National Black Police Association, Inc. v. Richard W. Velde

“substantially justified legal assertion

arguments can characterized as fairly wanton,

vexatious, oppressive, but this is seeking not one of

certainly them. dis- v. Kyne,

missal under Leedom the Board merely

was asserting a well-established rule jurisdiction

limiting the district questions

courts to decide representation

under the NLRA. Even on the merits of

the underlying there is dispute, no evidence

in the record that the Board doing was

anything other defending than routine

application of its longstanding policy for

dealing petitions with decertification

sort appellants. submitted The fact (after

that the Board its change in mem-

bership) later altered that policy and acced- appellants’

ed to the demands in no way

suggests that its its original posi- defense of

tion in “good undertaken faith.”

Accordingly, District Court properly

concluded that the appellants are enti- attorneys’

tled to under 2412(b) fees section

of the EAJA.

Conclusion reasons,

For foregoing the judgment

of the District Court is

Affirmed.

NATIONAL BLACK POLICE ASSOCIA-

TION, INC., al., Appellants, et VELDE,

Richard W. et al.

No. 77-1273.

United of Appeals, States Court

District of Columbia Circuit.

June Larson,

E. Riсhard Pinzler, Isabelle Katz Neuborne, Burt William L. Robinson and Chachkin, Norman J. New City, York were on the supplemental memorandum for ap- pellants. E. Kopp

Robert Herwig, and Barbara L. Dept, Justice, Attys., D.C., Washington, were on the supplemental memorandum for appellees. Boskey, D.C.,

Bennett Washington, on the supplemental ap- memorandum for pellee, Levi. TAMM,

Before Circuit Judge, BAZEL ON, PARKER,* Judge, Senior Circuit United States District Court Judge. for the Opinion Court filed by Senior Circuit Judge BAZELON. Dissenting opinion filed by Judge Circuit TAMM.

BAZELON, Senior Judge: Circuit Supreme The Court vacated and remand- ed this case1 for further consideration light of its recent decision in Harlow & Butterfield Fitzgerald.2 re- remand quires that we address the following ques- * by designation Sitting pursuant to 28 U.S.C. 73 L.Ed.2d 396 457 Ü.S. 292(a). -U.S.-, 73 L.Ed.2d pro- continuing to rights by estab- “clearly have appellees Did

tion:3 law en- to local vide financial assistance constitutional duties to statutory or lished” to local en- that discriminate agencies law terminate forcement allegedly known They forcement claimed race and sex. basis of alia, unlawfully on the basis of discriminating inter violated, this continued standard an- liability race and sex? Act of of the Civil Title VI in Harlow entitles nounced 509 of 518(c) and VI),4 sections (Title summary judgment Con- (the Crime Act of 1973 Control Crime clear duties existed. unless such clause of process due Act),5 and the trol amendment). Ap- (fifth fifth amendment allege Appellants “termination” declaratory injunctive sought pellants Title duties existed under VI of the Civil Assist- Enforcement the Law against relief Rights Act of the Crime Control Act Depart- (LEAA),6 the due clause of the ance Administration process and the those Justice, fifth amendment. We find that such a four officials and ment of VI, duty was not clear under Title but that compensatory sought They also agencies. clear duties terminаte existed individu- damages against punitive and and under both Crime Control Act knowing and alleged willful al officials for Accordingly, appellees fifth amendment. and statu- constitutional of their violations summary judgment with entitled re- tory rights.7 spect appellants’ damages claims for un- VI, 8, 1976, the district court der Title not for the On December damage but claims under either the Crime Control Act or the for dismissal.8 motion granted appellees’ fifth amendment. plaintiffs’ claims for The court held that “been

declaratory injunctive relief had and by virtue of the enactment rendered moot Background 1976,”9 which the Crime Control Act Proceedings Prior question.10 altered the duties appellants’ damage The court also held women, Appellants, six blacks and six the individual officials ‍‌​‌‌​​​‌‌‌‌​‌‌​‌​‌​‌‌​​​​​​‌​‌‌‌​​‌‌​​‌​​‌​‌​‌​‌‍were against claims filed on September this lawsuit 1975. immuni- the doctrine of official “barred They alleged that federal and offi- аppellants’ ty.”11 cials had violated constitutional (amended 3701-3797 at 42 opinion, §§ version U.S.C. National Black Police earlier

