RICHARD W. VELDE, ET AL., PETITIONERS V. NATIONAL BLACK POLICE ASSOCIATION, INC., ET AL. No. 83-1254 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of Richard W. Velde, Edward H. Levi, Charles R. Work, and Herbert C. Rice, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PARTIES TO THE PROCEEDING In addition to the parties named in the caption, the petitioners are Edward H. Levi, Herbert C. Rice, and Charles R. Work; the respondents are Penelope Brace, Bruce Bailey, Kristen Heemstra, Ollie S. Glover, Joel Michelle Schumacher, Raymond Clark, Kent G. McKinney, Penny Orazetti, Roberta Ledyard, Robert Booth, William Harris, and Jennie McAllister. The Law Enforcement Assistance Administration and the United States Department of Justice were named as defendants and were appellees in the court of appeals but are not petitioners. TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D Appendix E OPINIONS BELOW The opinion of the court of appeals on remand from this Court (App., infra, 1a-28a) is reported at 712 F.2d 569. This Court's order remanding the case to the court of appeals (App., infra, 34a) is reported at 458 U.S. 591. The prior opinion of the court of appeals (App., infra, 35a-55a) is reported at 631 F.2d 784. The district court's order (App., infra, 56a-57a) is unreported. JURISDCTION The judgment of the court of appeals was entered on June 30, 1983 (App., infra, 29a-30a). A petition for rehearing was denied on September 1, 1983 (App., infra, 31a). On November 23, 1983, the Chief Justice extended the time in which to file a petition for a writ of certiorari to January 29, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. The Fifth Amendment to the United States Constitution provides in part: No person shall * * * be deprived of life, liberty, or property, without due process of law * * *. 2. Section 509 of the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, 82 Stat. 206, as reenacted by Section 2 of Pub. L. No. 93-83, 87 Stat. 211, codified at 42 U.S.C. (1970 ed., Supp. V) 3757, provided: Whenever the (Law Enforcement Assistance) Administration, after reasonable notice and opportunity for hearing to an applicant or a grantee under this chapter, finds that, with respect to any payments made or to be made under this chapter, there is a substantial failure to comply with -- (a) the provisions of this chapter; (b) regulations promulgated by the Administration under this chapter; or (c) a plan or application submitted in accordance with the provisions of this chapter; the Administration shall notify such applicant or grantee that further payments shall not be made (or in its discretion that further payments shall not be made for activities in which there is such failure), until there is no longer such failure. 3. Section 518(c) of the Omnibus Crime Control and Safe Streets Act of 1968, as added by Section 2 of Pub. L. No. 93-83, 87 Stat. 214, codified at 42 U.S.C. (1970 ed., Supp. V) 3766(c), provided: (1) No person in any State shall on the ground of race, color, national origin, or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds made available under this chapter. (2) Whenever the Administration determines that a State government or any unit of general local government has failed to comply with paragraph (1) of this subsection or an appplicable regulation, it shall notify the chief executive of the State of the noncompliance and shall request the chief executive to secure compliance. If within a reasonable time after such notification the chief executive fails or refuses to secure compliance, the Administration shall exercise the power and functions provided in section 3757 of this title, and is authorized concurrently with such exercise -- (A) to institute an appropriate civil action; (B) to exercise the powers and functions pursuant to title VI of the Civil Rights Act of 1964 (section 2000d of this title); or (C) to take such other action as may be provided by law. (3) Whenever the Attorney General has reason to believe that a State government or unit of local government is engaged in a pattern or practice in violation of the provisions of this section, the Attorney General may bring a civil action in any appropriate United States district court for such relief as may be appropriate, including injunctive relief. QUESTIONS PRESENTED Respondents seek personal damages from petitioners, who are former high officials of the Department of Justice, claiming that petitioners failed to terminate federal funding by the Law Enforcement Assistance Administration to state and local government agencies that practiced discrimination on the basis of race and sex. The questions presented are: 1. Whether respondents have stated a claim for damages under the Fifth Amendment, when they have not alleged that petitioners acted with discriminary intent and when they acknowledge that petitioners took actions (other than terminating funds) in response to the recipient agencies' alleged discrimination. 2. Whether, even assuming respondents have stated a claim under the Fifth Amendment, petitioners are entitled to qualified immunity as a matter of law because they did not violate any clearly established constitutional rights. 3. Whether petitioners are entitled to absolute immunity because, in deciding whether to initiate funding termination proceedings, they performed functions analogous to those of a prosecutor. 4. Whether respondents may seek damages from petitioners under Title I of the Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. 