion and order of the district court

(Pet. App. d-1 to d-17), and the decisions of the Civil

Service Commission (Pet. App. e-1 to g-3), are not

JURISDICTION

The judgment of the court of appeals was entered on

June 12, 1981. The petition for a writ of certiorari was

filed on September 4, 1981, and was granted on June 28,

1982. The jurisdiction of this Court rests on 28 U.S.C.

1254(1).

(1)

STATEMENT

1. Petitioner is an aerospace engineer who has been

employed for more than seven years by the National

Aeronautics and Space Administration (NASA) at the

Marshall Space Flight Center in Alabama. The Center

is one of NASA’s major facilities, employing 4500 per-

sons (J.A. 18). Respondent is the Director of the Center,

with responsibility for all of the Center’s operations (J.A.

18-19). In May and June 1975, following major re-

organizations at the Center, petitioner, in several news-

paper and television interviews, stated that he had little

meaningful work to do and that the position to which he

had been reassigned was a “travesty.” These statements

were widely publicized (Pet. App. d-2 to d-3).

The Director of Science and Engineering at the Center,

who is not a party to this case, investigated petitioner’s

allegations (J.A. 45) and ultimately initiated proceed-

ings to have petitioner removed from his position (J.A.

15; Pet. App. e-15). His principal charge was that peti-

tioner “on more than one occasion publicly ma[dJe in-

temperate remarks which were misleading and often false,

evidencing a malicious attitude and generating an

environment of sensationalism * * *.” The Director of

Science and Engineering further asserted that petition-

er’s “conduct has undermined morale at the * * * Center

and brought disharmony and disaffection among fellow

employees” (Pet. App. f-2 to f-3, e-7; emphasis omitted).

Respondent was responsible for reviewing the proposed

discharge. See 5 C.F.R. 752.202(f) (1975). After peti-

tioner submitted written and oral replies to the charges

against him, respondent dismissed some of the charges

and determined not to remove petitioner from his position

(Pet. App. e-14). Respondent did decide, however, that

certain of the charges were justified and that petitioner

should be demoted two grades, from GS-14 to GS-12 (id.

at f-2, f-4). Petitioner was notified of this action in

November 1975 (J.A. 15).

2. Civil Service Commission regulations entitled peti-

tioner to appeal his demotion to the Commission, and pe-

titioner did so (5 C.F.R. 752.203 (1975); Pet. App. cl-

6). After a three-day trial-type h-aring that was open

to the press and the public (Pet. App. 2 the Com-

mission’s Federal Employee Appeals A theor'ty ~vheld

NASA’s action (id. at e-41 to e42). The Apneaic Au-

thority found that “the evidence clearly shows ‘that [pe-

titioner’s new assignment) was not false or worthless” (id.

at e-26) and that petitioner’s statements “were actually

motivated by [his] desire to have his position abolished

for the personal benefit of being able to take early retire-

ment and enter law school” (id. at e-35). The Appeals

Authority concluded that petitioner’s public “statements

were misleading; that they generated an environment of

sensationalism demeaning to the government, the agency,

and its personnel at [the Center,] and that they impeded

government efficiency and economy and adversely aftected

public confidence in the government service” (id. at e-31).

The Appeals Authority also specifically rejected peti-

tioner’s assertion that respondent was biased against him

and did not fairly review the charges (id. at e-14).

The Appeals Authority then considered, and rejected,

petitioner’s claim that his demotion violated the First

Amendment. The Appeals Authority acknowledged that

the First Amendment protects a wide range of speech

by public employees, but noted that petitioner made “un-

warranted public remarks critical of his agency for rea-

sons of self-interest” (Pet. App. e-89). The Appeals Au-

thority accordingly ruled that petitioner’s “public re-

marks exceeded the bounds of expression protected by

the first amendment” (id. at e-38).

Petitioner could have, but did not, bring suit in federal

district court (Pet. App. d-15 n.5) to challenge the Com-

mission’s decision as arbitrary and capricious, unsup-

ported by substantial evidence, or otherwise unlawful (see

5 U.S.C. 706; page 20, infra). Instead, two years after

the Appeals Authority’s decision, petitioner success-

fully requested that the Civil Service Commission’s Ap-

peals Review Board reopen the administrative proceed-

ing. See 5 C.F.R. 772.310 (1975). The Appeals Review

Board accepted the factual conclusions reached in the

earlier proceeu:ng, and it again rejected petitioner’s claim

that respondent was biased against him (Pet. App. f-10

to f-11, f-14), but it agreed to reexamine petitioner’s

First Amendment claim. The Appeals Review Board

noted that petitioner had “admitted to a certain amount

of exaggeration,” that the Appeals Authority had found

that petitioner was motivated by a desire for personal

gain, and that petitioner had acted “precipitous[ly] * * *

and hasti[ly] in seeking public exposure.” The Appeals

Review Board determined, however, that the “evidence is

insufficient to sustain a conclusion that [petitioner’s]

statements were actuated by ‘malice’” (id. at f-17 to

f-18). Consequently, even though petitioner’s statements

had caused “disruption of the orderly day-to-day routine

of the agency,” the Appeals Review Board concluded that

“the balance in the instant case weighs in favor of [pe-

titioner]” (id. at f-23). The Appeals Review Board rec-

ommended that petitioner be retroactively restored to his

former position and awarded back pay (id. at f-26), and

NASA accepted this recommendation.

8. In 1976, while his administrative appeal was pend-

ing, petitioner sued respondent for damages in Alabama

state court. Petitioner alleged that respondent had slan-

dered him and had conspired with others to demote him

1 Government records show that petitioner received $30,724.40 in

back pay.

2 Petitioner's defamation claim was based on a statement re-

spondent made, when asked at the conclusion of a press conference,

about petitioner’s assertions that he had no meaningful work;

respondent replied, “I have had [the] statement investigated and

I can say unequivocally that such a statement has no basis in

fact” (Pet. App. cl-5). The district court held that the defamation

claim precluded under Barr v. Matteo, 360 U.S. 564 (1959)

was

(Pet. App. d-4 to d-11), and the court of appeals affirmed, oth

before and after this Court’s remand (Pet. App. a-3, cl-6 to cl-10).

This holding is not before the Court (Pet. Br. 3 n.1).

in violation of the First Amendment (Pet. App. d-2, d-4).

Respondent removed the case to the United States Dis-

trict Court for the Northern District of Alabama, which

granted respondent’s motion for summary judgment. The

district court held that because of petitioner’s “adminis-

trative review opportunities and the importance of the

government’s interests in promoting the efficiency and

integrity of its public services” (id. at d-16), petitioner

could not maintain an action for damages under the

Constitution.

The court of appeals affirmed, agreeing with the dis-

trict court that petitioner did not have a constitutional

cause of action for damages. The court of appeals cited

the elaborate civil service remedies available to petitioner

and observed that in Davis v. Passman, 442 U.S. 228

(1979), the absence of an alternative remedy was central

to this Court’s decision to find an implied cause of ac-

tion for damages under the Constitution (Pet. App. cl-

10 to cl-14). This Court then granted a petition for a

writ of certiorari, vacated the court of appeals’ judgment,

and remanded the case for further consideration in light

of the intervening decision in Carlson v. Green, 446 U.S.

14 (1980) (Pet. App. b-1; 446 U.S. 914 (1980) ).

On remand, the court of appeals again affirmed the dis-

trict court’s decision. Citing Carlson v. Green, supra, 446

U.S. at 18, and Bivens v. Six Unknown Named Agents of

Federal Bureau of Narcotics, 403 U.S. 388, 396 (1971),

the court of appeals stated that it would not confer on

unique relationship between the Federal Government and

its civil service employees” to be such a special factor

(Pet. App. a-6). The court of appeals explained that

“(t]he role of the Government as an employer toward

its employees is fundamentally different from its role as

NN Gee” (a. te at a-6 to

a-7). In this connection, the court of appeals noted the

numerous cases in which this Court has emphasized the

importance of according the government great latitude in

the management of its personnel and internal affairs“

(ibid., quoting Arnett v. Kennedy, 416 U.S. 134, 168

(1974) (opinion of Powell, J.))

The court of appeals also emphasized that its refusal

to allow an implied personal damages action would not

leave petitioner without a remedy (Pet. App. a-11 to

a-12). The court observed that “Congress, rather than the

courts, has traditionally carried the burden of regulating

the Government employer-employee relationship” (id. at

a-8 to a-9). The court described the series of statutes

in which Congress has provided remedies for aggrieved

civil servants (ibid.) and noted the administrative reme-

dies petitioner successfully pursued and the judicial rem-

edy that would have been available if petitioner had not

been successful before the Civil Service Commission (id.

at a-9). Pointing out that the civil service remedies were

the product of continual congressional “fine tuning,” the

court explained (id. at a-9 to a-10) :

Congress has sought to achieve a proper balance be-

tween promoting governmental efficiency and protect-

personnel

Congress has taken to carefully balance the em-

ployee’s rights as a citizen with the Government’s in-

terest in the efficient conduct of the nation’s business.

And the court noted that “[t]he very comprehensiveness

of the legislative and administrative scheme evinces Con-

gress’ awareness of the special relationship and of the

Government’s responsibilities toward its civil service em-

ployees” (id. at a-10).

Allowing petitioner the damages remedy he sought, the

court said, might “provide a disincentive for Congress to

continue improving the mechanisms by which an ag-

grieved employee can protect his rights” (Pet. App. a-11).

In any event, such a remedy would “interfere with

and undermine the traditional control of the Government

over its internal and personnel affairs. It might encour-

age aggrieved employees to bypass the statutory and

administrative remedies in order to seek direct judicial

relief and thereby deprive the Government of the oppor-

tunity to work out its personnel problems within the

framework it has so painstakingly established” (id. at

a-10 to a-11).

