author: Justice Blackmun Justice Powell,

text:
    CROWN, CORK & SEAL CO., INC. v. PARKER
    No. 82-118.
    Argued April 18, 1983
    Decided June 13, 1983

      Blackmun, J., delivered the opinion for a unanimous Court. Powell, J., filed a concurring opinion, in which Rehnquist and O’Connor, JJ., joined, post, p. 354.

      George D. Solter argued the cause for petitioner. With him on the brief was Richard J. Magid.

      Norris C. Ramsey argued the cause for respondent. With him on the brief were James L. Foster, William L. Robinson, Beatrice Rosenberg, and Norman J. Chachkin.

        Robert E. Williams, Douglas S. McDowell, and Thomas R. Bagby filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.
      Briefs of amici curiae urging affirmance were filed by Solicitor General • Lee, Deputy Solicitor General Wallace, David A. Strauss, and Phillip B, Sklover for the Equal Employment Opportunity Commission; and by James W. Witherspoon and James E. Elliott for Jack Williams et al.

   Justice Blackmun

delivered the opinion of the Court.

The question that confronts us in this case is whether the filing of a class action tolls the applicable statute of limitations, and thus permits all members of the putative class to file individual actions in the event that class certification is denied, provided, of course, that those actions are instituted within the time that remains on the limitations period.

Respondent Theodore Parker, a Negro male, was discharged from his employment with petitioner Crown, Cork &- Seal Company, Inc., in July 1977. In October of that year, he filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging that he had been harassed and then discharged on account of his race. On November 9, 1978, the EEOC issued a Determination Letter finding no reasonable cause to believe respondent’s discrimination charge was true, and, pursuant to § 706(f) of the Civil Rights Act of 1964 (Act), 78 Stat. 260, as amended, 42 U. S. C. § 2000e-5(f), sent respondent a Notice of Right to Sue. App. 5A, 7A.

Two months earlier, while respondent’s charge was pending before the EEOC, two other Negro males formerly employed by petitioner filed a class action in the United States District Court for the District of Maryland. Pendleton v. Crown, Cork & Seal Co., Civ. No. M-78-1734. The complaint in that action alleged that petitioner had discriminated against its Negro employees with respect to hiring, discharges, job assignments, promotions, disciplinary actions, and other terms and conditions of employment, in violation of Title VII of the Act, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq. The named plaintiffs purported to represent a class of “black persons who have been, continue to be and who in the future will be denied equal employment opportunities by defendant on the grounds of race or color.” App. to Brief for Petitioner 2a. It is undisputed that respondent was a member of the asserted class.

In May 1979, the named plaintiffs in Pendleton moved for class certification. Nearly a year and a half later, on September 4,1980, the District Court denied that motion. App. to Brief for Petitioner 7a. The court ruled that the named plaintiffs’ claims were not typical of those of the class, that the named plaintiffs would not be adequate representatives, and that the class was not so numerous as to make joinder impracticable. Thereafter, Pendleton proceeded as an individual action on behalf of its named plaintiffs.

On October 27,1980, within 90 days after the denial of class certification but almost two years after receiving his Notice of Right to Sue, respondent filed the present Title VII action in the United States District Court for the District of Maryland, alleging that his discharge was racially motivated. Respondent moved to consolidate his action with the pending Pendleton ease, but petitioner opposed the motion on the ground that the two cases were at substantially different stages of preparation. The motion to consolidate was denied. The District Court then granted summary judgment for petitioner, ruling that respondent had failed to file his action within 90 days of receiving his Notice of Right to Sue, as required by the Act’s § 706(f)(1), 42 U. S. C. § 2000e-5(f )(1). 514 F. Supp. 122 (1981).

The United States Court of Appeals for the Fourth Circuit reversed. 677 F. 2d 391 (1982). Relying on American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974), the Court of Appeals held that the filing of the Pendleton class action had tolled Title VII’s statute of limitations for all members of the putative class. Because the Pendleton suit was instituted before respondent received his Notice, and because respondent had filed his action within 90 days after the denial of class certification, the Court of Appeals concluded that it was timely.

Two other Courts of Appeals have held that the tolling rule of American Pipe applies only to putative class members who seek to intervene after denial of class certification, and not to those who, like respondent, file individual actions. We granted certiorari to resolve the conflict. 459 U. S. 986 (1982).

II

A

American Pipe was a federal antitrust suit brought by the State of Utah on behalf of itself and a class of other public bodies and agencies. The suit was filed with only 11 days left to run on the applicable statute of limitations. The District Court eventually ruled that the suit could not proceed as a class action, and eight days after this ruling a number of putative class members moved to intervene. This Court ruled that the motions to intervene were not time-barred. The Court reasoned that unless the filing of a class action tolled the statute of limitations, potential class members would be induced to file motions to intervene or to join in order to protect themselves against the possibility that certification would be denied. 414 U. S., at 553. The principal purposes of the class-action procedure — promotion of efficiency and economy of litigation — would thereby be frustrated. Ibid. To protect the policies behind the class-action procedure, the Court held that “the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to continue as a class action.” Id., at 554.

Petitioner asserts that the rule of American Pipe was limited to intervenors, and does not toll the statute of limitations for class members who file actions of their own. Petitioner relies on the Court’s statement in American Pipe that “the commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status.” Id., at 553 (emphasis added). While American Pipe concerned only intervenors, we conclude that the holding of that case is not to be read so narrowly. The filing of a class action tolls the statute of limitations “as to all asserted members of the class,” id., at 554, not just as to intervenors.

The American Pipe Court recognized that unless the statute of limitations was tolled by the filing of the class action, class members would not be able to rely on the existence of the suit to protect their rights. Only by intervening or taking other action prior to the running of the statute of limitations would they be able to ensure that their rights would not be lost in the event that class certification was denied. Much the same inefficiencies would ensue if American Pipe’s tolling rule were limited to permitting putative class members to intervene after the denial of class certification. There are many reasons why a class member, after the denial of class certification, might prefer to bring an individual suit rather than intervene. The forum in which the class action is pending might be an inconvenient one, for example, or the class member might not wish to share control over the litigation with other plaintiffs once the economies of a class action were no longer available. Moreover, permission to intervene might be refused for reasons wholly unrelated to the merits of the claim. A putative class member who fears that class certification may be denied would have every incentive to file a separate action prior to the expiration of his own period of limitations. The result would be a needless multiplicity of actions — precisely the situation that Federal Rule of Civil Procedure 23 and the tolling rule of American Pipe were designed to avoid.

B

Failure to apply American Pipe to class members filing separate actions also would be inconsistent with the Court’s reliance on American Pipe in Eisen v. Carlisle & Jacquelin, 417 U. S. 156 (1974). In Eisen, the Court held that Rule 23(c)(2) required individual notice to absent class members, so that each class member could decide whether to “opt out” of the class and thereby preserve his right to pursue his own lawsuit. 417 U. S., at 176. The named plaintiff in Eisen argued that such notice would be fruitless because the statute of limitations had long since run on the claims of absent class members. This argument, said the Court, was “disposed of by our recent decision in American Pipe . . . which established that commencement of a class action tolls the applicable statute of limitations as to all members of the class.” Id., at 176, n. 13.

If American Pipe’s tolling rule applies only to intervenors, this reference to American Pipe is misplaced and makes no sense. Eisen’s notice requirement was intended to inform the class member that he could “preserve his opportunity to press his claim separately” by opting out of the class. 417 U. S., at 176 (emphasis added). But a class member would be unable to “press his claim separately” if the limitations period had expired while the class action was pending. The Eisen Court recognized this difficulty, but concluded that the right to opt out and press a separate claim remained meaningful because the filing of the class action tolled the statute of limitations under the rule of American Pipe. 417 U. S., at 176, n. 13. If American Pipe were limited to intervenors, it would not serve the purpose assigned to it by Eisen; no class member would opt out simply to intervene. Thus, the Eisen Court necessarily read American Pipe as we read it today, to apply to class members who choose to file separate suits.

