Cir. 1977) (declining to imply a constitutionally based cause of action but finding an effective federal statutory remedy in section 1981). Indeed, inasmuch as Bivens suits are apt to encounter the obstacle posed by the doctrine of official immunity, employees penalized for their opposition to discriminatory employment practices are likely to find that proceeding under Title VII affords greater protection of free expression than does proceeding under constitutional theories.
Nor is there any apparent necessity for implying a damage remedy in plaintiff's favor in the present case. By contrast to Bivens, where plaintiff was confronted with the prospect of recovering "damages or nothing," 403 U.S. at 410, 91 S. Ct. 1999 (Harlan, J., concurring), the plaintiff here has the benefit of the full range of remedies provided in Title VII. Moreover, these remedies are particularly well suited to making plaintiff whole because, unlike the plaintiff in Bivens, the plaintiff in the case at bar has claimed economic rather than mental injuries that are fully redressable by the injunctive, reinstatement and back pay remedies authorized by Title VII.
The relief afforded by Title VII, including the monetary back pay component, is of course directed at the government and not the alleged individual discriminators. But plaintiff has no right to insist that his recovery come out of the pocketbooks of his superiors rather than out of governmental funds. While the imposition of individual liability can be justified on "the deterrent effect liability will have on federal official conduct," Id. at 408, 91 S. Ct. at 2010 (Harlan, J., concurring), the prospect of having to answer in damages is not the only influence that effects deterrence. Federal officers are periodically evaluated on their EEO performance in ways that hinge their advancement in federal service on this aspect of their personnel record.
Just as importantly, federal officials are subject to weighty administrative sanctions if they are found to have engaged in discriminatory conduct.
Wholly aside from potential damage liability, then, respect for the rights of fellow employees is already something that can reasonably be expected.
In short, a comparison of Bivens and the instant case reveals no reason in fact or logic for implying a constitutionally-based damage remedy against the individual officers named as defendants in plaintiff's complaint. Bivens, however, is only the starting point for analysis. "Numerous jurisdictions have apparently concluded that Bivens establishes a cause of action for damages arising from the violation of any constitutional right by a federal official." Briggs v. Goodwin, 186 U.S.App.D.C. 179, 186, 569 F.2d 10, 17 n.8 (1977).
Thus the question arises whether this expanded view of the leading case is also the law in this Circuit.
Since Bivens, the Supreme Court has neither extended nor amplified on its original position regarding the availability of tort remedies to redress invasions of constitutional rights. Rather, developments in this area of the law have come from the lower courts, and decisions abound. A review of these cases reveals sharp disagreements among the different circuits. In the First Circuit, Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977) refused to imply a cause of action based on the due process clause of the fourteenth amendment. The Second Circuit took an opposite view on the due process question in Gentile v. Wallen, 562 F.2d 193, 196-97 (2nd Cir. 1977), while the Third found jurisdiction but reserved decision on the validity of the substantive claim in Gagliardi v. Flint, 564 F.2d 112, 114-16 (3rd Cir. 1977); See id. at 117 (concurring opinion) (finding cause of action). The Third Circuit, however, has recognized a first amendment cause of action in the Paton v. LaPrade, 524 F.2d 862, 869-70 (3rd Cir. 1975), decision.
In the Fourth Circuit, States Marine Lines, Inc. v. Shultz, 498 F.2d 1146, 1156-57 (4th Cir. 1974), implied a cause of action based on the fifth amendment, in contrast to the Fifth Circuit's recent en banc decision in Davis v. Passman, 571 F.2d 793 (5th Cir. 1978). The Sixth Circuit has yet to decide the fifth amendment question but its favorable decision in the first amendment case of Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392, 1393 (6th Cir. 1975), drew from the reasoning employed in fifth amendment decisions.
A review of the Seventh Circuit's decisions indicates one case, Fitzgerald v. Porter Memorial Hospital, 523 F.2d 716, 718-19 (7th Cir. 1975), Cert. denied, 425 U.S. 916, 96 S. Ct. 1518, 47 L. Ed. 2d 768 (1976), that suggested the availability of a fourteenth amendment cause of action; another, Hostrop v. Board of Junior College District No. 515, 523 F.2d 569, 577 (7th Cir. 1975), Cert. denied, 425 U.S. 963, 96 S. Ct. 1748, 48 L. Ed. 2d 208 (1976), that upheld federal question jurisdiction to entertain a claim based on the procedural due process element of the fourteenth amendment; and still another decision, Cannon v. University of Chicago, 559 F.2d 1063, 1082 (7th Cir. 1977), that contained approving dicta on the general availability of relief for violations of basic constitutional guarantees.