SUMMARY OF ARGUMENT

A. In Bivens v. Six Unknown Named Agents of Fed-

eral Bureau of Narcotics, 403 U.S. 388 (1971), the Court

held that a plaintiff who alleges that his constitutional

rights have been violated may sue the responsible federal

officials for damages, even though Congress has not ex-

plicitly established such a remedy. In each case in which

the Court has allowed a Bivens action, however, it has

supposed a judicially created damages remedy.

In this respect, Bivens and its progeny are faithful to

The civil service remedies that were available to peti-

oner, and that he successfully invoked, not only were

fully adequate to redress a constitutional violation but

's intent to occupy the field in a way

that precludes a judicially created Bivens remedy. More-

over, special factors arising from the federal employ-

ment relationship require, at a minimum, that any doubts

be resolved in favor of the preclusive effect of the civil

service remedies.

B. 1. Congress has specifically addressed the question

of what remedy to afford a civil servant who, like peti-

tioner, complains of an unlawful personnel action. Con-

gress has established an elaborate and integrated re-

medial scheme, consisting of two levels of administrative

consideration followed by judicial review. These reme-

dies are designed to provide full compensation to any fed-

eral employee who is the victim of an unconstitutional

personnel action.

By providing for judicial review and full compensa-

tory relief, these civil service remedies plainly meet, and

exceed, any minimum requirements of adequacy derived

from the Constitution itself. Indeed, the civil service

remedies are superior to the Bivens remedy sought by pe-

tioner in several important respects.

Petitioner nonetheless contends that these civil service

remedies created by Congress must be supplemented by

a personal damages remedy that Congress did not ex-

pressly create. Petitioner’s principal argument appears to

be that the civil service remedies cannot preclude a Bivens

remedy because the latter arguably provides more of a

deterrent and is more favorable to claimants in certain

ways—by allowing a recovery against an individual in-

stead of the government, jury trials, and awards of puni-

control—even if its remedy is in some respects less favor-

able to claimants.

2. Both the structure and the history of the civil serv-

ice remedies demonstrate that Congress did not envision

that courts would supplement them with judicially created

remedies. The civil service remedies are a “careful blend of

administrative and judicial enforcement powers” (Brown

v. General Services Administration, supra, 425 U.S. at

833) that assign a distinct role to the agency taking the

adverse action, the Civil Service Commission, and the re-

viewing courts. Moreover, the history of the civil service

remedies shows that Congress has revisited them re-

peatedly, fine-tuning the statutes and making adjustments

when it perceived an inequity or a new problem. This

close congressional superintendence of a complex remedial

scheme strongly suggests that Congress took complete re-

sponsibility for providing a remedy and did not intend

courts to create supplemental remedies Congress did not

specifically prescribe.

Moreover, Congress plainly intended the civil service

remedies to provide relief for constitutional violations.

The impetus behind the Lloyd-LaFollette Act, the statu-

tory basis of the civil service remedies petitioner success-

fully invoked, was congressional concern with federal em-

ployees’ First Amendment rights. In general, the history

of eivi]l service legislation shows Congress’s repeated con-

cern with employees who expose abuses or mismanage-

ment in the government—the precise activity in which

petitioner alleges he was engaged—and Congress’s strong

institutional interest in protecting such employees.

3. When Congress enacted the civil service remedies,

there was, of course, no Bivens remedy. Moreover, the

ng tradition was that courts would play little

or no role in resolving disputes growing out of civil serv-

ice employment; the resolution of such disputes was uni-

versally understood to be the province of Congress and the

executive branch. When Congress legislates against such

a background, it cannot be presumed that Congress en-

visioned, or left room for, an active judicial role in pro-

viding supplemental remedies. Indeed, it should be pre-

sumed that Congress intended its nedy to be exclusive.

4. Bere e ere

fragile; if it becomes excessively difficult or burdensome

for a manager to act, many simply will not act, and the

efficiency and morale of the civil service will suffer.

It cannot be disputed that creating a personal damages

will be different from the balance Congress has painstak-

ingly struck in the civil service context; and since the

ected ir Congress’s remedial scheme is plainly

tutional, the courts have no warrant to upset it.

C. be, e e

rity agi Hee Pp

e i 111 a i.

THLE N i

einde ail

AMSTEL Ree

11 i I

Iii Hike i 1114 fai

I uit

fits

WHO

establishes

for

therefore,

violations; and i

itself

court cannot provide

— dei — explicitly or implicitly, by

statute. See, ¢.g., Sheldon v. Sill, 49 U.S. (8 How

1 i

) 441,

448-449 (1850); United States v. Hudson & Goodwin,

11 U.S. (7 Cranch) 32, 38 (1812); Ex parte Bollman,

8 US.

(Marshall, C.J.)

75, 94 (1807)

(4 Cranch)

(“{T]he power to award the writ [of habeas corpus)

by any of the courts of the United States, must be given

gai

iit

i 1

111

5 ee

; Montana-Dakota Utilities

Public Service Co., 341 U.S. 246,

„J., dissenting) (“Courts, un-

agencies, are organs with historic

which bring with them well-defined powers.

require explicit statutory authorization for

r e Pad *

. anata ae

v. Passman, 442 U.S. 228 (1979),

951) (

1114

1114253

2883

388

se 111

from her

py an

——

dat, the plintift—who

employee because of her sex,

t—had an implied

the Constitution. r

— e

THI

Ae.

elaimed that she had been

iH 11

plaintiff—the survivor of a prisoner whose Eighth Amend-

ment rights were allegedly violated by federal authorities

could have brought suit under the Federal Tort Cie ims

Act (FTCA), 28 U.S.C. 1346 (b) and 2671 et seq., for the

it described as “crystal clear” (446 U.S. at 20), that

“Congress * * * contemplate[d] that victims of the kind

of intentional wrongdoing alleged in [the] complaint shall

(ibid.). See also id. at 19 n.5 (Congress view led

the damages remedy was a grant of jurisdiction. In each

ease, before allowing the remedy, the Court ensured that

Congress either had not addressed the question of what

ity of a jurisdictional grant. See, e. ., Fitzgerald v.

United States Lines, 374 U.S. 16, 20 (1963) (admiralty) ;

Kansas v. Colorado, 206 U.S. 46 (1907) (suits between

states in this Court’s original jurisdiction); Textile

Workers Union v. Lincoln Mills, 353 U.S. 448 (1957)

(suits under Section 301(a) of the Labor-Management

Relations Act, 29 U.S.C. 185(a)).*

See also D’Oench, Duhme & Co. v. Federal Deposit Insurance

Corp., 315 U.S. 447, 472 (1942) (Jackson, J., concurring) (“Fed-

eral common law implements the federal Constitution and stat-

utes”); P. Bator, P. Mishkin, D. Shapiro & H. Wechsler, Hart &

Wechsler’s The Federal Courts and the Federal System 798 (2d ed.

1973) ; Monaghan, The Supreme Court, 1974 Term—Foreword: Con-

stitutional Common Law, 89 Harv. L. Rev. 1, 23-24 (1975).

In every area of federal common law, the Court has

“consistently * * * emphasized that the federal lawmak-

ing power is vested in the legislative, not the judicial

branch of government; therefore, federal common law is

‘subject to the paramount authority of Congress.’” North-

west Airlines, Inc. v. Transport Workers Union, 451

U.S. 77, 95-96 (1981), quoting New Jersey v. New York,

283 U.S. 336, 348 (1931). The Court has recently noted

that “[e]ven in admiralty, * where the federal ju-

diciary’s lawmaking power may well be at its strongest,

it is [the Court’s] duty to respect the will of Congress.”

Northwest Airlines, Inc. v. Transport Workers Union,

supra, 451 U.S. at 96. Consequently, should Congress

prescribe a specific remedy for a category of constitu-

tional violations, and intend that remedy to occupy the

field in a way that preempts a Bivens remedy, Congress’s

intent is controlling. See City of Milwaukee v. Illinois,

451 U.S. 304, 314 (1981) (“[W]hen Congress addresses

a question previously governed by a decision rested on

federal common law the need for such an unusual exer-

cise of lawmaking by federal courts disappears.”) ; Larson

v. Domestic & Foreign Commerce Corp., 337 U.S. 682,

722 (1949) (Frankfurter, J., dissenting) (“[T]he sov-

ereign can constitutionally change the traditional rules of

liability for the tort of the agent by providing a fair

substitute.“

It might be suggested that the Bivens remedy differs

from other forms of federal common law because it pro-

tects constitutional rights. The special role of the courts

in protecting constitutional rights was, indeed, a major

element of the justification for the Court’s decision in

Bivens to infer authority to create a remedy from a grant

* See also Hill, Constitutional Remedies, 69 Colum. L. Rev. 1109,

1118 (1969) (Trine fact that a constitutional remedy has been

judicially prescribed in the absence of legislation does not mean

that the legislature lacks power to prescribe an adequate substi-

tute.”); Katz, The Jurisprudence of Remedies: Constitutional

Legality And The Law of Torts In Bell v. Bend, uu Pa. L. Rev.

1, 5 (1968).

of jurisdiction (see, e. g., Bivens, supra, 403 U.S. at 407

(Harlan, J., concurring) ; Davis v. Passman, supra, 442

U.S. at 241-242), because [t] he vesting of jurisdiction in

the federal courts does not in and of itself give rise to au-

thority to formulate federal common law.” Texas Indus-

tries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 640-

641 (1981), citing United States v. Little Lake Misere

Land Co., 412 U.S. 580, 591 (1973). See, e. ., Erie R. R.

v. Tompkins, 304 U.S. 64 (1938).