3. Our 1981). Velde, (D.C.Cir.1980), (Supp. V v. 631 F.2d 784 Ass’n mootness, standing, three issues: addressed LEAA, Department immunity. agency an Because the mootness The within official and 6. Harlow, Justice, by Congress standing in 1968 to unaffected issues are was created and respect community groups opinion in their and citizen our earlier assist we reinstate justice criminal activities. note that the termination law and those issues. We enforcement Streets Control and Safe Assistance Administra- Crime the Law Enforcement See Omnibus 90-351, I, opinion may ques- 82 Stat. No. title raise new Pub.L. tion since our last ap- concerning mootness with tions declaratory injunctive pellants’ claims 35, Appendix parties p. Complaint not addressed have relief. Because 7. Amended briefs, (App.) supplemental Appendix refer to how- in their All references this issue ever, appendix district court to decide Black Police it to the filed National leave may Velde, (D.C.Cir.1980). have arisen since F.2d 784 mootness issues Ass’n v. opinion. our earlier App. 479-80. 4. 42 2000d-2000d-4 §§ U.S.C. at 479. Id. 93-83, 518(c), 87 Stat. No. 5. Pub.L. §§ 94-503, 122(b), 90 Stat. 211-12, 1976). Pub.L. No. (amended 10. See Crime The provisions of the Act of 1973 amended Control Streets Act Control and Safe Omnibus Crime App. I, 11. 3 82 Stat. 197 No. title Pub.L. Supreme subsequent The Court’s decision stant case and remanded “for further con- scope v. Economou12limited light in Butz sideration in of Harlow & Butterfield available to immunity Fitzgerald.”18 official We requested the parties general The held that as a officials. Court to file supplemental briefs on the matter. rule, officials are entitled & Fitzgerald Harlow Butterfield v. consti- qualified immunity alleging suits escape liability, To tutional violations. substantially Harlow altered good official must establish a defendant governing standards motions for summary for his grounds faith basis and reasonable judgment in cases claims of involving quali identified a limited conduct.13 Court defined, fied However immunity. general to this rule for adminis- exception immunity an uneasy strikes be balance performing judicial officials trative competing tween two (1) concerns: functions, prosecutorial reasoning that ab- to protect need individual from offi necessary protect solute abuse, cial the need to well- shield discretionary prosecutorial decisions meaning officials “from potentially disa potentially distorting effect of threats bling threats of liability.”19 Court in of civil liability.14 Harlow reiterated that the latter concern appeal On of the district court’s dismissal requires quick resolution of insubstantial case, the instant argued that against claims government officials,20and their discretion in administering the LEAA existing noted qualified immunity brought funds them within narrowed adequately standard had not accomplished realm absolute immunity identified in objective. mandatory Butz. Based on the language Harlow, Prior to summary judgment on appellees’ the statute and constitutional questions of qualified immunity generally duty not to use federal in a discrimi- required subjective both objective de- manner, natory funding the court found the Summary judgment terminations. was de- provisions termination mandatory, to be nied if there was a dispute about “outside the realm of discretion”15 and that factual whether an official “knew or reasonably absolute was immunity inappro- therefore should have known the action took priate.16 he Accordingly, the case was re- his sphere within of official appellants responsibility manded for prove their claims would violate the rights and for constitutional demonstrate the factu- if [plaintiff], al for a or he toоk the basis action with immunity. Appellees petitioned malicious intention to depriva- for review cause a Supreme tion granted rights Court and the of constitutional or injury Court cer- other While By alleging tiorari. the case ....” pending, was that an official acted Court decided Harlow & Butterfield v. Fitz- malicious intent or with a belief that a gerald,17which significantly prohibited conduct, altered the law clear standard thereafter, of official immunity. Shortly plaintiffs could create a factual dispute that the Court vacated our in- judgment frequently required subjective determina- 17. 457 U.S. 12. 438 U.S. 98 S.Ct. 57 L.Ed.2d 895 S.Ct. 73 L.Ed.2d (1978). (1982). Id. 98 S.Ct. at 2911. Accord Scheuer - -, U.S. 102 S.Ct. 73 L.Ed.2d Rhodes, 232, 247-48, U.S. 94 S.Ct. (1982). 1691-92, (1974). L.Ed.2d 19. 102 S.Ct. at 2732. 512-17, 14. 438 U.S. at 98 S.Ct. at 2913-16. Id. 102 S.Ct. at 2737. See Butz v. Econo- 15. 631 F.2d at 787 n. 15. mou, 2894, 2911, 57 L.Ed.2d 895

16. The Court also reversed the district court’s rejected decision that the case was moot and Strickland, Wood v. appellees’ argument U.S. appellants lacked 992, 1000, standing. Id. 43 L.Ed.2d 214 at 787. rights The need and constitutional which a trial. necessitating tion thus frustrated clearly they such dеterminations were established at the time lawsuits goal terminating insubstantial Summary judgment occurred. allegedly summary judgment.22 on therefore denied27 summary adjusted judg

