Petitioner, an aerospace engineer employed at the George C.
Marshall Space Flight Center, a facility operated by the National
Aeronautics and Space Administration (NASA), made a number of
public statements to the news media highly critical of the Center.
Subsequently, respondent Director of the Center demoted petitioner
for making the public statements on the ground that they were false
and misleading. The Federal Employee Appeals Authority upheld the
demotion, but the Civil Service Commission's Appeals Review Board,
upon reopening the proceeding at petitioner's request, found that
the demotion had violated his First Amendment rights. NASA accepted
the Board's recommendation that petitioner be restored to his
former position retroactively and that he receive backpay. While
his administrative appeal from the demotion was pending, petitioner
filed an action against respondent in an Alabama state court,
seeking to recover damages for violation of his First Amendment
rights. Respondent removed the action to Federal District Court,
which granted summary judgment for respondent. The Court of Appeals
affirmed, holding that petitioner had no cause of action for
damages under the First Amendment for retaliatory demotion in view
of the available remedies under the Civil Service Commission
regulations.
Held: Because petitioner's claims arise out of an
employment relationship that is governed by comprehensive
procedural and substantive provisions giving meaningful remedies
against the United States, it would be inappropriate for this Court
to supplement that regulatory scheme with a new nonstatutory
damages remedy. Pp.
462 U. S.
374-390.
(a) The federal courts' statutory jurisdiction to decide federal
questions confers adequate power to award damages to the victim of
a constitutional violation even if Congress has not expressly
authorized such a remedy. When Congress provides an alternative
remedy, it may indicate its intent that this 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
inpropriate for a common law tribunal, paying particular heed,
however, to any special factors counseling hesitation before
authorizing a new kind of federal litigation. Pp.
462 U. S.
374-380.
(b) The Government's comprehensive scheme protecting civil
servants against arbitrary action by supervisors provides
meaningful remedies for
Page 462 U. S. 368
employees who may have been unfairly disciplined for making
critical comments about their agencies. Given the history of the
development of civil service remedies and the comprehensive nature
of the remedies currently available, the question in this case is
not what remedy the court should provide for a wrong that would
otherwise go unredressed, but whether an elaborate remedial system
that has been constructed step by step, with careful attention to
policy considerations, should be augmented by the creation of a new
judicial remedy for the constitutional violation at issue. This
Court declines to create such a remedy, because Congress is in a
better position to decide whether or not the public interest would
be served by creating it. Pp.
462 U. S.
380-390.
647 F.2d 573, affirmed.
STEVENS, J., delivered the opinion for a unanimous Court.
MARSHALL, J., filed a concurring opinion, in which BLACKMUN, J.,
joined,
post, p.
462 U. S.
390.
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.
Page 462 U. S. 369
Petitioner Bush is an aerospace engineer employed at the George
C. Marshall Space Flight Center, a major facility operated by the
National Aeronautics and Space Administration in Alabama.
Respondent Lucas is the Director of the Center. In 1974, the
facility was reorganized and petitioner was twice reassigned to new
positions. He objected to both reassignments and sought formal
review by the Civil Service Commission. [
Footnote 1] In May and June, 1975, while some of his
administrative appeals were pending, he made a number of public
statements, including two televised interviews, that were highly
critical of the agency. The news media quoted him as saying that he
did not have enough meaningful work to keep him busy, that his job
was "a travesty and worthless," and that the taxpayers' money was
being spent fraudulently and wastefully at the Center. His
statements were reported on local television, in the local
newspaper, and in a national press release that appeared in
newspapers in at least three other States. [
Footnote 2]
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." App. 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 economy
Page 462 U. S. 370
and adversely affecting public confidence in the Government
service."
He was also informed that his conduct had undermined morale at
the Center and caused disharmony and disaffection among his fellow
employees. [
Footnote 3]
Petitioner had the opportunity to file a written response and to
make an oral presentation to agency officials. Respondent then
determined that petitioner's statements were false and misleading
and that his conduct would justify removal, but that the lesser
penalty of demotion was appropriate for a "first offense."
Ibid. He approved a reduction in grade from GS-14 to
GS-12, which decreased petitioner's annual salary by approximately
$9,716.
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 abolishing petitioner's position. [
Footnote 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
Page 462 U. S. 371
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." [
Footnote 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
respondent'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. [
Footnote 6] The
United States Court of Appeals for the Fifth Circuit affirmed. 598
F.2d 958 (1979).
Page 462 U. S. 372
We vacated that court's judgment, 446 U.S. 914 (1980), and
directed that it reconsider the case in the light of our
intervening decision in
Carlson v. Green, 446 U. S.
