Today's opinion has shouldered a formidable task insofar as it seeks to justify the rejection of the views of the first Mr. Justice Harlan expressed in his opinion for the Court in Spalding v. Vilas, supra, and those of the second Mr. Justice Harlan expressed in his opinions in Barr v. Matteo, 360 U.S. 564 (1959), and its companion case of Howard v. Lyons, 360 U.S. 593 (1959). In terms of juridical jousting, if not in terms of placement in the judicial hierarchy, it has taken on at least as formidable a task when it disregards the powerful statement of Judge Learned Hand in Gregoire v. Biddle, 177 F.2d 579 (CA2 1949).
[438 U.S. 529]
History will surely not condemn the Court for its effort to achieve a more finely ground product from the judicial mill, a product which would both retain the necessary ability of public officials to govern and yet assure redress to those who are the victims of official wrongs. But if such a system of redress for official wrongs was indeed capable of being achieved in practice, it surely would not have been rejected by this Court speaking through the first Mr. Justice Harlan in 1896, by this Court speaking through the second Mr. Justice Harlan in 1959, and by Judge Learned Hand speaking for the Court of Appeals for the Second Circuit in 1948. These judges were not inexperienced neophytes who lacked the vision or the ability to define immunity doctrine to accomplish that result had they thought it possible. Nor were they obsequious toadies in their attitude toward high-ranking officials of coordinate branches of the Federal Government. But they did see with more prescience than the Court does today that there are inevitable trade-offs in connection with any doctrine of official liability and immunity. They forthrightly accepted the possibility that an occasional failure to redress a claim of official wrongdoing would result from the doctrine of absolute immunity which they espoused, viewing it as a lesser evil than the impairment of the ability of responsible public officials to govern.
But while I believe that history will look approvingly on the motives of the Court in reaching the result it does today, I do not believe that history will be charitable in its judgment of the all but inevitable result of the doctrine espoused by the Court in this case. That doctrine seeks to gain and hold a middle ground which, with all deference, I believe the teachings of those who were at least our equals suggest cannot long be held. That part of the Court's present opinion from which I dissent will, I fear, result in one of two evils, either one of which is markedly worse than the effect of according absolute immunity to the Secretary and the Assistant Secretary in this
[438 U.S. 530]
case. The first of these evils would be a significant impairment of the ability of responsible public officials to carry out the duties imposed upon them by law. If that evil is to be avoided after today, it can be avoided only by a necessarily unprincipled and erratic judicial "screening" of claims such as those made in this case, an adherence to the form of the law while departing from its substance. Either one of these evils is far worse than the occasional failure to award damages caused by official wrongdoing, frankly and openly justified by the rule of Spalding v. Vilas, Barr v. Matteo, and Gregoire v. Biddle.
[ENDNOTES]
1The individual Arthur N. Economou, his corporation Arthur N. Economou and Co., and another corporation which he heads, the American Board of Trade, Inc., were all plaintiffs in this action and are all respondents in this Court. For convenience, however, we refer to Arthur N. Economou and his interests in the singular, as "respondent."
2 These individuals included the Administrator of the Commodity Exchange Authority, the Director of its Compliance Division, the Deputy Director of its Registration and Audit Division, and the Regional Administrator for the New York Region.
3 Also named as defendants were the United States, the Department of Agriculture and the Commodity Exchange Authority.
4 More detailed allegations concerning many of the incidents charged in the complaint were contained in an affidavit filed by respondent in connection with his earlier efforts to obtain injunctive relief.
5 In the second "cause of action," respondent stated that the defendants had issued administrative orders "illegal and punitive in nature" against him when he was no longer subject to their authority. The fourth "cause of action" alleged, inter alia, that respondent's rights to due process of law and to privacy as guaranteed by the Federal Constitution had been infringed by the furnishing of the administrative complaints to interested persons without respondent's answers. The fifth "cause of action" similarly alleged as a violation of due process that defendants had issued a press release containing facts the defendants knew or should have known were false. Respondent's remaining "causes of action" allege common law torts: abuse of legal process, malicious prosecution, invasion of privacy, negligence, and trespass.
6 The District Court held that the complaint was barred as to the Government agency defendants by the doctrine of sovereign immunity.
7 Although we had noted in Bell v. Hood, 327 U.S. 678 (1946), that, where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief, id. at 684, the specific question faced in Bivens had been reserved.
