*1 overpay- underpayments for both sion 120(d)(4).
mеnts a source. BRIGGS, al., See If the Appellants, § John et line, penalty adjusted is out of it can also be during period noncompliance. More- Guy GOODWIN, et al. over, regulations merely EPA’s track the that, minimum, statute says which at a No. 80-2269. penalty assessments should include the ben- capital efits of investments and mainte- United States of Appeals, Court expenses foregone. nance There was no District of Columbia Circuit. showing by petitioners the model Argued Oct. 1981. project widely penalties would excessive nor the statute mandated waiver to en- Decided Jan. projecting sure that the method of the ben- As Amended Jan. efits of noncompliance exactly fit the cir- 25, 1983. Rehearing Granted March Here, cumstance of each case. unlike sec- tion 301 of the Fеderal Water Pollution Amendments,
Control Act section 120 does provide for variances. E.I. duPont Train,
de Nemours & v.Co. Conse-
quently, we will any. not insert In this
respect, EPA is affirmed.
Conclusion Congress added section 120 to supplement Act to system of civil
and criminal sanctions enacted in 1970.
Section 120 establishes a penalty assessment
system whereby sources not in compliance
with the applicable legal requirements of
the Act are fined in accordance with the
economic value of that noncompliance.
EPA was directed to and eventually did
promulgate a regulations series of imple-
menting this section of the statute. Three
of those regulations sets of exceeded the
mandate and must be remanded: the regu-
lations concerning the payment penalties
during EPA consideration of proposed
SIP, regulations implementing the “ina-
bility to comply” exemption, and regu-
lations with dealing the Administrator’s dis-
cretion to deny hearing on the record.
all respects we affirm the regulations
promulgated by EPA.
It is more years than five Congress since section;
enacted this it is certainly time to
put operation into penalty assessment
system Congress mandated.
It is so ordered.
488 *3 Stearns,
Nancy City, New York with Stavis, Peterson, Philip whom Morton Doris Levine, Hirschkop J. and Jack New York brief, were on the City, appellants. Muse, D.C., F. Washington, Robert with Stein, D.C., Washington, whom A. Jacob brief, was on the for appellee. GINSBURG, Before MacKINNON and BAZELON, Judges Circuit Senior Cir- Judge. cuit Opinion for the Court filed Senior Judge Circuit BAZELON. Dissenting opinion filed by Judge Circuit MacKINNON.
BAZELON, Judge: Senior Circuit pro- This civil suit arises out of criminal ceedings brought against appellants in 1972. Appellants1 allege Guy Justice, attorney Department with the of misrepresented to in open them court that one of their govern- comrades was not a ment They informant. claim that this mis- representation, which left uncor- Goodwin rected, violated their right to the effective assistance of counsel because it aspects led them share various of their defense with the informant. They compensatory punitive seek both dam- in ages “Bivens-type” cause of action arising directly under the Constitution. granted summary judg- The district court ment in appellee, holding favor of that he representation made his in good faith. We result, any 1. There are twelve in this action. such differences. As a reference factually “appellants” may “plaintiffs” Some of their claims are distinct. hereafter to or side, however, may encompass appellants. Neither relies on these distinc- all of the Fur- We, ther, stage proceedings. applica- tions at this we leave to the district court therefore, importance appellants. do not consider of tion of this decision to individual status, spite do not with the district courts con- Poe agree group attended a appellee faith good clusion that plaintiffs meeting lawyers and their presents genuine as to material no issue 8,1972, July preparation grand for the accept grounds fact. Nor can we the other signed He jury. also a retainer form with affirm- by appellee support offered appellants’ though attorneys, scope ance; namely, acquittal retainer Throughout unclear. negates their trial of a criminal claim grand jury proceedings, consulted with violation, appel- Sixth Amendment and that appellants’ lawyers present and was in the lants have not valid of action stated a cause cramped hallway where the appellants also within contemplation Bivens v. Six lawyers.4 with their consulted Agents Unknown Named the Federal Recurring police rumors of and