Bush v. Lucas
Opinion of the Court
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.
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 makfing] 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 eeon-
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.
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
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.
We assume for purposes of decision that petitioner’s First Amendment rights were violated by the adverse personnel action.
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.
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
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 “arising] 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, 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.
“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, 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 684 (footnote omitted). The present case involves no special factors counselling hesitation in the absence of affirma*376 tive 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, 311 (1947).” 403 U. S., at 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 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 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 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 expressed] statutory authorization of a traditional remedy.” id., at 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
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 counselling hesitation in the absence of affirmative action by Congress.’ ” 446 U. S., at 18-19, citing Bivens, 403 U. S., at 396, and Davis, supra, at 245. Second, there was no congressional
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 coun-selling 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.
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 318, the Court nevertheless concluded that Congress as “the custodian of the national purse” should make the necessary determination of federal fiscal policy.
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 im
“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 511-513.
The special factors counselling 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.
t — H HH
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
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.
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,
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.
A federal employee in the competitive service may be removed or demoted “only for such cause as will promote the efficiency of the service.”
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).
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.”
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 un-redressed. 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 en
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.
The judgment of the Court of Appeals is
Affirmed.
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.
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).
Id., at f-2 to f-3, e-19, e-7.
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.
Id., at f-23 to f-25.
Id., at d-2 to d-17.
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.
See Carlson v. Green, 446 U. S. 14, 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.
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.
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.
See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 428 (1971) (Black, J., dissenting).
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, 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, 398 (1914) (exclusion in federal criminal case of evidence seized in violation of Fourth Amendment); Jacobs v. United States, 290 U. S. 13, 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, 15-16 (1971) (school busing to remedy unconstitutional racial segregation). See generally Hill, Constitutional Remedies, 69 Colum. L. Rev. 1109, 1124-1127 (1969).
“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 410 (Harlan, J., concurring in judgment).” 442 U. S., at 245.
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, 246 (1979). The existing civil service remedies for a demotion in retaliation for protected speech are clearly constitutionally adequate. See infra, at 386-388.
“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 314-316.
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 315-316.
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).
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).
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.
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*383 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).
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).
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.
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.”
H. R. Rep. No. 388, 62d Cong., 2d Sess., 7 (1912).
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. Ree. 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.
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”).
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.
See 5 CFR §§752, 772 (1975).
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.
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, 69 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.
prjor 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.
Various aspects of the regulations discussed in text were added at different times. See generally Merrill, supra n. 29, at 214-218.
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).
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.).
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).
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.).
S. Rep. No. 1062, 89th Cong., 2d Sess., 1 (1966).
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 Con
Concurring Opinion
concurring.
I join the Court’s opinion because I agree that there are “special factors counselling-hesitation in the absence of affirmative action by Congress.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 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, 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,
I cannot agree with petitioner’s assertion that civil service remedies are substantially less effective than an individual damages remedy. See ante, at 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 22-23, and that it affords
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 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).
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