14 (1980). The Court of Appeals again affirmed the
judgment against petitioner. It adhered to its previous conclusion
that
"plaintiff had no cause of action for damages under the First
Amendment for retaliatory demotion in view of the available
remedies under the Civil Service Commission regulations."
647 F.2d 573, 574 (1981). It explained that the relationship
between the Federal Government and its civil service employees was
a special factor counseling against the judicial recognition of a
damages remedy under the Constitution in this context.
We assume for purposes of decision that petitioner's First
Amendment rights were violated by the adverse personnel action.
[
Footnote 7] We also assume
that, as petitioner asserts, civil service remedies were not as
effective as an individual damages remedy, [
Footnote 8] and did not fully compensate him for the
harm he suffered. [
Footnote 9]
Two further propositions are undisputed.
Page 462 U. S. 373
Congress has not expressly authorized the damages remedy that
petitioner asks us to provide. On the other hand, Congress has not
expressly precluded the creation of such a remedy by declaring that
existing statutes provide the exclusive mode of redress.
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. [
Footnote 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. [
Footnote 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
Page 462 U. S. 374
therefore first review some of the cases establishing our power
to remedy violations of the Constitution and then consider the
bearing of the existing statutory scheme on the precise issue
presented by this case.
I
The federal courts' power to grant relief not expressly
authorized by Congress is firmly established. Under 28 U.S.C. §
1331, the federal courts have jurisdiction to decide all cases
"aris[ing] under the Constitution, laws, or treaties of the United
States." This jurisdictional grant provides not only the authority
to decide whether a cause of action is stated by a plaintiff's
claim that he has been injured by a violation of the Constitution,
Bell v. Hood, 327 U. S. 678,
327 U. S. 684
(1946), but also the authority to choose among available judicial
remedies in order to vindicate constitutional rights. This Court
has fashioned a wide variety of nonstatutory remedies for
violations of the Constitution by federal and state officials.
[
Footnote 12] The cases most
relevant to the problem before us are those in which the Court has
held that the Constitution itself supports a private cause of
action for damages against a federal official.
Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.
S. 388 (1971);
Davis v. Passman, 442 U.
S. 228 (1979);
Carlson v. Green, supra.
Page 462 U. S. 375
In
Bivens, the plaintiff alleged that federal agents,
without a warrant or probable cause, had arrested him and searched
his home in a manner causing him great humiliation, embarrassment,
and mental suffering. He claimed damages on the theory that the
alleged violation of the Fourth Amendment provided an independent
basis for relief. The Court upheld the sufficiency of his
complaint, rejecting the argument that a state tort action in
trespass provided the only appropriate judicial remedy. The Court
explained why the absence of a federal statutory basis for the
cause of action was not an obstacle to the award of damages:
"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,
273 U. S. 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 that, where legal rights have been
invaded and a federal statute provides for a general right to sue
for such invasion, federal courts may use any available remedy to
make good the wrong done."
"
Bell v. Hood, 327 U.S. at
327 U. S.
684 (footnote omitted). The present case involves no
special factors counseling hesitation in the absence of
affirmative
Page 462 U. S. 376
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,
332 U. S.
311 (1947)."
403 U.S. at
403 U. S.
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
403 U. S.
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
403 U. S.
401-402. Instead, he reasoned, 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
403 U. S. 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
403 U. S. 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 the 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
Page 462 U. S. 377
of action. In reaching the conclusion that an award of damages
would be an appropriate remedy, we emphasized the fact that no
other alternative form of judicial relief was available. [
Footnote 13] The Court also was
persuaded that the special concerns which would ordinarily militate
against allowing recovery from a legislator were fully reflected in
respondent's affirmative defense based on the Speech or Debate
Clause of the Constitution.
Id. at 246. We noted the
absence of any explicit congressional declaration that persons in
petitioner's position may not recover damages from those
responsible for their injury.
Id. at
442 U. S.
246-247.
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, alleging 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. 28 U.S.C. § 2671
et
seq. As is true in this case, that remedy was not as
completely effective as a
Bivens-type action based
directly on the Constitution.
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 counseling
hesitation in the absence of affirmative action by Congress.'" 446
U.S. at 446 U. S. 18-19,
citing Bivens, 403 U.S. at 403 U. S. 396,
and Davis, supra, at 442 U. S. 245.