But the fact that a Bivens remedy involves constitu-

tional rights does not alter the basic nature of the in-

quiry, which is whether allowing that remedy is consistent

with Congress’s intent.’ Even assuming that the Consti-

tution of its own force requires that there be some remedy

for a violation of its provisions, within that constitu-

tional limit there is no reason to deny Congress the power

to prescribe remedies for constitutional violations as broad

as its power to legislate on other subjects. See, e.g., Cary

v. Curtis, 44 U.S. (3 How.) 236, 250 (1845); Hart, The

Power of Congress to Limit the Jurisdiction of Federal

Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362,

1366-1367 (1953); compare Ex parte McCardle, 74 US.

(7 Wall.) 506 (1868), with Eæ parte Yerger, 75 U.S. (8

Wall.) 85 (1868). Accordingly, while the inquiry into

congressional intent necessarily takes into account every

relevant factor (see Brown v. General Services Adminis-

tration, 425 U.S. 820, 825 (1976), quoting United States

v. Fisher, 6 U.S. (2 Cranch) 358, 386 (1805) )—including

the status and importance of the rights involved and

their claim to judicial solicitude (see pages 42-44, infra)

—the question whether legislation preempts judge-made

law must ultimately depend, in the Bivens area as else-

where, upon whether Congress intended to occupy the

5 Notably, the bodies of federal common law governing suits in

admiralty and between the states also have a constitutional basis.

See Article III, Section 2. See also City of Milwaukee v. Illinois,

supra, 451 U.S. at 334-335 (Blackmun, J., dissenting) (discussing

basis of federal common law of interstate nuisance that was held

preempted by legislation).

field. See City of Milwaukee v. Illinois, supra, 451 U.S.

at 338-339 & n.8 (Blackmun, J., dissenting).

In Bivens and its progeny, the Court has organized the

inquiry into congressional intent by establishing two

principles. First, recognizing that a judicially-created

remedy would be inappropriate if Congress had specifi-

cally addressed the remedial question, the Court has ruled

that it would not create an implied damages remedy if

there exists “another remedy, equally effective in the view

of Congress.” Bivens, supra, 403 U.S. at 397; see Carl-

son V. Green, 446 U.S. at 19; Davis v. Passman, supra,

442 U.S. at 248. Second, recognizing that in some con-

texts Congress may not have intended its grant of fed-

eral question jurisdiction to serve as a basis for providing

traditional judicial remedies, the Court has ruled that

“special factors counselling hesitation in the absence of

affirmative action by Congress” (Bivens, supra, 403 U.S.

at 396; see Carlson v. Green, supra, 446 U.S. at 18;

Davis v. Passman, supra, 442 U.S. at 245) preclude an

implied damages action even if Congress has not estab-

lished an alternative remedy.

We submit that the civil service remedies that were

available to petitioner (and were successfully invoked by

him) are an alternative remedy that bars a Bivens ac-

tion. See Bishop v. Tice, 622 F.2d 349, 357 (8th Cir.

1980). Moreover, there are special factors, incident to

the federal employment relationship, that at a minimum

require any doubts to be resolved in favor of the preclu-

sive effect of the civil service remedies. See Arnett v.

No circuit has resolved this issue adversely to our position.

See also Avitzur v. Davidson, 549 F. Supp. 399 (N.D.N.Y. 1982);

Purtill v. Harris, 658 F.2d 134 (3d Cir. 1981), petition for cert.

pending, No. 81-1010 (filed Nov. 23, 1981); Broussard v. United

States Postal Service, 674 F.2d 1108, 1112-1113 (5th Cir. 1982).

Petitioner cites (Pet. Br. 22-23 n.10) Sonntag v. Dooley, 650 F.2d

904 (7th Cir. 1981), but we have explained (Br. in Opp. 11-12) why

Sonntag is not in conflict with the court of appeals’ decision in

this case, We note in addition that on August 17, 1982, the Seventh

Cireuit granted rehearing en banc in Egger v. Phillips, 669 F.2d

497 (1982), apparently to reconsider this issue.

Kennedy, 416 U.S. 184, 168 (1974) (opinion of Powell,

J.) (“{T]o perform its responsibilities effectively and

economically, * * * the Government, as an employer, must

have wide discretion and control over the management of

its personnel and internal affairs.”) ; Sampson v. Murray,

415 US. 61, 83 (1974), quoting Cafeteria Workers v.

McElroy, 367 U.S. 886, 896 (1961) (“the well-established

rule that the Government has traditionally been granted

the widest latitude in the ‘dispatch of its own internal

affairs“).

B. The Civil Service Remedies Available to Petitiener

Precluded an Implied Constitutional Damages Ar tion

Plainly this is not a case like Bivens itself, in which

Congress had not specifically addressed the remedial ques-

tion; Congress and agencies acting pursuant to its au-

thority have established an administrative and judicial

remedial scheme for civil servants challenging personnel

acticns. Nor is this a case like Davis v. Passman, in which

the particular claimant was excluded from a comprehen-

sive remedy; petitioner successfully invoked the civil serv-

ice remedies. Instead, the question here is whether the

civil service remedies explicitly established by Congress

should be supplemented by a judicially-created personal

damages remedy that Congress has not expressly

authorized.

1. The Differences Between the Civil Service Reme-

dies and the Implied Damages Remedy Do Not

Require That Petitioner Be Allowed To Bring a

Damages Action

Under the Lloyd-LaFollette Act, 5 U.S.C. 7501(a), peti-

tioner could not be demoted “except for such cause as will

promote the efficiency of [the civil] service.” See 5

C. F. R. 752.104 (a) (1975). See also 5 U.S.C. (Supp. V)

7513(a). This standard prohibits adverse actions that

violate the First Amendment (Arnett v. Kennedy, 416

U.S. 134, 162 (1974) (opinion of Rehnquist, J.); id. at

164 (opinion of Powell, J.); id. at 177 (opinion of White,

J.)); indeed, the principal and express concern of the

Congress that first enacted this standard was to protect

the First Amendment rights of civil servants (see page

30, infra). As we have noted, the Civil Service Com-

mission’s Federal Employee Appeals Authority and

Appeals Review Board both considered petitioner’s First

Amendment claims specifically and in detail; the Appeals

Review Board reopened the case to consider them, and

ruled in his favor. Had petitioner not prevailed before

the administrative agencies, a reviewing court would have

been required to set aside an unconstitutional personnel

action (see page 20, infra). There is no question, there-

fore, that the civil service remedies were capable of cor-

recting a constitutional violation.

These remedies consisted of elaborate administrative

proceedings, followed by judicial review. Petitioner was

entitled to receive written notice of the reasons for the

proposed adverse action and to examine all disclosable

materials that formed the basis of the proposed action.

5 C.F.R. 752.202 (a) (1975). He then had the right to

answer the charges and to “make any representations

which [he] believe [d] might sway the final decision on his

ease“ (5 C. F. R. 752.202 (b) (1975)) before agency of-

ficials empowered either to make or to recommend a de-

cision on the proposed action. The final agency decision

level official of the agency

than the officer who proposed the adverse action.”

5 C.F.R. 752.202(f) (1975). Here, as we have noted, an

Petitioner was then entitled to appeal to the Civil Serv-

ice Commission’s Federal Employee Appeals Authority.

5 C. F. R. 752.203 and 772.101 (1975). The burden in Com-

mission proceedings was on NASA to sustain its action,

not on petitioner. See Bishop v. Tice, supra, 622 F. ad at

357 n. 15. The Appeals Authority held a trial-type hearing,

at which petitioner had the opportunity to present wi

nesses and cross-examine other witnesses, and to require

the attendance of NASA officials except in limited cir-

cumstances. 5 C. F. R. 772.307 (e) (1975). Rules of evi-

dence are not strictly applied at this hearing. 5 C. F. R.

772.307 (e) (1975). Petitioner also had, and successfully

invoked, the right to ask the Commission to reopen an ad-

verse decision. 5 C. F. R. 772.310 (1975).

In addition, petitioner was entitled to seek judicial re-

view of an adverse Commission decision by filing suit in

federal district court or in the Court of Claims. See gen-

erally Johnson & Stoll, Judicial Review of Federal Em-

ployee Dismissals and Other Adverse Actions, 57 Cornell

L. Rev. 178, 179-182, 185-186 (1972) (citing cases). The

Commission’s decision was reviewed on the record (see,

e. g., Twiggs v. Small Business Administration, 541 F.2d

150, 152 (3d Cir. 1976) ) and could be set aside if it was

arbitrary and capricious, unsupported by substantial evi-

dence, legally erroneous, or the product of a failure to fol-

low proper procedures.’ When he prevailed, petitioner was

entitled to reinstatement with full back pay.“

This remedial scheme was fully adequate to protect peti-

tioner’s rights not to be discharged or demoted in violation

of the Constitution. Indeed, in many respects, these civil

service remedies were more favorable to petitioner than

a Bivens action: he did not bear the burden of proof, as

he would in a Bivens suit; he did not have to overcome an

immunity defense in order to prevail (see Butz v. Econo-

T See, e.g., Young v. Hampton, 568 F.2d 1253, 1256-1257 (7th Cir.

1977); Bielec v. United States, 456 F.2d 690, 695 (Ct. Cl. 1972);

Armstrong v. United States, 405 F.2d 1275, 1277 (Ct. Cl.), cert. de-

nied, 396 U.S. 934 (1969); Toohey v. Nitze, 429 F.2d 1332, 1334 (9th

Cir. 1970), cert. denied, 400 U.S. 1022 (1971); Chariton v. United

States, 412 F 2d 390, 395 (3d Cir. 1969) ; Vigil v. Post Office Depart-

ment, 406 F.2d 921, 924 (10th Cir. 1969); Dabney v. Freeman, 358

F.2d 538, 535 (D.C. Cir. 1965) ; Jenkins v. Macy, 237 F. Supp. 60,

62 (E.D. Mo. 1964), aff’d, 367 F.2d 62 (8th Cir. 1966).