Harlow Analysis rely objective ment standard to make standard, “govern factors. Under the new Application of the Harlow Standard discretionary performing ment officials appellees’ failure Appellants contend from liabil shielded generallyare functions terminate discriminatory as their con ity damages for civil insofar agencies imposed violated clear duties established clearly duct does not violate by independent them three sources law.28 rights of which statutory or constitutional have known.”23 each of these sources in turn. person reasonable would We consider first summary judgment, court must On Title VI vio rights allegedly whether determine Title prohibits 601 of VI re Section in the law.24 established clearly latеd were financial assistance from cipients federal legal. If purely That determination discrimination; in racial engaging were court finds that shall, person No the United States established, genuine and that there is race, color, or ground on the national facts, summary judg dispute over material in, participation be origin, excluded subsequent pro ment be must denied. of, subjected be denied the benefits or ceedings, quali can still obtain defendant any program under discrimination showing that fied because receiving Federal financial assist- activity “extraordinary he neither circumstances” ance.29 have known that his con knew nor should duct unlawful.25 also measures to be tak- prescribes against en re- Applying this standard to the instant cipients prohibition.30 this disregard who case,26 whether appel- we must determine is 42 particular Of relevance U.S.C. funding to to locаl lees’ failure terminate 2000d-l: § agencies violated statuto- law enforcement adopt- with Compliance any requirement clearly or estab- ry constitutional duties may ed to this section be effect- pursuant the time the failure occurred. We lished at or to (1) by ed the termination of refusal appellants’ allegations, judged find that grant violations or to continue assistance under light, allege their most favorable noted, they summary argue they that are entitled to 22. The court 102 S.Ct. ‍‌​‌‌​​​‌‌‌‌​‌‌​‌​‌​‌‌​​​​​​‌​‌‌‌​​‌‌​​‌​​‌​‌​‌​‌‍at law, judgment sub of will reach the several courts have considered an official’s as a matter inherently judgment jective good requiring question summary ap- reso of is faith as whether Moats, jury. E.g., by Landrum v. 576 propriate. lution denied, 1320, Cir.), cert. (8th F.2d 282, Du (1978); L.Ed.2d 258 yet whether 27. The district court has not ruled Sugarman, (2d chesne 566 F.2d 832-33 upon appellants’ complaint states claim 1977). Cir. granted. be We which relief can did ad- opinion, and the this our first dress issue added). (emphasis at has briefed for us. We therefore issue not been presented properly do view the issue as for Id. 102 S.Ct. at 2739. present posture our the of this case. decision in Id. argued Congress Appellants have not any way the common law stan- has in altered technically us 26. This case is before on immunity to causes for with dards grant court’s district of a motion dismiss. alleged in case. of action this position We adhere to our that absolute earlier inappropriate is the dismiss- (1976). 2000d 29. 42 U.S.C. § However, in the al is to be reversed. because appellants alter- district court had moved (1976). summary 2000d-l to 2000d-4 judgment, 30. 42 § native for and because U.S.C. recipient such program activity any anee through funding “any termination or other as means authorized express Although to whom there has been an law.” fund termination as was envisioned the pri- finding record, on the oрportunity after of mary means enforcement under Title hearing, for of failure to comply VI,31 although it has proven very effec- other (2) requirement, ... or discrimination,32 tive as a deterrent Title authorized by means law. VI tolerates other enforcement' (emphasis added). Appellants contend that schemes. these among Prominent other provision clear imposed means of of enforcement referral cases duty to terminate funds to General, Attorney may who bring an unlawfully discriminate. against recipient.33 action The choice face, however, On its lan- of enforcement methods was intended guage mandatory. is not Section 2000d-l funding agencies allow flexibility in re- compli- allows the agency sponding to effect of instances discrimination.34 Hearings Proposals Report 1974, 31. on Miscellaneous districts. VI Commission at 384- — Regarding Rights Richardson, within Civil of Persons 85. Sеe Adams v. 480 F.2d (en banc); Jurisdiction of United States Before (D.C.Cir.1973) 1163 n. 4 Tomlinson Comm, Mashaw, Subcomm. No. 5 of the House & The Enforcement of Federal Stan Judiciary, Cong., (1963) 88th 1st Sess. 1544 Programs: Suggestions dards in Grant-in-Aid Celebrezze, (testimony Sec’y HEW); id. at Involvement, Beneficiary 58 Va.L.Rev. (testimony George Meany, 1786-88 AFL- Comment, (1972); supra note at 871. CIO); (testimony Joseph id. at 1890-91 Rauh, ADA); (testimony Roy at 2161 id. Cong., H.R.Rep. 88th 1st Sess. 86 No. Wilkins, NAACP) [hereinafter referred as (1963), Cong. U.S.Code & Admin.News Hearings wording Subcommittee of Ti- The ]. 2355. See Guidelines for the Enforcement preference tle VI indicates a for the fund cutoff VI, Rights Title Civil Act of 28 C.F.R. remedy. only Not men- fund termination suggest § 50.3 The Guidelines also first, specifi- is the tioned but it sanction number of administrative alternatives to fund- cally named. 