3701 et seq. 5. Whether respondents have standing to maintain this action. STATEMENT 1. The Law Enforcement Assistance Administration (LEAA) was an agency within the Department of Justice authorized to give technical and financial assistance to state and local governments for the purpose of aiding law enforcement. See 42 U.S.C. 3701 et seq. /1/ While the LEAA distributed substantial funds overall, its grants generally constituted only a small percentage of the budgets of recipient law enforcement agencies. /2/ At all times relevant to this suit, Section 518(c)(1) of the Omnibus Crime Control and Safe Streets Act of 1968 provided that "(n)o person * * * shall on the ground of race, color, national origin, or sex * * * be subjected to discrimination under any program or activity funded in whole or in part with funds" from the LEAA. 42 U.S.C. (1970 ed., Supp. V) 3766(c)(1). The Crime Control Act authorized the LEAA to enforce this prohibition by invoking an enforcement scheme consisting of several stages. First, under Section 518(c)(2) of the Act, if "the Administration determine(d)" that a recipient was discriminating, it was to "notify the chief executive of the (relevant) State of the noncompliance" and "request the chief executive to secure compliance." The LEAA was then to allow the chief executive "a reasonable time" to secure compliance. If the chief executive failed to do so, the LEAA could take a number of steps: it could "institute an appropriate civil action"; it could act under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq.; or it could "take such other action as may be provided by law." 42 U.S.C. (1970 ed., Supp. V) 3766(c)(2). Section 518(c)(2) also provided that if the chief executive failed to secure compliance "within a reasonable time," "the Administration shall exercise the powers and functions provided in" Section 509 of the Act, 42 U.S.C. (1970 ed., Supp. V) 3757. Section 509, in turn, was a general funding termination provision applicable to cases in which a recipient violated any provision of the Act or any LEAA regulation. It provided that if, after notice and an opportunity for a hearing, "the Administration * * * finds that * * * there is a substantial failure to comply," it shall terminate payments to the recipient "until there is no longer such failure." /3/ 2. In 1975, respondents -- six blacks, six women, and an organization that represents black police officers -- filed this suite in the United States District Court for the District of Columbia. They named as defendants the petitioners, who were then officials in the Department of Justice -- Attorney General Edward H. Levi, LEAA Administrator Richard W. Velde, LEAA Deputy Administrator Charles R. Work, and Director of LEAA Office of Civil Rights Compliance Herbert C. Rice. Petitioners were sued in both their personal and their official capacities. The Department of Justice and the LEAA were also named as defendants. Respondents sought declaratory and injunctive relief and, relying on Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), $20 million in personal damages from petitioners. Complaint, paras. 1-19, 112; J.A. 13-17, 43-44. /4/ Respondents claimed that they were discriminated against, on the basis of race and sex, by certain state and local police departments that had received and were receiving LEAA grants. /5/ They asserted that petitioners' failure to terminate funds to these discriminating agencies "served to finance and thus to perpetuate the discriminatory and exclusionary employment practices of LEAA recipients" (Complaint, para. 41(b); J.A. 26). In this way, respondents asserted, petitioners discriminated against them and violated their constitutional and statutory rights. Respondents did not allege that petitioners acted with discriminatory intent at any time. Nor did respondents claim that petitioners failed to act in response to the alleged discrimination by the state and local agencies; on the contrary, the complaint itself detailed a number of enforcement actions taken by petitioners. For example, the complaint stated that petitioners had conducted numerous "onsite compliance reviews" of state and local law enforcement agencies and had adopted a policy of conducting "pre-award compliance reviews" of large recipients to determine if they were discriminating (Complaint, paras. 28, 29; J.A. 20). The complaint further stated that petitioners "attempted to secure voluntary civil rights compliance from the Portland (Oregon) Police Bureau," one of the local agencies that allegedly discriminated against respondents, "during the past several years" (Complaint, para. 91; J.A. 38), and that petitioners had investigated complaints of discrimination made by respondents against several of the allegedly discriminatory recipients (Complaint, paras. 76, 82, 84, 102; J.A. 34-36, 38, 41). /6/ The complaint also stated that petitioners had engaged in "several months of investigation and unsuccessful efforts to achieve voluntary civil rights compliance from the Philadelphia Police Department," another of the local agencies that allegedly discriminated against respondents; that petitioners had sent a written warning to that Department, stating that it was not in compliance; and that the Department of Justice was considering litigation against the Philadelphia Police Department (Complaint paras. 47-50; J.A. 27-28). Indeed, to support the allegation that some recipient law inforcement agencies were engaged in discrimination, the complaint relied on the fact that the Department of Justice had filed employment discrimination actions against them (Complaint, para. 25; J.A. 19). In sum, respondents acknowledged that petitioners took many steps to enforce the civil rights obligations of recipient agencies. The centerpiece of their complaint was that petitioners violated the Constitution simply by not invoking one particular measure, the termination of funding. 3. In December 1976, the district court dismissed the complaint, holding that respondents' "claims for monetary damages against (petitioners) in their individual capacities are bared by the doctrine of official immunity" (App., infra, 57a). /7/ A divided court of appeals reversed (id. at 35a-55a). The court ruled that petitioners' qualified immunity defense raised issues of fact that had to be resolved by a trial (id. at 40a). Judge Bazelon's opinion for the panel majority then acknowledged that under Butz v. Economou, 438 U.S. 478, 515-516 (1978), administrative officials performing functions similar to those of a prosecutor are entitled to absolute immunity (id. at 38a-39a), but rejected petitioners' contention that they were entitled to absolute immunity under this principle, reasoning (id. at 39a): The purpose of shielding discretionary prosecutorial decisions from fears of civil liability has no place where, as here, agency officials lack discretion. (Petitioners) have