Second, there was no congressional
Page 462 U. S. 378
determination foreclosing the damages claim and making the
Federal Tort Claims Act exclusive. 446 U.S. at
446 U. S. 19,
and n. 5. No statute expressly declared the FTCA remedy to be a
substitute for a
Bivens action; indeed, the legislative
history of the 1974 amendments to the FTCA "made it crystal clear
that Congress views FTCA and
Bivens as parallel,
complementary causes of action." 446 U.S. at
446 U. S.
19-20.
This much is established by our prior cases. The federal courts'
statutory jurisdiction to decide 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
counseling 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. [
Footnote 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 superior for
violation of his First Amendment rights involves any "special
factors counseling hesitation." When those words were first used in
Bivens, supra, at
403 U. S. 396, we illustrated our meaning by referring
to
Page 462 U. S. 379
United States v. Standard Oil Co., 332 U.
S. 301,
332 U. S. 311,
316 (1947), and
United States v. Gilman, 347 U.
S. 507 (1954).
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
332 U. S. 318,
the Court nevertheless concluded that Congress as "the custodian of
the national purse" should make the necessary determination of
federal fiscal policy. [
Footnote
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
332 U. S.
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 import,
Page 462 U. S. 380
both to the employees and to the Executive and Legislative
Branches."
347 U.S. at
347 U. S. 509.
The decision regarding indemnity involved questions of employee
discipline and morale, fiscal policy, and the efficiency of the
federal service. Hence, the Court wrote, the reasons for deferring
to congressional policy determinations were even more compelling
than in
Standard Oil.
"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
347 U. S.
511-513.
The special factors counseling 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 employees, the
ultimate question on the merits in this case may appropriately be
characterized as one of "federal personnel
Page 462 U. S. 381
policy." When a federal civil servant is the victim of a
retaliatory demotion or discharge because he has exercised his
First Amendment rights, what legal remedies are available to
him?
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. [
Footnote 16]
During the past century, however, the job security of federal
employees has steadily increased.
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, [
Footnote 17] it provided that no
employee in the public service could be required to contribute to
any political fund or fired
Page 462 U. S. 382
for refusing to do so, and it prohibited officers from
attempting to influence or coerce the political actions of others.
[
Footnote 18]
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. [
Footnote 19]
These "gag
Page 462 U. S. 383
orders," enforced by dismissal, were cited by several
legislators as the reason for enacting the Lloyd-La Follette Act in
1912, 37 Stat. 539, 555, § 6. [
Footnote 20] That statute provided that
"no person in the classified civil service of the United States
shall be removed therefrom except for such cause as will promote
the efficiency of said service and for reasons given in writing. .
. . [
Footnote 21]"
Moreover, it explicitly guaranteed that the right of civil
servants "to furnish information to either House of Congress, or to
any committee or member thereof, shall not be denied or interfered
with." [
Footnote 22] As the
House Report explained,
Page 462 U. S. 384
this legislation was intended "to protect employees against
oppression and in the right of free speech and the right to consult
their representatives." [
Footnote 23] In enacting the Lloyd-La Follette Act,
Congress weighed the competing policy considerations and concluded
that efficient management of Government operations did not preclude
the extension of free speech rights to Government employees.
[
Footnote 24]
Page 462 U. S. 385
In the ensuing years, repeated consideration of the conflicting
interests involved in providing job security, protecting the right
to speak freely, and maintaining discipline and efficiency in the
federal workforce gave rise to additional legislation, [
Footnote 25] various Executive
Orders,26 [
Footnote 26] and
the promulgation of detailed regulations by the Civil Service
Commission. [
Footnote 27]
Federal civil servants are now protected by an elaborate,
comprehensive scheme that encompasses substantive provisions
forbidding arbitrary action by supervisors and procedures --
administrative and judicial -- by which improper action may be
redressed. They apply to a multitude of personnel decisions that
are made daily by federal agencies. [
Footnote 28]
Page 462 U. S. 386
Constitutional challenges to agency action, such as the First
Amendment claims raised by petitioner, are fully cognizable within
this system. As the record in this case demonstrates, the
Government's comprehensive scheme is costly to administer, but it
provides meaningful remedies for employees who may have been
unfairly disciplined for making critical comments about their
agencies. [
Footnote 29]
A federal employee in the competitive service may be removed or
demoted "only for such cause as will promote the efficiency of the
service." [
Footnote 30] The
regulations applicable at the time of petitioner's demotion in
1975, [
Footnote 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,
5 CFR § 752.202(a) (1975),
Page 462 U. S. 387
the right to answer the charges with a statement and supporting
affidavits, and the right to make an oral nonevidentiary
presentation to an agency official. § 752.202(b). [
Footnote 32] The regulations required that
the final agency decision be made by an official higher in rank
than the official who proposed the adverse action, § 752.202(f).
