BUSH v. LUCAS
No. 81-469
Supreme Court of the United States
Argued January 19, 1983—Decided June 13, 1983
462 U.S. 367
William Harvey Elrod, Jr., argued the cause and filed briefs for petitioner.
Deputy Solicitor General Geller argued the cause for respondent. With him on the brief were Solicitor General Lee, Assistant Attorney General McGrath, David A. Strauss, Barbara L. Herwig, and Wendy M. Keats.*
JUSTICE STEVENS delivered the opinion of the Court.
Petitioner asks us to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors. Because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy.
In June 1975 respondent, in response to a reporter‘s inquiry, stated that he had conducted an investigation and that petitioner‘s statements regarding his job had “no basis in fact.” Aрp. 15. In August 1975 an adverse personnel action was initiated to remove petitioner from his position. Petitioner was charged with “publicly mak[ing] intemperate remarks which were misleading and often false, evidencing a malicious attitude towards Management and generating an environment of sensationalism demeaning to the Government, the National Aeronautics and Space Administration and the personnel of the George C. Marshall Space Flight Center, thereby impeding Government efficiency and econ
Petitioner exercised his right to appeal to the Federal Employee Appeals Authority. After a 3-day public hearing, the Authority upheld some of the charges and concluded that the demotion was justified. It specifically determined that a number of petitioner‘s public statements were misleading and that, for three reasons, they “exceeded the bounds of expression protected by the First Amendment.” First, petitioner‘s statements did not stem from public interest, but from his desire to have his position abolished so that he could take early retirement and go to law school. Second, the statements conveyed the erroneous impression that the agency was deliberately wasting public funds, thus discrediting the agency and its employees. Third, there was no legitimate public interest to be served by abоlishing petitioner‘s position.4
Two years after the Appeals Authority‘s decision, petitioner requested the Civil Service Commission‘s Appeals Review Board to reopen the proceeding. The Board reexamined petitioner‘s First Amendment claim and, after making a detailed review of the record and the applicable authorities, applied the balancing test articulated in Pickering v. Board of Education, 391 U. S. 563 (1968). On the one hand, it acknowledged the evidence tending to show that petitioner‘s motive might have been personal gain, and the evidence that his statements caused some disruption of the agency‘s day-to-day routine. On the other hand, it noted that society as well as the individual had an interest in free speech, including “a right to disclosure of information about how tax dollars are spent and about the functioning of government apparatus, an interest in the promotion of the efficiency of the government, and in the maintenance of an atmosphere of freedom of expression by the scientists and engineers who are responsible for the planning and implementation of the nation‘s space program.” Because petitioner‘s statements, though somewhat exaggerated, “were not wholly without truth, they properly stimulated public debate.” Thus the nature and extent of proven disruption to the agency‘s operations did not “justify abrogation of the exercise of free speech.”5 The Board recommended that petitioner be restored to his former position, retroactively to November 30, 1975, and that he receive backpay. That recommendation was accepted. Petitioner received approximately $30,000 in backpay.
While his administrative appeal was pending, petitioner filed an action against respondent in state court in Alabama seeking to recover damages for defamation and violation of his constitutional rights. Respondent removed the lawsuit to the United States District Court for the Northern District of Alabama, which granted respоndent‘s motion for summary judgment. It held, first, that the defamation claim could not be maintained because, under Barr v. Matteo, 360 U. S. 564 (1959), respondent was absolutely immune from liability for damages for defamation; and second, that petitioner‘s demotion was not a constitutional deprivation for which a damages action could be maintained.6 The United States Court of Appeals for the Fifth Circuit affirmed. 598 F. 2d 958 (1979).
We assume for purposes of decision that petitioner‘s First Amendment rights were violated by the adverse personnel action.7 We also assume that, as petitioner asserts, civil service remedies were not as effective as an individual damages remedy8 and did not fully compensate him for the harm he suffered.9 Two further propositions are undisputed.