virtually no discretion under the relevant statute in deciding whether to terminate LEAA funding of discriminating recipients. In a footnote, the majority rejected petitioners' contention that respondents lacked standing, stating simply that respondents "have alleged violations of their right to be free from federal funding of state and local agencies that have discriminated against them" and that this "interest is precisely that which is protected by the Constitution and the statutes" invoked by respondents (App., infra, 40a n.16). Judge Tamm dissented on the ground that petitioners were entitled to absolute immunity (App., infra, 48a-55a). He noted that petitioners were being sued for having made such decisions as "whether to move forward with a proceeding to terminate funding, or, for example, to seek voluntary compliance * * * (perhaps under the threat of termination)" (id. at 50a). These, Judge Tamm urged, were "exactly what the Supreme Court had in mind when it spoke of functions 'analogous to those of a prosecutor'" (ibid., quoting Butz, 438 U.S.at 515). Judge Tamm also rejected the majority's assertion that the enforcement provisions of the Crime Control Act left petitioners with little or no discretion; he pointed out that petitioners had to exercise discretion at virtually every step of the enforcement scheme (App., infra, 50a-53a). /8/ 8. This Court granted certiorari (451 U.S. 969 (1981)). After the case was briefed and the Court heard oral argument, however, it vacated the decision of the court of appeals and remanded for further consideration in light of Harlow v. Fitzgerald, 457 U.S. 800 (1982). App. infra, 34a. On remand, the court of appeals reinstated its judgment reversing the dismissal of the complaint (App., infra, 1a-28a). The opinion of Judge Bazelon, who again wrote for the majority, readopted the court's prior holdings on absolute immunity and standing (id. at 2a n.3, 27a, n.26).. The majority ruled that petitioners were not entitled to qualified immunity under Harlow because "clear duties to terminate funding existed under both the Crime Control Act and the fifth amendment" (id. at 2a). Specifically, the majority stated that "it is a clearly established principle of constitutional law that the federal government may not fund local agencies known to be unconstitutionally discriminating" (App., infra, 20a). /9/ The majority recognized that respondents had never claimed that petitioners acted with a discriminatory intent (id. at 21a-23a). But the majority stated that even if the government acts without discriminatory intent, it may not "support() indirectly" discriminatory activities "through the provision of support for other persons engaged in such activity" (id. at 20a). The court said that the question in this case was whether the LEAA engaged in "a form of involvement" that "requires us to impute the actions and motives of the local agencies to the federal government" (id. at 24a), and it asserted (ibid.; footnote omitted): "(T)he constitutional prohibition on intentional discrimination clearly prohibits the government from funding other agencies engaged in such practices." The court accordingly ordered further evidentiary proceedings to determine whether petitioners "knew or should have known" that recipients of LEAA funds were engaged in discrimination (App., infra, 25a (emphasis and footnote omitted). Judge Tamm adhered to his earlier opinion dissenting on the basis of absolute immunity (id. at 28a). Petitioners' suggestion of rehearing en banc was denied by a vote of three to two, with five judges not participating (id. at 32a-33a). REASONS FOR GRANTING THE PETITION Respondents seek $20 million in damages from former high officials of the Department of Justice, including a former Attorney General, who have never been alleged to have acted with an improper intent, or to have authorized, controlled, supervised, or encouraged discrimination. This suit, now nine years old, has once more been kept alive by the court of appeals, this time on the basis of the insupportable conclusion that the Constitution clearly prohibited the actions in which petitioners allegedly engaged. The court of appeals' action could not be more inconsistent with this Court's decision in Harlow v. Fitzgerald, 457 U.S. 800 (1982), and with the Court's repeated adminitions that insubstantial Bivens actions against government officials are to be promptly ended. No reasonable interpretation of this Court's decisions supports the holding of the court of appeals that petitioners violated a clearly established constitutional prohibition. By retrospectively inventing a clearly established right in this fashion, and remanding for further proceedings at which the plaintiffs will be able to explore the defendant officials' state of mind, the court of appeals has defeated the central purposes of Harlow. In Harlow, the Court created a new regime for the consideration of the defense of qualified immunity; review is warranted here to assure that that regime is not emptied of meaning in its very incipiency. In addition, the potential effects of the court of appeals' decision on the operations of the government can scarcely be overstated. Numerous important federal programs involve the distribution of funds to agencies of state and local governments. These programs would be substantially affected if, as the court of appeals appears to have held, the Constitution is violated whenever any funds reach any recipient agency that is known to have discriminated -- even if the discrimination consists of a minor incident, the funding program serves inportant social objectives, and the responsible officials are taking other steps to remedy the discrimination. Indeed, under the court of appeals' approach, officials throughout the government who act with entirely proper purposes in distributing funds and enforcing the civil rights obligations of recipients can be faced with lengthy, burdensome proceedings and the threat of ruinous personal liability. In order to "avoid (this) excessive disruption of government" (Harlow, 457 U.S.at 818) and unfairness to individuals, further review is warranted. 