U.S. v. Reyes

• Decision Date: 26 June 1996
• Docket Number: No. 95-50637,95-50637
• Citation: 87 F.3d 676
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roland C. REYES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 676

87 F.3d 676

UNITED STATES of America, Plaintiff-Appellee, v. Roland C. REYES, Defendant-Appellant.

No. 95-50637.

United States Court of Appeals Fifth Circuit.

June 26, 1996.

Richard L. Durbin, Jr., Asst. U.S. Attorney, Office of the United States Attorney, San Antonio, TX, for Plaintiff-Appellee.

Philip J. Lynch, Office of the Federal Public Defender, San Antonio, TX, for Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before GARWOOD, HIGGINBOTHAM and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Roland C. Reyes (Reyes) appeals the denial of his motion to dismiss the indictment charging him with operating a motor vehicle while intoxicated at Kelly Air Force Base (Kelly AFB) in violation of 18 U.S.C. § 13, incorporating section 49.04 of the Texas Penal Code.

Facts and Proceedings Below

Reyes is charged with driving while intoxicated at Kelly AFB, on or about January 31, 1994. Reyes, a civilian employee of the Department of the Air Force who works at Kelly AFB, argues that his prosecution is barred by principles of double jeopardy because he has already been "punished" by a three-day, unpaid suspension from work pursuant to Department of the Air Force regulations and 5 U.S.C. §§ 7501-7543. ¹ The magistrate judge denied the motion to dismiss the indictment on the ground that the suspension did not constitute punishment under the Double Jeopardy Clause, precluding any punishment imposed by the criminal proceeding from being a second punishment for double jeopardy purposes. The district court denied Reyes' appeal of the denial of his motion to dismiss. Reyes now appeals to this Court.

Discussion

This Court has jurisdiction over an interlocutory appeal from a refusal to dismiss an indictment on grounds of double jeopardy. United States v. Perez, 70 F.3d 345, 346-47 (5th Cir.1995). The Double Jeopardy Clause states: "nor shall any person be subject to the same offense to be twice put in jeopardy of life or limb." U.S. CONST.AMEND. V. It provides protection from both multiple prosecutions and multiple punishments for the same offense. Id. at 348. Only the protection from multiple punishments is before us in the instant case.

The Supreme Court has held that certain civil sanctions may constitute "punishment" under the Double Jeopardy Clause and trigger its protection. United States v. Halper, 490 U.S. 435, 446-48, 109 S.Ct. 1892, 1901, 104 L.Ed.2d 487 (1989). Whether such a civil sanction is punishment within the meaning of the Double Jeopardy Clause may depend upon the purposes of the civil sanction. E.g., id. In Halper, the Court held that if either retribution or deterrence is a purpose of such a civil sanction, then it is punishment. Halper, 490 U.S. at 446-50, 109 S.Ct. at 1901-02. ² We refer to this purpose-oriented test as the Halper punishment test. Reyes argues that the imposition of a criminal punishment for his drunk driving would be a second punishment prohibited by the Due Process Clause pursuant to the Halper punishment test because his suspension from work was for deterrent or retributive purposes, not for any remedial purpose. The government does not essentially dispute that the suspension was imposed, at least in part, for purposes of deterrence, to deter Reyes, or other employees at the base, from similar on-base conduct. ³

The fact that the government suspended Reyes at least partially for a deterrent purpose does not end our inquiry. The question facing us, which is one of first impression in this Circuit, is whether literal application of the Halper punishment test is appropriate in the context of government-imposed employee discipline of a type which an ordinary private employer generally could lawfully impose without invoking the machinery of the sovereign. ⁴ In other words, does this kind of government-imposed employee discipline constitute punishment for double jeopardy purposes if its goal is employee deterrence? We could answer negatively for two possible reasons, either (1) even if the suspension was imposed for a deterrent, and hence under Halper a punitive, purpose, such employee discipline does not constitute punishment for purposes of the Double Jeopardy Clause; or (2) Halper 's method of defining punishment is unworkable in the context of this sort of employee discipline. ⁵ Because we hold that this character of employee discipline, even where it has a deterrent purpose, is not punishment under the Double Jeopardy Clause, we need not determine whether the Halper method for defining punishment would be appropriate in this context.