8 After petitioner brought this Bivens action, Congress enacted

the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat.

1111. The Act revised the available remedies, but it preserved their

basic structure. We describe the CSRA remedies at pages 32-33,

infra.

mou, 438 U.S. 478 (1978) ); his relief included reinstate-

ment, which a Bivens remedy could not; and the pro-

cedures were more informal and less costly than a

lawsuit.“

Petitioner asserts, however, that courts must provide a

Bivens remedy because it differs from the eivil service

remedies in three additional respects. See, e. g., Pet. Br.

23-29. First, if a claimant successfully pursues his civil

service remedies, he recovers from the government; in a

Bivens action, he recovers from the defendant official per-

sonally. Second, the civil service remedies provide for

agencies to adjudicate the claim in the first instance, sub-

ject to limited judicial review; a Bivens claim is tried de

novo by a court, and the plaintiff can request a jury (see

Carlson v. Green, supra, 446 U.S. at 22). Third, punitive

damages are apparently available in a Bivens action (Carl-

son V. Green, supra, 446 U.S. at 22) but cannot be re-

covered through the civil] service remedies.”

Instead of analyzing Congress’s intent, however, peti-

tioner appears to argue that the civil service remedies can-

not preclude a Bivens action because they differ from a

Bivens remedy in these ways and therefore are, according

An empirical study found that in 1970 approximately one-half

of those esnployees who appealed reductions in grade or pay to the

Civil Service Commission were successful. In addition, approxi-

mately one-fourth of those who challenged their demotions before

the agency were successful. See Merrill, Procedures for Adverse

Actions Against Federal Employees, 59 Va. L. Rev. 196, 204 n.35

(1978).

Petitioner also asserts (e. ., Pet. Br. 24-26) that he can re-

ceive a larger compensatory award in a Bivens action. In view

of Congress’s explicit determination that the award provided under

the Back Pay Act of 1966, 5 U . C. (& Supp. V) 5596 (the statute

that authorized the monetary award to petitioner), fully compen-

sates aggrieved employees (see pages 31-32, infra), this claim seems

plainly incorrect. In addition, we see no basis for petitioner’s re-

peated claim (Pet. Br. 14, 24, 25, 26) that he could receive, as part

of his recovery in a Bivens suit, the attorney’s fees he incurred in

pursuing the civil service remedy. Cf. New York Gaslight Club,

Inc. v. Carey, 447 U.S. 54 (1980).

to petitioner, less favorable to claimants and less of a de-

torrent. See, e. g., Pet. Br. 14, 16, 27-29. This argu-

ment purports to be based on Carlson v. Green, supra, but

in Carlson the Court examined the differences between a

Bivens action and the alternative FTCA remedy only to

determine if they support led the] conclusion that Con-

gress did not intend to limit [a claimant] to an FTCA

action.” 446 U.S. at 20-21. Moreover, petitioner’s argu-

ment is plainly inconsistent with Brown v. General Serv-

ices Administration, 425 U.S. 820 (1976), where the Court

held that Section 717 of Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e-16, is the exclusive remedy for em-

ployment discrimination by the federal government. Un-

der Brown, a federal employee may not bring a Bivens

action alleging unconstitutional employment discrimina-

tion if he has a remedy under Section 717. See Davis v.

Passman, supra, 442 U.S. at 247 n.26; Gissen v. Tackman,

537 F.2d 784 (3d Cir. 1976) (en banc).” Title VII

remedies for civil service actions based on impermissible

factors such as race or sex are in many ways similar to

the civil service remedies petitioner invoked. In particular,

a Title VII plaintiff who prevails recovers from the gov-

1 The civil service remedies, of course, do not fail to provide

a deterrent; a manager may be disciplined for taking improper

actions. The Civil Service Reform Act of 1978 provides a specific

disciplinary system for managers who violate their subordinates’

constitutional rights. See page 33, infra.

12In addition, one of the differences between a Bivens action

and an FTCA action that the Court considered significant in Carlson

was that “an action under FTCA exists only if the State in which

the alleged misconduct occurred would permit a cause of action for

that misconduct to go forward * * * [while] the liability of federal

officials for violations of citizens’ constitutional rights should be

governed by uniform rules.” 446 U.S. at 23. See also id. at 28

& n.1 (Powell, J., concurring in the judgment). Civil service

remedies, of course, do not vary with state law but are governed

by federal standards.

18 See also Purtill v. Harris, 658 F.2d 134 (3d Cir. 1981), peti-

tion for cert. pending, No. 81-1010 (filed Nov. 23, 1981).

ernment, not an individual, and cannot obtain punitive

damages (42 U.S.C. 2000e-5(g), 2000e-16(c)), and there

is no right to a jury trial under Title VII (see Lehman v.

Nakshian, 453 U.S. 156, 164 (1981)).

In any event, the assumption on which petitioner’s argu-

ment rests—that an alternative remedy cannot preclude a

Bivens remedy unless it is equally or more favorable to

claimants—is obviously implausible. In repeatedly recog-

nizing that Congress may preclude a Bivens remedy by

enacting a substitute remedy that is “equally effective in

the view of Congress,” the Court could not have meant

that Congress may create only a statutory remedy iden-

tical to (or more favorable to plaintiffs than) a Bivens

action.“ A compensatory remedy against the government

is surely more than is needed to satisfy the Constitution

itself; we know of no case holding that the Constitution

requires officials to be punished for unconstitutional acts.

See Bivens, supra, 403 U.S. at 397.“ Indeed, the Court

has squarely rejected the argument that a remedy for gov-

ernment misconduct does not satisfy minimum constitu-

tional requirements unless it provides for personal

liability, a jury trial, and punitive damages; “remedies

* * * [that] could have fully compensated [a claimant]

for the * * * loss he suffered * * * are sufficient to satisfy

the requirements of due process.” Parratt v. Taylor, 451

U.S. 527, 543-544 (1981).

14 See Tarpley v. Greene, 684 F.2d 1, 11 n.24 (D.C. Cir. 1982)

(Edwards, J.) (“We do not believe the Court in Bivens meant, by

using the word ‘equally effective,’ that federal courts could expand

an implied cause of action under the Constitution in order to cir-

eumvent the remedy prescribed by Congress simply because Con-

gress saw fit to limit that remedy in some fashion.”).

158 See also Sager, The Supreme Court, 1980 Term—Foreword:

Constitutional Limitations on Congress’ Authority to Regulate the

Jurisdiction of the Federal Courts, 95 Harv. L. Rev. 17, 85-89 &

n.212 (1981) (“[T]he adequacy of remedies fer constitutional

wrongs should turn on the question whether a litigant is protected

or made whole, and should not embrace deterrence concerns, over

which the legislature should enjoy considerable discretion.” ).

It cannot seriously be contended, for example, that Con-

gress would violate the Constitution if it enacted a statute

prohibiting the award of punitive damages in Bivens

actions and establishing a mechanism ‘ indemnify federal

officials found liable in Bivens actions—even though the

effect of such a statute would be to leave claimants with a

compensatory remedy against the government. There is no

reason to require a different result if Congress instead

affirmatively enacts a compensatory remedy against the

government and reveals its intention to preclude a Bivens

action. See City of Milwaukee v. Illinois, supra, 451 U.S.

at 324 (footnote omitted) (“The question is whether the

field has been occupied, not whether it has been occupied

in a particular manner.”).

The Bivens remedy was not selected as a benchmark

that all other remedies must meet; as the opinions in

Bivens explain, it was selected because it is a traditional

judicial remedy, and a court acting under the sole au-

thority of a jurisdictional grant cannot exceed the tra-

ditional understanding of a court’s powers. But a legis-

lature can be more creative; it can design a more complex

and refined remedial scheme, or it can establish adminis-

trative agencies and empower them to do so. “Congress is

not confined to traditional forms or traditional remedies.

In dealing with methods within its sphere of re-

medial action the Congress may create and improve as

well as abolish or restrict.” Aetna Life Insurance Co. v.

Haworth, 300 U.S. 227, 240 (1937).

At bottom, petitioner’s argument that he must be al-

lowed a Bivens remedy because it will provide a larger

possible recovery and a supposedly better deterrent fails

to recognize that every remedial scheme reflects a par-

ticular balance of competing interests. As the court of

appeals indicated (Pet. App. a-8 to a-10), an award of

damages against individual officials may deter some

wrongdoing, but it also greatly increases the risk of

“overdeterrence” (see Texas Industries, Inc. v. Radcliff

Materials, Inc., supra, 451 U.S. at 637)—inhibiting of-

ficials from taking justified actions in the public interest

because they fear they will face litigation and the threat

of personal liability. See Harlow v. Fitzgerald, No. 80-

945 (June 24, 1982), slip op. 13, quoting Gregoire v.

Biddle, 177 F.2d 579, 581 (2d Cir. 1949), cert. denied,

339 U.S. 949 (1950); Landes & Posner, The Private

Enforcement of Law, 4 J. Legal Stud. 1 (1975). Simi-

larly, a remedial scheme that allows a specialized agency

instead of a court and jury to resolve a dispute in the

first instance may lose some of the benefits of judicial in-

dependence—although the loss is minimal when, as here,

the agency’s action is subject to judicial review—but it

gains the advantages of the agency’s expertise and fa-

miliarity with the employment situation.

Within the limits set by the Constitution, it is for Con-

gress to strike the proper balance; if Congress strikes a

particular balance that the Constitution permits, the

courts have no warrant to upset it. See Northwest Air-

lines, Inc. v. Transport Workers Union, supra, 451

U.S. at 97-98, citing Mohasco Corp. v. Silver, 447 U.S.