1. Respondents' complaint -- which never asserted, in any of its prolix allegations, that petitioners acted with discriminatory intent -- does not state a claim under the Constitution. /10/ "Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977). "(P)urposeful discrimination is "the condition that offends the Constitution.'" Personnel Administrator v. Feeney, 442 U.S. 256, 274 (1979), quoting Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 16 (1971). "(T)he absence of proof of discriminatory intent forecloses any claim that * * * official action * * * violates the Equal Protection Clause" (City of Memphis v. Greene, 451 U.S. 100, 119 (1981)). See also Washington v. Davis, 426 U.S. 189, 208-209 (1973). Respondents' failure to allege that petitioners acted with discriminatory intent should, therefore, have been fatal to their claim. Even if petitioners are alleged to have acquiesced in discriminatory practices of the recipients, "(s)uch acquiescence is not the equivalent of a discriminatory purpose" (Pullman-Standard v. Swint, 456 U.S. 272, 292 n.23 (1982); see also Blum v. Yaretsky, 457 U.S. 991, 1004-1005 (1982)). /11/ In fact, the complaint repeatedly alleged (paras. 25, 47-50, 76, 84, 88-91, 102; J,A. 19, 27-28, 34-38, 41) that the local agencies continued to discriminate despite petitioners' efforts; as this Court has recently said, "(d) iscriminatory purpose' * * * implies that the decisionmaker * * * selected or reaffirmed a particular course of action at least in part 'because of,' not merely 'in spite of," its adverse effects upon an identifiable group." Feeney, 442 U.S. at 279 (footnote omitted). /12/ The court of appeals nevertheless refused to affirm the dismissal of the complaint. In doing so, the court principally relied (App., infra, 21a-25a) on Norwood v. Harrison, 413 U.S. 455 (1973), which invalidated a Mississippi program of lending textbooks to schools to the extent that discriminatory private schools were among the recipients. But Norwood cannot possibly be read as standing for a general rule that the government violates the Constitution whenever governmental aid in any form reaches parties that engage in discrimination. As the Court in Norwood noted, the Mississippi textbook lending program was implemented against a background of steadfast resistance to court decree ordering the dismantling of a segregated dual school system. See 413 U.S. at 463 & n.6 and cases cited; id. at 467 & n.9. See also Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 163 (1978); Gilmore v. City of Montgomery, 417 U.S. 556, 568-569, 570-571 n.10 (1974). /13/ Petitioners, by contrast, were carrying out a civil rights enforcement scheme and -- as is apparent from the complaint itself -- their decisions not to terminate funding occurred in the contest of other enforcement actions. A discretionary choice among civil rights enforcement techniques is not remotely comparable to a measure that promotes private "segregation academies," and no reasonable Department of Justice official would have throught it clear -- or even possible -- that these two actions would be treated alike by a court. In addition, the Court in Norwood emphasized the material importance of the textbook program to the schools (see 413 U.S. at 464-465, 466). LEAA assistance was, by contrast, only a minor part of the budgets of the recipient agencies involved here. See page 4 and note 2, supra. Many government programs that may have the incidental effect of aiding parties engaged in discrimination do not violate the Constitution even though they are far more valuable to the recipients than LEAA aid was to the law enforcement agencies in this case. For example, government agencies do not violate the Constitution if they provide police and fire protection and utilities to parties engaged in overt discrimination (see, e.g., Norwood, 413 U.S. at 465; Gilmore v. City of Montgomery, 417 U.S. 556, 573-574 (1974), or a liquor license to a private club that refuses to admit blacks (Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 176-177 (1972)). See also Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351-352 (1974). The court of appeals appeared to believe that it was significant that LEAA aid took the form of a direct grant of funds. /14/ But this Court has recently stated that even if "virtually all of (a party's) income (is) derived from government funding," that party's actions will not necessarily be imputed to the government for constitutional purposes. Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982). "Grants of federal funds generally do not create a partnership or joint venture with the recipient, nor do they serve to convert the acts of the recipient from private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision." Forsham v. Harris, 445 U.S. 169, 180 (1980). See also United States v. Orleans, 425 U.S. 807, 818 (1976). "That programs undertaken by the State result in substantial funding of the activities of a(nother) entity is no(t) * * * persuasive * * * in demonstrating that the State is responsible for decisions made by the entity in the course of its business." Blum v. Yaretsky, 457 U.S. at 1011. See also Polk County v. Dodson, 454 U.S. 312 (1981). LEAA funding provided not a "substantial" amount of the revenues of the recipients but only a minor proportion. And far from exercising extensive and detailed supervision, the LEAA was specifically forbidden, by statute, from "exercis(ing) any direction, supervision, or control over any police force or any other law enforcement and criminal justice agency of any State or political subdivision thereof" (42 U.S.C. 3766(a)). /15/ In view of these explicit statements by this Court, the court of appeals cannot have been correct in concluding that the mere distribution of relatively modest funds to agencies that allegedly discriminate, in the context of other civil rights enforcement measures, violates the Constitution. In fact, the court of appeals' holding represents a dramatic innovation in the constitutional law governing the activities of federal and state governments and their officials. It therefore fully warrants plenary review. 