C

The Court noted in American Pipe that a tolling rule for class actions is not inconsistent with the purposes served by statutes of limitations. 414 U. S., at 554. Limitations periods are intended to put defendants on notice of adverse claims and to prevent plaintiffs from sleeping on their rights, see Delaware State College v. Ricks, 449 U. S. 250, 256-257 (1980); American Pipe, 414 U. S., at 561 (concurring opinion); Burnett v. New York Central R. Co., 380 U. S. 424, 428 (1965), but these ends are met when a class action is commenced. Class members who do not file suit while the class action is pending cannot be accused of sleeping on their rights; Rule 23 both permits and encourages class members to rely on the named plaintiffs to press their claims. And a class complaint “notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who may participate in the judgment.” American Pipe, 414 U. S., at 555; see United Airlines, Inc. v. McDonald, 432 U. S. 385, 395 (1977). The defendant will be aware of the need to preserve evidence and witnesses respecting the claims of all the members of the class. Tolling the statute of limitations thus creates no potential for unfair surprise, regardless of the method class members choose to enforce their rights upon denial of class certification.

Restricting the rule of American Pipe to intervenors might reduce the number of individual lawsuits filed against a particular defendant but, as discussed above, this decrease in litigation would be counterbalanced by an increase in protective filings in all class actions. Moreover, although a defendant may prefer not to defend against multiple actions in multiple forums once a class has been decertified, this is not an interest that statutes of limitations are designed to protect. Cf. Goldlawr, Inc. v. Heiman, 369 U. S. 463, 467 (1962). Other avenues exist by which the burdens of multiple lawsuits may be avoided; the defendant may seek consolidation in appropriate cases, see Fed. Rule Civ. Proc. 42(a); 28 U. S. C. § 1404 (change of venue), and multidistrict proceedings may be available if suits have been brought in different jurisdictions, see 28 U. S. C. § 1407.

H — < l-H H-I

We conclude, as did the Court m American Pipe, that the commencement of a class action suspends the applicable statute of limitations as to all asserted members of the class who would have been parties had the suit been permitted to eon-tinue as a class action.” 414 U. S., at 554. Once the statute of limitations has been tolled, it remains tolled for all members of the putative class until class certification is denied. At that point, class members may choose to file their own suits or to intervene as plaintiffs in the pending action.

In this case, respondent clearly would have been a party in Pendleton if that suit had been permitted to continue as a class action. The filing of the Pendleton action thus tolled the statute of limitations for respondent and other members of the Pendleton class. Since respondent did not receive his Notice of Right to Sue until after the Pendleton action was filed, he retained a full 90 days in which to bring suit after class certification was denied. Respondent’s suit was thus timely filed.

The judgment of the Court of Appeals is

Affirmed.

Justice Powell,

with whom Justice Rehnquist and Justice O’Connor join,

concurring.

I join the Court’s opinion. It seems important to reiterate the view expressed by Justice Blackmun in American Pipe & Constr. Co. v. Utah, 414 U. S. 538 (1974). He wrote that our decision “must not be regarded as encouragement to lawyers in a case of this kind to frame their pleadings as a class action, intentionally, to attract and save members of the purported class who have slept on their rights.” Id., at 561 (concurring opinion). The tolling rule of American Pipe is a generous one, inviting abuse. It preserves for class members a range of options pending a decision on class certification. The rule should not be read, however, as leaving a plaintiff free to raise different or peripheral claims following denial of class status.

In American Pipe we noted that a class suit “notifies the defendants not only of the substantive claims being brought against them, but also of the number and generic identities of the potential plaintiffs who participate in the judgment. Within the period set by the statute of limitations, the defendants have the essential information necessary to determine both the subject matter and size of the prospective litigation.” Id., at 555. When thus notified, the defendant normally is not prejudiced by tolling of the statute of limitations. It is important to make certain, however, that American Pipe is not abused by the assertion of claims that differ from those raised in the original class suit. As Justice Blackmun noted, a district court should deny intervention under Rule 24(b) to “preserve a defendant whole against prejudice arising from claims for which he has received no prior notice.” Id., at 562 (concurring opinion). Similarly, when a plaintiff invokes American Pipe in support of a separate lawsuit, the district court should take care to ensure that the suit raises claims that “concern the same evidence, memories, and witnesses as the subject matter of the original class suit,” so that “the defendant will not be prejudiced.” Ibid. Claims as to which the defendant was not fairly placed on notice by the class suit are not protected under American Pipe and are barred by the statute of limitations.

In this case, it is undisputed that the Pendleton class suit notified petitioner of respondent’s claims. The statute of limitations therefore was tolled under American Pipe as to those claims.

       The named plaintiffs in Pendleton later settled their claims, and their action was dismissed with prejudice. Respondent Parker, as permitted by United Airlines, Inc. v. McDonald, 432 U. S. 385, 392-395 (1977), then intervened in that lawsuit for the limited purpose of appealing the denial of class certification. He failed, however, to take a timely appeal.

       See Pavlak v. Church, 681 F. 2d 617 (CA9 1982), cert. pending, No. 82-650; Stull v. Bayard, 561 F. 2d 429, 433 (CA2 1977), cert. denied, 434 U. S. 1035 (1978); Arneil v. Ramsey, 550 F. 2d 774, 783 (CA2 1977).

       Petitioner also argues that American Pipe does not apply in Title VII actions, because the time limit contained in § 706(f)(1), 42 U. S. C. §2000e-5(f)(1), is jurisdictional and may not be tolled. This argument is foreclosed by the Court’s decisions in Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 398 (1982), and Mohasco Corp. v. Silver, 447 U. S. 807, 811, and n. 9 (1980).

         Putative class members frequently are not entitled to intervene as of right under Federal Rule of Civil Procedure 24(a), and permissive intervention under Federal Rule of Civil Procedure 24(b) may be denied in the discretion of the District Court. American Pipe, 414 U. S., at 559-560; id., at 562 (concurring opinion); see Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 524-525 (1947). In exercising its discretion the district court considers “whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties,” Fed. Rule Civ. Proc. 24(b), and a court could conclude that undue delay or prejudice would result if many class members were brought in as plaintiffs upon the denial of class certification. Thus, permissive intervention well may be an uncertain prospect for members of a proposed class.

       Several Members of the Court have indicated that American Pipe’s tolling rule can apply to class members who file individual suits, as well as to those who seek to intervene. See Johnson v. Railway Express Agency, Inc., 421 U. S. 454, 474-475 (1975) (MARSHALL, J., joined by Douglas and Brennan, 33., concurring in part and dissenting in part) (“In American Pipe we held that initiation of a timely class action tolled the running of the limitation period as to individual members of the class, enabling them to institute separate actions after the District Court found class action an inappropriate mechanism for the litigation”); United Airlines, Inc. v. McDonald, 432 U. S., at 402 (Powell, J., joined by Burger, C. J., and White, J., dissenting) (“Under American Pipe, the filing of a class action complaint tolls the statute of limitations until the District Court makes a decision regarding class status. If class status is denied,... the statute of limitations begins to run again as to class members excluded from the class. In order to protect their rights, such individuals must seek to intervene in the individual action (or possibly file an action of their own) before the time remaining in the limitations period expires”).