FBI infil- Narcotics, Bureau tration prompted of VVAW concern among *4 appellants the might informants be in their Group midst. counsel filed a motion Background I. with the district court to discover whether These are the facts favorably read the witnesses represented by them for appellants.2 the were government informants. clarify To 7,1972, July grand jury On in Tallahas- motion, the requested district court see, Florida, subpoenaed appellants to testi- that counsel list the witnesses in question concerning fy their activities in connection respective attorneys. and their July On with Against the Vietnam Veterans the presented list orally was on the record (VVAW). War subpoenas The were return- the before court. Emerson Poe among was 10,1972.3 July able 3 later on A days group During the names listed. discussion of the represent of lawyers hastily assembled to motion day, the next the court peremptorily subpoenaed the of the witnesses. Because directed Goodwin to take the and stand be pressure extreme time involved lawyers the sworn. question: He asked one many potential counselled of the witnesses THE basis. COURT: Mr. are group these witnesses represented by counsel Unknown to either or appellants the their agents or informants the United lawyers, subpoenaed, one thоse Emerson States of America? . Poe, paid was a undercover FBI informant. The grand jury subpoenaed him in order to THE WITNESS [GUY GOODWIN]: No, keep secret his status an informant. De- as Your Honor. vigilant dispose Instead, party op-
2. While courts should be
plaint, arguing public prosecutor that as a 40 L.Ed.2d (1974), the Court he was from entitled absolute qualified described the immunity as follows: private damage suits for taken in actions “It is the reasonable grounds for the belief He capacity. his official also claimed that light formed the time and in of all the his statement was made while a “witness” circumstances, coupled with good-faith be- court, and that he should be entitled to lief, that qualified affords basis for immu- witness Both dis- immunity. absolute nity.” Id. at 1691-1692. panel court and a court denied trict objective one, The test is an see Harlow v. a motion to im- dismiss either these Fitzgerald,-U.S.-,-, Instead, munity grounds.12 we determined (1982), focusing only quali- that Goodwin was entitled to a on whether the official “knew or reasonably immunity; protected fied he would be from should have private suit if his actions were taken in known that action he took good faith.13 sphere within his of official responsibility would rights.” constitutional violate[] remand, Goodwin moved for summаry On Strickland, Wood v. judgment. rejected The district court immunity, renewed claim absolute but
granted summary judgment
finding
on a
the instant
appellants contend that
had
his good
that Goodwin
established
faith Goodwin knew that his statement was false
“in
because he
fact believed
the veracity
or misleading, and that even if he believed
of his statement”
informants
statement,
the truth of his
such a belief was
represented by common counsel.14 In this
They
unreasonable.
further contend that
appeal, appellants
that material
contend
is-
light
continuing
Poe’s
reports to the
sues of fact remain in dispute. Goodwin
concerns,
FBI
plans
on defense
Good-
disagrees and
other grounds
offers several
failed,
win
July 13,
after
unreasonably
affirming
summary judgment.
correct or
clarify
sworn statement.
II. Discussion
Judges
juries
have specialized
*6
Judgment
A. The
of Summary
Grant
functions
in cases in which negligence
In granting summary judgment,
(what appellee
shown)
should have
or state
district
on
judge
heavily
deposi
relied
(what
of mind
appellee actually knew) is in
testimony
Goodwin, Poe,
tion
of
judicial system
issue.15 Our
relies on the
government officers associated with the
competence
juries
apply
of
to
standards of
supports
case. That evidence
Goodwin’s
particular
reasonableness to
fact situations
claim that he
join
instructed Poe not to
in
and make
to
determinations of the state of
suggests
defense.
It also
parties
light
mind of
in
of the circumstanc
that Goodwin
believed that
was not
es surrounding an
Summary
action.
judg
included in the
of persons
class
whom he
ment
granted
should be
on such
only
issues
government
stated were not
informants.
when
are
that
judge
so clear
a
can
Appellants contend that
this evidence does
decide
them as a matter
law. This
disputes
not settle all
over
de
material facts.
agree.