8 The Court's opinion in Bivens concerned only a Fourth Amendment claim, and therefore did not discuss what other personal interests were similarly protected by provisions of the Constitution. We do not consider that issue here. Cf. Doe v. McMillan, 412 U.S. 306, 325 (1973).
9 Black v. United States, 534 F.2d 524 (CA2 1976); States Marine Lines v. Shultz, 498 F.2d 1146 (CA4 1974); Mark v. Groff, 521 F.2d 1376 (CA9 1975); G.M. Leasing Corp. v. United States, 560 F.2d 1011 (CA10 1977); Apton v. Wilson, 165 U.S.App.D.C. 22, 506 F.2d 83 (1974); see Paton v. La Prade, 524 F.2d 862 (CA3 1975); Weir v. Muller, 527 F.2d 872 (CA5 1976); Brubaker v. King, 505 F.2d 534 (CA7 1974); Jones v. United States, 536 F.2d 269 (CA8 1976).
10 The case had been before the Court once before, during the 1957 Term. After the trial, the defendant had appealed only the denial of an absolute privilege. The Court of Appeals affirmed the judgment against him on the ground that the press release exceeded his authority. Barr v. Matteo, 100 U.S.App.D.C. 319, 244 F.2d 767 (1957). This Court vacated that judgment, 355 U.S. 171 (1957), directing the Court of Appeals to consider the qualified privilege question. This the Court of Appeals did, 103 U.S.App.D.C. 176, 256 F.2d 890 (1958), holding, as this Court described it, that "the press release was protected by a qualified privilege, but that there was evidence from which a jury could reasonably conclude that petitioner had acted maliciously, or had spoken with lack of reasonable grounds for believing that his statement was true, and that either conclusion would defeat the qualified privilege." 360 U.S. at 569. Because the case was remanded for a new trial, the defendant sought certiorari a second time.
11 Mr. Justice Harlan's opinion in Barr was joined by three other Justices. The majority was formed through the concurrence in the judgment of Mr. Justice Black, who emphasized in a separate opinion the strong public interest in encouraging federal employees to ventilate their ideas about how the Government should be run. Id. at 576.
12 The Court wrote a similar opinion and entered a similar judgment in a companion case, Howard v. Lyons, 360 U.S. 593 (1959). There a complaint for defamation under state law alleged the publication of a deliberate and knowing falsehood by a federal officer. Judgment was entered for the officer before trial on the ground that the release was within the limits of his authority. The judgment was reversed in part by the Court of Appeals on the ground that, in some respects, the defendant was entitled to only a qualified privilege. This Court reversed, ruling that Barr controlled.
13 See n. 10 , supra. The question presented in the Government's petition for certiorari was broadly framed:
Whether the absolute immunity from defamation suits, accorded officials of the Government with respect to acts done within the scope of their official authority, extends to statements to the press by high policymaking officers, below cabinet or comparable rank, concerning matters committed by law to their control or supervision.
Pet. for Cert. in Barr v. Matteo, O.T. 1958, No. 350, p. 2. This question might be viewed as subsuming the question whether the official's immunity extended to situations in which the official had no reasonable grounds for believing that a statement was true.
14 Mr. Chief Justice Marshall explained:
An officer, for example, is ordered to arrest an individual. It is not necessary, nor is it usual, to say that he shall not be punished for obeying this order. His security is implied in the order itself. It is no unusual thing for an act of congress to imply, without expressing, this very exemption from State control. . . . The collectors of the revenue, the carriers of the mail, the mint establishment, and all those institutions which are public in their nature, are examples in point. It has never been doubted that all who are employed in them are protected while in the line of duty; and yet this protection is not expressed in any act of congress. It is incidental to, and is implied in, the several acts by which these institutions are created, and is secured to the individuals employed in them by the judicial power alone. . . .
15 Indeed, there appears to have been some doubt as to whether even an Act of Congress would immunize federal officials from suits seeking damages for constitutional violations. See Milligan v. Hovey, 17 F.Cas. 380 (No. 9,605) (CC Ind. 1871); Griffin v. Wilcox, 21 Ind. 370, 372-373 (1863). See generally Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U.Colo.L.Rev. 1, 50-51 (1972).
16 While the Virginia Coupon Cases, like United States v. Lee, involved a suit for the return of specific property, the principles espoused therein are equally applicable to a suit for damages, and were later so applied. Atchison, Topeka & Santa Fe R. Co. v. O'Connor, 223 U.S. 280, 287 (1912).