       Petitioner’s complaints about the burden of defending multiple suits ring particularly hollow in this case, since petitioner opposed respondent’s efforts to consolidate his action with Pendleton.


source: Caselaw Access Project

author: Justice Powell Justice Stevens,

license: Public Domain

text:
    BELL v. UNITED STATES
    No. 82-5119.
    Argued April 25, 1983
    Decided June 13, 1983
    Powell, J., delivered the opinion of the Court, in which BURGER, C. J., and Brennan, White, Marshall, Blackmun, Rehnquist, and O’Con-nor, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 362.

      Roy W. Allman, by appointment of the Court, 459 U. S. 1100, argued the cause and filed a brief for petitioner.

      Associate Attorney General Giuliani argued the cause for the United States. On the brief were Solicitor General Lee, Assistant Attorney General Jensen, Elliott Schulder, and Sara Criscitelli.

   Justice Powell

delivered the opinion of the Court.

The issue presented is whether 18 U. S. C. § 2113(b), a provision of the Federal Bank Robbery Act, proscribes the crime of obtaining money under false pretenses.

H-H

On October 13, 1978, a Cincinnati man wrote a check for $10,000 drawn on a Cincinnati bank. He endorsed the check for deposit to his account at Dade Federal Savings & Loan of Miami and mailed the check to an agent there. The agent never received the check. On October 17, petitioner Nelson Bell opened an account at a Dade Federal branch and deposited $50 — the minimum amount necessary for new accounts. He used his own name, but gave a false address, birth date, and social security number. Later that day, at another branch, he deposited the Cincinnati man’s $10,000 check into this new account. The endorsement had been altered to show Bell’s account number. Dade Federal accepted the deposit, but put a 20-day hold on the funds. On November 7, as soon as the hold had expired, Bell returned to the branch at which he had opened the account. The total balance, with accrued interest, was then slightly over $10,080. Bell closed the account and was paid the total balance in cash.

Bell was apprehended and charged with violating 18 U. S. C. § 2113(b). The statute provides, in relevant part:

“Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $5,000 or imprisoned not more than ten years, or both . . .

Bell was convicted after a jury trial in the United States District Court for the Southern District of Florida.

On appeal, a divided panel of the United States Court of Appeals for the Fifth Circuit reversed the conviction on the ground that there was insufficient evidence of specific intent. 649 F. 2d 281 (1981). The en banc court granted the Government’s petition for rehearing, however, and affirmed the conviction. 678 F. 2d 547 (1982) (Unit B). In so doing, it concluded that the statute embraces all felonious takings— including obtaining money under false pretenses. The court thus rejected Bell’s argument that § 2113(b) is limited to common-law larceny. Id., at 548-549. Because this conclusion is inconsistent with that reached in United States v. Feroni, 655 F. 2d 707, 708-711 (CA6 1981), and LeMasters v. United States, 378 F. 2d 262, 267-268 (CA9 1967), we granted certiorari to resolve the conflict. 459 U. S. 1034 (1982). We now affirm.

II

In the 13th century, larceny was limited to trespassory taking: a thief committed larceny only if he feloniously “took and carried away” another’s personal property from his possession. The goal was more to prevent breaches of the peace than losses of property, and violence was more likely when property was taken from the owner’s actual possession.

As the common law developed, protection of property also became an important goal. The definition of larceny accordingly was expanded by judicial interpretation to include cases where the owner merely was deemed to be in possession. Thus when a bailee of packaged goods broke open the packages and misappropriated the contents, he committed larceny. The Carrier’s Case, Y. B. Pasch. 13 Edw. IV, f. 9, pl. 5 (Star Ch. and Exch. Ch. 1473), reprinted in 64 Selden Society 30 (1945). The bailor was deemed to be in possession of the contents of the packages, at least by the time of the misappropriation. Similarly, a thief committed “larceny by trick” when he obtained custody of a horse by telling the owner that he intended to use it for one purpose when he in fact intended to sell it and to keep the proceeds. King v. Pear, 1 Leach 212, 168 Eng. Rep. 208 (Cr. Cas. Res. 1779). The judges accepted the fiction that the owner retained possession of the horse until it was sold, on the theory that the thief had custody only for a limited purpose. Id., at 213-214, 168 Eng. Rep., at 209.

By the late 18th century, courts were less willing to expand common-law definitions. Thus when a bank clerk retained money given to him by a customer rather than depositing it in the bank, he was not guilty of larceny, for the bank had not been in possession of the money. King v. Bazeley, 2 Leach 835, 168 Eng. Rep. 517 (Cr. Cas. Res. 1799). Statutory crimes such as embezzlement and obtaining property by false pretenses therefore were created to fill this gap.

The theoretical distinction between false pretenses and larceny by trick may be stated simply. If a thief, through his trickery, acquired title to the property from the owner, he has obtained property by false pretenses; but if he merely acquired possession from the owner, he has committed larceny by trick. See LaFave & Scott, supra n. 2, at 660-662. In this case the parties agree that Bell is guilty of obtaining money by false pretenses. When the teller at Dade Federal handed him $10,080 in cash, Bell acquired title to the money. The only dispute is whether 18 U. S. C. § 2113(b) proscribes the crime of false pretenses, or whether the statute is instead limited to common-law larceny.

t-H h — ( bH

A

Bell’s argument in favor of the narrower reading of § 2113(b) relies principally on the statute’s use of the traditional common-law language “takes and carries away.” He cites the rule of statutory construction that when a federal criminal statute uses a common-law term without defining it, Congress is presumed to intend the common-law meaning. See United States v. Turley, 352 U. S. 407, 411 (1957). In § 2113(b), however, Congress has not adopted the elements of larceny in common-law terms. The language “takes and carries away” is but one part of the statute and represents only one element of common-law larceny. Other language in §2113(b), such as “with intent to steal or purloin,” has no established meaning at common law. See Turley, supra, at 411-412. Moreover, “taking and carrying away,” although not a necessary element of the crime, is entirely consistent with false pretenses.

Two other aspects of § 2113(b) show an intention to go beyond the common-law definition of larceny. First, common-law larceny was limited to thefts of tangible personal property. This limitation excluded, for example, the theft of a written instrument embodying a chose in action. LaFave & Scott, supra n. 2, at 633. Section 2113(b) is thus broader than common-law larceny, for it covers “any property or money or any other thing of value exceeding $100.” Second, and of particular relevance to the distinction at issue here, common-law larceny required a theft from the possession of the owner. When the definition was expanded, it still applied only when the owner was deemed to be in possession. Section 2113(b), however, goes well beyond even this expanded definition. It applies when the property “belong[s] to,” or is “in the care, custody, control, management, or possession of,” a covered institution.

In sum, the statutory language does not suggest that it covers only common-law larceny. Although § 2113(b) does not apply to a case of false pretenses in which there is not a taking and carrying away, it proscribes Bell’s conduct here. The evidence is clear that he “t[ook] and carrie[d] away, with intent to steal or purloin, [over $10,000 that was] in the care, custody, control, management, or possession of” Dade Federal Savings & Loan.

B

The legislative history of § 2113(b) also suggests that Congress intended the statute to reach Bell’s conduct. As originally enacted in 1934, the Federal Bank Robbery Act, ch. 304, 48 Stat. 783, governed only robbery — a crime requiring a forcible taking. Congress apparently was concerned with “ ‘gangsters who operate habitually from one State to another in robbing banks.’” S. Rep. No. 537, 73d Cong., 2d Sess., 1 (1934) (quoting Justice Department memorandum); see 78 Cong. Rec. 2946-2947 (1934); H. R. Rep. No. 1461, 73d Cong., 2d Sess., 2 (1934).