42 U.S.C. 2000d-l ing termination. Id. preference for fund termination under Title VI in, e.g., is noted United States v. Jefferson Hearings, supra 34. Subcommittee note Educ., County (5th Bd. of 372 F.2d (testimony Att’y Kennedy), Gen. Cir.1966) (“Congress was dissatisfied with Celebrezze, (testimony Sec’y HEW), progress judicial adversary slow inherent in the Cong.Rec. (statement Rep. Celler); process____[and] therefore a new fashioned (statement Gill). (1964) Rep. enforcement.”); method Report White grant of a choice of remedies also an Conference, House To Fulfill These attempt competing to accommodate views. (“administrative proceedings prescribed Some civil advocates felt that by Congress primary enforcing as the device of They mandatory. termination should saw VI”); Title VI United States Commission Civil On relatively agen the of unbridled discretion Rights Rights, The Federal Civil Ef- Enforcement potential program-or by cies the for abuse its fort —1974 386-88 cited [hereinafter bureaucracy iented or an inactive administra without cross-reference as VI Commission Report See, e.g., Hearings, supra, tion. Subcommittee —1974]; Comment, Rights Title VI of the Civil (testimоny Sidney Zagri, at of 2093-94 Team Implementation Impact, Act of 1964— Union), (statement Rep. Halpern). sters of (1968); Notre Dame Geo.Wash.L.Rev. Wilkins, Roy Secretary As Executive Rights Legislation Conference on Federal Civil NAACP, explained: Report, and Administration: A Dame Notre always away shy “discretionary” [W]e 922-24 Law [funding feel these areas. We that unless Early by mandatory, use of sanction HEW is instruc is all made sorts termination] discretion will July, March, 1970, tive. Between 1964 and is be exercised and until it approximately good HEW initiated 600 administra demonstrated in faith that discretion against proceedings tive school districts found means ination, does discretion and not mean discrim- compliance mandatory not be in with section 601 stan then we would want cases, phraseology In dards. 400 of these HEW found that in there. compliance following funding opposed into the districts came Id. at 2161. Others termi- termination, remedy grounds threat of with no need for actual nation on the it either that Among minority-oriented programs jeopardize which termination. the 200 cases in would off, actually subsequently were cut HEW that it would be an unwise or unconstitu- achieved, compliance assumption power by determined that had been tional the executive. (1964) (statement Cong.Rec. was but 4 and federal assistance resumed in all discretion, that must do funding we clear federal Faced with it to termi- did not appellees’ something compliance, failure to effect say cannot that violated established clearly nate that termination clearly establish Title VI. statutory duty under required.38 was Richardson,35 appel- on which Adams v. failure holding appellees’ In that heavily, does not establish clear rely lants terminate not violate funding did case, In that officials contrary. law to the VI, do not under Title еstablished duties Health, Education, of the Department complied with appellees have imply that (HEW) insisted that enforce- and Welfare con allegations Appellants’ statute. entirely VI was committed ment Title their efforts to enforce cerning appellees’ agency’s and that an deci- agency discretion paint a less than exem civil mandate voluntary compliance was rely sion to on with Title VI plary picture.39 Compliance in the courts. The therefore unreviewable pur required appellees well have might contention, rejected court but did not compliance vigorously they sue more than suggest only termination was did, injunctive may relief have been for securing compliance. available means VI has been criti But Title appropriate. The court noted that Act sets forth “[t]he rights, civil securing as ineffective cized by causes of which two alternative action has been attrib and such ineffectiveness effected,” may enforcement and that a precise uted to the discretion in statute request compliance for voluntary failed claim that there ly appellants where agency respon- “does relieve discretion, Because of that none.40 to enforce Title VI one of the sibility clear that Title VI duties would be two means contemplated by alternative Thus, funds. while makes it violated a failure to terminate statute.”37 Adams upon Elliott); (statement ensuring justice Rep. id. at 6527 of Sen. racial and ethnic years Holland); bureaucracy Hearings, supra Subcommittee Federal which for note massive (statement Rep. Dorn); discriminatory integral part H.R.Rep. at 1583 an of a had been Cong., system. No. 88th 1st Sess. Not did the bureaucrats resist rights goals; they civil often viewed 35. (D.C.Cir.1973) (еn banc). F.2d pursue meaningful to be effort them against particular program’s their self-inter- at Id. est. Rights, United States Commission Civil 37. Id. Rights Federal Enforcement Effort —A Reas- Civil (1973) sessment cited as Commis- [hereinafter Appellants other cite several cases from dif- Report See United States Commis- 1973]. — sion support position. ferent circuits in their Rights Rights, The Federal Civil sion Civil Romney, (7th Gautreaux v. 448 F.2d 731 Cir. Enforcement Effort [hereinafter 1971), perhaps case, point. closest on Report 1970]; cited as Tomlinson however, — precise question Commission was whether the Mashaw, supra & note funding agency’s “knowing acquies- Department of Justice Guidelines discriminatory housing cence in admitted [an] VI, Rights Act of Enforcement of Title Civil program Due violated either the Process Clause (1982), 50.3 issued 28 C.F.R. § Amendment or the Fifth Section 601 suggested judicial and alternative administra- Although Civil of 1964.” the court authorized fund tive means of enforcеment and made clear that violations of both sources of only where those alternatives occurred, termination it did not law had make clear wheth- inappropriate. The ineffective or Civ- agency’s obligations would be er the Title VI could have every agency Rights by vigorous found that il Commission been satisfied enforcement stopped in 1974 had failed to cut off short of it examined scheme that fund termination. have been in cases where termination would 39. If true, picture disap- the unlike the appropriate VI the means enforcement. pointing rights Report 1974, civil efforts of several other at 762—97. See — Commission agencies. antipathy federal with the which Weinberger, F.Supp. Adams v. bureaucracy VI has has viewed Title (D.D.C.1975). Rights been documented the Civil Commis- Note, See, Enforcing Congressional sion: Man- Rights, result, 85 Yale L.J. date: LEAA and Civil The enforcement large failure was the extent, placing responsibility 723-28 the for Appellees (B) are therefore entitled to powers, exercise the and func- suit any for based on Title VI pursuant tions title VI of the Civil arising their out of failure to terminate Rights (section Act of 1964 2000d of this funds. title); or (C) Crime to take other Control such action as may be provided by law.42