The Eighth Circuit upheld jurisdiction to hear a claim based on the sixth amendment right to effective assistance of counsel in Wounded Knee Legal Defense/Offense Committee v. F.B.I., 507 F.2d 1281, 1284 (8th Cir. 1974), and assumed the availability of Bivens remedies but found no violations of fair trial and privacy rights in McNally v. Pulitzer Pub. Co., 532 F.2d 69, 76 (8th Cir.), Cert. denied, 429 U.S. 855, 97 S. Ct. 150, 50 L. Ed. 2d 131 (1976). The Ninth Circuit expressed similar views on the jurisdictional question in the fifth, sixth and eighth amendment contexts in Mark v. Groff, 521 F.2d 1376, 1378 (9th Cir. 1975), as did the Tenth Circuit with respect to the first, fourth, fifth and ninth amendments in Kite v. Kelley, 546 F.2d 334, 337 (10th Cir. 1976), and Dry Creek Lodge, Inc. v. United States, 515 F.2d 926 (10th Cir. 1975). The Ninth Circuit went beyond the jurisdictional issue in Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928, 936, 941-42 (9th Cir. 1977), to hold that separate damage actions are permissible under the due process and just compensation clauses of the fifth amendment. Beyond that, the Ninth Circuit has suggested in the Bennett v. Campbell, 564 F.2d 329, 331-32 (9th Cir. 1977) case that Bivens claims may be available to redress any violation "of constitutional rights." See also Gray v. Union County Intermediate Education District, 520 F.2d 803, 805 (9th Cir. 1975).
Unlike in the Ninth Circuit, the decisions of the District of Columbia Circuit have intimated no suggestion that Bivens extends beyond the fourth amendment to cover the full roster of constitutional protections. While this Circuit has indicated a willingness to Consider broader applications of Bivens, Payne v. District of Columbia, 182 U.S.App.D.C. 188, 198, 559 F.2d 809, 819 (1977) (fifth amendment); Lewis v. D.C. Department of Corrections, 174 U.S.App.D.C. 483, 484, 533 F.2d 710, 711 (1976) (eighth amendment); Apton v. Wilson, 165 U.S.App.D.C. 22, 35, 506 F.2d 83, 96 (1974) (fourth and fifth amendments); Cardinale v. Washington Technical Institute, 163 U.S.App.D.C. 123, 128, 500 F.2d 791, 796 n.5 (1974) (fifth amendment), few cases indeed have gone so far as actually to Hold that damage remedies are proper to redress constitutional violations outside the fourth amendment context. This reluctance to reach firm conclusions on the reach of Bivens is no doubt traceable to the recognized fact that the implication of damage liability in the absence of legislative direction involves a determination that is based largely on discretionary considerations. As this Circuit noted in Payne, the "question is "whether compensatory relief is "necessary" or "appropriate" to (the) vindication' " of the asserted right. 182 U.S.App.D.C. at 207, 559 F.2d at 818, Quoting Bivens, supra, 403 U.S. at 407, 91 S. Ct. 1999 (Harlan, J., concurring). See also id. at 206, 559 F.2d at 827 (concurring opinion).
These factors were recently applied in Dellums v. Powell, 184 U.S.App.D.C. 275, 302-03, 566 F.2d 167, 194-95 (1977), to justify implying a Bivens action for first amendment infringements. Dellums involved a suit by a congressman and a group of individuals who charged that police officers violated their rights of free expression by breaking up through mass arrests a demonstration in the nation's capital at which the congressman and protest leaders were expected to deliver speeches against the Vietnam War. Recognizing the concerns voiced in Justice Harlan's concurring opinion in Bivens that " "the appropriateness of money damages may well vary with the nature of the personal interest asserted,' " 184 U.S.App.D.C. at 302, 566 F.2d at 194, Quoting Bivens, supra, 403 U.S. at 409, 91 S. Ct. 1999 (concurring opinion), the Court of Appeals nevertheless concluded: "it is difficult to identify here the impediments feared by Mr. Justice Harlan." Id.