We
gree of
not
clarity
present
is
here.
Goodwin,
Briggs
F.Supp.
(dissenting
immunity
12.
v.
384
1230
from view that witness
(D.D.C.1974);
Goodwin,
Briggs v.
properly
court).
More important,
the dis
al common law.19 But traditional
trict
common
granted
summary
judgment
court
law
provide
background
torts do
from
good
based
faith
entirely
appellee’s
be
making
analogies,20
at the time
which to draw
lief
statement on
and we find
July
good
13. This view of
faith is
them
too
relevant
in this situation.
Briggs
“protec-
16. In
I
we held
Goodwin’s
U.S.
liability depends upon showing
(1961)
(incorporating
imposes
from
tort rule that
lia-
good-faith,
bility
he entertained a
reasonable
consequences
belief in
“for the natural
de-
[a
response
the truth of his
to the federal
actions”).
district
fendant’s]
judge
Briggs
Florida.”
Thereafter,
granting summary judg-
at 16.
ment,
18. See
106 at §
Prosser,
Law of Torts
appears
it
that the district court inter-
preted
narrowly.
language
Our earlier
too
opinion
concerned
Goodwin’s claim of ab-
Green,
14, 23,
19. See Carlson v.
immunity regarding
solute
his statement on
1468, 1474,
Burks
claim,
July
rejecting
precise
Lasker,
v.
1836,
*7
immunity
qualified
contours of the
were not an
(1979).
lee relies
therefore
all
and contends that
no
acquitted,
posed
additional effort or burden
oc-
no violation of the Sixth Amendment
defense, as the informant did not turn over
curred.24
prosecution.
evidence to the
case,
gathered by
instant
the evidence
required
significant
The threat of
harm
against
appellants
have been used
could
however,
Weatherford does
not,
have to
by
Moreover,
challenged
if
not
it.
they had
“prejudice”
amount
sense
alter-
appellants
prove
pros
nеed not
that
ing the actual outcome of the trial.25 Al-
actually
ecution
used the
information
though the
is concerned
prosecution
obtained. The
makes a host of
trial,
primarily with fairness at
it
is not
discretionary
judgmental
and
decisions
The right
limited to that
function.26
preparing
virtually
its case.
It would be
protects
range
counsel
the whole
of the
for an
a court
impossible
appellant or
implicated by
interests
a criminal
accused’s
any particular piece
sort out how
of infor
prosecution.
may
These interests
extend
include,
possession
prosecution
mation in the
beyond the wish for exoneration to
consciously
subconsciously
example,
possibilities
of a lesser
factored
sentence,
charge,
lighter
or the allеviation
posses
into each of those decisions. Mere
practical
of “the
burdens of a trial.”27
sion
of otherwise
prosecution
confi-
they
finding
damages
district court’s
privy
not
“Goodwin was
suffered even if a Sixth
strategy]
agree
information when
[defense
Amendment violation occurred. We
Judge
he made his assertion to
Middlebrooks.”
injuries allegedly
by appellants
the
may
suffered
however,
finding,
This
relates
to Good-
intangible
agree
be
We
elusive.
also
knowledge
win’s
at the time of his statement
may
prov-
that
ing
have a difficult time
grand jury.
pro-
before the
Sixth Amendment
sense,
“damages”
actual
in the tort
implicated
prosecu-
tections are
tion
whenever the
proof
necessary
that such
for them to recov-
improperly
strategy
obtains defensе
infor-
Carey
compensatory
Piphus,
aer
award.