The employee was entitled to notification in writing stating which
of the initial reasons had been sustained.
Ibid.; 5 U.S.C.
§ 7501(b)(4).
The next step was a right to appeal to the Civil Service
Commission's Federal Employee Appeals Authority. 5 CFR §§ 752.203,
772.101 (1975). [
Footnote
33] The Appeals Authority was required to hold a trial-type
hearing at which the employee could present witnesses,
cross-examine the agency's witnesses, and secure the attendance of
agency officials, § 772.307(c), [
Footnote 34] and then to render a written decision, §
772.309(a). An adverse decision by the FEAA was judicially
reviewable in either federal district court or the Court of Claims.
[
Footnote 35] In addition,
the employee had the right to ask
Page 462 U. S. 388
the Commission's Appeals Review Board to reopen an adverse
decision by the FEAA. § 772.310.
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
action not taken place." [
Footnote 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 Amendment 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 ensues
Page 462 U. S. 389
inevitably makes the performance of their regular duties more
difficult. Brief for Respondent 37-41. Whether or not this
assessment is accurate, it is quite probable that, if management
personnel face the added risk of personal liability for decisions
that they believe to be a correct response to improper criticism of
the agency, they would be deterred from imposing discipline in
future cases. In all events, Congress is in a far better position
than a court to evaluate the impact of a new species of litigation
between federal employees on the efficiency of the civil service.
Not only has Congress developed considerable familiarity with
balancing governmental efficiency and the rights of employees, but
it also may inform itself through factfinding procedures such as
hearings that are not available to the courts.
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. [
Footnote 37]
Page 462 U. S. 390
Thus, we do not decide whether or not it would be good policy to
permit a federal employee to recover damages from a supervisor who
has improperly disciplined him for exercising his First Amendment
rights. As we did in
Standard Oil, we decline "to create a
new substantive legal liability without legislative aid and as at
the common law," 332 U.S. at
332 U. S. 302,
because we are convinced that Congress is in a better position to
decide whether or not the public interest would be served by
creating it.
The judgment of the Court of Appeals is
Affirmed.
[
Footnote 1]
The record indicates that petitioner filed two appeals from the
first reassignment and three appeals from the second. App. to Pet.
for Cert. e-3 to e-4. He asserts that he had previously made
unsuccessful attempts within the Center to obtain redress. App.
30.
[
Footnote 2]
App. to Pet. for Cert. d-2 to d-3 (memorandum opinion of
District Court);
id. at e-19 (opinion of Federal Employee
Appeals Authority).
[
Footnote 3]
Id. at f-2 to f-3, e-19, e-7.
[
Footnote 4]
Id. at e-38 to e-39. Petitioner could have obtained
judicial review of the Authority's determination by filing suit in
a federal district court or in the United States Court of Claims,
but did not do so.
[
Footnote 5]
Id. at f-23 to f-25
[
Footnote 6]
Id. at d-2 to d-17.
[
Footnote 7]
Competent decisionmakers may reasonably disagree about the
merits of petitioner's First Amendment claim.
Compare the
opinion of the District Court, App. D to Pet. for Cert., and the
opinion of the Atlanta Field Office of the Federal Employees Appeal
Authority issued on August 12, 1976, App. E, both rejecting
petitioner's claims,
with the opinion of the Appeals
Review Board issued on July 14, 1978, App. F, finding that the
First Amendment had been violated. This question is not before
us.
[
Footnote 8]
See Carlson v. Green, 446 U. S. 14,
446 U. S. 20-23
(1980) (factors making Federal Tort Claims Act recovery less
"effective" than an action under the Constitution to recover
damages against the individual official). Petitioner contends that,
unlike a damages remedy against respondent individually, civil
service remedies against the Government do not provide for punitive
damages or a jury trial, and do not adequately deter the
unconstitutional exercise of authority by supervisors. Brief for
Petitioner 27-29.
[
Footnote 9]
His attorney's fees were not paid by the Government, and he
claims to have suffered uncompensated emotional and dignitary
harms.
Id. at 24-26. In light of our disposition of this
case, we do not need to decide whether such costs could be
recovered as compensation in an action brought directly under the
Constitution.
[
Footnote 10]
In
Marbury v.