This conclusion regarding the application of Bivens to the first amendment area is by no means surprising given the sharp parallels that can be drawn between Dellums and Bivens. As in Bivens, the Dellums case presented violations of " "basic constitutional rights in their most pristine and classic form.' " Id. at 302, 566 F.2d at 194-95, Quoting Edwards v. South Carolina, 372 U.S. 229, 235, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963). There can be little doubt that the arrest of persons airing their grievances at the seat of government, like the forcible entry and warrantless search of a private residence, qualifies as an assault on core protections afforded by the first and fourth amendments. Similarly, in Dellums, as was the case in Bivens, the absence of a constitutionally-based damage remedy meant that plaintiffs would have to pursue inadequate state remedies that offered little assurance of protecting constitutional interests. In neither case were there alternative federally-created remedies that plaintiffs could pursue to redress invasions of their constitutionally protected interests. And finally, in Dellums, as in Bivens, plaintiffs were faced with a situation of recovering "damages or nothing." Bivens, supra, 403 U.S. at 410, 91 S. Ct. 1999 (Harlan, J., concurring). The peculiarly personal nature of plaintiffs' injuries in these cases made injunctive relief in practical effect no remedy at all.
This, however, is decidedly not the situation presented in the case at bar. A close look at the circumstances prevailing here along side the circumstances involved in Bivens and Dellums reveals that this case is as distant from Dellums and Bivens as Dellums and Bivens are close to one another. In the first place, the constitutional violations asserted in the instant case do not involve core constitutional protections of the sort presented in Bivens and Dellums. Whatever can be said of the first amendment rights afforded public employees in the work place, it is plain that these guarantees do not amount to basic protections " "in their most pristine and classic form.' " Dellums, supra, 184 U.S.App.D.C. at 302, 566 F.2d at 194-95, Quoting, Edwards v. South Carolina, 372 U.S. 229, 235, 83 S. Ct. 680, 9 L. Ed. 2d 697 (1963). On the contrary, the first amendment rights of public workers, like plaintiff here, are circumscribed by business necessities and the imperative of maintaining orderly and efficient public administration.
In addition, by contrast to Bivens and Dellums, the plaintiff in the instant case will not be remitted to pursuing inadequate state law remedies if no damage action is implied in his favor. Title VII fully protects his asserted interest in advocating changes in his agency's employment practices to benefit fellow minority workers. See, e.g., Stith, supra. Nor will the plaintiff in the present case be confronted with a damage or nothing situation if his constitutional damage claim is disallowed. Unlike in Bivens and Dellums, plaintiff's injuries are primarily economic injuries that can be readily remedied through the issuance of back pay and reinstatement orders under Title VII.
In short, what emerges is that even though Dellums implied a damage action for the violation of first amendment rights, there is nothing in the facts or rationale of that decision, or in those of Bivens itself for that matter, that justifies taking the same step in the suit at bar. Merely because this case involves claims based on the same amendment that was involved in Dellums is no warrant for reaching an identical result. There must be a persuasive reason for a court to imply a remedy not authorized by Congress and in this instance, in light of the availability, And efficacy, of Title VII's comprehensive remedies, that reason is lacking. Were this a case where plaintiff's first amendment claims were Unrelated to his Title VII claims in the sense that different conduct was being challenged and different interests asserted, a different result might well obtain. Such a case might arise if an employee claimed he had been penalized both because of his race, or sex, or national origin and because of his advocacy On subjects unrelated to minority rights. Similarly, a different result might obtain were this a case where, because of the predominantly personal, non-economic nature of plaintiff's injuries, Title VII remedies were likely to be ineffective in redressing plaintiff's protected rights of advocacy. Such, however, is not the case here. Where, as in this case, plaintiff's first amendment claim challenges conduct outlawed by Title VII and attempts to vindicate rights of expression also protected by the statute, and where, as here, Title VII's remedial measures promise to be effective in redressing the asserted wrongs, there is simply no sound reason for treating the claims separately by implying a damage cause of action not authorized by Congress.
IV. Conclusion and Disposition.
For these reasons, the Court is of the opinion that while the Supreme Court's decision in the Brown case provides no basis for extinguishing claims brought by federal employees against supervising officers in their individual capacities, neither does the Bivens decision afford a warrant for implying damage liability where Title VII applies. An order dismissing plaintiff's first amendment claims will be issued of even date herewith.