By 1937 the concern was broader, for the limited nature of the original Act (“ha[d] led to some incongruous results.’” H. R. Rep. No. 732, 75th Cong., 1st Sess., 1 (1937) (quoting Attorney General’s letter to the Speaker). It was possible for a thief to steal a large amount from a bank “ ‘without displaying any force or violence and without putting any one in fear,’” id., at 2, and he would not violate any federal law. Congress amended the Act to fill this gap, adding language now found at §§ 2113(a) and (b). Act of Aug. 24,1937, ch. 747, 50 Stat. 749. Although the term “larceny” appears in the legislative Reports, the congressional purpose plainly was to protect banks from those who wished to steal banks’ assets — even if they used no force in doing so.

The congressional goal of protecting bank assets is entirely independent of the traditional distinction on which Bell relies. To the extent that a bank needs protection against larceny by trick, it also needs protection from false pretenses. We cannot believe that Congress wished to limit the scope of the amended Act’s coverage, and thus limit its remedial purpose, on the basis of an arcane and artificial distinction more suited to the social conditions of 18th-century England than the needs of 20th-century America. Such an interpretation would signal a return to the “incongruous results” that the 1937 amendment was designed to eliminate.

> H — 1

We conclude that 18 U. S. C. § 2113(b) is not limited to common-law larceny. Although § 2113(b) may not cover the full range of theft offenses, it covers Bell’s conduct here. His conviction therefore was proper, and the judgment of the Court of Appeals accordingly is

Affirmed.

Justice Stevens,

dissenting.

Although federal criminal statutes that are intended to fill a void in local law enforcement should be construed broadly, see, e. g., United States v. Staszcuk, 517 F. 2d 53, 57-58 (CA7 1975) (en banc), I take a different approach to federal laws that merely subject the citizen to the risk of prosecution by two different sovereigns. See, e. g., United States v. Altobella, 442 F. 2d 310, 316 (CA7 1971). When there is no perceivable obstacle to effective state enforcement, I believe federal criminal legislation should be narrowly construed unless it is clear that Congress intended the coverage in dispute. McElroy v. United States, 455 U. S. 642, 675 (1982) (Stevens, J., dissenting); see Jerome v. United States, 318 U. S. 101, 104-105 (1943).

The history of the bank robbery and bank larceny legislation enacted in 1934 and 1937 persuades me that Congress did not intend federal law to encompass the conduct of obtaining funds from a bank with its consent, albeit under false pretenses. The 1934 Act was a response to the spate of armed bank robberies committed by John Dillinger and other traveling gunmen who outwitted and outmaneuvered a series of local police forces as they moved from State to State in the early 1930’s. Congress responded to local requests for federal assistance by enacting a statute that prohibited robbery of federal banks, but rejected the section initially passed by the Senate that made larceny by false pretenses a federal offense. It is clear that Congress did not intend the federal law to overlap state jurisdiction to any greater extent than was necessary to cope with the specific evil that had given rise to the legislation.

Three years later the bank robbery statute was amended at the request of Attorney General Cummings. The Attorney General specifically described the anomaly created by the statute’s failure to cover larceny by stealth, theft of money from a bank without violence but also clearly without the bank’s consent. The amendment — making burglary and “larceny” of federal banks a federal crime — was adopted routinely, without significant comment or debate. It is fair to infer that Congress viewed the amendment as a limited change that was entirely consistent with the intent of the 1934 Act, including the intent of legislators who perceived a danger in encouraging the unnecessary growth of a national police force.

This interpretation of the legislative history was accepted by all of the Members of this Court in Jerome v. United States, 318 U. S. 101 (1943), a case decided only six years after the passage of the bank larceny statute. The defendant in that case had been convicted in federal court for entering a national bank with intent to utter a forged promissory note. Although the Court was construing a different section of the statute, its discussion of Congress’ intent is equally applicable to the section involved in this case. Justice Douglas observed:

“It is difficult to conclude in the face of this history that Congress, having rejected in 1934 an express provision making state felonies federal offenses, reversed itself in 1937 .... It is likewise difficult to believe that Congress, through the same clause, adopted by indirection in 1937 much of the fraud provision which it rejected in 1934.” Id., at 105-106.

Further, the Court noted, “there is not the slightest indication that the interstate activities of gangsters against national and insured banks had broken down or rendered ineffective enforcement of state laws covering all sorts of felonies.” Id., at 107.

Given the strong evidence of Congress’ specific, limited intent, I would confine the bank larceny statute to takings without the bank’s consent. Although I cannot deny that the Court’s construction of the statutory language is plausible, the language remains ambiguous. I would not at this late date repudiate Jerome's understanding of Congress’ intent. I therefore respectfully dissent.

       Most Courts of Appeals have taken a broad reading of § 2113(b). See, e. g., United States v. Hinton, 703 P. 2d 672, 675-677 (CA2 1983), cert. denied, post, p. 1121; United States v. Shoels, 685 P. 2d 379, 381-383 (CA10 1982), cert. pending, No. 82-5550; United States v. Simmons, 679 F. 2d 1042, 1045-1049 (CA3 1982), cert. pending sub nom. Brown v. United States, No. 82-5201; United States v. Guiffre, 576 F. 2d 126, 127-128 (CA7), cert. denied, 439 U. S. 833 (1978); cf. United States v. Johnson, 575 F. 2d 678, 679-680 (CA8 1978) (dictum); but see United States v. Rogers, 289 F. 2d 433, 437-438 (CA4 1961) (dictum).

       The historical development of common-law larceny and related crimes is discussed in detail in several treatises. See, e. g., W. LaFave & A. Scott, Handbook on Criminal Law 618-622 (1972); J. Hall, Theft, Law and Society 3-58 (2d ed. 1952).

       The narrow concern of the 1934 Congress is illustrated in its rejection of a broad bill that would have gone well beyond bank robbery. The rejected bill, for example, explicitly would have covered taking property by false pretenses. S. 2841, 73d Cong., 2d Sess., §2 (1934).

       There are dicta in Jerome v. United States, 318 U. S. 101 (1943), that suggest a narrow reading of § 2113(b), but our conclusion today is consistent with the Jerome holding. The only issue then before the Court was whether the Act’s burglary provision, now codified in § 2113(a), proscribed entering a bank to commit a state-law felony.

       The Department of Justice explained the need for new legislation largely by reference to the problem of armed robberies, though it recommended a bill broad enough to cover larceny by false pretenses as well. Its memorandum, quoted in the House Report, explains:
      “This bill is directed at one of the most serious forms of crime committed by organized gangsters who operate habitually from one State to another— the robbery of banks. From all sections of this country Federal relief has been requested. It is asserted that these criminals are sufficiently powerful and well equipped to defy local police, and to flee beyond the borders of the State before adequate forces can be organized to resist and capture these bandits.” H. R. Rep. No. 1461, 73d Cong., 2d Sess., 2 (1934); see S. Rep. No. 537, 73d Cong., 2d Sess., 1 (1934).
      Indeed, the 1934 floor debates in the House included a clear reference to one of Dillinger’s well-known escapades. Representative Blanton noted that a man might go into a bank with intent to rob, and “he might use one of these new kind of Indiana six shooters carved out of a piece of wood with a pocket knife.” 78 Cong. Rec. 8132 (1934).