2. Under Harlow, respondents' complaint should have been dismissed on grounds of qualified immunity unless it alleged a violation of "clearly established * * * constitutional rights" (457 U.S. at 818). Even if the complaint states a claim under the Fifth Amendment, the court of appeals' ruling that petitioners violated a clearly established constitutional prohibition is palpably erroneous. Further, the error was committed in a case remanded for the very purpose of reconsideration in light of Harlow. This Court should make it clear that lower courts are not to defeat or evade the rules established in Harlow by conjuring up a "clearly established" constitutional right where none exists. The arguments we have made in showing that the complaint failed to state a claim demonstrate, a fortiori, that the complaint does not allege a violation of clearly established rights. But beyond that, the court of appeals' own discussion betrays on its face the absence of any clear standard. The court acknowledged, for example, that "equal protection principles do not prohibit the provision of all forms of government services provided to discriminatory institutions" (App., infra, 21a n.61); but the court never specified any clear principle that distinguishes permissible from impermissible forms of aid, much less showed that such a principle had become well established in the law. Similarly, in describing the constitutional standard that was to be applied to petitioners' alleged conduct, the court stated: "The proper inquiry is whether the relationship between the federal government and the (discriminatory) activity * * * is of such nature that the activity will be treated as an action of the government. * * * (T)he issue (is) whether funding is a form of involvement that requires us to impute the actions and motives of the local agencies to the federal government" (App., infra, 23a-24a). It is immediately clear that these formulations do not clearly establish anything. No reasonable official, if told that these were the constitutional rules he was obligated to apply, would have had any idea which forms of governmental support to discriminatory recipients were permissible and which were not. And, as we have shown, the court of appeals' ultimate conclusion that funding is per se an impermissible form of aid, far from being clearly established, not only lacked support but was directly contrary to rulings of this Court (see pages 15-17 and note 14, supra). In Harlow, this Court repeatedly emphasized the importance of not permitting insubstantial Bivens actions to be prolonged. See 457 U.S. at 813, 814, 815-186, 817-818. "Insubstantial lawsuits undermine the effectiveness of government as contemplated by our constitutional structure" (id. at 820 n.35). The Court also emphasized the corrosive and "peculiarly disruptive" effects of permitting inquiries into the state of mind of an official (id. at 817). It was for these reasons that the Court modified the definition of qualified immunity and ordered that a Bivens complaint be dismissed unless it alleged a violation of clearly established rights. The court of appeals, acting under this Court's express direction to reconsider its earlier decision in light of Harlow, invented a clearly established constitutional right and remanded for an inquiry into petitioners' state of mind. This eviscerates Harlow. Harlow will have little meaning if courts of appeals can engage in tendentious legal reasoning -- stretching some of this Court's decisions beyond the limits of their logic while ignoring others, failing to resolve obvious doctrinal inconsistencies and tensions, and formulating purported standards that provide no practical guidance -- and then pronounce the outcome of that process "clearly established." 3. In Butz v. Conomou, 438 U.S. 478 (1978), this Court held that "agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts" (id. at 515). This Court previously granted certiorari to determine whether petitioners' functions were analogous to those of a prosecutor in the requisite sense; that question is no less worthy of the Court's review now. Petitioners were like prosecutors because they were responsible for determining whether to initiate a formal enforcement proceeding, leading to a sanction (the termination of funds) imposed on account of unlawful activities (discrimination). In Butz, the Court noted that officials exercising judicial and quasi-judicial functions require absolute immunity because "controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree" (438 U.S. at 512). Similarly, any controversy over politically sensitive subjects like federal funding and discrimination that could not be resolved by conciliation, even after the intercession of the chief executive of a state, would not be easily capped by an administrative proceeding and order. There would be "a serious danger (of) * * * a retaliation response" (id. at 515); for example, local government officials, who are not even restrained by the budgetary constraints of private parties (see ibid.) might well think it advantageous to respond to a funding termination by filing a well-publicized Bivens action against the responsible federal officials. Petitioners, of course, are being sued because they did not initiate proceedings; but the Court has left no doubt that the absolute immunity for quasi-prosecutorial functions must apply to such decisions as well. Just as a criminal prosecutor has absolute immunity "in deciding which suits to bring" (Imbler v. Pachtman, 424 U.S. 409, 424 (1976); see id. at 426 n.24, 432 n.33), so an administrative official may not be held personally liable for his decision "whether a proceeding should be brought" (Butz, 438 U.S. at 515). The reason is apparent: under any other approach, the official's decisions would be biased in favor of initiating proceedings. "The discretion which executive officials exercise with respect to the initiation of administrative proceedings might be distorted if their immunity from damages arising from that decision was less than complete" (ibid.). The court of appeals did not dispute any of these propositions. Instead, it denied absolute immunity to petitioners because it concluded that the enforcement provisions of the Crime Control Act gave them "virtually no discretion" (App., infra, 39a). In its later