Jones v. Reagan

• Decision Date: 04 January 1983
• Docket Number: No. 81-2918,81-2918
• Citation: 696 F.2d 551
• Parties: 30 Empl. Prac. Dec. P 33,263 Alonzo JONES, et al., Plaintiffs-Appellants, v. Ronald REAGAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 551

696 F.2d 551

30 Empl. Prac. Dec. P 33,263

Alonzo JONES, et al., Plaintiffs-Appellants, v. Ronald REAGAN, et al., Defendants-Appellees.

No. 81-2918.

United States Court of Appeals Seventh Circuit.

Argued Oct. 28, 1982.

Decided Jan. 4, 1983.

Thomas M. Joyce, Ltd. Chicago, Ill., for plaintiffs-appellants.

Kevin J. Egan, Asst. U.S. Atty., Dan K. Webb, U.S. Atty., Chicago, Ill., for defendants-appellees.

Before BAUER and POSNER, Circuit Judges, and WISDOM, Senior Circuit Judge. ^*

POSNER, Circuit Judge.

This is an appeal from the dismissal for failure to state a claim upon which relief can be granted, see Fed.R.Civ.P. 12(b)(6), of a complaint alleging that the plaintiffs, black noncommissioned officers in the United States Army Reserve, were transferred from the unit to which they belonged in a Chicago suburb to other units in the Chicago area solely because they are black and the officer commanding the unit wanted it to be all white. The defendants are this officer and his superiors in the chain of command up to and including the President of the United States. Their conduct is alleged to violate the due process clause of the Fifth Amendment. They are being sued in their individual rather than official capacities, and damages are sought; at oral argument, the plaintiffs' counsel indicated that the plaintiffs were abandoning any claim for injunctive relief. The district court dismissed the complaint on the ground that the defendants have absolute immunity from tort liability for their alleged wrongdoing. The defendants defend the dismissal on this and other grounds, one of which is that the Fifth Amendment does not give rise to an action for damages in a case of this sort.

Although the Fifth Amendment has no equal protection clause, it has been held to forbid racial discrimination by the federal government to the same extent that the Fourteenth Amendment forbids racial discrimination by state governments. See Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). So if the allegations of the complaint are true, as we must assume they are for purposes of deciding this appeal, the defendants have violated the plaintiffs' rights under the Fifth Amendment. But it does not follow that they have a federal damages remedy. No statute creates a remedy applicable to this case and the Fifth Amendment does not indicate what remedies the federal courts should provide for violations of due process of law. However, in Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Supreme Court held that at least some violations of the Fifth Amendment's due process clause may be redressed by damages actions in federal courts; we have to consider whether the violation alleged in this case is one of them.

The Court spoke of "implying" a right of action in damages from the Fifth Amendment, id. at 230, 99 S.Ct. at 2269, but the task is not really one of teasing out the implications of the Fifth Amendment; it is the more creative one of deciding whether a damages remedy is a good way of enforcing the Fifth Amendment, and, if the court decides it is, of creating that remedy as a matter of federal common law. The Court thought it a good method of enforcement in the circumstances of the Davis case. Miss Davis had been a deputy administrative assistant to a Congressman. He had fired her, allegedly because she was a woman. The Court said that "relief in damages would be judicially manageable, for the case presents a focused remedial issue without difficult questions of valuation or causation," and that "since respondent is no longer a Congressman ... equitable relief in the form of reinstatement would be unavailing. And there are available no other forms of judicial relief." 442 U.S. at 245, 99 S.Ct. at 2277. Thus, the Court compared a damages suit with other methods of enforcing Miss Davis's rights under the Fifth Amendment and found that the damage remedy was the best, and indeed only, remedy for the violation that she had alleged. In a later decision the Supreme Court created in effect a presumption in favor of implied rights of action under the Constitution, but a presumption that could be rebutted by a showing of " 'special factors counselling hesitation in the absence of affirmative action by Congress.' " Carlson v. Green, 446 U.S. 14, 18, 100 S.Ct. 1468, 1471, 64 L.Ed.2d 15 (1980). See Sonntag v. Dooley, 650 F.2d 904, 907 (7th Cir.1981), for the application of this approach in a Fifth Amendment due process case. Presumably one such "special factor" would be that a damages remedy was inappropriate in the particular circumstances of the case.

A suit for damages is a natural remedy for conduct that causes an injury on which a judge or jury can put a price tag. Miss Davis lost her job. The termination of an employment contract is a familiar source of damages in breach of contract suits. Damages are measured by the difference between the wages fixed in the contract and the wages in whatever job the employee found after being fired. If it is a tort suit and the employee has suffered humiliation or other intangible damages as well as lost wages, these can be estimated, even though only roughly, and added to the damages award. But the conduct complained of in this case is not the firing of anyone but simply a transfer of reservists from one unit in the Chicago area to other units in the same area. No one suffered demotion, or a reduction in pay, benefits, or work amenities, or even an adverse notation entered on his personnel records. No one was discharged, called to active duty, shipped overseas, or even transferred to another city or state. The plaintiffs' counsel acknowledged at the oral argument that these purely local, purely lateral transfers had not even caused his clients any inconvenience. And since he described the suit as one purely for punitive damages, the plaintiffs must not have suffered any emotional distress either, notwithstanding the alleged racial motivation for the transfers; for proof of humiliation or other emotional distress would justify awarding compensatory damages under tort principles. See, e.g., Contreras v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1973).

The traditional, though no longer universal, tort rule is that punitive damages will not be awarded unless the plaintiff is awarded some compensatory damages. See By-Prod Corp. v. Armen-Berry Co., 668 F.2d 956, 961 (7th Cir.1982). And it is fundamental that a plaintiff who does not even allege a legally cognizable injury cannot obtain a tort judgment. Bruce Lincoln-Mercury, Inc. v. Universal C.I.T. Corp., 325 F.2d 2, 14 (3d Cir.1963); Cenco Inc. v. Seidman & Seidman, 686 F.2d 449, 453 (7th Cir.1982). Thus, someone who read a newspaper account of the transfers of these plaintiffs could not sue the defendants for punitive damages; he would not have sustained a legally cognizable injury. Apparently these plaintiffs likewise suffered no injury that a court of law would take cognizance of, since as we have said their counsel does not intend to ask for compensatory damages.

Now it is true that tort law, including the law of constitutional torts, has a deterrent as well as a compensatory function. See Carlson v. Green, supra, 446 U.S. at 21, 100 S.Ct. at 1473. Indeed, it...