Madison, 1 Cranch 137, 163 (1803), Chief Justice
Marshall invoked the authority of Blackstone's Commentaries in
support of this proposition. Blackstone had written:
"[I]t is a general and indisputable rule, that where there is a
legal right, there is also a legal remedy by suit, or action at
law, whenever that right is invaded. . . . [I]t is a settled and
invariable principle in the laws of England, that every right, when
withheld, must have a remedy, and every injury its proper
redress."
3 Commentaries *23, *109.
[
Footnote 11]
See Bivens v. Six Unknown Fed. Narcotics Agents,
403 U. S. 388,
403 U. S. 428
(1971) (Black, J., dissenting).
[
Footnote 12]
See, e.g., United States v. Lee, 106 U.
S. 196 (1882) (ejectment action against federal officers
to enforce Takings Clause of Fifth Amendment);
Wiley v.
Sinkler, 179 U. S. 58,
179 U. S. 64-65
(1900) (damages against state officer for denying plaintiff's right
to vote in federal election),
Ex parte Young, 209 U.
S. 123 (1908) (injunctive relief against state official
for violation of Fourteenth Amendment);
Weeks v. United
States, 232 U. S. 383,
232 U. S. 398
(1914) (exclusion in federal criminal case of evidence seized in
violation of Fourth Amendment);
Jacobs v. United States,
290 U. S. 13,
290 U. S. 16
(1933) (award of interest as well as principal in just compensation
claim founded on the Fifth Amendment);
Swann v.
Charlotte-Mecklenburg Bd. of Education, 402 U. S.
1,
402 U. S. 15-16
(1971) (school busing to remedy unconstitutional racial
segregation).
See generally Hill, Constitutional Remedies,
69 Colum.L.Rev. 1109, 1124-1127 (1969).
[
Footnote 13]
"Moreover, since respondent is no longer a Congressman,
see n 1,
supra, equitable relief in the form of reinstatement would
be unavailing. And there are available no other alternative forms
of judicial relief. For Davis, as for Bivens, 'it is damages or
nothing.'
Bivens, supra, at
403 U. S.
410 (Harlan, J., concurring in judgment)."
442 U.S. at
442 U. S.
245.
[
Footnote 14]
We need not reach the question whether the Constitution itself
requires a judicially fashioned damages remedy in the absence of
any other remedy to vindicate the underlying right, unless there is
an express textual command to the contrary.
Cf. Davis v.
Passman, 442 U. S. 228,
442 U. S. 246
(199). The existing civil service remedies for a demotion in
retaliation for protected speech are clearly constitutionally
adequate.
See infra at
462 U. S.
386-388.
[
Footnote 15]
"Whatever the merits of the policy, its conversion into law is a
proper subject for congressional action, not for any creative power
of ours. Congress, not this Court or the other federal courts, is
the custodian of the national purse. By the same token, it is the
primary, and most often the exclusive, arbiter of federal fiscal
affairs. And these comprehend, as we have said, securing the
treasury or the government against financial losses, however
inflicted, including requiring reimbursement for injuries creating
them, as well as filling the treasury itself."
332 U.S. at
332 U. S.
314-315. The Court further noted that the type of harm
for which the Executive sought judicial redress was not new, and
that Congress presumably knew of it, but had not exercised its
undoubted power to authorize a damages action.
Id. at
332 U. S.
315-316.
[
Footnote 16]
The Report of the Committee on Civil Service and Retrenchment
submitted by Senator Pendleton on May 15, 1882, contained a vivid
description of the patronage system, reading in part as
follows:
"The fact is confessed by all observers and commended by some
that 'to the victors belong the spoils;' that with each new
administration comes the business of distributing patronage among
its friends. . . . [The President] is to do what some predecessor
of his has left undone, or to undo what others before him have
done; to put this man up and that man down, as the system of
political rewards and punishments shall seem to him to demand."
S.Rep. No. 576, 47th Cong., 1st Sess., 2 (1882).
See
generally House Committee on Post Office and Civil Service,
History of Civil Service Merit Systems of the United States and
Selected Foreign Countries, 94th Cong., 2d Sess., 26-173
(1976).
[
Footnote 17]
See S.Rep. No. 576,
supra, n 16, at 9;
cf. H.R.Rep. No. 1826,
47th Cong., 2d Sess., 1-2 (1882) (rejected provisions of House bill
permitting removals only for cause).
[
Footnote 18]
Section 13 provided:
"No officer or employee of the United States mentioned in this
act shall discharge, or promote, or degrade, or in manner change
the official rank or compensation of any other officer or employee,
or promise or threaten so to do, for giving or withholding or
neglecting to make any contribution of money or other valuable
thing for any political purpose."