807, 826 (1980); Mobil Oil Corp. v. Higginbotham,

436 U.S. 618, 623 (1978).* In Bivens, Davis, and Carl-

16 See also Dellinger, Of Rights and Remedies: The Constitution

as a Sword, 85 Harv. L. Rev. 1532, 1549 (1972) (“Congress should

be free to revise with an adequate alternative any remedy which is

not determined by the Court to be indispensable but which is merely

selected by the Court as one appropriate method of carrying into

effect a substantive constitutional right.”). For example, 42 U.S.C.

(Supp. IV) 1983 does not permit a damages action against a munici-

pality on a respondeat superior theory, although it permits a suit

against the officials themselves. See Moneli v. Department of Social

Services, 436 U.S. 658, 691-694 (1978). The courts of appeals have

unanimously held that a plaintiff does not have an implied constitu-

tional damages action against a municipality on a respondeat supe-

rior theory—even though such an action, against a wealthier defend-

ant likely to arouse less jury sympathy, would undoubtedly give a

plaintiff a better prospect of recovery. See, e. g., Tarpley v. Greene,

684 F.2d 1, 9-11 (D.C. Cir. 1982); Ellis v. Blum, 643 F.2d 68, 85 (2d

Cir. 1981); Dean v. Gladney, 621 F.2d 1331, 1334-1337 (65th Cir.

1980), cert. denied, 450 U.S. 983 (1981) ; Jones v. City of Memphis,

586 F.2d 622, 624-625 (6th Cir. 1978), cert. denied, 440 U.S. 914

(1979); Molina v. Richardson, 578 F.2d 846, 847-854 (9th Cir.),

cert. denied, 439 U.S. 1048 (1978). See also Bishop v. Tice, supra,

as “equally effective in the view of Congress,” and there-

fore as precluding a Bivens remedy, when Congress deems

it as effective in achieving the proper balance of the com-

peting interests—not just in promoting those interests

that favor the plaintiff.

2. The Complexity of the Civil Service Remedies,

and Their Frequent Adjustment, Reflect Con-

gress’s Intent to Occupy the Field

The civil service remedies available to petitioner were

prescribed or authorized by statutes enacted before Biv-

ens was decided. See pages 29-32, infra. It is there-

fore pointless to seek an explicit expression of legislative

intent to preclude a Bivens remedy." Congress had no

reason to believe that there were any other possible reme-

dies available to civil servants; it thus had no reason to

address the question of whether the remedies it pre-

scribed were exclusive. Consequently, in order to deter-

mine whether a Bivens remedy should be created, the

Court must examine other indicia of legislative intent—

the structure of the civil service remedies, the presupposi-

tions about the judicial role that existed when they were

enacted, and Congress’s care in shaping the remedies—

to determine whether Congress intended to occupy the

field in a way that leaves no room for judicially-created

remedies.

622 F. ad at 356 n.12; Cale v. City of Covington, 586 F.2d 311, 317-

$18 (4th Cir. 1978); Mahone v. Waddle, 564 F.2d 1018, 1024-1025

(3d Cir. 1977).

* We believe, however, that the legislative history of the first

civil service legislation passed after Bivens—the Civil Service

Reform Act of 1978—does contain what amounts to a clear state-

ment that Congress did not intend Bivens remedies to be con-

ferred. See pages 40-41 note 22, infra.

The Court has frequently recognized that “when Con-

gress has enacted a comprehensive legislative scheme in-

cluding an integrated system of procedures for enforce-

ment,” it very likely intended to exciude other remedies.

Northwest Airlines, Inc. v. Transport Workers Union,

supra, 451 U.S. at 97. See also Texas Industries, Inc.

v. Radcliff Materials, Inc., supra, 451 U.S. at 645;

Universities Research Association, Inc. v. Coutu, 450

US. 754, 773 & n.24 (1981). In City of Milwaukee v.

Illinois, supra, the Court held that the federal common

law of interstate water pollution, which has a quasi-

constitutional character (see page 16 note 5, supra),

was preempted by the Federal Water Pollution Control

Act Amendments of 1972, 33 U.S.C. (& Supp. IV)

1251 et seg., because the Amendments established “a

comprehensive regulatory program supervised by an

expert administrative agency.” 451 451 US. at 317. In Mid.

dlesex County Sewerage Authority v. National Sea Clam-

mers Association, 453 U.S. 1, 19-21 (1981), the Court

from a statute—42 U.S.C. (Supp. IV) 1983, as interpreted

in Maine v. Thiboutot, 448 U.S. 1 (1980)—and therefore

raised no questions about the courts’ exceeding their proper

role. See Sunstein, Section 1983 and the Private Enforce-

ment of Federal Taw, 49 U. Chi. L. Rev. 394 (1982).

Most salient, however, is Brown v. General Services

the * * * remedy * * * was designed merely to supple-

ment other putative judicial relief” (id. at 832).

Judged by these standards, the Civil Service remedies

available to petitioner plainly precluded a judicially cre-

ated damages remedy. The civil service remedies, on their

face, reflect a careful distribution of functions between

the agency concerned and the Civil Service Commission,

with the courts playing a reviewing role. Congress in-

tended to allow adverse personnel actions to be taken

relatively expeditiously, with more careful consideration

by the Commission, and then the courts, to follow. See

Arnett v. Kennedy, supra, 416 U.S. at 168 (opinion of

Powell, J.) ; Sampson v. Murray, supra, 415 U.S. at 74-

75. But Congress also legislated specific procedural safe-

guards for the employee, even at the agency level. See

5 U.S.C. 7501(b). This “careful blend of administrative

and judicial enforcement powers” (Brown v. General

Services Administration, supra, 425 U.S. at 835) in a

“detailed and specific” remedial scheme (Teras Industries,

Inc. v. Radcliff Materials, Inc., supra, 451 U.S. at 644)

that is “supervised by an expert administrative agency”

(City of Milwaukee v. Illinois, supra, 451 U.S. at 317)

strongly suggests that Congress did not envision, or leave

room for, an active judicial role in providing supple-

mental remedies.

Moreover, as the court of appeals noted (Pet. App. a-8

to a-10), Congress addressed itself to the civil service

remedies repeatedly, making adjustments when it per-

ceived an inequity or was faced with a new problem.

This frequent fine-tuning demonstrates that Congress

took on itself the responsibility for “superintendence of

the field” of civil servants’ remedies (Florida Avocado

Growers v. Paul, 373 U.S. 182, 142 (1963)); Congress

was “careful and thorough” in ensuring the “balance,

completeness, and structural integrity” (Brown v. Gen-

eral Services Administration, supra, 425 U.S. at 833, 832)

of this remedy. This, too, reflects Congress’s strong pre-

supposition that the courts would not play an active role

in creating additional remedies that Congress or the eaecu-

tive branch did not provide.

a. Congress’s first significant effort to regulate the

selection and tenure of federal employees was the Pendle-

ton Act of 1883 (Act of Jan. 16, 1883, ch. 27, 22 Stat.

403). This statute was in large measure the product of

opposition to the “spoils system,” under which employees

were hired and fired because of their political affiliation.

See R. Vaughn, Principles of Civil Service Law 1-3 to

1-18 (1976). The Act required competitive examinations

for classified positions (Section 1, 22 Stat. 403) and speci-

fied that no person in the classified service was to be “re-

moved or otherwise prejudiced” for refusing to engage

in political activity (Section 2, 22 Stat. 494). In enact-

ing the Pendleton Act, Congress declared its inten-

tion to “pursue[] a middle course” between “life tenure

of appointees [and] removals at the will of the appoint-

ing power” (H.R. Rep. No. 1826, 47th Cong., 2d Sess.

1 (1882)) and expressed hope that experience under the

Act would reveal “how much further it will be both safe

and expedient to go” (ibid.).

The Pendleton Act also established the Civil Service

Commission, required that it be bipartisan, and author-

ized it “[t]o aid the President in preparing suit-

able rules for carrying this act into effect” (Section 2,

22 Stat. 403). In 1897, President McKinley issued a civil

service rule providing that “[n]o removal shall be made

from any position subject to competitive examination ex-

cept for just cause and upon written charges * * * of which

the accused shall have full notice and an opportunity to

make defense.” See Arnett v. Kennedy, supra, 416 U.S.

at 149 n.19 (opinion of Rehnquist, J.). In 1912, Congress

enacted the Liloyd-LaFollette Act, which codified and ex-

panded on this civil service rule. Act of Aug. 24, 1912,

ch. 339, Section 6, 37 Stat. 555. That act prohibited an

employee from being removed from a classified position

except “for such cause as will promote the efficiency of

(the civilj service * * It also required that employees

be given written notice of the charges against them and

a reasonable time to respond.

d. The legislative history of the Lloyd-La Follette Act

shows that at the time it was enacted, Congress was con-

cerned with “gag orders” issued by Presidents Taft and

Roosevelt that prohibited federal employees from “di-

rectly or indirectly, individually or through associations,

* * * influenc[ing] or attempt ling] to influence in their

own interest any * * * legislation whatever, either be-

fore Congress or its committees, or in any way save

through the heads of the departments under which

they serve, on penalty of dismissal from the G»vernment

service.” 48 Cong. Rec. 4513 (1912); id. at 5223; see,

e. g., id. at 4653 (remarks of Rep. Calder); id. at 5637

(remarks of Rep. Wilson); id. at 10730 (remarks of

Sen. LaFollette). In response to the gag orders, the

Lloyd-La Follette Act, in addition to providing procedural

guarantees, protected the “right of persons employed in

the civil service * * * to furnish information to either

House of Congress, or to any committee or member

thereof * 91

In urging the adoption of the Lloyd-LaFollette Act,

members of Congress asserted that federal employees’

constitutional rights—specifically their First Amendment

rights—were at stake. See, eg., 48 Cong. Rec. 4738

(1912) (remarks of Rep. Blackmon) ; id. at 5201 (re-

marks of Rep. Prouty); id. at 5223 (remarks of Rep.