       For the Department of Justice’s memoranda to Congress, see H. R. Rep. No. 1461, supra n. 1, at 2; S. Rep. No. 537, supra n. 1, at 1. The Senate bill provided, in part:
      “Whoever, not being entitled to the possession of property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, takes and carries away, or attempts to take and carry away, such property or money or any other thing of value from any place (1) without the consent of such bank, or (2) with the consent of such bank obtained by the offender by any trick, artifice, fraud, or false or fraudulent representation, with intent to convert such property or money or any other thing of value to his use or to the use of any individual, association, partnership, or corporation, other than such bank, shall be punished by a fine of not more than $5,000 or imprisonment for not more than 10 years, or both.” S. 2841, § 2, 73d Cong., 2d Sess., 78 Cong. Rec. 8132 (1934) (emphasis supplied).
      The House Judiciary Committee recommended that § 2, making bank larceny a federal crime, be stricken out. The House accepted the Committee amendment, and the Senate accepted the changes. Id., at 8767, 8776. During floor discussion of the Committee Report, Representative Hatton Sumners, longtime Chairman of the House Judiciary Committee, made clear his reluctance to extend federal criminal jurisdiction. He explained, in opposing a proposed amendment extending the reach of the bill to other governmental institutions: “I may say to the gentleman that we are going rather far in this bill, since all the property is owned, as a rule, by the citizens of the community where the bank is located. The committee was not willing to go further, and the Attorney General did not ask it to go further.” Id., at 8133. As a contemporary observer noted, Sumners “sought throughout the session to confine extensions of federal power to those situations where the need to supplement state and local law enforcing agencies had become imperative.” A Note on the Racketeering, Bank Robbery, and “Kick-Back” Laws, 1 Law & Contemp. Prob. 445, 448-449 (1934).

       The Department of Justice expressly stated in its memorandum:
      “There is no intention that the Federal Government shall supersede the State authorities in this class of cases. It will intervene only to cooperate with local forces when it is evident that the latter cannot cope with the criminals.” H. R. Rep. No. 1461, supra n. 1, at 2.

       “The fact that the statute is limited to robbery and does not include larceny and burglary has led to some incongruous results. A striking instance arose a short time ago, when a man was arrested in a national bank while walking out of the building with $11,000 of the bank’s funds on his person. He had managed to gain possession of the money during a momentary absence of one of the employees, without displaying any force or violence and without putting any one in fear — necessary elements of the crime of robbery — and was about to leave the bank when apprehended. As a result, it was not practicable to prosecute him under any Federal statute.” H. R. Rep. No. 732, 75th Cong., 1st Sess., 1-2 (1937).

       See, e. g., 81 Cong. Rec. 5376-5377 (1937).

       The provision construed by the Court made it a federal offense to enter any bank with intent to commit “any felony or larceny.” The Court expressly noted that the term “larceny” was defined in the statute itself — a reference to the section at issue here. 318 U. S., at 105, 106.

       As the Ninth Circuit wrote in LeMasters v. United States, 378 F. 2d 262, 268 (1967), quoted in full in United States v. Feroni, 655 F. 2d 707, 710-711 (CA6 1981):
      “In the bank situation we see no reason, urgent or otherwise, why Congress in 1937 should have wanted to enter the field of obtaining by false pretenses, duplicating state law which was adequate and effectively enforced, and the duplication of which would bring innumerable cases, most of them small, within the jurisdiction of federal prosecutors and courts. Congress was as aware in 1937 as it was in 1934, when it rejected the unambiguous provision making obtaining by false pretense from a bank [a] federal crime, that such an extension of federal law would serve no purpose except to confuse and dilute state responsibility for local crimes which were being adequately dealt with by state law.”


author: Justice Stevens Justice Marshall,

text:
    BUSH v. LUCAS
    No. 81-469.
    Argued January 19, 1983
    Decided June 13, 1983

      Stevens, J., delivered the opinion for a unanimous Court. MARSHALL, J., filed a concurring opinion, in which Blackmun, J., joined, post, p. 390.

      William Harvey Elrod, Jr., argued the cause and filed briefs for petitioner.

      Deputy Solicitor General Getter argued the cause for respondent. With him on the brief were Solicitor General Lee, Assistant Attorney General McGrath, David A. Strauss, Barbara L. Herwig, and Wendy M. Keats.

      Briefs of amici curiae urging reversal were filed by Charles B. Wayne and Mark H. Lynch for the American Civil Liberties Union; by J. Albert Woll, Marsha Berzon, Laurence Gold, Edward J. Hickey, Erick Genser, James Rosa, and David Barr for the American Federation of Labor and Congress of Industrial Organizations et al.; by John F. Bufe, Lois G. Williams, and Michael David Fox for the National Treasury Employees Union; and by John C. Keeney, Jr., Joseph M. Hassett, and Peter Raven-Hansen for Representative Schroeder et al.

   Justice Stevens

delivered the opinion of the Court.

Petitioner asks us to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors. Because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions giving meaningful remedies against the United States, we conclude that it would be inappropriate for us to supplement that regulatory scheme with a new judicial remedy.

Petitioner Bush is an aerospace engineer employed at the George C. Marshall Space Flight Center, a major facility operated by the National Aeronautics and Space Administration in Alabama. Respondent Lucas is the Director of the Center. In 1974 the facility was reorganized and petitioner was twice reassigned to new positions. He objected to both reassignments and sought formal review by the Civil Service Commission. In May and June 1975, while some of his administrative appeals were pending, he made a number of public statements, including two televised interviews, that were highly critical of the agency. The news media quoted him as saying that he did not have enough meaningful work to keep him busy, that his job was “a travesty and worthless,” and that the taxpayers’ money was being spent fraudulently and wastefully at the Center. His statements were reported on local television, in the local newspaper, and in a national press release that appeared in newspapers in at least three other States.

In June 1975 respondent, in response to a reporter’s inquiry, stated that he had conducted an investigation and that petitioner’s statements regarding his job had “no basis in fact.” App. 15. In August 1975 an adverse personnel action was initiated to remove petitioner from his position. Petitioner was charged with “publicly makfing] intemperate remarks which were misleading and often false, evidencing a malicious attitude towards Management and generating an environment of sensationalism demeaning to the Government, the National Aeronautics and Space Administration and the personnel of the George C. Marshall Space Flight Center, thereby impeding Government efficiency and eeon-omy and adversely affecting public confidence in the Government service.” He was also informed that his conduct had undermined morale at the Center and caused disharmony and disaffection among his fellow employees. Petitioner had the opportunity to file a written response and to make an oral presentation to agency officials. Respondent then determined that petitioner’s statements were false and misleading and that his conduct would justify removal, but that the lesser penalty of demotion was appropriate for a “first offense.” Ibid. He approved a reduction in grade from GS-14 to GS-12, which decreased petitioner’s annual salary by approximately $9,716.

Petitioner exercised his right to appeal to the Federal Employee Appeals Authority. After a 3-day public hearing, the Authority upheld some of the charges and concluded that the demotion was justified. It specifically determined that a number of petitioner’s public statements were misleading and that, for three reasons, they “exceeded the bounds of expression protected by the First Amendment.” First, petitioner’s statements did not stem from public interest, but from his desire to have his position abolished so that he could take early retirement and go to law school. Second, the statements conveyed the erroneous impression that the agency was deliberately wasting public funds, thus discrediting the agency and its employees. Third, there was no legitimate public interest to be served by abolishing petitioner’s position.

Two years after the Appeals Authority’s decision, petitioner requested the Civil Service Commission’s Appeals Review Board to reopen the proceeding. The Board reexamined petitioner’s First Amendment claim and, after making a detailed review of the record and the applicable authorities, applied the balancing test articulated in Pickering v. Board of Education, 391 U. S. 563 (1968). On the one hand, it acknowledged the evidence tending to show that petitioner’s motive might have been personal gain, and the evidence that his statements caused some disruption of the agency’s day-today routine. On the other hand, it noted that society as well as the individual had an interest in free speech, including “a right to disclosure of information about how tax dollars are spent and about the functioning of government apparatus, an interest in the promotion of the efficiency of the government, and in the maintenance of an atmosphere of freedom of expression by the scientists and engineers who are responsible for the planning and implementation of the nation’s space program.” Because petitioner’s statements, though somewhat exaggerated, “were not wholly without truth, they properly stimulated public debate.” Thus the nature and extent of proven disruption to the agency’s operations did not “justify abrogation of the exercise of free speech.” The Board recommended that petitioner be restored to his former position, retroactively to November 30,1975, and that he receive backpay. That recommendation was accepted. Petitioner received approximately $30,000 in backpay.