opinion, however, the court of appeals -- discussing the statute in a different context -- apparently retreated from this position (see id. at 17a) and acknowledged what is apparent from the statute, that petitioners were responsible for making important discretionary judgments at several stages of the enforcement scheme. As the court of appeals belatedly recognized, petitioners had to determine whether a recipient "failed to comply with" the nondiscrimination provisions, so that the chief executive of the state was to be notified; petitioners then had to decide whether "a reasonable time" had elapsed after such notification, so that efforts at conciliation were to be abandoned; and, if termination proceedings were instituted, petitioners had to decide whether there was a sufficiently "substantial" failure to comply to justify fund termination. See 42 U.S.C. (1970 ed., Supp. V) 3757, 3766. These discretionary determinations were central to the enforcement scheme, and even if petitioners exercised no other discretion, they would be entitled to absolute immunity. But the court of appeals erred in its conclusion that petitioners were without underlying discretion in implementing the funding termination scheme. It is implausible to suppose that Congress intended to impose on the LEAA a rigid requirement that -- once it had made certain preliminary determinations -- it institute a funding termination proceeding in every case, no matter how limited the LEAA's enforcement resources or how sound its judgment that those resources could be better devoted to other cases. Cf. Cannon v. University of Chicago, 441 U.S. 677, 707 n.41 (1979). The court of appeals based its contrary conclusion primarily on the statute's use of the word "shall." See App., infra, 13a, 39a. But as Judge Tamm pointed out (id. at 50a n.12), most criminal statutes provide that a person who commits an offense "shall" be punished (see, e.g., 18 U.S.C. 371, 1001); and 28 U.S.C. 547(1) provides that United States Attorneys "shall * * * prosecute for all offenses against the United States" (emphasis added). It is nonetheless well settled that a federal prosecutor has broad discretion, unreviewable by the judiciary, not to prosecute even if there is substantial evidence of guilt. See, e.g., United States v. Batchelder, 442 U.S. 114, 124 (1979); Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978); Newman v. United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (Burger, J.). Similarly, this Court has repeatedly observed that administrative prosecutors possess a comparable broad discretion notwithstanding the seemingly mandatory language of the statutory schemes they are responsible for enforcing. See, e.g., Marshall v. Jerrico, Inc, 446 U.S. 238, 248 (1980); Dunlop v. Bachowski, 421 U.S. 560, 571-573 (1975); Vaca v. Sipes, 386 U.S. 171, 182 (1967); Moog Industries, Inc. v. FTC, 355 U.S. 411, 413-414 (1958). /16/ 4. The court of appeals engaged in an extended discussion of the question whether petitioners violated clearly established statutory rights (App., infra, 8a-20a), without ever explaining why it considered this discussion necessary. We note that respondents have previously asserted (80-1074 Br. 32 n.32) that the court of appeals found an implied cause of action for damages under the Crime Control Act. Although the court of appeals never addressed the existence of such an implied remedy in either of its opinions, the court's discussion of whether petitioners violated clearly established statutory rights might be viewed as resting on the unarticulated premise that respondents have such a cause of action. In order to forestall respondents from pursuing this argument in future proceedings, thus possibly necessitating further prolonged litigation, we urge this Court to review the question whether respondents may pursue a personal damages remedy against petitioners on the basis of the Crime Control Act alone. An implied statutory cause of action for damages against federal officials in their personal capacities would be novel indeed. An official's alleged failure correctly to administer a statute is generally reviewable under the judicial review provisions of the Administrative Procedure Act, 5 U.S.C. 701 et seq., not in a suit for personal damages against the official. Indeed, we know of no occasion on which a court has permitted a personal damages recovery from officials who did nothing more than violate the statute they were charged with implementing. Nothing in the language or the legislative history of the civil rights enforcement scheme of the Crime Control Act suggests that Congress intended to create such a novel remedy here. /17/ 5. The court of appeals' failure to respect the letter and spirit of Harlow is magnified by its erroneous conclusion that respondents have standing to maintain this action. The costs and burdens of insubstantial and unwarranted Bivens actions are multiplied if such suits can be brought by all comers who feel aggrieved by the actions of government officials, no matter how remote, indirect, and attenuated the connection between the plaintiff's injuries (if any ) and the actions of the defendant officials. Indeed, in this case it has been unclear throughout the years of litigation just how and why petitioners' actions have injured respondents. This is an unacceptable defect in a suit seeking crushing personal damages from high government officials. See Butz, 438 U.S. at 507-508. It appears to be respondents' claim that petitioners are liable for the discriminatory acts committed against respondents by recipient police departments because the continued funding of the recipients by the LEAA "perpetuated" that discrimination. See Complaint, para 41(b); J.A. 26. This claim is indistinguishable from that of the plaintiffs in Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976). The plaintiffs in Eastern Kentucky sued the government, claiming that its decision to extend favorable tax treatment to a category of hospitals that did not provide free services to indigents "encouraged" certain hospitals in that category to deny services to the plaintiffs because of their indigency (see id. at 32-34). This Court held that the plaintiffs lacked