Giving Harlow its logical extension does not, in my view,
present any special problems of encouraging racial
discrimination, because, as I will discuss shortly, there are
other restraints on discriminatory official action. Therefore, I
12
would extend to all unconstitutional motive actions the principle
adopted in Halperin, where we held that if the government
defendants' actions (wiretaps) in a Bivens case would be
"validated" by a legitimate national security motive, the
defendants are entitled to immunity if they purport to act for
national security reasons, unless a jury could conclude that it
was objectively unreasonable for the defendants to so act. A
simple hypothetical illustrates its ease of application. Suppose
a plaintiff claims that a defendant (perhaps a judicial official
not covered by Civil Service or Title VII legislation), see
Whitacre v. Davey, 890 F.2d 1168 (D.C. Cir. 1989), cert. denied,
497 U.S. 1038 (1990), impermissibly fired her because of her
race. The defendant claims that the plaintiff was discharged
because of budget constraints. If the defendant's rationale
would have been objectively reasonable under the circumstances,
the defendant wins on summary judgment. In contrast, if a
reasonable trier of fact could find that budget constraints were
objectively unreasonable under the circumstances (if, for
instance, the official's division recently received a windfall of
funds or hired a number of additional workers), the case would
proceed to trial. [10] Cf. Halperin, 807 F.3d at 189 (noting that
the defendants win on summary judgment if they "adduce sufficient
facts that no reasonable jury ... could conclude that it was
objectively unreasonable for the defendants to be acting for
national security reasons").
To be sure, as I have noted, in
Halperin we limited our holding to national security cases,
perceiving a particular need to protect the executive branch from
probing into motivations that touch such sensitive issues. There
the government's wiretap was thought to be unconstitutional
unless it was motivated by national security concerns - so it
appeared as if it was the government that put motivation at
issue. But, I think that formulation is deceptive. Any action,
the discharge of a government employee say, could be phrased the
same way; as either illegal if motivated by unconstitutional
discrimination or constitutional if not. Perhaps all the
Halperin
[10 Of course, if the government official (or the government)
does not deny that the defendant acted with an unconstitutional
motive, that is another matter. ]
13
panel meant by the notion of a "validating" intent is
that, as a matter of substantive law, the burden was on the
government to prove its motivation was driven by national
security concerns. But suppose a government agency discharged an
employee for alleged national security reasons and the employee
claimed it was for racially discriminatory grounds. Judge
Williams does not explain whether under such circumstances
Halperin or his clear and convincing test governs. (Indeed
neither Judge Williams, Judge Ginsburg, nor Judge Edwards
discusses the relevance of Halperin to their respective
tests - making it a silent orphan - so it is wholly indeterminate
whether it is affected by this en banc proceeding.) Halperin's
reasoning avoids this analytical difficulty: if the challenged
defendants' actions, without regard to their actual intent, are
consistent with an objectively reasonably intent, the defendants
are entitled to immunity. And even if the defendants are not
able to meet this burden, they are still entitled to immunity if
they are able to prove that their actual motivation was
legitimate. [11]
Judge Ginsburg (and to a lesser extent Judge Williams),
although assiduously avoiding a reference to Halperin, criticizes
my approach as creating inevitable incentives to unconstitutional
behavior. But, of course, the same criticism can be made against
either of their positions insofar as they strengthen a
defendant's hand even fractionally over Judge Edwards' position.
There is simply no escape from a judgment, without any empirical
data, as to where along the spectrum to draw the line between the
interests of discouraging unconstitutional behavior and avoiding
the peculiar difficulties that the threat of personal damage
suits against public officials entail.
[11 Harlow allows the use of evidence concerning subjective motivation if it benefits the government. "[I]f the official
pleading the defense claims extraordinary circumstances and can
prove that he neither knew nor should have known of the relevant
legal standard, the defense should be sustained." 457 U.S. at
819. The Court then notes, somewhat cryptically, that "[b]ut
again, the defense would turn primarily on objective factors." ]
14
In any event, I do not think the matter is quite as simple
or self-evident as Judge Ginsburg's downward sloping demand
curve. We should bear in mind that in these cases, which often
arise in an employment context, the defendant, even if he or she
acts in part with a proscribed motive, that motive typically is
only a contributing factor to a decision. This has led to
terribly complicated jurisprudential efforts to develop
techniques to measure the relative importance of the proscribed
motive. Cf. NLRB v. Wright Line, 662 F.2d 899 (1st Cir. 1981),
cert. denied, 455 U.S. 989 (1982); Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), as modified by the Civil Rights Act of 1991,
Pub. L. No. 102-166, 105 Stat. 1071 (1991) (codified and amended
in scattered sections of 42 U.S.C. (Supp. V 1993). Take the
present case. How would we really distinguish between the
defendant's hard feelings (if they could be established) toward
the plaintiff because he is a self-evident pest as opposed to the
more grandly phrased "because of his exercise of his First
Amendment rights"?