While his administrative appeal was pending, petitioner filed an action against respondent in state court in Alabama seeking to recover damages for defamation and violation of his constitutional rights. Respondent removed the lawsuit to the United States District Court for the Northern District of Alabama, which granted respondent’s motion for summary judgment. It held, first, that the defamation claim could not be maintained because, under Barr v. Matteo, 360 U. S. 564 (1959), respondent was absolutely immune from liability for damages for defamation; and second, that petitioner’s demotion was not a constitutional deprivation for which a damages action could be maintained. The United States Court of Appeals for the Fifth Circuit affirmed. 598 F. 2d 958 (1979). We vacated that court’s judgment, 446 U. S. 914 (1980), and directed that it reconsider the case in the light of our intervening decision in Carlson v. Green, 446 U. S. 14 (1980). The Court of Appeals again affirmed the judgment against petitioner. It adhered to its previous conclusion that “plaintiff had no cause of action for damages under the First Amendment for retaliatory demotion in view of the available remedies under the Civil Service Commission regulations.” 647 F. 2d 573, 574 (1981). It explained that the relationship between the Federal Government and its civil service employees was a special factor counselling against the judicial recognition of a damages remedy under the Constitution in this context.

We assume for purposes of decision that petitioner’s First Amendment rights were violated by the adverse personnel action. We also assume that, as petitioner asserts, civil service remedies were not as effective as an individual damages remedy and did not fully compensate him for the harm he suffered. Two further propositions are undisputed. Congress has not expressly authorized the damages remedy that petitioner asks us to provide. On the other hand, Congress has not expressly precluded the creation of such a remedy by declaring that existing statutes provide the exclusive mode of redress.

Thus, we assume, a federal right has been violated and Congress has provided a less than complete remedy for the wrong. If we were writing on a clean slate, we might answer the question whether to supplement the statutory scheme in either of two quite simple ways. We might adopt the common-law approach to the judicial recognition of new causes of action and hold that it is the province of the judiciary to fashion an adequate remedy for every wrong that can be proved in a case over which a court has jurisdiction. Or we might start from the premise that federal courts are courts of limited jurisdiction whose remedial powers do not extend beyond the granting of relief expressly authorized by Congress. Under the former approach, petitioner would obviously prevail; under the latter, it would be equally clear that he would lose.

Our prior cases, although sometimes emphasizing one approach and sometimes the other, have unequivocally rejected both extremes. They establish our power to grant relief that is not expressly authorized by statute, but they also remind us that such power is to be exercised in the light of relevant policy determinations made by the Congress. We therefore first review some of the cases establishing our power to remedy violations of the Constitution and then consider the bearing of the existing statutory scheme on the precise issue presented by this case.

I

The federal courts’ power to grant relief not expressly authorized by Congress is firmly established. Under 28 U. S. C. § 1331, the federal courts have jurisdiction to decide all cases “arising] under the Constitution, laws, or treaties of the United States.” This jurisdictional grant provides not only the authority to decide whether a cause of action is stated by a plaintiff’s claim that he has been injured by a violation of the Constitution, Bell v. Hood, 327 U. S. 678, 684 (1946), but also the authority to choose among available judicial remedies in order to vindicate constitutional rights. This Court has fashioned a wide variety of nonstatutory remedies for violations of the Constitution by federal and state officials. The cases most relevant to the problem before us are those in which the Court has held that the Constitution itself supports a private cause of action for damages against a federal official. Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971); Davis v. Passman, 442 U. S. 228 (1979); Carlson v. Green, supra.

In Bivens the plaintiff alleged that federal agents, without a warrant or probable cause, had arrested him and searched his home in a manner causing him great humiliation, embarrassment, and mental suffering. He claimed damages on the theory that the alleged violation of the Fourth Amendment provided an independent basis for relief. The Court upheld the sufficiency of his complaint, rejecting the argument that a state tort action in trespass provided the only appropriate judicial remedy. The Court explained why the absence of a federal statutory basis for the cause of action was not an obstacle to the award of damages:

“That damages may be obtained for injuries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprising proposition. Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty. See Nixon v. Condon, 286 U. S. 73 (1932); Nixon v. Herndon, 273 U. S. 536, 540 (1927); Swafford v. Templeton, 185 U. S. 487 (1902); Wiley v. Sinkler, 179 U. S. 58 (1900); J. Landynski, Search and Seizure and the Supreme Court 28 et seq. (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 1, 8-33 (1968); cf. West v. Cabell, 153 U. S. 78 (1894); Lammon v. Feusier, 111 U. S. 17 (1884). Of course, the Fourth Amendment does not in so many words provide for its enforcement by an award of money damages for the consequences of its violation. But ‘it is... well settled that where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done.’ Bell v. Hood, 327 U. S., at 684 (footnote omitted). The present case involves no special factors counselling hesitation in the absence of affirmative action by Congress. We are not dealing with a question of ‘federal fiscal policy/ as in United States v. Standard Oil Co., 332 U. S. 301, 311 (1947).” 403 U. S., at 395-396.

The Court further noted that there was “no explicit congressional declaration that persons injured by a federal officer’s violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress.” Id., at 397.

In his separate opinion concurring in the judgment, Justice Harlan also thought it clear that the power to authorize damages as a remedy for the vindication of a federal constitutional right had not been placed by the Constitution itself exclusively in Congress’ hands. Id., at 401-402. Instead, he reasoned, the real question did not relate to “whether the federal courts have the power to afford one type of remedy as opposed to the other, but rather to the criteria which should govern the exercise of our power.” Id., at 406. In resolving that question he suggested that “the range of policy considerations we may take into account is at least as broad as the range of those a legislature would consider with respect to an expressed] statutory authorization of a traditional remedy.” id., at 407. After weighing the relevant policies he agreed with the Court’s conclusion that the Government had not advanced any substantial policy consideration against recognizing a federal cause of action for violation of Fourth Amendment rights by federal officials.

In Davis v. Passman, supra, the petitioner, former deputy administrative assistant to a Member of Congress, alleged that she had been discharged because of her sex, in violation of her constitutional right to the equal protection of the laws. We held that the Due Process Clause of the Fifth Amendment gave her a federal constitutional right to be free from official discrimination and that she had alleged a federal cause of action. In reaching the conclusion that an award of damages would be an appropriate remedy, we emphasized the fact that no other alternative form of judicial relief was available. The Court also was persuaded that the special concerns which would ordinarily militate against allowing recovery from a legislator were fully reflected in respondent’s affirmative defense based on the Speech or Debate Clause of the Constitution. Id., at 246. We noted the absence of any explicit congressional declaration that persons in petitioner’s position may not recover damages from those responsible for their injury. Id., at 246-247.

Carlson v. Green, 446 U. S. 14 (1980), involved a claim that a federal prisoner’s Eighth Amendment rights had been violated. The prisoner’s mother brought suit on behalf of her son’s estate, alleging that federal prison officials were responsible for his death because they had violated their constitutional duty to provide him with proper medical care after he suffered a severe asthmatic attack. Unlike Bivens and Davis, the Green case was one in which Congress had provided a remedy, under the Federal Tort Claims Act, against the United States for the alleged wrong. 28 U. S. C. § 2671 et seq. As is true in this case, that remedy was not as completely effective as a Bivens-type action based directly on the Constitution.