17 An individual might be viewed as acting maliciously where "the circumstances show that he is not disagreeably impressed by the fact that his action injuriously affects the claims of particular individuals." 161 U.S. at 499.
18 In addressing the liability of the Postmaster General, the Court referred to Bradley v. Fisher, 13 Wall. 335 (1872), which the Court described as holding that "judges of courts of superior or general jurisdiction [are] not liable to civil suits for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." 161 U.S. at 493. The Court was of the view that "the same general considerations of public policy and convenience which demand for judges of courts of superior jurisdiction immunity from civil suits for damages arising from acts done by them in the course of the performance of their judicial functions apply to a large extent to official communications made by heads of Executive Departments when engaged in the discharge of duties imposed upon them by law." Id. at 498. The Court plainly applied Bradley v. Fisher principles in holding that proof of malice would not subject an executive officer to liability for performing an act which he was authorized to perform by federal law. These principles, however, were not said to be completely applicable; and, as indicated in the text, the Court revealed no intention to overrule Kendall v. Stokes or Wilkes or to immunize an officer from liability for a willful misapplication of his authority. Also, on the face of the Spalding opinion, it would appear that an executive officer would be vulnerable if he took action "manifestly or palpably" beyond his authority or ignored a clear limitation on his enforcement powers.
19 MR. JUSTICE BRENNAN, dissenting in Barr v. Matteo, 360 U.S. at 587 n. 3, emphasized this point:
The suit in Spalding seems to have been as much, if not more, a suit for malicious interference with advantageous relationships as a libel suit. The Court reviewed the facts and found no false statement. See 161 U.S. at 487-493. The case may stand for no more than the proposition that, where a Cabinet officer publishes a statement, not factually inaccurate, relating to a matter within his Department's competence, he cannot be charged with improper motives in publication. The Court's opinion leaned heavily on the fact that the contents of the statement (which were not on their face defamatory) were quite accurate, in support of its conclusion that publishing the statement was within the officer's discretion, foreclosing inquiry into his motives. Id. at 489-493.
The Barr plurality did not disagree with this characterization of the lawsuit in Spalding. See also Gray, Private Wrongs of Public Servants, 47 Calif.L.Rev. 303, 336 (1959).
20 Indeed, Barreme and Bates were cited with approval in a decision that was under submission with Spalding and was handed down a scant month before the judgment in Spalding was announced. Belknap v. Schild, 161 U.S. 10, 18 (1896).
21 During the period prior to Barr, the lower federal courts broadly extended Spalding in according absolute immunity to federal officials sued for common law torts. E.g., Jones v. Kennedy, 73 App.D.C. 292, 121 F.2d 40, cert. denied, 314 U.S. 665 (1941); Papaianakis v. The Samos, 186 F.2d 257 (CA4 1950), cert. denied, 341 U.S. 921 (1951). See cases collected in Gray, supra n.19, at 337-338.
22 We view this case, in its present posture, as concerned only with constitutional issues. The District Court memorandum focused exclusively on respondent's constitutional claims. It appears from the language and reasoning of its opinion that the Court of Appeals was also essentially concerned with respondent's constitutional claims. See, e.g., 535 F.2d at 695 n. 7. The Second Circuit has subsequently read Economou as limited to that context. See Huntington Towers, Ltd. v. Franklin Nat. Bank, 559 F.2d 863, 870, and n. 2 (1977), cert. denied sub nom. Huntington Towers, Ltd. v. Federal Reserve Bank of N.Y. 434 U.S. 1012 (1978). The argument before us as well has focused on respondent's constitutional claims, and our holding is so limited.
23 Doe v. McMillan, 412 U.S. 306 (1973), did involve a constitutional claim for invasion of privacy -- but in the special context of the Speech or Debate Clause. The Court held that the executive officials would be immune from suit only to the extent that the legislators at whose behest they printed and distributed the documents could claim the protection of the Speech or Debate Clause.
24 416 U.S. at 247, quoting Barr v. Matteo, 360 U.S. at 573-574. The Court spoke of Barr v. Matteo as arising "[i]n a context other than a § 1983 suit." 416 U.S. at 247. Elsewhere in the opinion, however, the Court discussed Barr as arising "in the somewhat parallel context of the privilege of public officers from defamation actions." 416 U.S. at 242. The Court also relied on Spalding v. Vilas, 161 U.S. 483 (1896), without mentioning that that decision concerned federal officials. 416 U.S. at 242 n. 7, 246 n. 8.