The broad discretion over enforcement provided methods VI sharp Title is in Congress enacted this statutory command contrast mandatory language of in when it reviewed LEAA’s initial Crime Act. 518(c)(2) Control Section grant of funds. In LEAA’s reviewing civil Act stated: rights efforts, Congress enforcement was Whenever Administration [LEAA] by the agency’s struck failure to follow the that a government determines State or spirit of Title VI.43 The number general unit of local has staff agency’s assigned rights to civil was comply failed to with nondiscrimina- [the criticized entirely as inadequate.44 Al- tion requirements], it notify shall though LEAA had received numerous com- chief executive State the non- plaints of recipients, discrimination by compliance and shall request the chief had never applied any sanctions had executive to secure compliance. If within never Indeed, held a compliance hearing.45 a reasonable time after such notification had LEAA never even promulgated proce- the chief executive or fails refuses dures for such a hearing.46 compliance, Depart- secure Justice the Administration regulations shall ment governing exercise LEAA ex- termination [its powers]/41! pressed preference and is concurrently authorized for enforcement with such exercise— judicial through proceedings rather than fund

(A) yet appar- termination47 LEAA had to institute an appropriate civil ac- tion; ently never referred a case to the Attorney Comm, precisely, requires 41. More Judiciary, the statute Ad- 5 of the House 93d powers Cong., (statement ministration to exercise “the and func- 1st Sess. 345 of Sarah provided title,” Carey) ]; tions Hearings section 509 of this as LEAA [hereinafter cited Rights which states that Lawyers Law, Committee for Under Civil Cong.Rec. (1973); Law and Disorder Administration, Whenever rea- after 20,070-71 (1973) (statement Jordan). Rep. opportunity hearing sonable notice for applicant grantee an chapter, or a under this 44. Until LEAA had no civil office that, any payments finds responsible implementing regu- VI its Title chapter, made or to be made under this there lations; established, once the office under- comply is a substantial failure to with— Report 1973, supra staffed. See Commission (a) provisions chapter; — of this 97; Report 1970, supra note at (b) regulations promulgated by the Admin- Commission — note at chapter; istration under this or (c) plan application or submitted in ac- Report 1973, supra provisions 45. See Commission note chapter; cordance with the of this — notify 100-01. appli- the Administration shall grantee payments cant or that further shall (or not be 46. See id. at 100 n. 27. made its discretion that further payments shall be made for activities failure), , 42.206(a) (1975) provided: which is such there until no there is 47. 28 C.F.R. § longer department responsible such failure. official “[W]here 1975) (Supp. (current judicial proceedings U.S.C. § 3757 V ver- determines that ... are as (Supp. 1981)) (em- compliance likely likely sion at 42 § U.S.C. V more result phasis ..., added). proceedings than he shall administrative judicial remedy invoke the rather than the ad- 3766(c)(2) 1975) (Supp. 42. 42 U.S.C. V remedy.” ministrative the Civil (amended 1976) (emphasis added). that “LEAA has admin- Commission concluded istratively repealed remedy the of fund cutoff.” 39, Hearings Report 1973, supra on 43. See the Law Enforcement As- note at 101 Commission — sistance Administration Before Subcomm. No. n. 36. tion, undertaking than administra- rather had intervened rarely General, only and rights require- of civil tive enforcement private suits.48 ments.52 creat- Congress background, this Against enforcement stringent of more ed a set and Despite language specifically addressed requirements argue that the history, appellees legislative Congress obligation.49 civil LEAA's provided them “broad Crime Act Control version Nixon’s President rejected explicitly Although their enforcement discretion.” that Title stated bill, merely the which some limit position clearly exaggerated, is Instead, Congress to LEAA.50 applies VI does exist. under statute ed discretion which 518(c)(2), 509 and sections adopted whether a Thus, LEAA must “determine” scheme mandatory enforcement outlined funding has failed to of LEAA recipient By do- funding termination. that relies nondiscrimination comply with statute’s LEAA prevented so, explicitly ing Congress After no provision regulations. LEAA and option “any Title VI on the relying recipient governor state’s tifying the law.” means authorized other has to determine noncompliance, LEAA ‍‌​‌‌​​​‌‌‌‌​‌‌​‌​‌​‌‌​​​​​​‌​‌‌‌​​‌‌​​‌​​‌​‌​‌​‌‍Jordan, originator of the Representative secured governor compli has whether her provision,51 described mandatory time.” The a reasonable ad ance “within amendment to the as follows: whether ministrator must then determine my The effect of amendment ... tois substantial, which at comply failure to require LEAA to use same first en- point of fund termination some form procedure forcement applies any which mandatory. other violation of LEAA regulations not, do of discretion These limited areas procedure statutes. That of notification however, statutory obliga- appellees’ render and hearings negotiations is оut in spelled quali- entitle them to tion so unclear as to 509, provides section which the ultimate Appel- matter of law. fied as a of funding compliance sanction cutoff if alleged, support, with some lants have is not obtained. among re- existed rampant discrimination to re- necessary This amendment was recipient Many LEAA funds. cipients reliance on verse LEAA’s traditional alleging in lawsuits were involved court correct discrimina- proceedings efforts, Cong.Rec. 20,071 compliance (1973) (statement voluntary after which en- replaced required, Jordan). suits, Rep. and it Morrow forcement action was In two of the Crisler, banc), discretionary permitted (5th Cir.) (en cert. choice of sanctions 491 F.2d 1053 denied, 895, mandatory fund termina- VI L.Ed.2d under Title with termination, Beecher, agency (1974), with Castro v. and 459 F.2d 725 tion. Concurrent 1972), (1st means in its efforts LEAA ten months could use other enumerated Cir. intervened Cong.Rec. 20,071 brought compliance. eight after suits were obtain months Jordan). great (1973) (statement Rep. The Jordan “as a result of a amount of 20,105, House, id. at pressure passed take action.” but external ... some version Rights, committee to the conference was revised United States on Civil Commission Rights Senate, which accommodate the views of Effort: Federal Civil Enforcement One case, proposal. approved In the third inter President’s had Year Later provided mandatory Lawyers emerged vention was court order. 3 which statute Commit supra at note rather after a “reasonable time” Law, termination tee for Civil Under require- days, but retained than after that, in the of the conference com- ment words mittee, proceedings to cut must 93- “LEAA initiate 49. Crime Control Act of Pub.L. No. (amended recipient who continues 87 Stat. off funds 1976). may, period, con- discriminatе after initiation, currently other ac- take Cong., 1st supra (text No. 93d Hearings, Conf.Rep. tions.” Senate 50. LEAA note Cong. (1973), bill, & Admin.News Cong., U.S.Code Sess. S. 1st Administration 93d added). (emphasis 308(b)(2) (1973)). Sess. § Cong.Rec. 20,071 (1973) (emphasis major add original two 51. Her amendment made ed). .changes: 60-day imposed time limit recipients compliance, unlawful discrimination.53 Other tary the “substantial failure” reportedly pursued policies that constituted that ultimately determination makes termi- facie evidence of prima discrimination.54 Rather, mandatory. nation allegations investigations compliance The few conduct- involve of principally the failure LEAA of- allegedly up ed LEAA turned wide- governors ficials to of states notify noncompliance.55 If spread allegations such recipients discriminating, where were true, obligations are LEAA’s were clear un- to institute administrative termina- der the 1973 to the Act. amendments Nоti- proceedings tion had they where deter- governor fication of the state’s was re- mined that efforts would not voluntary suc- quired, and termination proceed- ceed. The purpose qualified immunity of is ings were to be instituted in cases where to protect liability officials from where am- voluntary compliance Appellants failed. biguity prevents law them from alleged have that very (perhaps only few knowing properly carry how to out their sent, to one) governors notices were duties. We do not how ambiguity see that funding proceedings termination were affected the in this case. brought prior never of commencement true, course, It is of the en the instant suit. In the words of the House 518(c)(2) forcement be Judiciary, procedures Committee on the “LEAA has payment gin “[wjhenever never terminated of funds to the Administration recipient rights because of а civil violation. determines” that a failure to com [LEAA] Despite positive findings of discrimination mean, exists. This ply language does not agencies, courts and administrative however, that LEAA could avoid its en LEAA has continued fund violators obligations by refusing forcement to “deter the Act.”56 mine” that noncompliance existed. It thing one for an cau agency proceed