The Court acknowledged that a Bivens action could be defeated in two situations, but found that neither was present. First, the Court could discern “ ‘no special factors counselling hesitation in the absence of affirmative action by Congress.’ ” 446 U. S., at 18-19, citing Bivens, 403 U. S., at 396, and Davis, supra, at 245. Second, there was no congressional determination foreclosing the damages claim and making the Federal Tort Claims Act exclusive. 446 U. S., at 19, and n. 5. No statute expressly declared the FTCA remedy to be a substitute for a Bivens action; indeed, the legislative history of the 1974 amendments to the FTCA “made it crystal clear that Congress views FTCA and Bivens as parallel, complementary causes of action.” 446 U. S., at 19-20.

This much is established by our prior cases. The federal courts’ statutory jurisdiction to decide federal questions confers adequate power to award damages to the victim of a constitutional violation. When Congress provides an alternative remedy, it may, of course, indicate its intent, by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself, that the courts’ power should not be exercised. In the absence of such a congressional directive, the federal courts must make the kind of remedial determination that is appropriate for a common-law tribunal, paying particular heed, however, to any special factors coun-selling hesitation before authorizing a new kind of federal litigation.

Congress has not resolved the question presented by this case by expressly denying petitioner the judicial remedy he seeks or by providing him with an equally effective substitute. There is, however, a good deal of history that is relevant to the question whether a federal employee’s attempt to recover damages from his superior for violation of his First Amendment rights involves any “special factors counselling hesitation.” When those words were first used in Bivens, supra, at 396, we illustrated our meaning by referring to United States v. Standard Oil Co., 332 U. S. 301, 311, 316 (1947), and United States v. Gilman, 347 U. S. 507 (1954).

In the Standard Oil case the Court had been asked to authorize a new damages remedy for the Government against a tortfeasor who had injured a soldier, imposing hospital expenses on the Government and depriving it of his services. Although, as Justice Jackson properly noted in dissent, the allowance of recovery would not have involved any usurpation of legislative power, 332 U. S., at 318, the Court nevertheless concluded that Congress as “the custodian of the national purse” should make the necessary determination of federal fiscal policy. The Court refused to create a damages remedy, which would be “the instrument for determining and establishing the federal fiscal and regulatory policies which the Government’s executive arm thinks should prevail in a situation not covered by traditionally established liabilities.” Id., at 314.

Similarly, in Gilman, the Court applied the Standard Oil rationale to reject the Government’s attempt to recover indemnity from one of its employees after having been held liable under the FTCA for the employee’s negligence. As the Court noted: “The relations between the United States and its employees have presented a myriad of problems with which the Congress over the years has dealt. . . . Government employment gives rise to policy questions of great import, both to the employees and to the Executive and Legislative Branches.” 347 U. S., at 509. The decision regarding indemnity involved questions of employee discipline and morale, fiscal policy, and the efficiency of the federal service. Hence, the Court wrote, the reasons for deferring to congressional policy determinations were even more compelling than in Standard Oil.

“Here a complex of relations between federal agencies and their staffs is involved. Moreover, the claim now asserted, though the product of a law Congress passed, is a matter on which Congress has not taken a position. It presents questions of policy on which Congress has not spoken. The selection of that policy which is most advantageous to the whole involves a host of considerations that must be weighed and appraised. That function is more appropriately for those who write the laws, rather than for those who interpret them.” 347 U. S., at 511-513.

The special factors counselling hesitation in the creation of a new remedy in Standard Oil and Gilman did not concern the merits of the particular remedy that was sought. Rather, they related to the question of who should decide whether such a remedy should be provided. We should therefore begin by considering whether there are reasons for allowing Congress to prescribe the scope of relief that is made available to federal employees whose First Amendment rights have been violated by their supervisors.

t — H HH

Unlike Standard Oil and Gilman, this case concerns a claim that a constitutional right has been violated. Nevertheless, just as those cases involved “federal fiscal policy” and the relations between the Government and its employees, the ultimate question on the merits in this case may appropriately be characterized as one of “federal personnel policy.” When a federal civil servant is the victim of a retaliatory demotion or discharge because he has exercised his First Amendment rights, what legal remedies are available to him?

The answer to that question has changed dramatically over the years. Originally the answer was entirely a matter of Executive discretion. During the era of the patronage system that prevailed in the Federal Government prior to the enactment of the Pendleton Act in 1883, 22 Stat. 403, the federal employee had no legal protection against political retaliation. Indeed, the exercise of the First Amendment right to support a political candidate opposing the party in office would routinely have provided an accepted basis for discharge. During the past century, however, the job security of federal employees has steadily increased.

In the Pendleton Act Congress created the Civil Service Commission and provided for the selection of federal civil servants on a merit basis by competitive examination. Although the statute did not address the question of removals in general, it provided that no employee in the public service could be required to contribute to any political fund or fired for refusing to do so, and it prohibited officers from attempting to influence or coerce the political actions of others.

Congressional attention to the problem of politically motivated removals was again prompted by the issuance of Executive Orders by Presidents Roosevelt and Taft that forbade federal employees to communicate directly with Congress without the permission of their supervisors. These “gag orders,” enforced by dismissal, were cited by several legislators as the reason for enacting the Lloyd-La Follette Act in 1912, 37 Stat. 539, 555, § 6. That statute provided that “no person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing . . . .” Moreover, it explicitly guaranteed that the right of civil servants “to furnish information to either House of Congress, or to any committee or member thereof, shall not be denied or interfered with.” As the House Report explained, this legislation was intended “to protect employees against oppression and in the right of free speech and the right to consult their representatives.” In enacting the Lloyd-La Follette Act, Congress weighed the competing policy considerations and concluded that efficient management of Government operations did not preclude the extension of free speech rights to Government employees.

In the ensuing years, repeated consideration of the conflicting interests involved in providing job security, protecting the right to speak freely, and maintaining discipline and efficiency in the federal work force gave rise to additional legislation, various Executive Orders, and the promulgation of detailed regulations by the Civil Service Commission. Federal civil servants are now protected by an elaborate, comprehensive scheme that encompasses substantive provisions forbidding arbitrary action by supervisors and procedures — administrative and judicial — by which improper action may be redressed. They apply to a multitude of personnel decisions that are made daily by federal agencies. Constitutional challenges to agency action, such as the First Amendment claims raised by petitioner, are fully cognizable within this system. As the record in this case demonstrates, the Government’s comprehensive scheme is costly to administer, but it provides meaningful remedies for employees who may have been unfairly disciplined for making critical comments about their agencies.

A federal employee in the competitive service may be removed or demoted “only for such cause as will promote the efficiency of the service.” The regulations applicable at the time of petitioner’s demotion in 1975, which are substantially similar to those now in effect, required that an employee be given 30 days’ written notice of a proposed discharge, suspension, or demotion, accompanied by the agency’s reasons and a copy of the charges. The employee then had the right to examine all disclosable materials that formed the basis of the proposed action, 5 CFR § 752.202(a) (1975), the right to answer the charges with a statement and supporting affidavits, and the right to make an oral noneviden-tiary presentation to an agency official. § 752.202(b). The regulations required that the final agency decision be made by an official higher in rank than the official who proposed the adverse action, § 752.202(f). The employee was entitled to notification in writing stating which of the initial reasons had been sustained. Ibid.; 5 U. S. C. § 7501(b)(4).

The next step was a right to appeal to the Civil Service Commission’s Federal Employee Appeals Authority. 5 CFR §§752.203, 772.101 (1975). The Appeals Authority was required to hold a trial-type hearing at which the employee could present witnesses, cross-examine the agency’s witnesses, and secure the attendance of agency officials, § 772.307(c), and then to render a written decision, §772.-309(a). An adverse decision by the FEAA was judicially reviewable in either federal district court or the Court of Claims. In addition, the employee had the right to ask the Commission’s Appeals Review Board to reopen an adverse decision by the FEAA. §772.310.