The truth of the matter - as most practitioners in the labor
and EEO field well know - is that a determination as to the
existence and relative importance of an illegal motive is
difficult, often artificially relying on certain presumptions.
And the behavior of the potential defendant ex ante is typically
directed at avoiding those indicia of the proscribed motive that
will tend to be relied upon in that substantive area of the law.
(Can one imagine an employer deciding whether to discharge a
employee for theft attempting, perhaps through yoga, to cleanse
his mind of any hostility because of the employee's union
status?)
Still, it is difficult to deny that, at least theoretically,
Judge Williams' view and even more Judge Ginsburg's position
creates a greater disincentive to government officials taking
action with an unconstitutional motive than does mine. But,
personal damage suits are decidedly not the only disincentive.
We should bear in mind of what my colleagues fail to take
sufficient account - that there are restraints against such
behavior other than § 1983 or Bivens damage suits. When
officials violate citizens' rights, they expose themselves to
disciplinary sanctions, harm to their professional reputations,
15
and reduced opportunities for advancement. See, e.g., SCHUCK,
supra, at 69. Unlike normal tort law, federal and state
officials are sworn to uphold the Constitution; violating one's
oath may mean a reputation for deceit and unreliability.
Certainly a rational actor would avoid this result, if only to
avoid a decrease in his or her value as an employee. Cf.
Epstein, In Defense of the Contract at Will, 51 U. CHI. L. REV.
947, 967 (1984); R. POSNER, OVERCOMING LAW 109- 44 (1995). To the extent an individual fears moral retribution, the oath will
further induce proper behavior. I hope I will be forgiven for
assuming that such an oath, like a monetary disincentive, can
affect the behavior of government officials. See Edward J.
DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades
Council, 485 U.S. 568, 575 (1988); Webster, 486 U.S. at 613
(Scalia, J., dissenting). Individuals who fear divine punishment
also face a downward-sloping demand curve: as the level of sin
rises, the punishment increases.
Moreover, a number of federal statutes are aimed at
governmental unconstitutional conduct. Even in the absence of
suits for money damages, [12] government officials will be deterred
by the threat of criminal prosecution. [13] Government officials
possess no general immunity from such actions. See, e.g., Imbler
v. Pachtman, 424 U.S. 409, 429 (1976) (noting that
[12 In addition to § 1983, plaintiffs can sue officials for
monetary relief under 42 U.S.C. § 1981 (1994) (civil action for
denying persons the "full and equal benefit of all laws and
proceedings" guaranteeing security of persons and property); §
1982 (civil action for interference with citizens' property
rights on the basis of race); § 1985 (civil action for
conspiracy to deprive persons of equal protection of the laws);
and § 1986 (civil action for failure to prevent a conspiracy to
interfere with § 1985 rights).
Admittedly, as Judge Ginsburg notes, qualified immunity may
apply to these actions for money damages as well. ]
[13 See, e.g., 18 U.S.C. § 241 (1994) (criminal action for conspiracy to "injure, oppress, threaten, or intimidate" a person in the exercise of his constitutional rights); § 242 (criminal action for deprivation of a person's constitutional rights on
account of a person being an alien or by reason of his race). ]
16
the Court has
"never suggested that the policy considerations which compel
civil immunity for certain government officials also place them
beyond the reach of the criminal law. Even judges, who have long
been cloaked with absolute immunity from damages, could be
punished criminally for willful deprivations of constitutional
rights on the strength of 18 U.S.C. § 242, the criminal analog of
§ 1983").
Federal statutes providing causes of action against the
government itself " particularly those targeted at
discrimination " provide additional deterrence. [14] The
government undoubtedly looks askance to official misconduct that
subjects it to liability. See, e.g., Oren, Immunity and
Accountability in Civil Rights Litigation: Who Should Pay?, 50
PITT. L. REV. 935, 1003 (1989) ("Deterrence ... is most effective
at the level where control lies. It is the government and not
the individual employee, which has the ability to change policy,
discipline misconduct, and require a different kind of
training."). And with respect to the actions of state or D.C.
officials, there are, as Justice Frankfurter noted, state causes
of action for damages.