Significantly, appellants’ allegations of tiously possible because of the consequences bad faith do not principally appel- involve terminating funds. It is something quite lees’ exercise of judgment those areas different en where to abdicate the civil appellees contend the Act is ambigu- Appellants’ Congress ous. on forcement role that intend clearly claims not based appellees’ application play. alleged either ed LEAA have Appellants the “reason- time” for effecting able allowance volun- provided support some showing police Rice, largest departments the 50 re- “[0]f Director of LEAA’s Office Civil ceiving funds, parties Compliance, LEAA 26 were Philadelphia [law- sent the Police Com- discriminatory alleging practices].” suits See mailgram, missioner a which stated: Report 1974, VI Commission at 380. — THIS WILL ALSO FORMERLY ADVISE [sic] YOU THAT LEAA HAS DETERMINED id. at 377-78. THAT THE DE- PHILADELPHIA POLICE PARTMENT HAS FAILED TO COMPLY majority 55. “LEAA staff have stated that the recipients WITH LEAA NONDISCRIMINATION REGU- [THE has reviewed were found engage discriminatory prac- form some THE DE- LEAA HAS FURTHER LATIONS]. Id. n. tice.” at 361 THAT COMPLIANCE TERMINED WITH THE BE REGULATIONS CANNOT Report of the House Committee the Judi- BY ACHIEVED VOLUNTARY MEANS. ciary, Cong., H.R.Rep. No. 94th 2d Sess. ACCORDINGLY, THIS MATTER HAS BEEN Moreover, in a limited number REFERRED RIGHTS DIVI- TO THE CIVIL cases, did LEAA refer cases to the De- Justice THE SION OF DEPARTMENT OF JUSTICE Report 1974, partment. VI Commission at 383. — FOR THE INSTITU- CONSIDERATION OF It is unclear what basis such action would TION OF APPROPRIATE LEGAL PROCEED- have been taken LEAA re- unless believed the INGS. cipient compliance. was out The statute and App. Appellees have offered satisfac- congressional that, explicit intent were in such tory why, explanation light of the lan- circumstances, Depart- referral to the Justice pro- guage 518(c)(2), funding termination ment was to be concurrent with the initiation ceedings with were instituted concurrent proceedings. of fund termination Depart- referral case Justice presented This set of circumstances most ment. Philadelphia Police Department. 1,1974, appellee On Feb. Herbert 580 govern- Activities that the federal among erty.”59 funded discrimination

unlawful constitutionally and that LEAA offi- not agencies rampant participate ment could A wholesale of that fact. supported indirectly cials were aware cannot be directly clearly to determinations refusal make the provision support for other through might the Act well defeat contemplated by persons activity.60 in such This engaged faith. gоod claim of various forms of prohibition encompasses direct than the support that much less Fifth Amendment funding involved in this case.61 [7,8] any statutory addition to duties In contend that because Appellants had, assert appellants have appellees may law enforcement their purpose duty not appellees had a constitutional constitutionally permissible agencies is agencies to law enforcement fund local enforcement, law goal promoting Appellants de- discriminating. known be funds discrimi recipients fact that of their process duty from the due clause rive itself un nate does not make amendment, appli- of the fifth which makes clear, however, It is that a constitutional. equal government cable to the federal fund a government may not discrimi entity the fourteenth protection limitations govern nating because the еntity simply places amendment on the actions states. purpose ment’s is benevolent. Norwood Although will have the burden of appellants Harrison,62 examining v. the consti case fact,57 issues of establishing several difficult providing of a free text tutionality state principle is a established of consti- practice racial private books schoolsthat government tutional law that the federal discrimination, emphatically stat Court may not fund local known ed, objec valid “good intentions as to one discriminating. unconstitutionally negate the in tive do not serve to State’s principles Equal protection bar volvement in violation of constitutional officials, officials, like state duty.”63 discrimination.58 engaging in racial This firm consti Appellants suggest that these just to obligation applies constitutional Norwood, involvement, reiterated in government principles, direct but tutional also Supreme Court “support” “through any tacitly changed of discrimination were arrangement, management, prop- funds or in Personnel Administrator Mas opinions County p. See infra (same); v. (1968) 583 note 77. Lee Macon Bd. 57. & Educ., 458, (M.D.Ala.) F.Supp. 475-78 267 nom. v. United (same), Bolling aff'd sub Wallace 497, 693, Sharpe, v. 347 U.S. 74 S.Ct. States, 215, 415, 88 19 (1954). 389 U.S. S.Ct. L.Ed.2d L.Ed. 98 884 Connally, (1967); cf. v. F.Supp. Green 330 422 1150, (D.D.C.), aff'd sub nom. Coit v. Aaron, Cooper 1, 19, v. 358 78 U.S. S.Ct. Green, 564, U.S. 92 30 L.Ed.2d 1401, 1410, 404 S.Ct. (1958). See Nor 3 L.Ed.2d 19 (1971) (tax exemptions discriminatory Harrison, 455, 467, 550 wood v. 413 93 U.S. S.Ct. schools). private 2804, 2811, (1973). 37 L.Ed.2d 723 Norwood, pointed As the how- Court out Harrison, 455, 465, 60. Norwood v. ever, equal protection principles prohibit U.S. 413 93 do not 2804, 2810, (1973). provision government S.Ct. 37 723 L.Ed.2d all forms of serv- discriminatory provided ices institutions. Many example, support forms have found U.S. 93 at 2810. For been 413 at S.Ct. provision frequently litigated prohibit unconstitutional in the field the Constitution does government segregated generalized over which the state has involvement with services operating monopoly, electricity, id. (free racially schools. textbooks an such as Id.; water, discriminating schools); protection. private police and Brown v. fire Educ., Irvis, Lodge F.Supp. South Carolina State Bd. Moose No. 107 v. U.S. (D.S.C.), aff'd, 1965, 1971, 32 L.Ed.2d 627 89 S.Ct. S.Ct. (state grants L.Ed.2d tuition 2804, 37 S.Ct. L.Ed.2d 723 U.S. attending racially discriminatory students ‍‌​‌‌​​​‌‌‌‌​‌‌​‌​‌​‌‌​​​​​​‌​‌‌‌​​‌‌​​‌​​‌​‌​‌​‌‍schools); v. Fin. Assist Poindexter Louisiana Comm’n, (E.D.La.1967), F.Supp. ance ff'd, 466, 93 Id. at 2811. a U.S. 19 L.Ed.2d 80 Feeney,64 Washington sachusetts v. alone could render unconstitutional Davis.65 These cases held that government practice that is neutral on its discriminatory action has effect face. The Court found such practices equal does not constitute a pro violation of were not unconstitutional. guarantees. tection To establish such a vio lation, contrast, Norwood is also In just must be shown that the a government action an invidiously example long had dis recent of line of con cases сriminatory purpose. Appellees contend the of cerning constitutionality government holdings that the in these cases make it practices involvement in which the fifth permissible for constitutionally the federal and fourteenth prohibit amendments the government to fund discriminating agencies government from in engaging directly.68 long so as the federal government’s purpose The proper inquiry whether the relation is not the of furtherance discrimination.66 ship government between the and the activ ity in of question is such nature the that