standing. Respondents, like the Eastern Kentucky plaintiffs, were allegedly injured by recipients of benefits from the government. Respondents' allegation that the LEAA funding "perpetuated" discrimination -- like the Eastern Kentucky plaintiffs' allegation of "encouragement" -- is "unadorned speculation (that) will not suffice to invoke the federal judicial power" (426 U.S. at 44). That is because "(i)t is purely speculative whether the (discrimination) specified in the complaint can fairly be traced to petitioners' (actions) or instead result(s) from decisions made by the (recipients) without regard to the * * * implications" for their continued ability to receive federal funds (id. at 42-43). The allegedly discrimination recipients might well have chosen to forgo federal funds instead of changing their employment practices. See Guardians Ass'n v. Civil Service Comm'n, No. 81-431 (July 1, 1983), slip op. 14 (opinion of White, J.); Pennhurst State School v. Halderman, 451 U.S. 1, 17 (1981). Indeed, the recipients' alleged discriminatory practices generally antedated the LEAA; LEAA funds accounted for only a small percentage of their budgets; and, according to the complaint itself, the recipients resisted all of the petitioners' efforts to obtain compliance. In these circumstances it is not only speculative but quite implausible to suppose that funding termination would have prompted the recipient law enforcement agencies suddenly to change their practices. Because respondents cannot "establish that, in fact, the asserted injury was the consequence of (petitioners') actions'" (Eastern Kentucky, 426 U.S. at 44-45, quoting Warth v. Seldin, 422 U.S. 490, 505 (1975)), they lack standing. See also Linda R.S. v. Richard D., 410 U.S. 614, 618 (1973)). Bivens litigation must not be allowed to be endless; otherwise the salutory reforms sought to be instituted by this Court in Harlow will be set wholly at naught. The Court should grant review in order to consider whether this unjust and disruptive litigation, which has for nine years burdened former government officials who served their country with distinction, should not now be brought to an end. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted. REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General PAUL M. BATOR Deputy Solicitor General DAVID A. STRAUSS Assistant to the Solicitor General BARBARA L. HERWIG MARK W. PENNAK Attorneys JANUARY 1984 /1/ The Justice System Improvement Act of 1979, Pub. L. No. 96-157, 93 Stat. 1167, codified at 42 U.S.C. (Supp. V) 3701 et seq., restructured the LEAA. Congress last appropriated significant funds for the LEAA in 1980, and in 1982 the Attorney General transferred its remaining programs and staff to the Office of Justice Assistance, Research, and Statistics (see 47 Fed.Reg. 16694-16695 (1982)). These developments do not affect the issues before the Court. /2/ For example, in 1974, the Philadelphia Police Department -- one of the recipient agencies whose practices are complained of in this case -- received a total of less than $800,000 in LEAA grants. The Department's total budget that year was almost $132 million. Thus, LEAA grants accounted for approximately 0.6% of the 1974 Philadelphia Police Department budget. /3/ The LEAA had the option of terminating payments only to the activities that were not in compliance. 42 U.S.C. (1970 ed., Supp. V) 3757. /4/ "J.A." refers to the Joint Appendix filed when this case was previously before this Court (458 U.S. 591 (1982) (No. 80-1074)). /5/ For example, respondent Brace alleged that she was discriminatorily harassed by the Philadelphia Police Department (Complaint, paras. 43-46; J.A. 26-28). (We note that petitioners at one point caused the Department of Justice to bring suit against the Philadelphia Police Department to prevent respondent Brace's dismissal (see page 7 note 6, infra).) Respondent Bailey, who is black, claimed that the Indiana State Police Department, among other things, "limited the breadth of experience of the few black troopers through discriminatory assignments, thereby limiting the promotion opportunities of the black troopers" (Complaint, para. 53; J.A. 29). Respondent Heemstra, a woman, claimed that three local police forces in Iowa discriminated against her by maintaining minimum height and weight requirements (Complaint, paras. 58-65; J.A. 30-32). The Richmond, California, Oakland, California, New Orleans, and Honolulu Police Departments were among the other local law enforcement agencies named in the complaint as recipients that discriminated (paras. 66-83, 99-102; J.A. 32-36, 40-41). /6/ The record shows that when one of the respondents, Penelope Brace (see Complaint, paras. 42-50; J.A. 26-28), complained to petitioners that she was about to be dismissed from the Philadelphia Police Department for discriminatory reasons, the Department of Justice sued to prevent her dismissal (C.A. App. 692). /7/ The district court dismissed respondents' claims for declaratory and injunctive relief as moot (App., infra, 56a), but the court of appeals reversed (id. at 36a-37a). On remand, the court of appeals noted that the termination of the LEAA (see page 4 note 1, supra) might raise new mootness questions, but it directed the district court to resolve those questions in the first instance (App., infra, 2a n.3). These issues are not now before this Court. /8/ Judge Tamm also disagreed with the majority's analysis of the standing issue. He noted that the only plausible basis on which respondents could claim standing was that the termination of LEAA funds would have caused the recipient agencies to cease discriminating against them (App., infra, 44a-46a & n.7). Judge Tamm expressed doubt that respondents could make this showing but indicated that he would be willing to allow the issue to be resolved on a motion for summary judgment, after some evidence had been introduced, instead of on a motion to dismiss (id. at 46a-48a, citing Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976)). /9/ In concluding that the Crime Control Act established a clear duty that was allegedly violated by petitioners, the court relied again on what it considered to be the "mandatory language" of the enforcement provisions (App., infra, 13a). The court acknowledged that "some limited discretion under the statute does exist" but asserted that "(t) hese limited areas of discretion do not * * * render (petitioners') statutory obligation so unclear as to entitle them to qualified immunity" (id. at 17a). /10/ The court of appeals asserted that the question whether respondents have stated a claim on which relief can be granted "has not been briefed for us" (App., infra, 7a n.27). This is wrong. It was explicitly discussed at pages 6-14 of the Appellee's Supplemental Memorandum filed in the court of appeals after remand. /11/ Indeed, it is not even clear from the complaint whether any of the recipients are charged with intentional discrimination; in at least some instances (Complaint, paras. 