462 U.S. 367 (1983), 81-469, Bush v. Lucas

Docket Nº:No. 81-469.
Citation:462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648
Party Name:William C. BUSH, Petitioner v. William R. LUCAS.
Case Date:June 13, 1983
Court:United States Supreme Court

Page 367

462 U.S. 367 (1983)

103 S.Ct. 2404, 76 L.Ed.2d 648

William C. BUSH, Petitioner


William R. LUCAS.

No. 81-469.

United States Supreme Court.

June 13, 1983

Argued Jan. 19, 1983.

[103 S.Ct. 2405] Syllabus[*]


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 [103 S.Ct. 2406] 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. 2409-2417.

(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 appropriate for a common-law tribunal, paying particular heed, however, to any special factors counselling hesitation before authorizing a new kind of federal litigation. Pp. 2409-2412.

(b) The Government's comprehensive scheme protecting civil servants against arbitrary action by supervisors provides meaningful remedies for

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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. 2412-2417.

647 F.2d 573, affirmed.


William Harvey Elrod, Jr., argued the cause and filed briefs for petitioner.

Deputy Solicitor General Geller argued the cause for respondent. With him on the brief were Solicitor General Lee, Assistant Attorney General McGrath, David A. Strauss, Barbara L. Herwig, and Wendy M. Keats.*

* Briefs of amici curiae urging reversal were filed by Charles B. Wayne andMark H. Lynch for the American Civil Liberties Union; by J. Albert Woll, Marsha Berzon, Laurence Gold, Edward J. Hickey, Erick Genser, James Rosa, andDavid Barr for the American Federation of Labor and Congress of Industrial Organizations et al.; by John F. Bufe, Lois G. Williams, and Michael David Fox for the National Treasury Employees Union; and by John C. Keeney, Jr., Joseph M. Hassett, and Peter Raven-Hansen for Representative Schroeder et al.

William Harvey Elrod, Jr., for petitioner.

Kenneth S. Geller, Washington, D.C., for respondent.


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.

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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 [103 S.Ct. 2407] formal review by the Civil Service Commission. 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. 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

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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. 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." App. 15. 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 three-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. 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

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of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). On the one hand, it acknowledged the evidence [103 S.Ct. 2408] 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." 5 The Board recommended that petitioner be restored to his former position, retroactively to November 30, 1975, and that he receive back pay. That recommendation was accepted...

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