Thus, we assume, a federal right has been violated and Congress has provided a less than complete remedy for the wrong. If we were writing on a clean slate, we might answer the question whether to supplement the statutory scheme in either of two quite simple ways. We might adopt the common-law approach to the judicial recognition of new causes of action and hold that it is the province of the judiciary to fashion an adequate remedy for every wrong that can be proved in a case over which a court has jurisdiction.10 Or we might start from the premise that federal courts are courts of limited jurisdiction whose remedial powers do not extend beyond the granting of relief expressly authorized by Congress.11 Under the former approach, petitioner would obviously prevail; under the latter, it would be equally clear that he would lose.
Our prior cases, although sometimes emphasizing one approach and sometimes the other, have unequivocally rejected both extremes. They establish our power to grant relief that is not expressly authorized by statute, but they also remind us that such power is to be exercised in the light of relevant policy determinations made by the Congress. We
I
The federal courts’ power to grant relief not expressly authorized by Congress is firmly estаblished. Under
“That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. See Nixon v. Condon, 286 U. S. 73 (1932); Nixon v. Herndon, 273 U. S. 536, 540 (1927); Swafford v. Templeton, 185 U. S. 487 (1902); Wiley v. Sinkler, 179 U. S. 58 (1900); J. Landynski, Search and Seizure and the Supreme Court 28 et seq. (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 1, 8-33 (1968); cf. West v. Cabell, 153 U. S. 78 (1894); Lammon v. Feusier, 111 U. S. 17 (1884). Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But it is . . . well settled thаt where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.’ Bell v. Hood, 327 U. S., at 684 (footnote omitted). The present case involves no special factors counselling hesitation in the absence of affirma
tive action by Congress. We are not dealing with a question of ‘federal fiscal policy,’ as in United States v. Standard Oil Co., 332 U. S. 301, 311 (1947).” 403 U. S., at 395-396.
The Court further noted that there was “no explicit congressional declaration that persons injured by a federal officer‘s violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress.” Id., at 397.
In his separate opinion concurring in the judgment, Justice Harlan also thought it clear that the power to authorize damages as a remedy for the vindication of a federal constitutional right had not been placed by the Constitution itself exclusively in Congress’ hands. Id., at 401-402. Instead, he reаsoned, the real question did not relate to “whether the federal courts have the power to afford one type of remedy as opposed to the other, but rather to the criteria which should govern the exercise of our power.” Id., at 406. In resolving that question he suggested that “the range of policy considerations we may take into account is at least as broad as the range of those a legislature would consider with respect to an express[ed] statutory authorization of a traditional remedy.” Id., at 407. After weighing the relevant policies he agreed with the Court‘s conclusion that the Government had not advanced any substantial policy consideration against recognizing a federal cause of action for violation of Fourth Amendment rights by federal officials.
In Davis v. Passman, supra, the petitioner, former deputy administrative assistant to a Member of Congress, alleged that she had been discharged because of her sex, in violation of her constitutional right to the equal protection of thе laws. We held that the Due Process Clause of the Fifth Amendment gave her a federal constitutional right to be free from official discrimination and that she had alleged a federal cause
Carlson v. Green, 446 U. S. 14 (1980), involved a claim that a federal prisoner‘s Eighth Amendment rights had been violated. The prisoner‘s mother brought suit on behalf of her son‘s estate, аlleging that federal prison officials were responsible for his death because they had violated their constitutional duty to provide him with proper medical care after he suffered a severe asthmatic attack. Unlike Bivens and Davis, the Green case was one in which Congress had provided a remedy, under the Federal Tort Claims Act, against the United States for the alleged wrong.
The Court acknowledged that a Bivens action could be defeated in two situations, but found that neither was present. First, the Court could discern ““no special factors counselling hesitation in the absence of affirmative action by Congress.“” 446 U. S., at 18-19, citing Bivens, 403 U. S., at 396, and Davis, supra, at 245. Second, there was no congressional
This much is established by our prior cases. The federal courts’ statutory jurisdiction to dеcide federal questions confers adequate power to award damages to the victim of a constitutional violation. When Congress provides an alternative remedy, it may, of course, indicate its intent, by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself, that the courts’ power should not be exercised. In the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation.