22 Stat. 407.
Other sections made it unlawful for Government employees to
solicit political contributions from, and to give such
contributions to, other Government employees, §§ 11, 14, and to
receive any political contributions on Government premises, § 12.
Section 2 required the Civil Service Commission to promulgate rules
providing,
inter alia,
"that no person in the public service is for that reason under
any obligations to contribute to any political fund, or to render
any political service, and that he will not be removed or otherwise
prejudiced for refusing to do so,"
and also "that no person in said service has any right to use
his official authority or influence to coerce the political action
of any person or body." 22 Stat. 404.
See 5 U.S.C. §
2302(b)(3) (1982 ed.); 5 U.S.C. §§ 7321-7323.
[
Footnote 19]
In 1906, President Roosevelt issued Executive Order No. 1142,
which provided:
"All officers and employees of the United States of every
description, serving in or under any of the Executive Departments
or independent Government establishments, and whether so serving in
or out of Washington, are hereby forbidden, either directly or
indirectly, individually or through associations, to solicit an
increase of pay or to influence or attempt to influence in their
own interest any other legislation whatever, either before Congress
or its committees, or in any way save through the heads of the
Departments or independent Government establishments in or under
which they serve, on penalty of dismissal from the Government
service."
"Theodore Roosevelt."
President Taft issued another Order, Executive Order No. 1514,
in 1909:
"It is hereby ordered that no bureau, office, or division chief,
or subordinate in any department of the Government, and no officer
of the Army or Navy or Marine Corps stationed in Washington, shall
apply to either House of Congress, or to any committee of either
House of Congress, or to any Member of Congress, for legislation or
for appropriations, or for congressional action of any kind, except
with the consent and knowledge of the head of the department; nor
shall any such person respond to any request for information from
either House of Congress, or any committee of either House of
Congress, or any member of Congress, except through, or as
authorized by, the head of his department."
"William H. Taft."
See 48 Cong.Rec. 4513, 5223, 5634, 5635, 10673,
10729-10730 (1912).
[
Footnote 20]
See id. at 4513 (remarks of Rep. Gregg) ("[I]t is for
the purpose of wiping out the existence of this despicable
gag
rule' that this provision is inserted. The rule is unjust, unfair,
and against the provisions of the Constitution of the United
States, which provides for the right of appeal and the right of
free speech to all its citizens"). A number of the bill's
proponents asserted that the gag rule violated the First Amendment
rights of civil servants. See, e.g., id. at 4653 (remarks
of Rep. Calder); id. at 4738 (remarks of Rep. Blackmon);
id. at 5201 (remarks of Rep. Prouty); id. at 5223
(remarks of Rep. O'Shaunessy); id. at 5634 (remarks of
Rep. Lloyd); id. at 5637-5638 (remarks of Rep. Wilson);
id. at 10671 (remarks of Sen. Ashurst); id. at
10673 (remarks of Sen. Reed); id. at 10793 (remarks of
Sen. Smith); id. at 10799 (remarks of Sen. La
Follette).
[
Footnote 21]
The statute also required notice and reasons and an opportunity
for the employee to answer the charges in writing with supporting
affidavits. These requirements had previously been adopted by
President McKinley in an Executive Order issued in 1897, but they
were not judicially enforceable. History of Civil Service Merit
Systems,
supra, n
16, at 202-203.
[
Footnote 22]
This provision was accompanied by a more specific guarantee that
membership in any independent association of postal employees
seeking improvements in wages, hours, and working conditions, or
the presentation to Congress of any grievance, "shall not
constitute or be cause for reduction in rank or compensation or
removal of such person or groups of persons from said service."
[
Footnote 23]
H.R.Rep. No. 388, 62d Cong., 2d Sess., 7 (1912).
[
Footnote 24]
Members of the House, which originated § 6, suggested that it
would improve the efficiency and morale of the civil service.
"It will do away with the discontent and suspicion which now
exists among the employees, and will restore that confidence which
is necessary to get the best results from the employees."
48 Cong.Rec. 4654 (1912) (remarks of Rep. Calder);
see
id. at 5635 (remarks of Rep. Lloyd).
The Senate Committee initially took a different position, urging
in its Report that the relevant language,
see id. at 10732
(House version) be omitted entirely:
"As to the last clause in section 6, it is the view of the
committee that all citizens have a constitutional right as such to
present their grievances to Congress or Members thereof. But
governmental employees occupy a position relative to the Government
different from that of ordinary citizens. Upon questions of
interest to them as citizens, governmental employees have a right
to petition Congress direct. A different rule should prevail with
regard to their presentation of grievances connected with their
relation to the Government as employees. In that respect, good
discipline and the efficiency of the service requires that they
present their grievances through the proper administrative
channels."