proceeding. Appellants
mation
a criminal
247, 257-65,
1042, 1048-1053,
435 U.S.
98 S.Ct.
pointed
suggesting
have
to circumstances
(1978). Nevertheless,
tinue our avoidance The two situations. first is when defend- Appellee cаse. con- present posture of this “special demonstrate ants factors counsel- summary judg- tends that we should affirm hesitation in the ling absence of affirma- have failed to ment because U.S., by Congress.” tive action 403 at of action under Bivens. state a valid cause S.Ct., Passman, 2004]; 396 at Davis v. [91 necessary seems A decision on that issue 228, 60 442 U.S. 245 S.Ct. [99 on whether an individual prior to a decision L.Ed.2d The second is when 846] action. to that cause of immunity an enjoys Congress pro- that has defendants show Moreover, since our last years in the few it ex- remedy vided an alternative which Supreme several Court opinion in this a substitute for plicitly declared to be clarity in this opinions provided have some recovery directly under the Constitution to pro- a the need consequencе, area. As Bivens, as effective. equally and viewed such caution has diminished. ceed with supra 2005]; at 397 at S.Ct. [403 U.S.] [91 Passman, 442 U.S. In Davis v. Passman, supra at Davis [442 U.S.] (1979), the 60 L.Ed.2d 245-247 S.Ct. at [99 2277-2278]. upheld brought by Court a cause of action 18-19, 100 (empha at at 1471 U.S. Congressman who al against woman original). sis in in sex discrimination in a legedly engaged By saying that the may cause action employment By relying staff decision. on situations,” defeated “in two the im- Court Bivens, that despite right the fact as plied may it not be defeated in other the Fifth Amend protected by serted was not, Appellee situations. in this case has ment, the Bivens the Court made clear that far, thus demonstrated that either of these holding was not limited violations situations obtains in the instant case. He Green, Fourth Amendment. In Carlson v. remedy has not shown an alternate 14, 100 446 U.S. L.Ed.2d 15 Congrеss explicitly has labelled as a substi- (1980), expanded the law created Court appellee tute for a Bivens action. Nor has by Bivens and Davis still further. A moth “special counselling identified factors hesi- allegedly by er sued for caused damages that, Appellee prose- tation.” contends as her prison federal officials’ violation of de cutor, immunity he needs absolute from rights protected ceased son’s constitutional eases, this claim fully such but con- by Eighth Amendment. The Court held by sidered this court before. that deci- remedy directly a tort was “available sion, requirements we determined that Constitution,” though under the even justified job qualified of Goodwin’s allegations support immunity, could also a suit under depended good faith of his actions. holding Federal Tort Claims Aсt. That Bivens-type made clear that a suit can exist Thus, apparent we see no reason even where other remedies are available. why rights the Sixth Amendment Bivens interpreted holding Court case ought differently to be treated from a sweeping manner: rights the Fourth Amendment issue Bivens established that the victims of a Bivens, rights the Fifth Amendment at is by agent constitutional violation a federal Passman, Eighth sue in Davis v. or the right damages against have a to recover rights issue in Carlson v. the official in despite addition, federal court the damage remedy Green. absence of conferring provided by Bivens-type appropri- statute such suit is See, See, Supreme e.g., treated in Bivens. served decision. Holodnak v. Court Avco denied, Cir.), e.g., Schlesinger, F.Supp. Corp., (2d Moore v. 514 F.2d cеrt. (D.Colo.1974), (10th unpub. opinion aff’d Cir.1975), denied, University, (1975), rt. and Wahba v. New York ce denied, (2d Cir.), and Davidson v. cert. Kane, F.Supp. (E.D.Va.1972). issue, Several tribunals had noted the but re *11 ate in Damages this context. are a tradi- over factual or inferential issues. We have remedy tional for unwarranted harm result- concluded, contrary to the court, district ing from judicial process; the Bivens- that the appellants have pointed to evidence analogous type action involved here is genuine establishes a contest on the tort actions for imprisonment, false mali- appellee’s issue of good faith. We also can- cious prosecution, and abuse of process. find other basis on which to affirm Moreover, alternative remedies are often summary judgment. Appеllants