The Double Jeopardy Clause is a "restraint on governmental power." United States v. Sanchez-Escareno, 950 F.2d 193, 197 (5th Cir.1991), cert. denied 506 U.S. 841, 113 S.Ct. 123, 121 L.Ed.2d 78 (1992). "In order for the Double Jeopardy Clause to have any application, there must be actions by a sovereign, which place an individual twice in jeopardy. The Double Jeopardy Clause does not apply to actions involving private individuals." United States v. Beszborn, 21 F.3d 62, 67-68 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 330, 130 L.Ed.2d 288 (1994). Thus, we have applied the Halper punishment test to civil sanctions imposed by the government when acting in its capacity as sovereign. E.g., Perez, 70 F.3d at 348 (property forfeiture); United States v. Tilley, 18 F.3d 295, 298-301 (5th Cir.1994) (forfeiture of illegal drug proceeds), cert. denied --- U.S. ----, 115 S.Ct. 574, 130 L.Ed.2d 490 (1994); Woods, 949 F.2d at 176 (placing an entity in receivership); see also Sanchez-Escareno, 950 F.2d at 200 (noting that Halper punishment test would apply to civil fines). And we have declined to apply the Halper punishment test to civil sanctions imposed by a governmental entity, the Resolution Trust Corporation, acting in its "unique non-governmental role" as receiver of failed financial institution-instead of in its role as sovereign. Beszborn, 21 F.3d at 68 (holding Double Jeopardy Clause inapplicable); see also United States v. Heffner, 85 F.3d 435, 438-39 (9th Cir.1996) (adopting Beszborn reasoning). Thus, if the government was acting in a role other than as sovereign in its suspension of Reyes, and was doing no more than a typical private employer generally could lawfully do without invoking the machinery of the sovereign, we will not apply the Halper test because the Double Jeopardy Clause is inapplicable.

There is ample support for constitutionally distinguishing government acting as employer from government acting as sovereign. This Court has noted that "[t]he role of the Government as an employer toward its employees is fundamentally different from its role as sovereign over private citizens generally." Bush v. Lucas, 647 F.2d 573, 576 (5th Cir.1981), aff'd by 462 U.S. 367, 103 S.Ct. 2404, 76 L.Ed.2d 648 (1983). The Supreme Court has differentiated between governmental actions taken as sovereign and as employer. In Connick v. Myers, 461 U.S. 138, 146-48, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983), for example, the Court made it clear that the First Amendment did not protect governmental employees from even unreasonable adverse employment actions based on speech unrelated to a public concern. Although the government acting in its role as sovereign may not punish a private citizen for speech it dislikes, the government acting as employer may punish its employees for the same speech if it is not of public concern. See id. Similarly, governmental searches and seizures are held to a less stringent standard under the Fourth Amendment when conducted in the government's role as employer than when made in its role as sovereign. See O'Connor v. Ortega, 480 U.S. 709, 721-27, 107 S.Ct. 1492, 1500-02, 94 L.Ed.2d 714 (1987) (plurality opinion) (rejecting the requirement of probable cause, which is necessary for searches as sovereign, and applying a reasonableness standard to governmental employer's search); see also National Treasury Employees Union v. Von Raab, 489 U.S. 656, 669-72, 109 S.Ct. 1384, 1393-94, 103 L.Ed.2d 685 (1989) (noting that certain forms of public employment diminish expectations of privacy and subject governmental employees to routine personal searches).

We recognize that the government even in its capacity as employer is nevertheless subject to certain constitutional restrictions that are inapplicable to the private employer. For example, the governmental employer is constitutionally prohibited from discriminating on grounds of race. Likewise, the governmental employer is subject to certain constitutional due process restrictions in terminating employees having a property interest in their positions, restrictions that are not constitutionally imposed on the private employer. See Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). There are, of course, other examples. See, e.g., Von Raab; Ortega. These restrictions, however, protect the governmental employee from certain adverse employment actions by his employer, they do not involve any characterization of such adverse actions as "punishment." If these restrictions are transgressed, the employee's remedy is to have the adverse action set aside, or to assert a cause of action under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), it is not to preclude subsequent criminal prosecution for the same conduct. ⁶ The interests these restrictions protect are not the same as or even remotely analogous to the interests that the Double Jeopardy Clause protects. We conclude that these constitutional restrictions on governmental action in its capacity as an employer are not a persuasive basis on which to hold that "punishment" for Double Jeopardy Clause purposes embraces adverse employment action taken by the government in its capacity as employer, rather than as sovereign, particularly where as here, the action is...