Congress has not resolved the question presented by this case by expressly denying petitioner the judicial remedy he seeks or by providing him with an equally effective substitute.14 There is, however, a good deal of history that is relevant to the question whether a federal employee‘s attempt to recover damages from his supеrior for violation of his First Amendment rights involves any “special factors counselling hesitation.” When those words were first used in Bivens, supra, at 396, we illustrated our meaning by referring to
In the Standard Oil case the Court had been asked to authorize a new damages remedy for the Government against a tortfeasor who had injured a soldier, imposing hospital expenses on the Government and depriving it of his services. Although, as Justice Jackson properly noted in dissent, the allowance of recovery would not have involved any usurpation of legislative power, 332 U. S., at 318, the Court nevertheless concluded that Congress as “the custodian of the national purse” should make the necessary determination of federal fiscal policy.15 The Court refused to create a damages remedy, which would be “the instrument for determining and establishing the federal fiscal and regulatory policies which the Government‘s executive arm thinks should prevail in a situation not covered by traditionally established liabilities.” Id., at 314.
Similarly, in Gilman, the Court applied the Standard Oil rationale to reject the Government‘s attempt to recover indemnity from one of its employees after having been held liable under the FTCA for the employee‘s negligence. As the Court noted: “The relations between the United States and its employees have presented a myriad of problems with which the Congress over the years has dealt. . . . Government employment gives rise to policy questions of great im
“Here a complex of relations between federal agencies and their staffs is involved. Moreover, the claim now asserted, though the product of a law Congress passed, is a matter on which Congress has not taken a position. It presents questions of policy on which Congress has not spoken. The selection of that policy which is most advantageous to the whole involves a host of considerations that must be weighed and appraised. That function is more appropriately for those who write the laws, rather than for those who interpret them.” 347 U. S., at 511-513.
The special factors counselling hesitation in the creation of a new remedy in Standard Oil and Gilman did not concern the merits of the particular remedy that was sought. Rather, they related to the question of who should decide whether such a remedy should be provided. We should therefore begin by considering whether there are reasons for allowing Congress to prescribe the scope of relief that is made available to federal employees whose First Amendment rights have been violated by their supervisors.
II
Unlike Standard Oil and Gilman, this case concerns a claim that a constitutional right has been violated. Nevertheless, just as those cases involved “federal fiscal policy” and the relations between the Government and its emplоyees, the ultimate question on the merits in this case may appropriately be characterized as one of “federal personnel
The answer to that question has changed dramatically over the years. Originally the answer was entirely a matter of Executive discretion. During the era of the patronage system that prevailed in the Federal Government prior to the enactment of the Pendleton Act in 1883, 22 Stat. 403, the federal employee had no legal protection against political retaliation. Indeed, the exercise of the First Amendment right to support a political candidate opposing the party in office would routinely have provided an accepted basis for discharge.16 During the past century, however, the job security of federal employees has steadily inсreased.
In the Pendleton Act Congress created the Civil Service Commission and provided for the selection of federal civil servants on a merit basis by competitive examination. Although the statute did not address the question of removals in general,17 it provided that no employee in the public service could be required to contribute to any political fund or fired
Congressional attention to the problem of politically motivated removals was again prompted by the issuance of Executive Orders by Presidents Roosevelt and Taft that forbade federal employees to communicate directly with Congress without the permission of their supervisors.19 These “gag
A federal employee in the competitive service may be removed or demoted “only for such cause as will promote the effiсiency of the service.”30 The regulations applicable at the time of petitioner‘s demotion in 1975,31 which are substantially similar to those now in effect, required that an employee be given 30 days’ written notice of a proposed discharge, suspension, or demotion, accompanied by the agency‘s reasons and a copy of the charges. The employee then had the right to examine all disclosable materials that formed the basis of the proposed action,
The next step was a right to appeal to the Civil Service Commission‘s Federal Employee Appeals Authority.