S.Rep. No. 955, 62d Cong., 2d Sess., 21 (1912). As Senator
Bourne explained,
"it was believed by the committee that to recognize the right of
the individual employee to go over the head of his superior and go
to Members of Congress on matters appertaining to his own
particular grievances, or for his own selfish interest, would be
detrimental to the service itself; that it would absolutely destroy
the discipline necessary for good service."
48 Cong.Rec. 10676 (1912).
This view did not prevail. After extended discussion in floor
debate concerning the right to organize and the right to present
grievances to Congress,
id. at 10671-10677, 10728-10733,
10792-10804, the Committee offered and the Senate approved a
compromise amendment to the House version -- guaranteeing both
rights at least in part -- which was subsequently enacted into law.
Id. at 10804; 37 Stat. 555.
[
Footnote 25]
Among the most significant are the Veterans Preference Act of
1944, 58 Stat. 390 (protecting veterans in federal employment by
extending the 1912 Act's procedural and substantive protections to
adverse actions other than removals, and adding the right to
respond orally and to appeal to the Civil Service Commission); the
Back Pay Act of 1948, 62 Stat. 354 (extending the protections
against removal contained in the 1912 Act to all employees who were
suspended without pay; permitting backpay awards to certain
categories of employees who were improperly removed or suspended
and to victims of improper reductions in force); the Back Pay Act
of 1966, 81 Stat. 203 (extending the right to backpay and lost
benefits to every employee affected by a personnel action
subsequently found to be unjustified); and the Civil Service Reform
Act of 1978, 92 Stat. 1134 (shifting adjudicative functions of the
Civil Service Commission to the Merit Systems Protection Board,
modifying administrative appeals procedures, and providing new
protections for so-called "whistleblowers").
[
Footnote 26]
Exec.Order No. 10988, § 14, 3 CFR 521 (1959-1963 Comp.), and
Exec.Order No. 11491, § 22, 3 CFR 861 (1966-1970 Comp.), printed in
note following 5 U.S.C. § 7301, gave all employees in the
competitive service the right to appeal adverse actions to the
Civil Service Commission, and made the administrative remedy
applicable to adverse personnel actions other than removal and
suspension without pay.
[
Footnote 27]
See 5 CFR §§ 752, 772 (1975).
[
Footnote 28]
Not all personnel actions are covered by this system. For
example, there are no provisions for appeal of either suspensions
for 14 days or less, 5 U.S.C. § 7503 (1982 ed.), or adverse actions
against probationary employees, § 7511. In addition, certain
actions by supervisors against federal employees, such as
wiretapping, warrantless searches, or uncompensated takings, would
not be defined as "personnel actions" within the statutory
scheme.
[
Footnote 29]
Petitioner received retroactive reinstatement and $30,000 in
backpay. An empirical study found that approximately one quarter of
the adverse actions in the federal civil service were contested.
Merrill, Procedures for Adverse Actions Against Federal Employees,
59 Va.L.Rev.196, 198-199 (1973). In 1970, agency appeals succeeded
in 20% of removal cases and 24% of demotion cases. Before the Civil
Service Commission, 47% of those employees who appealed demotions
and 24% of those who contested removal were successful.
Id. at 204, n. 35.
[
Footnote 30]
Prior to the enactment of the Civil Service Reform Act of 1978,
this protection was accorded in part by statute, 5 U.S.C. § 7501(a)
(removals and suspensions without pay of non-preference-eligible
employees); § 7512(a) (removals, suspensions without pay,
reductions in grade or pay, and other adverse actions against
preference-eligible employees), and in part by Executive Orders,
see n 26,
supra, implemented in Civil Service Commission
regulations, 5 CFR §§ 752.104(a), 752.201 (1975) (adverse actions,
including reductions in grade or pay, against covered employees,
including non-preference-eligibles). The 1978 amendments retained
the general rule, 5 U.S.C. § 7513(a) (1982 ed.), and supplemented
it by specifying certain "prohibited personnel practices." §
2302.
[
Footnote 31]
Various aspects of the regulations discussed in text were added
at different times.
See generally Merrill,
supra,
n 29, at 214-218.