26, 31, 60-63, 68, 74, 79, 83, 90, 93, 94, 100; J.A. 19, 21, 31-36, 38-40) it is clear that the allegedly discriminatory practices of the recipients violated only Title VII of the Civil Rights Act of 1964, 42 U.S.C. (& Supp. V) 2000e et seq., not the Constitution (see Washington v. Davis, 426 U.S. at 239). /12/ Moreover, the court of appeals' conclusion that petitioners can be held to have violated the Constitution "regardless of (their) purpose" (App., infra, 23a), is wholly inconsistent with the approach recently taken by the Eighth Circuit in a similar case, Clients' Council v. Pierce, 711 F.2d 1406 (1983). Clients' Council v. Pierce, 711 F.2d 1406 (1983). Clients' Council was a suit alleging that officials of the Department of Housing and Urban Development violated the Constitution by not terminating federal funds to the Texarkana Housing Authority, which allegedly discriminated on the basis of race. The Eighth Circuit ruled (id. at 1409 (citations omitted)): The district court correctly stated that in order to establish a constitutional violation, the appellants must prove that HUD officials acted with a discriminatory purpose. Although there is simply evidence that the Texarkana Housing Authority intentially discriminated on the basis of race, HUD cannot be held liable unless its own conduct was tainted with a discriminatory purpose. /13/ We also stressed this point in our Memorandum for the United States as Amicus Curiae in Norwood. See 72-77 U.S. Am. Mem. 13-18. Norwood, of course, was a suit for injunctive relief from the government, not for personal damages from individual officials. To obtain money damages from an individual official, something more than "imputed" intent should be required. /14/ It appears that the court of appeals' only explanation for its conclusion that the Constitution distinguishes -- indeed, clearly distinguishes -- between LEAA assistance and other clearly permissible forms of aid is that the LEAA aid took this form. See App., infra, 24a ("(T)he constitutional prohibition * * * clearly prohibits the government from funding other agencies engaged in (discriminatory) practices."). Not only does this view make little sense -- there is no reason to treat monetary aid differently from equally valuable aid that takes a different form -- but, as we explain in the text, it is clearly contrary to this Court's precedents. In support of this supposedly clearly established proposition, the court of appeals cited only two authorities -- a court of appeals decision the reasoning of which has been explicitly rejected by this Court, and ambigious dictum in the opinion of a three-judge district court. Specifically, the court of appeals cited (App., infra, 24a n.72) Gautreaux v. Romney, 448 F.2d 731 (7th cir. 1971), and Green v. Connally, 330 F.Supp. 1150 (D.D.C.), summarily aff'd sub nom. Coit v. Green, 404 U.S. 997 (1971). The reasoning of Gautreaux v. Romney was rejected by this Court in Washington v. Davis, 426 U.S. at 245 n.12. The three-judge district court in Green v. Connally (which was also decided before Washington v. Davis) expressly declined to reach any constitutional issue. See 330 F.Supp. at 1164-1165; id. at 1171 ("Our decree will have no declaration of constitutional rights"). See also Bob Jones University v. United States, No. 81-3 (May 24, 1983), slip op. 23-24 N.24. /15/ The government programs involved in Rendell-Baker and Blum not only were the dominant source of funds but extensively regulated the recipients (see Rendell-Baker, 457 U.S. at 841; Blum, 457 U.S. at 1008-1010); the Court nonetheless ruled that the recipients' activities could not be imputed to the government. /16/ The legislative history of the Crime Control Act also belies the court of appeals' conclusion. The funding termination provision -- Section 509, 42 U.S.C. (1970 ed.) 3757 -- was enacted in 1968 and remained unchanged throughout the period relevant to this litigation. Although that provision always used the word "shall," the House Report accompanying the Act explained that "the Attorney General may terminate or suspend payments * * * on a finding (that) there is a substantial failure to comply" and that he has "broad discretionary power" over the funding termination process (H.R. Rep. 488, 90th Cong., 1st Sess. 14, 26 (1967) (emphasis added); see also S. Rep. 1097, 90th Cong., 2d Sess. 85 (1968). In 1976, at a time when, according to the court of appeals, the LEAA had "virtually no" discretion under the enforcement scheme, Congress again amended the scheme precisely because it thought the LEAA had too much discretion (see, e.g., H.R. Rep. 94-1155, 94th Cong., 2d Sess. 11, 25-27 (1976); 122 Cong. Rec. 28498 (1976) (remarks of Rep. McClory)). /17/ Even if there were a statutory cause of action against petitioners, they would be entitled to absolute immunity, because of their quasi-prosecutorial functions, and to qualified immunity. The court of appeals' ruling that petitioners violated clearly established statutory rights was based on its conclusion that the Crime Control Act left petitioners with only "limited discretion" (App., infra, 17a.) For the reasons we stated in our discussion of the absolute immunity question (pages 20-22, supra), this conclusion is erroneous. For the same reasons, we submit that respondents have failed to state a claim under the Crime Control Act. APPENDIX APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.