Crawford-El v. Britton

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


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. ]


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." ]


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,


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). ]


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)). ]


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."). ]


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). ]

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