O’Shaunessy) ; id. at 5635 (remarks of Rep. Lloyd); id.

at 10673 (remarks of Sen. Reed) (quoting First Amend-

ment); id. at 10732, 10799 (remarks of Sen. LaFollette) ;

id. at 10803 (remarks of Sen. Williams). They explained

that the gag orders, and the threat to civil servants’ First

Amendment rights, were a principal reason for all of the

protections of the Lloyd-LaFollette Act—including the

procedural requirements. See, e.g., 48 Cong. Rec. 4653

(1912) (remarks of Rep. Calder) ; id. at 5207 (remarks

of Rep. Konop) ; id. at 5638 (remarks of Rep. Wilson) ;

id. at 10675 (exchange among Sens. Reed, Cummins, and

Bristow) ; id. at 10795 (remarks of Sen. Smith).

e. The procedural protections granted by the Lloyd-

LaFollette Act were themselves expanded step-by-step.

The Veterans Preference Act of 1944 (Act of June 27,

1944, ch. 287, Section 14, 58 Stat. 391), 5 U.S.C. 7501

and 7512, extended the basic Lloyd-LaFollette protections

to “adverse actions,” required that the employee be al-

lowed to respond orally and in writing, and established

the right to an appeal from an agency action to the

Civil Service Commission—but only for veterans. The

Back Pay Act of 1948 (Act of June 10, 1948, ch. 447,

62 Stat. 354), extended the protections against removal

contained in the original Lloyd-LaFollette Act to all em-

ployees in the competitive service who were suspended

without pay. Executive Orders (Exec. Order No. 10988,

27 Fed. Reg. 551 (1962); Exec. Order No. 11491, 34

Fed. Reg. 17605 (1969) ) extended the right to an appeal

to all employees in the competitive service, and made the

administrative remedy applicable to all adverse actions.

Civil Service Commission regulations (5 C.F.R. 772.307

(1975) ) provided for a trial-type hearing before the

Commission.

Similarly, Congress adjusted, step by step, the compen-

sation available to a civil servant found to have been

wrongfully discharged, suspended, or demoted. Before

1948, back pay was not generally available even to those

who successfully invoked their civil service remedies. See

H.R. Rep. No. 1436, 80th Cong., 2d Sess. 3 (1948). The

Back Pay Act of 1948 amended the Lloyd-LaFollette Act

to permit back pay awards to victims of improper reduc-

tions in force, and to nonveterans in the competitive serv-

ice and all nonprobationary veterans who were improperly

removed or suspended.

In the Back Pay Act of 1966, which authorized the

ward of back pay to petitioner, Congress ciosed the re-

maining gaps. See United States v. Testan, 424 US.

392, 405-406 (1976). The Back Pay Act of 1966 is a

‘broad remedy * * * [providing] full compensation”

(Sampson v. Murray, supra, 415 U.S. at 82-83) ; its legis-

lative history shows that it was intended to be “perfect-

Lig legislation“ (S. Rep. No. 1062, 89th Cong., 2d Sess.

4 (1966)) that “establishe[d] on a uniform basis the

principle that a Government officer or employee is en-

titled to pay or benefits lost as a result of a personnel

action which subsequently is found to be unjustified” (id.

at 3). The legislative history also shows that Congress

considered the relief provided by the Act sufficient to

“put[] the employee in the same position he would have

been in had the unjustified or erroneous personnel action

not taken place.” Id. at 1. See also H.R. Rep. No. 32,

89th Cong., Ist Sess. 5 (1965) (Back Pay Act “estab-

lishes and applies * * * the principle that a Government

officer or employee should be made whole following the

correction of an unjustified or unwarranted personnel ac-

tion. * * * This adjustment will cover everything to

which such officer or e.nployee normally would have been

entitled if the personnel action had not occurred.’’) ; 111

Cong. Rec. 2476 (1965) (remarks of Rep. Beckworth).

d. These were the statutes in force when petitioner

was demoted. Subsequently, Congress again considered

the question of civil service remedies and revised them in

the Civil Service Reform Act of 1978 (CSRA). CSRA

remedies were not available to petitioner, and we do not

invoke the Act as part of the alternative remedy that pre-

cludes petitioner’s Bivens action. But the CSRA is in-

structive because it reveals that Congress continued its

concern with the details of the civil service remedies. The

CSRA also reveals continuities in the problems Congress

perceived, and in the structure of the remedies it pro-

vided to deal with them.

The CSRA divided the functions of the Civil Service

Commission between the Office of Personnel Management

and the Merit Systems Protection Board; the Board suc-

ceeded to the Commission’s adjudicative functions. 5

U.S.C. (Supp. V) 1205 and 7701. In disciplinary cases, the

agency taking an adverse action again bears the burden

of persuasion before the Board. 5 U.S.C. (Supp. V)

7701(c). The Board’s decisions are reviewable, on the

record, by the United States Court of Appeals for the

Federal Circuit. 5 U.S.C. (Supp. V) 7703; Federal Courts

Improvement Act of 1982, Pub. L. No. 97-164, 96 Stat. 25.

Like Civil Service Commission decisions, they may be set

aside if they are unsupported by substantial evidence,

arbitrary or capricious, or “otherwise not in accordance

with law” (5 U.S.C. (Supp. V) 7703 (e) (1)).

Notably, the Congress that enacted the CSRA, like the

Congress that enacted the Lloyd-LaFollette Act, was par-

ticularly concerned to protect “whistleblowers”—employ-

ees threatened with adverse action because they revealed

agency mismanagement or abuse. See 5 U.S.C. (Supp.

V) 2302 (b) (8) (A); H.R. Rep. No. 95-1403, 95th Cong.,

2d Sess. 386-387 (1978); S. Rep. No. 95-696, 95th Cong.,

2d Sess. 8 (1978). The CSRA established the Office of

the Special Counsel and empowered it to investigate

charges of prohibited personnel practices, including re-

taliation for whistleblowing or any other violation of an

employee’s constitutional rights. 5 U.S.C. (Supp. V)

1206. If the Special Counsel finds reasonable grounds to

believe that a prohibited personnel practice has occurred,

and the agency does not take corrective action, the Special

Counsel may initiate a proceeding before the Board to

seek such action. 5 U.S.C. (Supp. V) 1206(c) (1) (A) and

(B). The Special Counsel also has the authority to initiate

disciplinary proceedings before the Board against a man-

ager guilty of a prohibited personnel practice. 5 U.S.C.

(Supp. V) 1206(g). The Board may discipline such a man-

ager by ordering “removal, reduction in grade, debarment

from Federal employment for a period not to exceed 5

years, suspension, reprimand, or an assessment of a civil

penalty not to exceed $1,000.” 5 U.S.C. (Supp. V)

1207 (b).“

18 Amici Schroeder, et al., urge (Br. 14) that by enacting these

protections, Congress revealed its view that previous protections

were inadequate, and that the Court should therefore create a

Bivens remedy for petitioner. But Congress’s carefully considered

decision to add new protections in 1978 (effective 1979; see Section

907 of the CSRA (92 Stat. 1227))scarcely suggests that the Court

should add new protections effective only at an earlier date.

Similarly, thy statements in the legislative history that the CSRA

protections to employees it thought it unfair not to cover.

Moreover, it cannot be said that Congress did not in-

tend to design a remedy for constitutional violations like

that alleged by petitioner. Civil servants’ constitutional

507 (1980); Abood v. Detroit Board of Education, 481

an Active Role in Remedying Federal Employees’

& Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426,

437 (1907). The Court has suggested that this presump-

tion applies with less force when an act of Congress and

federal common law are involved, because of the limited

law-making powers of the federal courts. See City of

Milwaukee v. Illinois, supra.

But however strong the presumption, it applies only to

“preexisting right[s]” (Teras & Pacific Ry. v. Abilene

Cotton Oil Co., supra, 204 U.S. at 437 (emphasis added) ) ;

it is “a presumption favoring the retention of long-

established and familiar principles” (Isbrandtsen Co. v.

Johnson, 343 U.S. 779, 783 (1952)). That is because the

reason for this principle is that “Congress cannot be pre-

sumed to have been unaware of the relevant common-law

history” (City of Milwaukee v. Illinois, supra, 451 U.S.

at 337 (Blackmun, J., dissenting)). See also Morton v.

Mancari, 417 U.S. 535, 550 (1974) (repeals by implica-

tion are not favored).

In Carlson v. Green, supra, the FTCA provision offered

as a preclusive alternative remedy (28 U.S.C. 2680 (h))

was enacted after Bivens was decided. By contrast, the

statutes establishing petitioner’s civil service remedies

were enacted before Bivens. The presumption should,

therefore, be reversed; Congress must have assumed that

there was no implied damages remedy.“ In the con-

temporary legal context’” prevailing when petitioner’s

civil service remedies were established (Merrill Lynch,

Pierce, Fenner & Smith, Inc. v. Curran, No. 80-203 (May 8,

1982), slip op. 25, quoting Cannon v. University of Chi-

cago, 441 U.S. 677, 699 (1979)), Congress would have

the remedy for a constitutional violation that

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625

(1978) (limiting the apparent reach of a judicially-

1% See Note, “Damages or Nothing”—The Efficacy of the Bivens-

n (Bivens was

“a dramatic departure from received law”).

created remedy in admiralty because it conflicted with a

statute that had been enacted before the remedy was

created).

Indeed, until the late 1950’s “federal courts were re-

luctant to play any significant role in supervising ad-

ministrative decisions adverse to federal employees.”

Merrill, Procedures for Adverse Actions Against Fed-

eral Employees, 59 U. Va. L. Rev. 196, 199 (1973)

(emphasis added)“ The Court has noted this tradition

of judicial nonintervention in civil service matters, and

its decline. Sampson v. Murray, supra, 415 U.S. at 69-

71; United States v. Testan, supra, 424 U.S. at 406.