Insofar as this panoply of remedies contains lacunae, I
would leave it to Congress to fill them. [15] The gaps tolerated
[14 See, e.g., Federal Tort Claims Act, 28 U.S.C. § 2674 (1994)
(providing for a cause of action for some federal governmental
activity that constitutes a tort under state law); Title VII of
the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1988 &
Supp. V 1993); Civil Service Reform Act of 1978, Pub. L. No.
95-454, 92 Stat. 111 (codified as amended in scattered sections
of 5 U.S.C. (1994)) (establishing the Office of Special Counsel
to investigate and prosecute allegations of supervisory abuse
within the civil service disciplinary structure). Age
Discrimination and Employment Act, 29 U.S.C. §§ 621-634 (1994)
(civil action for employment discrimination based on age);
Rehabilitation Act, 29 U.S.C. § 794 (1988) (civil action for
discrimination on the basis of disability).]
[15 See, e.g., Bush v. Lucas, 462 U.S. 367, 390 (1983) (declining
to extend Bivens' action to civil service employees, even while
assuming that existing remedies do not provide complete relief
for plaintiffs, "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"); Schweiker v. Chilicky, 487
U.S. 412, 429 (1988) (refusing to create a Bivens' remedy in
light of an elaborate scheme devised by Congress and noting
"[w]hether or not we believe that its response was the best
response, Congress is the body charged with making the inevitable
compromises required in the design of a massive and complex ...
program"); Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir.
1988) (en banc) (holding that "courts must withhold their power
to fashion damages remedies when Congress has put in place a
comprehensive system to administer public rights, has "not
inadvertently" omitted damages remedies for certain claimants and
has not plainly expressed an intention that the courts preserve
Bivens' remedies" (citation omitted) (emphasis added)). ]
17
by the Supreme Court and this circuit undermine Judge Ginsburg's
argument that without resort to § 1983 and Bivens' suits,
individuals like Crawford-El may not have redress. In Schweiker,
for example, the Court acknowledged that "[t]he trauma to
respondents, and thousands of others like them, must surely have
gone beyond what anyone of normal sensibilities would wish to see
imposed on innocent disabled citizens." Schweiker, 487 U.S. at
428-29. Nonetheless, the Court deferred to Congress' decision
whether to leave a gap. Similarly, in Spagnola, this Circuit
denied the appellants' argument that, because "no remedy
whatsoever"existed for individuals aggrieved by minor personnel
actions under the Civil Service Reform Act, the court was obliged
to create a Bivens remedy. This deference makes sense as a
constitutional and practical matter; given their greater
resources and access to information, legislators are more likely
than district court judges to reach the most socially beneficial
result. [16]
[16 See, e.g., Bush, 462 U.S. at 389 ("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."); United States v. Gilman, 347
U.S. 507, 511-513 (1954) ("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."). ]
18
In any event, that there are real gaps is doubtful: by 1985
only 30 Bivens suits out of more than 12,000 resulted in a
monetary judgment for the plaintiff at the trial level with only
four judgments actually having been paid. See Written Statement
of John J. Farley, III, Director, Torts Branch, Civil Division,
U.S. Department of Justice, to the Litigation Section of the Bar
of the District of Columbia (May 1985) at 1. Obviously, the vast
majority of these suits are meritless. See Fallon, Meltzer &
Shapiro, HART AND WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL
SYSTEM 1122 (4th ed. 1996) ("The view that constitutional tort
actions are less likely to prove meritorious than civil
litigation has been confirmed as to both prisoner and nonprisoner
actions ..., although it is in the former class that the general
lack of substance is most striking."). Prisoner suits serve less
as a necessary deterrent to unconstitutional conduct (to put it
mildly) than as a diversion from the monotony of prison life to
plaintiffs such as Crawford-El, whose injury is the inconvenience
of having some boxes being turned over to his brother-in-law.
Perhaps all sides in this dispute would have been better off if
the prison officials had agreed to provide an alternative form of
entertainment to Crawford-El, maybe free cable, in return for not
having to go through the expense and hassle of this lawsuit. [17]
Although my reading of Harlow will reduce the costs to
government officials - and the public - caused by Bivens actions
and the impact of Pape on § 1983, much the better would be for
Congress to legislate on the whole subject as it has on certain
aspects of prisoner suits. The Supreme Court has recognized that
when and if it does, the federal judiciary should beat a hasty
retreat. See Bush, 462 U.S. at 368, 390.
[17 Congress has already taken steps to limit prisoner suits. See Prison Litigation Reform Act of 1995, Pub. L. No. 104-134, §
801 et al., 110 Stat. 1321 (1996). ]
Ginsburg Opinion
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