Feeney and Davis addressed completely will be activity treated as an action the of different issues the one addressed in so, government. If the issue is Norwood, whether accept and do not the conten government could directly engage in the tion that they implicitly overruled the long activity consistent standing Constitution. principles on which Norwood not, If government Feeney and Davis both involved involvement is un based. constitutional, facially its government practices regardless purpose.69 neutral of that We do allegedly disparate impact suppose Supreme had a on Blacks Court (Davis) (Feeney).67 and women these firm principles sub implicitly changed The issues silentio in presented disparate impact were whether Feeney Davis.70 256, 273-81, 2282, applicants. 234-36, 442 U.S. 99 2293- S.Ct. ber of Black 426 U.S. at 96 97, (1979). 60 Feeney L.Ed.2d 870 S.Ct. at 2045. involved Massachu- gave qualified setts statute which veterans an 229, 2040, 426 U.S. 96 S.Ct. 2047- preference absolute over nonveterans 48, (1976). 48 L.Ed.2d 597 positions. in civil service state statute had overwhelmingly negative impact an on civil University States, 66. Cf. Bob Jones v. United opportunities -U.S.-,-n. service for women so 2017, because 4, 103 S.Ct. 2022 4, few time women were veterans. 442 (Rehnquist, n. 76 157 L.Ed.2d J. dis 259, senting) (tax exemption racially U.S. at 99 S.Ct. at 2285. of discrimina tory facially under schools neutral statute granting general exemption per to schools is See, e.g., City Montgomery, Gilmore v. missible, invidiously discriminatory pur absent 556, 2416, 417 94 S.Ct. 41 304 U.S. L.Ed.2d pose). Rehnquist, It is unclear whether Justice Auth., (1974); Wilmington Parking Burton v. dissent, premises in his lone his conclusion on 715, 721-22, 856, 859-60, 365 U.S. 81 S.Ct. 6 exemptions the view that tax state Aaron, (1961); Cooper L.Ed.2d v. 358 U.S. Comm’n, action. See Walz v. Tax U.S. 1401, 1410, (1958). 78 S.Ct. L.Ed.2d 664, 675, 1409, 1414, 90 S.Ct. 25 L.Ed.2d 697 If, however, Rehnquist Justice intends Norwood, example, pointed In for the Court principle extend this clear instances of out that the district court that the free found purposive state active minators, involvement with discri program textbook had been established in then a number well-established Education, long before Brown v. Board precedents See, would have to be overruled. (1954), L.Ed. U.S. e.g., City Montgomery, Gilmore v. 417 U.S. segregated had found schools unconstitutional. 556, 573-74, 2416, 2426, 94 S.Ct. 41 L.Ed.2d fact, Supreme analysis From Court’s Harrison, (1974); 304 466-67, Norwood v. 413 U.S. proceeded assumptiоn program on the that the 2804, 2811, 93 S.Ct. 37 L.Ed.2d 723 illegally an not motivated discriminato- (1973); Wilmington Auth., Parking v. Burton ry purpose. 715, 721-22, 856, 859-60, 81 S.Ct. (1961); Aaron, Cooper L.Ed.2d 45 U.S. reading Feeney Appellees’ and Davis has 1401, 1410, 3 L.Ed.2d seem, startling implications. rather It would pp. See infra 581-582. interpretation example, their for would directly to fund 67. Davis involved a written allow the examination ad- applicants positions long purpose segregated as ministered to schools as the for Department. doing than District Columbia Police so was educational rather discrimi- disproportionate natory. examination excluded a num- private Feeney aid to school the continued between The distinction Thus, can be illustrated well-being and Norwood that school.”73 order and Davis Appel occurred, the instant case. with reference to violation has to establish that a LEAA agencies receiving allege lants particular show that a need not appellants discrimina practiced unconstitutional not have would instance discrimination make that for Feeney Davis clear tion. fund- of federal the absence occurred must be true, discrimination such to be showing may be relevant ing.74 Such ex If discrimination does purposeful. any, if but not to calculating damages, ist, however, then wheth the issue becomes has of whether violation question initial funding is a form involvement er occurred. mo impute us to actions and requires the federal tives of local im these two stating principles, Although some forms government. First, are in clarifications order. portant in sufficiently government involvement in equal protection principles embodied they a care complex require that direct and prohibit federal only fifth amendment factors,71the balancing ful of constitutional of discriminаtion. funding unconstitutional on intentional discrimination prohibition may pro schemes Statutory regulatory government from clearly prohibits discrimination that hibit various forms in such engaged other agencies To constitutionally prohibited.75 are not practices.72 duty that to terminate appellees’ the extent violation, equal pro more is based constitutional A constitutional over, only not when it can be duty only does arise that extends guarantees, tection would not have shown that discrimination in agencies engaged of local funds. in absence federal occurred unconstitutional discrimination. stated about aid