Thus, during the time when most of the civil service

remedies available to petitioner were created, the “long-

established and familiar principle[]” (Jsbrandtsen Co.

v. Johnson, supra, 343 U.S. at 783) was that remedies

for civil servants’ claims—including their constitutional

claims—were the province of Congress and the executive

branch. When a complex remedial scheme is designed in

such a “contemporary legal context,” there is plainly no

basis for concluding that it envisions, or leaves room for,

a judicially created damages remedy. See Brown v. Gen-

eral Services Administration, supra, 425 U.S. at 825-829

(Section 717 is an exclusive remedy in part because when

Congress enacted Section 717 it believed, perhaps incor-

rectly, that there were no other effective remedies for em-

ployment discrimination by the federal government). This

is particularly true when the statutory remedy created is

then subject to Congress’s constant superintendence.

0 See, e. g., Bailey v. Richardson, 182 F.2d 46 (D.C. Cir. 1950),

aff d by an equally divided Court, 341 U.S. 918 (1951); Burnap v.

United States, 252 U.S. 512 (1920); Keim v. United States, 177

U.S. 290 (1900); White v. Berry, 171 U.S. 366 (1898); Decatur v.

Paulding, 39 U.S. (14 Pet.) 497 (1840). See generally Note, Dis-

missal of Federal Employees—The Emerging Judicial Role, 66

Colum. L. Rev. 719 (1966) ; Chaturvedit; Legal Protection Available

to Federal Employees Against Wrongful Dismissal, 63 Nw. U.L.

Rev. 287, 307-330 (1968).

4. Creating a Personal Damages Remedy in This

Context Would Thwart Important Congressional

Policies

As we noted, a remedial scheme must strike a balance

among competing objectives. See pages 24-25, supra. In

some instances—if the principal concern of the statutory

scheme is »roadly remedial, and the countervailing in-

terests are of lesser importance—e court’s creating a

remedy that Congress did not intend may do relatively

little damage to congressional policies. See, e. g., Mobil

Oil Corp, v. Higginbotham, supra; Stewart & Sunstein,

Public Programs and Private Rights, 95 Harv. L. Rev.

1195, 1307-1316 (1982). That is not the case here, how-

ever. As the court of appeals pointed out (Pet. App. a-9 to

a-10), Congress self-consciously balanced the need to pro-

tect federal employees’ rights against the need to ensure

that supervisors are willing to take justified personnel

actions, so that the civil service will remain efficient, and

Congress attached great importance to the latter interest.

Creating a personal damagee remedy will severely dis-

turb that balance and harm important interests Congress

sought to protect.

As Congress explained, shortly after petitioner brought

this suit (S. Rep. No. 95-969, supra, at 4): “Throughout

this country’s history—and especially since [the Pendle-

ton Act of] 1883—there has been a tension between pro-

tections established to insure that employees are hired and

fired solely on the basis of their ability, and the need of

and the agencies it empowered to deal with the civil serv-

ice have undertaken a “task [that] * * * is simple to ex-

press but difficult to achieve: Allow civil servants to be

able to be hired and fired more easily, but for the right

reasons” (ibid.). See also H.R. Rep. No. 95-1403, supra,

at 198; H.R. Rep. No. 1826, 47th Cong., 2d Sess. 1

(1882) (legislative history of the Pendleton Act) (Act

designed to “pursue[] a middle course” between “life

tenure of appointees [and] removals at the will of the ap-

pointing power“).

The problem of striking the proper balance has pre-

occupied Congress in part because managers in the civil

service, in have little personal incentive, other

against other employees.

(daily ed. Aug. 11, 1978) (remarks of Rep. Schroeder).

A manager’s “failure to act probably would not be likely

to cause superiors or others to take notice * * * [or] may

simply not be visible to his superior or to those in a

position to complain” (Schuck, Suing Our Servants: The

Court, Congress, and the Liability of Public Officials for

Damages, 1980 Sup. Ct. Rev. 281, 309). A manager can

“find ways to work around unsatisfactory employees, or

* * * hope the employees will go elsewhere to work“

(S. Rep. No. 95-969, supra, at 10).“ A manager in

See Butz v. Economou, 488 U.S. 478, 525 (1978). The re-

sult can be serious morale problems and endemic ineffi-

ciency. See Arnett v. Kennedy, supra, 416 U.S. at 168

little reason for them to act against incompetent or unfit

See, ¢.g., S. Rep. No. 95-969, supra, at 9-10 (“The man-

ager in an appeal may come under severe attack, no mat-

* Certain provisions of the CSRA were addressed to this prob-

lem. See generally 5 U.S.C. (Supp. V) 5401 et seq.

ter how fairly the manager has proceeded. Managers em-

broiled in appeals often find that these processes consume

all of their time and attention. Some managers simply

avoid taking necessary steps to discipline or discharge

employees in the first place.“); H.R. Rep. No. 95-1403,

supra, at 4 (agency that takes disciplinary action “does

not benefit because it has to devote costly time to the de-

fense of its action”) ; id. at 101 (President Carter’s mes-

sage on civil service reform); 129 Cong. Rec. H8463

(daily ed. Aug. 11, 1978) (remarks of Rep. Derwinski).

To whatever extent civil service procedures might deter

a supervisor from acting, the deterrent effect of a personal

damages action is vastly greater. See, ¢.g., Owen v. City

of Independence, 445 U.S. 622, 653 n.37, 655-656 (1980).

“(I]t cannot be disputed seriously that claims frequently

ruinous personal liability. However

may seem, living with it for a number of years—this suit,

— — — tf

eueh

321

action. See Butz v. Economou, supra, 438 U.S. at 503.

The immunity doctrines, derived, like the damages

remedy, from judicial traditions (see Nixon v. Fitzgerald,

No. 79-1788 (June 24, 1982), slip op. 12-15) represent such

a balance. For the reasons we have given, however, Con-

gress’s civil service remedies have struck a different bal-

ance—one that does not envision a judicialiy-created per-

sonal damages remedy, and that reflects the considerable

U.S. at 623), the courts should not upset that balance.”

* Petitioner urges (Br. 23) that a Bivens remedy cannot be pre-

cluded unless Congress expressly so states. As we noted, Congress

cannot be expected explicitly to preclude a remedy that did not

exist at the time the legislation was enacted. Moreover, the Court

emphasized the requirement of an explicit statement only in Davis

v. Passman, supra, 442 U.S. at 246-247, where the issue was whether

Congress had intended to preclude all remedies for a constitutional

violation. See Hart, The Power of Congress to Limit the Jurisdic-

tion of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev.

1362, 1366 (1953) (“The denial of any remedy is one thing * * *.

But the denial of one remedy while another is left open, or the sub-

stitution of one for another, is very different.). In Carlson v.

In sum, the civil service remedies available to petitioner

were a carefully constructed remedial scheme that co-

ordinated the roles of the agency initiating an adverse ac-

and the

1 0

5 122171ʃ

f 117

411

11111

15811

C. Special Factors Require the Court To Hesitate Be-

fore Creating an Implied Damages Remedy for Fed-

eral Employees

The Court ruled in Bivens that a damages remedy based

directly on the Constitution should not be implied if there

are “special factors counselling hesitation in the absence

of affirmative action by Congress.” 403 U.S. at 396. As

we explained, this principle recognizes that in certain con-

texts there may be insufficient reason to infer, from a

grant of jurisdiction alone, that Congress intended courts

to enforce traditional judicial remedies. See page 17,

supra.

This is such a context. Although petitioner asserts a

constitutional right, his claim to special judicial protec-

of the other plain-

against petitioner.

1. Federal Employees Challenging Adverse Person-

nel Actions Do Not Have a Strong Claim to Ju-

dicial Protection

Both Justice Harlan in Bivens (403 U.S. at 407) and

the Court in Davis (442 U.S. at 241-242) alluded to the

federal courts’ historically important role in protecting

particularly vulnerable individuals and groups in society.

The claimants in Bivens, Davis, and Carlson ali arguably

belonged to such groups. Petitioner, however, has a sub-

stantially weaker claim to the special protection of the

courts.

In Bivens, federal agents allegedly conducted an illegal

and humiliating search and seizure of a person in his

home. In concluding that an implied damages remedy was

appropriate, the Court explained that this wrong is dis-

tinct from a private trespass, and justifies the creation of

a federal judicial remedy, because it involves the exercise

of sovereign powers that neither the citizen nor local

authorities can effectively resist. 403 U.S. at 394. Con-

sequently, “‘[i]n such cases there is no safety for the

citizen, except in the protection of the judicial tribunals’ ”

(id. at 394-395, quoting United States v. Lee, 106 U.S.

196, 219 (1882)).*

In Carlson v. Green, the complaint alleged that federal

officials denied proper medical care to a prisoner, who was,

of course, under the control of the responsible officials.

See 446 U.S. at 16 n.1. In both Carlson (sce ibid.) and

Davis, the alleged wrongs were committed against groups

historically subject to discrimination, who are also prop-

erly the object of special judicial protection. See United

States v. Carolene Products Co., 304 U.S. 144, 153 n.4

(1988). In addition, had the act complained of in Davis

been committed by a private party, it would have been il-

legal. See 42 U.S.C. 2000e-2(a) (1).