25 As early as 1971, Judge, now Attorney General, Bell, concurring specially in a judgment of the Court of Appeals for the Fifth Circuit, recorded his "continuing belief that all police and ancillary personnel in this nation, whether state or federal, should be subject to the same accountability under law for their conduct." Anderson v. Nosser, 438 F.2d 183, 205 (1971). He objected to the notion that there should be "one law for Athens and another for Rome." Ibid. It appears from a recent decision that the Fifth Circuit has abandoned the view he criticized. See Weir v. Muller, 527 F.2d 872 (1976).
26 Courts and judges have noted the "incongruity" that would arise if officials of the District of Columbia, who are not subject to § 1983, were given absolute immunity while their counterparts in state government received qualified immunity. Bivens v. Six Unknown Fed. Narcotics Agents, 456 F.2d at 1347; Carter v. Carlson, 144 U.S.App.D.C. 388, 401, 447 F.2d 358, 371 (1971) (Nichols, J., concurring), rev'd on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418 (1973).
27 The First and Sixth Circuits have recently accorded immunity to federal officials sued for common law torts, without discussion of their views with respect to constitutional claims. Berberian v. Gibney, 514 F.2d 790 (CA1 1975); Mandel v. Nouse, 50 F.2d 1031 (CA6 1975).
28 In Apton v. Wilson, 165 U.S.App.D.C. 22, 32, 506 F.2d 83, 93 (1974), Judge Leventhal compared the Governor of a State with the highest officers of a federal executive department:
The difference in office is relevant, for immunity depends in part upon "scope of discretion and responsibilities of the office," Scheuer v. Rhodes, supra, 416 U.S. at 247. . . . But the difference is not conclusive in this case. Like the highest executive officer of a state, the head of a Federal executive department has broad discretionary authority. Each is called upon to act under circumstances where judgments are tentative and an unambiguously optimal course of action can be ascertained only in retrospect. Both officials have functions and responsibilities concerned with maintaining the public order; these may impel both officials to make decisions "in an atmosphere of confusion, ambiguity, and swiftly moving events." Scheuer v. Rhodes, supra, 416 U.S. at 247. . . . Having a wider territorial responsibility than the head of a state government, a Federal cabinet officer may be entitled to consult fewer sources and expend less effort inquiring into the circumstances of a localized problem. But these considerations go to the showing an officer vested with a qualified immunity must make in support of "good faith belief;" they do not make the qualified immunity itself inappropriate. The head of an executive department, no less than the chief executive of a state, is adequately protected by a qualified immunity.
29 Section 1 of the Civil Rights Act of 1871, 17 Stat. 13, provided in pertinent part:
[A]ny person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law. . . .
30 The purpose of § 1 of the Civil Rights Act was not to abolish the immunities available at common law, see Pierson v. Ray, 386 U.S. 547, 554 (1967), but to insure that federal courts would have jurisdiction of constitutional claims against state officials. We explained in District of Columbia v. Carter, 409 U.S. at 427-428:
At the time this Act was adopted, . . . there existed no general federal question jurisdiction in the lower federal courts. Rather, Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws. Zwickler v. Koota, 389 U.S. 241, 245 (1967). With the growing awareness that this reliance had been misplaced, however, Congress recognized the need for original federal court jurisdiction as a means to provide at least indirect federal control over the unconstitutional actions of state officials.
(Footnotes omitted.) The situation with respect to federal officials was entirely different: they were already subject to judicial control through the state courts, which were not particularly sympathetic to federal officials, or through the removal jurisdiction of the federal courts. See generally Willingham v. Moran, 395 U.S. 402 (1969); Tennessee v. Davis, 100 U.S. 257 (1880). Moreover, in 1875, Congress vested the circuit courts with general federal question jurisdiction, which encompassed many suits against federal officials. 18 Stat. 470. Thus, the absence of a statute similar to § 1983 pertaining to federal officials cannot be the basis for an inference about the level of immunity appropriate to federal officials.
31 At the time of the Bivens decision, the Federal Tort Claims Act prohibited recovery against the Government for
Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.
28 U.S.C. § 2680(h). The statute was subsequently amended in light of Bivens to lift the bar against some of these claims when arising from the act of federal law enforcement officers. See 28 U.S.C. § 2680(h) (1976 ed.).