have dem- unavailable for violation of Sixth Amend- possible onstrated a Sixth Amendment vio- rights. ment An exclusionary rule may lation possible and the liability of Goodwin. provide prospective cases, relief in some but They should be allowed to proceed to trial. does not offer any compensatory relief. Appellate review of provides convictions no Reversed and remanded for pro- further relief for those who would have been con- ceedings consistent with opinion. victed in spite of the Sixth Amendment violation, for those who are acquitted, and MacKINNON, Judge Circuit (dissenting). for those who are never even taken to trial but who are dragged nonetheless through my opinion the summary judgment of the early stages of process. the criminаl the district court should be affirmed. For The vindication of rights Sixth Amendment reasons set forth Judge Wilkey’s dissent to the effective assistance of counsel for in Briggs I (Briggs Goodwin), persons such will depend solely on the avail- (D.C.Cir.1977), denied, cert. ability of a damage remedy. For such per- U.S. sons “the rule’ ‘exclusionary simply irrele- (1978), I would rule that Goodwin was enti people shoes, it is vant^] [f]or [their] tled complete immunity as a witness. damages nothing.”34 Moreover, appellants’ claims should be dis missed under Weatherford v. Bursey, 429
Conclusion We have only examined the (1977)1 record to see if appellants have raised material disputes (an agent’s undercover knowledge of de- summary 34. Bivens Agents testifying, v. Six Unknown judgment Named ap- when Narcotics, the Federal Bureau of propriate showing becausе there was no that a 1999, 2011, (1971) genuine issue of material fact remained as to (Harlan, J., concurring). appellants’ rights whether Sixth Amendment by testimony. had been violated attempt majority 1. The of the in its footnote 23 As for the claim that distinguish Weatherford is contradicted rights were violated Goodwin’s the record. It rests on the unsubstantiated subsequent failure to advise them of informa- assumption that information on defense strate informants, allegedly received gies passed FBI, “routinely” to the and thence specific a shred of record does not contain Department, majority op. the Justice actually evidence that Goodwin received such necessarily way made its to Goodwin prosecutor If the did not receive Department information. himself. But the of Justicе is a information, very large organization spe were not such the defendants the trial court cifically refers, however, majority found that to the harmed. The Pence, testimony agent deposition supporting plaintiffs’ the evidence of FBI who assertion routinely passed cognizant that Poe on all informa- stated that he some defense strategy Majority op. also indicates that Goodwin was not at n. 23. But tion to Goodwin. privy to this information when he made gap and actual between routine distribution Judge Finally, assertion to Middlebrooks. bridged receipt specific reports can July assertions of defense counsel on by speculation. While “inferences to be drawn indicating being 12th repre- that Poe was not underlying facts must be viewed from the ... supported sеnted Goodwin’s belief that Poe party oppos- light in the favorable to the most represented by was in fact not counsel. [JA motion,” ing summary judgment] United [a perjure It is clear 605.] that Goodwin did not Inc., Diebold, States v. July himself on (1962) (per cu- (JA 5) (emphasis added). riam), majority confuses inference with against Since the suit Goodwin turns on alle- speculation. gations privy that he was to the information not communicated that is fense discussions con- not violate does prosecutor
to the defendant). I thus right
stitutional
dissent. addition, agree also unable to I am decision that ruled court’s earlier
with this prosecutorial not entitled to
Goodwin was As supra. Briggs v.
immunity. *12 Justice, Department employee Attorney General designated by
he was constituted and that prosecute earlier decision authority. entire Our obligations the normal recognize
fails to overly fine dis- and draws an prosecutor role artifically bifurcating his
tinction in “investigator”
into “advocate” deciding whether
purpose of
should attach. McADAMS, INC., Petitioner,
B.J.
INTERSTATE COMMERCE COMMIS-
SION and United States
America, Respondents.
No. 82-1271. Appeals, Court of
United States Circuit.
District Columbia
Argued Dec. Jan.
Decided