Federal employees, by contrast, are not a historically

disadvantaged or vulnerable group. Bivens itself, in de-

scribing special factors that might counsel hesitation, noted

that because “Congress [is] normally quite solicitous

where the federal purse [is] involved,” the Court should

be less ready to create a damages remedy in favor of the

government when Congress has not acted (403 U.S. at 396,

citing United States v. Standard Oil Co., 332 U.S. 301

(1947)). The civil service, too, is an object of congres-

sional solicitude; in a sense the civil service is the govern-

ment. Congress created the civil service to implement its

programs, and it has an interest in maintaining an ef-

23 See also Pennsylvania v. Mimms, 434 U.S. 106, 122 (1977)

(Stevens, J., dissenting); J. Ely, Democracy and Distrust 97

(1980) (Fourth Amendment is intended in part to prevent police

exercising “low-visibility discretion” from discriminating on the

basis of “social station and other [impermissible] factors”).

ficient service; both efficiency and morale are impaired

when employees are discharged or demoted for improper

reasons. As we have shown, this interest has frequently

moved Congress to act to protect federal employees.

Nor can it be claimed that employees who criticize their

agencies are in special need of judicial protection. The

legislative history of both the Lloyd-LaFollette Act and

the Civil Service Reform Act of 1978—the two most im-

portant pieces of civil service legislation in this century—

demonstrate Congress’s strong institutional interest in

protecting whistleblowers.*

Moreover, if petitioner had been privately employed, his

demotion for making certain statements would not have

been illegal and would have entitled petitioner, at most,

to a contractual remedy. Unlike the actions complained of

in Bivens and Carlson, the goverr-uent’s action in this

ease reflected none of the attributes of sovereignty. As

the court of appeals remarked, “(t]he role of the Govern-

ment as an employer toward its employees is fundamen-

tally different from its role as sovereign over private citi-

zens generally” (Pet. App. a-6 to a-7). In practical terms,

the power of the government over petitioner is indistin-

guishable from the power of a private employer over an em-

ployee. The concrete harm to petitioner (see generally

Carey v. Piphus, 435 U.S. 247 (1978)) is no greater than

it would have been if a private employer had demoted him

for speaking. In noting this, we of course do not intend to

question the existence of the well-established constitutional

right asserted by petitioner. But petitioner’s need for

special judicial protection for this right, in the form of a

judicially created remedy against an official, would be

weak even if fully effective alternative remedies did not

exist.

The principal theme of the amicus brief in support of peti-

tioner filed by Rep. Schroeder and other members of Congress is

precisely that Congress has such a strong institutional interest.

See, e. g., Am. Br. 1-2, 17-18.

2. Disputes Concerning the Federal Employment Re-

lationship Are Properly Addressed, in the First

Instance, in a Specialized Administrative Agency,

Not a Court

Federal labor law, in both the public and private sec-

tor, reflects a consistent congressional judgment that em-

ployment disputes are best resolved, in the first instance,

not by a court but by an expert body more closely famil-

iar with the employment relationship. This, too, strongly

suggests that the Court should hesitate before creating

a remedy that requires a court to resolve employment

disputes de novo. See, e.g., National Railroad Passenger

Corp. v. National Association of Railroad Passengers,

414 U.S. 453, 461-464 (1974) ; Arrow Transportation Co.

v. Southern Ry., 372 U.S. 658 (1963) ; Sunstein, supra,

49 U. Chi. L. Rev. at 414.

When Congress first turned its attention to the civil

service, in 1883, it created an administrative agency

(the Civil Service Commission), carefully required the

Commission to be bipartisan, and gave it and the Presi-

dent a broad charter to carry out the purposes of the

Pendleton Act. When Congress first established proce-

dural protections for civil servants threatened with dis-

missal, in the Lloyd-La Follette Act, it specified agency

procedures, not judicial proceedings. When Congress de-

termined to reform the Civil Service, in 1978, it again

focused its attention on the administrative agencies in-

volved: it reorganized the Commission’s functions, plac-

ing them in two new agencies; it specified that one of

those agencies, the Merit Systems Protection Board, was

to be concerned with the resolution of employment dis-

putes; and it established the Office of the Special Counsel

to investigate and act on certain claims of unlawful em-

ployment practices. When Congress established penalties

for supervisors who violated employees’ First Amendment

rights or otherwise committed a prohibited personnel prac-

tice, it provided for the Special Counsel and the Board to

enforce those penalties; it did not empower private parties

to seek massive damages recoveries by bringing suit for

punitive damages. See generally Wren v. Merit Systems

Protection Board, 681 F. 2d 867 (D.C. Cir. 1982).

This consistent choice of an administrative, not a ju-

dicial, forum reflects Congress’s determination that ex-

pertise and familiarity with the peculiarities of the em-

ployment relationship are important to the resolution of

employment disputes. See, ¢.g., Wathen v. United States,

527 F.2d 1191, 1197-1198 (Ct. Cl. 1975); Holden v.

Finch, 446 F.2d 1811, 1316-1317 (D.C. Cir. 1971).*

Federal labor law in the private sector, too, reflects the

premise that courts are less well suited to resolving em-

ployment disputes than persons or agencies that are closer

to the situation and more experienced with the nature of

employment relationships. Rights under the National

Labor Relations Act generally must be asserted not in

court initially, but before the National Labor Relations

Board, the decisions of which are subject only to limited

judicial review; a principal reason for this rule is the

Board’s expertise and knowledge of industrial relations.

See, e.g., Universal Camera Corp. v. NLRB, 340 U.S.

474, 488 (1951). Similarly, a centerpiece of national

labor policy is that the decisions of labor arbitrators are

entitled to great deference from the courts. See, e. g.,

United Steelworkers v. Warrior & Gulf Navigation Co.,

363 U.S. 574, 581-582 (1960) (“The labor arbitrator

performs functions which are not normal to the courts;

25 The constitutional standard that petitioner invokes, while of

course enforced by courts, is on its face better suited to being

applied by a body with expertise about the employment relation-

ship. See Givhan v. Western Line Consolidated School District, 439

U.S. 410, 414 (1979); Pickering v. Board of Education, 391 U.S.

563, 570 & n.3 (1968) (First Amendment rights of public employees

turn in part on evaluation of threat to “discipline by immediate

supervisors or harmony among coworkers” and of nature of working

relationship between speaker and supervisor whom he criticizes).

See also T. Emerson, The System of Freedom of Expression 570

(1979). (In regulating speech of government employees related to

their jobs, “the controlling factors are primarily matters of internal

management, and the issues must largely be resolved in those terms

rather than on free speech considerations.” )

the considerations which help him fashion judgments may

indeed be foreign to the competence of courts. * * The

ablest judge cannot be expected to bring the same ex-

perience and competence to bear upon the determination of

a grievance, because he cannot be similarly informed.’’).

Petitioner and the congressional amici appear to recog-

nize the strength of the tradition that counsels against

judicial intrusion into the employment relationship, and

the force of the court of appeals’ observation that allow-

ing a Bivens remedy “might encourage aggrieved em-

ployees to bypass the statutory and administrative reme-

dies in order to seek direct judicial relief and thereby

deprive the government of the opportunity to work out

its personnel problems within the framework it has so

painstakingly established” (Pet. App. a-10 to a-11). They

implicitly acknowledge that the Court would be warranted

in at least requiring federal employees to exhaust the

civil service remedies before bringing a Bivens action. See

Pet. Br. 21; Schroeder et al. Am. Br. 9 n.9. We agree

that, at a minimum, it would be wholly inappropriate to

allow an employee to bring a Bivens action without ex-

hausting the “detailed administrative and judicial process

designed [by Congress] to provide an opportunity for non-

judicial and nonadversary resolution of claims” (Great

American Federal Savings & Loan Association v. Novotny,

442 U.S. 366, 372-373 (1979) ).%

26 Novotny emphasized the importance of the carefully designed

congressional remedy established in Title VII of the Civil Rights

Act of 1964, a remedy that must be invoked before a claimant may

bring suit (see Brown v. General Services Administration, supra).

Title VII is the single major exception to the principle that courts

will avoid, if possible, de novo review of complaints arising from

the employment relationship. See Chandler v. Roudebush, 425 U.S.

840 (1976); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798-

799 (1973). But the Court has recognized in several contexts that

the remedies for employment discrimination are unusually thorough

(see, e. g., Johnson v. Railway Express Agency, 421 U.S. 454 (1975);

Alexander v. Gardner-Denver Co., 415 U.S. 36, 48 (1974)) because

the eradication of employment discrimination is “a policy that

But even if a claimant exhausts his administrative

remedies against the government, review of his claims

in a Bivens action against an individual official would

have to be de novo.“ Moreover, while Congress could not

have intended to allow the civil service remedies to be

bypassed, it is also implausible to suppose that Congress

intended the redundant and incoherent remedial scheme

of initial agency consideration and judicial review, and

that provided full compensation. In view of Congress’s

careful attention to the area, and the many factors coun-

selling judicial restraint, there is no basis for according

him an additional, court created, damages remedy.

Congress considered of the highest priority” (Newman v. Piggie

Park Enterprises, Inc., 390 U.S. 400, 402 (1968) ).

27 Plainly the individual defendant in a Bivens action would not

be bound by adverse findings of fact made in the administrative

proceeding against the government, to which the individual official

was not a party. (The claimant might, however, be bound if the

agency prevailed in the administrative forum. See Kremer v.

Chemical Construction Corp., No. 80-6045 (May 17, 1982); United

States v. Utah Construction & Mining Co., 384 U.S. 399, 421-422

the two categories have not traditionally been treated in the same

fashion. Moreover, the plaintiff in Davis had no other remedy; the

Court’s choice was therefore between allowing courts to

grievances arising from the employment relationship de

on the one hand, and leaving the claimant remediless, on the

In addition, Davis involved employment discrimination of the sort

outlawed by Title VII. See page 47 note 26, supra.

CONCLUE*( N

The judgment of the court of appeals should be

affirmed.

Respectfully submitted.

Rex E. LEE

Solicitor General

J. PAUL McGRATH

Assistant Attorney General

KENNETH S. GELLER

Deputy Soliciteo; General

Davm A. STRAUSS

Assistant to the Solicitor General

BARBARA L. HERWIG

WENDY M. KEaTs

Attorneys

DECEMBER 1982

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