32 Mr. Justice Harlan, the author of the plurality opinion in Barr, noted that, although "interests in efficient law enforcement . . . argue for a protective zone with respect to many types of Fourth Amendment violations . . . at the very least . . . a remedy would be available for the most flagrant and patently unjustified sorts of police conduct." Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. at 411 (concurring in judgment).
33 Pursuant to 28 U.S.C. § 2680 (1976 ed.), the Government is immune from
(a) Any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
See generally Dalehite v. United States, 346 U.S. 15 (1953).
34 The Government argued in Bivens that the plaintiff should be relegated to his traditional remedy at state law. "In this scheme, the Fourth Amendment would serve merely to limit the extent to which the agents could defend the state law tort suit by asserting that their actions were a valid exercise of federal power: if the agents were shown to have violated the Fourth Amendment, such a defense would be lost to them, and they would stand before the state law merely as private individuals." 403 U.S. at 390-391. Although, as this passage makes clear, traditional doctrine did not accord immunity to officials who transgressed constitutional limits, we believe that federal officials sued by such traditional means should similarly be entitled to a Scheuer immunity.
35 The defendant official may also be able to assert on summary judgment some other common law or constitutional privilege. For example, in this case the defendant officials may be able to argue that their issuance of the press release was privileged as an accurate report on a matter of public record in an administrative proceeding. See Handler & Klein, The Defense of Privilege in Defamation Suits Against Government Executive Officials, 74 Harv.L.Rev. 44, 61-62, 776 (1960). Of course, we do not decide this issue at this time.
36 In Pierson v. Ray, 386 U.S. 547 (1967), we recognized that state judges sued on constitutional claims pursuant to § 1983 could claim a similar absolute immunity. The Court reasoned:
It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decisionmaking, but to intimidation.
Id. at 554.
37 The Imbler Court specifically reserved the question "whether like or similar reasons require immunity for those aspects of the prosecutor's responsibility that cast him in the role of an administrator or investigative officer, rather than that of advocate." 424 U.S. at 430-431.
38 See generally Handler & Klein, supra, n. 35 , at 54-55.
39 Expeditions Unlimited Aquatic Enterprises, Inc. v. Smithsonian Institution, 184 U.S.App.D.C. 397, 401, 566 F.2d 289, 293 (1977), cert. pending, No. 76-418.
40 That prosecutors act under "serious constraints of time and even information" was not central to our decision in Imbler, for the same might be said of a wide variety of state and federal officials who enjoy only qualified immunity. See Scheuer v. Rhodes, 416 U.S. at 246-247. Nor do we think that administrative enforcement proceedings may be distinguished from criminal prosecutions on the ground that the former often turn on documentary proof. The key point is that administrative personnel, like prosecutors, "often must decide, especially in cases of wide public interest, whether to proceed to trial where there is a sharp conflict in the evidence." Imbler, 424 U.S. at 426 n. 24. The complexity and quantity of documentary proof that may be adduced in a full-scale enforcement proceeding may make this decision even more difficult than the decision to prosecute a suspect.
* The ultimate irony of today's decision is that, in the area of common law official immunity, a body of law fashioned and applied by judges, absolute immunity within the federal system is extended only to judges and prosecutors functioning in the judicial system. See Bradley v. Fisher, 13 Wall. 335 (1872); Yaselli v. Goff, 12 F.2d 396 (CA2 1926), summarily aff'd, 275 U.S. 503 (1927). Similarly, where this Court has interpreted 42 U.S.C. § 1983 in the light of common law doctrines of official immunity, again, only judges and prosecutors are accorded absolute immunity. See Pierson v. Ray, 386 U.S. 547 (1967); Stump v. Sparkman, 435 U.S. 349 (1978); Imbler v. Pachtman, 424 U.S. 409 (1976). If one were to hazard an informed guess as to why such a distinction in treatment between judges and prosecutors, on the one hand, and other public officials, on the other, obtains, mine would be that those who decide the common law know through personal experience the sort of pressures that might exist for such decisionmakers in the absence of absolute immunity, but may not know, or may have forgotten, that similar pressures exist in the case of nonjudicial public officials to whom difficult decisions are committed. But the cynical among us might not unreasonably feel that this is simply another unfortunate example of judges treating those who are not part of the judicial machinery as "lesser breeds without the law."