[
Footnote 32]
Under the statute, before and after the 1978 amendments, the
agency has the discretionary authority to provide an evidentiary
hearing. 5 U.S.C. § 7501(b); 5 U.S.C. § 7513(c) (1982 ed.);
see 5 CFR § 752.404(g) (1983). As amended in 1978, the
statute gives the employee the right to representation by an
attorney or other person. 5 U.S.C. § 7513(b)(3) (1982 ed.);
see 5 CFR § 752.404(e) (1983).
[
Footnote 33]
The 1978 Civil Service Reform Act gave the Commission's
adjudicative functions to the Merit Systems Protection Board
(MSPB). 5 U.S.C. §§ 1205, 7543(d), 7701 (1982 ed.).
[
Footnote 34]
The Commission's regulations did not specify which party carried
the burdens of production and persuasion. Nevertheless,
participants in the process and reviewing courts assumed that the
burden was on the agency to prove that the adverse action was
justified. Merrill,
supra, n 29, at 251; Johnson & Stoll, Judicial Review of
Federal Employee Dismissals and Other Adverse Actions, 57 Cornell
L.Rev. 178, 192-193 (1972).
[
Footnote 35]
Under the law now in effect, the United States Court of Appeals
for the Federal Circuit has exclusive jurisdiction over appeals
from the MSPB. 5 U.S.C. § 7703 (1982 ed.); Federal Courts
Improvement Act of 1982, § 127(a), Pub.L. 97-164, 96 Stat. 37, 28
U.S.C. § 1295 (1982 ed.).
[
Footnote 36]
S.Rep. No. 1062, 89th Cong., 2d Sess., 1 (1966).
[
Footnote 37]
There is a remarkable similarity between comments made in
Congress in 1912, when the Lloyd-La Follette Act was passed, and in
1978, when the Civil Service Reform Act was enacted. In 1912,
Representative Calder stated:
"There are always two sides to every question, and surely, if
any man is competent to express an opinion regarding the needs of
the postal service, it is the men who perform the actual work. If
anyone is competent to make known unsatisfactory working
conditions, who, might I ask, is better qualified to lay his proper
grievances before Congress than the men who have complaints to make
and who suffer from these grievances?"
48 Cong.Rec. 4653 (1912). In 1978, a Senate Committee Print
stated:
"Federal employees are often the source of information about
agency operations suppressed by their superiors. Since they are
much closer to the actual working situation than top agency
officials, they have testified before Congress, spoken to
reporters, and informed the public. Mid-level employees provide
much of the information Congress needs to evaluate programs,
budgets, and overall agency performance."
Senate Committee on Governmental Affairs, The Whistleblowers,
95th Cong., 2d Sess., 40 (Comm. Print 1978).
See also
H.R.Rep. No. 95-1403, pp. 386-387 (1978); S.Rep. No. 95-969, p. 8
(1978).
JUSTICE MARSHALL, with whom JUSTICE BLACKMUN joins,
concurring.
I join the Court's opinion because I agree that there are
"special factors counseling hesitation in the absence of
affirmative action by Congress."
Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U. S. 388,
403 U. S. 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,
446 U. S. 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
Page 462 U. S. 391
not permit recovery for loss due to emotional distress and
mental anguish, Congress plainly intended to provide what it
regarded as full compensatory relief when it enacted the Back Pay
Act of 1966, 5 U.S.C. § 5596 (1982 ed.). The Act was designed to
"pu[t] the employee in the same position he would have been in had
the unjustified or erroneous personnel action not taken place."
See S.Rep. No. 1062, 89th Cong., 2d Sess., 1 (1966).
See H.R.Rep. No. 32, 89th Cong., 1st Sess., 5 (1965);
cf. Sampson v. Murray, 415 U. S. 61,
415 U. S. 82-83
(1974). Moreover, there is nothing in today's decision to foreclose
a federal employee from pursuing a
Bivens remedy where his
injury is not attributable to personnel actions which may be
remedied under the federal statutory scheme.
I cannot agree with petitioner's assertion that civil service
remedies are substantially less effective than an individual
damages remedy.
See ante at
462 U. S. 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
446 U. S. 22-23,
and that it affords
Page 462 U. S. 392
only limited judicial review, rather than a full trial in
federal court,
see Chandler v. Roudebush, 425 U.
S. 840,
425 U. S.
851-853 (1976).
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
462 U. S. 388.
The question is whether an alternative remedy should be provided
when the wrong may already be redressed 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.
*
See, e.g., Halperin v. Kissinger, 196 U.S.App.D.C.
285, 300-301, 606 F.2d 1192, 1207-1208 (1979),
aff'd in
pertinent part by an equally divided Court, 452 U.
S. 713 (1981).