If the employee prevailed in the administrative process or upon judicial review, he was entitled to reinstatement with retroactive seniority. § 752.402. He also had a right to full backpay, including credit for periodic within-grade or step increases and general pay raises during the relevant period, allowances, differentials, and accumulated leave. § 550.803. Congress intended that these remedies would put the employee “in the same position he would have been in had the unjustified or erroneous personnel aсtion not taken place.”36
Given the history of the development of civil service remedies and the comprehensive nature of the remedies currently available, it is clear that the question we confront today is quite different from the typical remedial issue confronted by a common-law court. The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. That question obviously cannot be answered simply by noting that existing remedies do not provide complete relief for the plaintiff. The policy judgment should be informed by a thorough understanding of the existing regulatory structure and the respective costs and benefits that would result from the addition of another remedy for violations of employees’ First Amеndment rights.
The costs associated with the review of disciplinary decisions are already significant—not only in monetary terms, but also in the time and energy of managerial personnel who must defend their decisions. Respondent argues that supervisory personnel are already more hesitant than they should be in administering discipline, because the review that en
Nor is there any reason to discount Congress’ ability to make an evenhanded assessment of the desirability of creating a new remedy for federal employees who have been demoted or discharged for expressing controversial views. Congress has a special interest in informing itself about the efficiency and morale of the Executive Branch. In the past it has demonstrated its awareness that lower-level Government employees are a valuable source of information, and that supervisors might improperly attempt to curtail their subordinates’ freedom of expression.37
The judgment of the Court of Appeals is
Affirmed.
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN joins, concurring.
I join the Court‘s opinion because I agree that there are “special factors counselling- hesitation in the absence of affirmative action by Congress.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 396 (1971). I write separately only to emphasize that in my view a different case would be presented if Congress had not created a comprehensive scheme that was specifically designed to provide full compensation to civil service employees who are discharged or disciplined in violation of their First Amendment rights, cf. Carlson v. Green, 446 U. S. 14, 23 (1980); Sonntag v. Dooley, 650 F. 2d 904, 907 (CA7 1981), and that affords a remedy that is substantially as effective as a damages action.
Although petitioner may be correct that the administrative procedure created by Congress, unlike a Bivens action,* does
I cannot agree with petitioner‘s assertion that civil service remedies are substantially less effective than an individual damages remedy. See ante, at 372. To begin with, the procedure provided by the civil service scheme is in many respects preferable to the judicial procedure under a Bivens action. See Brief for Respondent 18-21. For example, the burden of proof in an action before the Civil Service Commission (now the Merit Systems Protection Board) must be borne by the agency, rather than by the discharged employee. See Civil Service Commission, Conducting Hearings on Employee Appeals 11 (1968); cf. Finfer v. Caplin, 344 F. 2d 38, 41 (CA2), cert. denied, 382 U. S. 883 (1965); Pelicone v. Hodges, 116 U. S. App. D. C. 32, 34, 320 F. 2d 754, 756 (1963). Moreover, the employee is not required to overcome the qualified immunity of executive officials as he might be required to in a suit for money damages. See Butz v. Economou, 438 U. S. 478 (1978). Finally, an administrative action is likely to prove speedier and less costly than a lawsuit. These advantages are not clearly outweighed by the obvious and significant disadvantages of the civil service procedure—that it denies the claimant the option of a jury trial, see Carlson v. Green, supra, at 22-23, and that it affords
As the Court emphasizes, “[t]he question is not what remedy the court should provide for a wrong that would otherwise go unredressed.” Ante, at 388. The question is whether an alternative remedy should be provided when the wrong may already be redrеssed under “an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations.” Ibid. I agree that a Bivens remedy is unnecessary in this case.