As the Court in Norwood Second, appellees’ clearly estab schools, “the Consti racially segregated existed duty only lished to terminate funds does state to aid permit tution not that recipients precise discrimination when there is no even en- financial have known76 were relationship causal between state knew should See, e.g., note, however, City Montgomery, regard suc- Gilmore v. 74. In this we 2416, 556, experience par- agencies, 304 some other 417 U.S. 94 S.Ct. 41 L.Ed.2d cessful HEW, (1974) (use by private ticularly using segregated a schools of in fund termination as facilities); compliance. Burton v. Wil- Adams public obtaining recreational method of Authority, Richardson, mington Parking (D.C. 81 4 v. 365 U.S. 480 F.2d 1163 n. (1961) (discrimination Cir.1973) (en banc). 6 45 S.Ct. L.Ed.2d by private publicly facili- restaurant in owned ty). See, Davis, e.g., Washington v. 2046-47, 597 96 48 L.Ed.2d See, e.g., Romney, v. Gautreaux 448 F.2d (legal governing un- standards discrimination (7th Cir.1971) (federal funding of discrimi VII 1964 are der Title of Civil natory housing program process); violates due amendment). as fifth the same under Connally, F.Supp. 1150, Green v. (Leventhal, J.) (D.D.C.) (“Clearly the Federal suggestion cases There is some in various under Government could not the Constitution imposes duty on fifth amendment give practic direсt financial aid [institutions] recipients police actively officials to discrimination.”), aff'd ing sub nom. Coit racial prac they are not federal funds to ensure Green, v. 30 L.Ed.2d U.S. See, NAACP, e.g., West ticing discrimination. ‍‌​‌‌​​​‌‌‌‌​‌‌​‌​‌​‌‌​​​​​​‌​‌‌‌​​‌‌​​‌​​‌​‌​‌​‌‍(1971). Brennan, Region F.Supp. ern (“the impose[s] (D.D.C.1973) Fifth Amendment The district in court that case had stressed duty showing “any upon to re absence of child en- federal officials school, discriminatory prac private participating deprived in free text- frain from rolled if tices, duty books, police the private but the affirmative would school withdraw subsequently public operations prevent such discrimination enroll in the schools.” them.”) F.Supp. The Court State and local funded position deciding no on the existence or extent found that fact irrelevant We take whether any duty that the had such because conclude violation occurred. U.S. at duty is not estab nature of S.Ct. at gaged m ongoing unconstitutional discrimi- TAMM, Circuit Judge, dissenting: nation.77 a knowledge Such requirement For dis- my prior the reasons stated consistent with purpose im- case, senting 631 F.2d at opinion munity, which is to protect of- 791-94, I would hold that the individual ficials prevents whose limited knowledge protected by defendants are absolute immu- conducting them from their duties without nity. Accordingly, I dissent committing respectfully occasional honest mistakes. The appropriate inquiry both from the majority opinion. involves Because subjective and objective examination of the Harlow standard for qualified extent of appellees’ knowledge. Such a my position does not affect the defend- subjective is not inquiry inconsistent with I need immunity, ant’s absolute not discuss Harlow, precludes which only subjective Harlow. finding inquiry prior that the state of the law allegedly violated clear. Appel-

lants use can whatever evidence is available

through discovery to establish appel-

lees particular knew a recipient of funds

was unconstitutionally discriminating.

Conclusion standard, the Harlow appellees

Under judgment

entitled to summary regarding

appellants’ damages claims for under Title damage

VI. With claims

under the Crime the fifth Control

amendment, however, appellants have al-

leged of “сlearly violations established stat- rights.” For

utory and constitutional

reason, rejection adhere our of appel- qualified immunity

lees’ claim of

stage proceeding. The case re-

manded the district court further for

proceedings.

So ordered. note, however, is, course, We absence simplified lished. This issue in cases duty investigate affirmatively accepted clear does where activity receiving it is that the protect displaying government support for individuals actions practiced could di- rights. deliberate indifference constitutional rectly by (e.g., segre- the federal Green, 14, 15, 16-17, v. Carlson gated schools). The issue much more diffi- 1468, 1469, 1470, 64 L.Ed.2d 15 where, here, any activity cult as un- was Gamble, 97, 104-05, (1980); Estelle U.S. appellees constitutional to fund also 285, 291, L.Ed.2d 251 recipients practice. unconstitutional for the acknowledges recipients Because none of the activities, participation ap- in unconstitutional pellants have the will difficult burden of estab- lishing that such discrimination existed and knew of its existence.

Case Details

Case Name: National Black Police Association, Inc. v. Richard W. Velde

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jun 30, 1983

Citation: 712 F.2d 569

Docket Number: 77-1273

Court Abbreviation: D.C. Cir.