If the employee prevailed in the administrative process or upon judicial review, he was entitled to reinstatement with retroactive seniority. § 752.402. He also had a right to full backpay, including credit for periodic within-grade or step increases and general pay raises during the relevant period, allowances, differentials, and accumulated leave. §550.803. Congress intended that these remedies would put the employee “in the same position he would have been in had the unjustified or erroneous personnel action not taken place.”

Given the history of the development of civil service remedies and the comprehensive nature of the remedies currently available, it is clear that the question we confront today is quite different from the typical remedial issue confronted by a common-law court. The question is not what remedy the court should provide for a wrong that would otherwise go un-redressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. That question obviously cannot be answered simply by noting that existing remedies do not provide complete relief for the plaintiff. The policy judgment should be informed by a thorough understanding of the existing regulatory structure and the respective costs and benefits that would result from the addition of another remedy for violations of employees’ First Amendment rights.

The costs associated with the review of disciplinary decisions are already significant — not only in monetary terms, but also in the time and energy of managerial personnel who must defend their decisions. Respondent argues that supervisory personnel are already more hesitant than they should be in administering discipline, because the review that ensues inevitably makes the performance of their regular duties more difficult. Brief for Respondent 37-41. Whether or not this assessment is accurate, it is quite probable that if management personnel face the added risk of personal liability for decisions that they believe to be a correct response to improper criticism of the agency, they would be deterred from imposing discipline in future cases. In all events, Congress is in a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service. Not only has Congress developed considerable familiarity with balancing governmental efficiency and the rights of employees, but it also may inform itself through factfinding procedures such as hearings that are not available to the courts.

Nor is there any reason to discount Congress’ ability to make an evenhanded assessment of the desirability of creating a new remedy for federal employees who have been demoted or discharged for expressing controversial views. Congress has a special interest in informing itself about the efficiency and morale of the Executive Branch. In the past it has demonstrated its awareness that lower-level Government employees are a valuable source of information, and that supervisors might improperly attempt to curtail their subordinates’ freedom of expression.

Thus, we do not decide whether or not it would be good policy to permit a federal employee to recover damages from a supervisor who has improperly disciplined him for exercising his First Amendment rights. As we did in Standard Oil, we decline “to create a new substantive legal liability without legislative aid and as at the common law,” 332 U. S., at 302, because we are convinced that Congress is in a better position to decide whether or not the public interest would be served by creating it.

The judgment of the Court of Appeals is

Affirmed.

Justice Marshall,

with whom Justice Blackmun joins,

concurring.

I join the Court’s opinion because I agree that there are “special factors counselling-hesitation in the absence of affirmative action by Congress.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 396 (1971). I write separately only to emphasize that in my view a different case would be presented if Congress had not created a comprehensive scheme that was specifically designed to provide full compensation to civil service employees who are discharged or disciplined in violation of their First Amendment rights, cf. Carlson v. Green, 446 U. S. 14, 23 (1980); Sonntag v. Dooley, 650 F. 2d 904, 907 (CA7 1981), and that affords a remedy that is substantially as effective as a damages action.

Although petitioner may be correct that the administrative procedure created by Congress, unlike a Bivens action, does not permit recovery for loss due to emotional distress and mental anguish, Congress plainly intended to provide what it regarded as full compensatory relief when it enacted the Back Pay Act of 1966, 5 U. S. C. § 5596 (1982 ed.). The Act was designed to “pu[t] the employee in the same position he would have been in had the unjustified or erroneous personnel action not taken place.” See S. Rep. No. 1062, 89th Cong., 2d Sess., 1 (1966). See H. R. Rep. No. 32, 89th Cong., 1st Sess., 5 (1965); cf. Sampson v. Murray, 415 U. S. 61, 82-83 (1974). Moreover, there is nothing in today's decision to foreclose a federal employee from pursuing a Bivens remedy where his injury is not attributable to personnel actions which may be remedied under the federal statutory scheme.

I cannot agree with petitioner’s assertion that civil service remedies are substantially less effective than an individual damages remedy. See ante, at 372. To begin with, the procedure provided by the civil service scheme is in many respects preferable to the judicial procedure under a Bivens action. See Brief for Respondent 18-21. For example, the burden of proof in an action before the Civil Service Commission (now the Merit Systems Protection Board) must be borne by the agency, rather than by the discharged employee. See Civil Service Commission, Conducting Hearings on Employee Appeals 11 (1968); cf. Finfer v. Caplin, 344 F. 2d 38, 41 (CA2), cert. denied, 382 U. S. 883 (1965); Pelicone v. Hodges, 116 U. S. App. D. C. 32, 34, 320 F. 2d 754, 756 (1963). Moreover, the employee is not required to overcome the qualified immunity of executive officials as he might be required to in a suit for money damages. See Butz v. Economou, 438 U. S. 478 (1978). Finally, an administrative action is likely to prove speedier and less costly than a lawsuit. These advantages are not clearly outweighed by the obvious and significant disadvantages of the civil service procedure — that it denies the claimant the option of a jury trial, see Carlson v. Green, supra, at 22-23, and that it affords only limited judicial review rather than a full trial in federal court, see Chandler v. Roudebush, 425 U. S. 840, 851-853 (1976).

As the Court emphasizes, “[t]he question is not what remedy the court should provide for a wrong that would otherwise go unredressed.” Ante, at 388. The question is whether an alternative remedy should be provided when the wrong may already be redressed under “an elaborate remedial system that has been constructed step by step, with careful attention to conflicting policy considerations.” Ibid. I agree that a Bivens remedy is unnecessary in this case.

       The record indicates that petitioner filed two appeals from the first reassignment and three appeals from the second. App. to Pet. for Cert, e-3 to e-4. He asserts that he had previously made unsuccessful attempts within the Center to obtain redress. App. 30.

       App. to Pet. for Cert, d-2 to d-3 (memorandum opinion of District Court); id., at e-19 (opinion of Federal Employee Appeals Authority).

         Id., at f-2 to f-3, e-19, e-7.

         Id., at e-38 to e-39. Petitioner could have obtained judicial review of the Authority’s determination by filing suit in a federal district court or in the United States Court of Claims, but did not do so.

         Id., at f-23 to f-25.

         Id., at d-2 to d-17.

       Competent decisionmakers may reasonably disagree about the merits of petitioner’s First Amendment claim. Compare the opinion of the District Court, App. D to Pet. for Cert., and the opinion of the Atlanta Field Office of the Federal Employees Appeal Authority issued on August 12, 1976, App. E, both rejecting petitioner’s claims, with the opinion of the Appeals Review Board issued on July 14, 1978, App. F, finding that the First Amendment had been violated. This question is not before us.

       See Carlson v. Green, 446 U. S. 14, 20-23 (1980) (factors making Federal Tort Claims Act recovery less “effective” than an action under the Constitution to recover damages against the individual official). Petitioner contends that, unlike a damages remedy against respondent individually, civil service remedies against the Government do not provide for punitive damages or a jury trial and do not adequately deter the unconstitutional exercise of authority by supervisors. Brief for Petitioner 27-29.

       His attorney’s fees were not paid by the Government, and he claims to have suffered uncompensated emotional and dignitary harms. Id., at 24-26. In light of our disposition of this case, we do not need to decide whether such costs could be recovered as compensation in an action brought directly under the Constitution.

       In Marbury v. Madison, 1 Cranch 137, 163 (1803), Chief Justice Marshall invoked the authority of Blackstone’s Commentaries in support of this proposition. Blackstone had written: “[I]t is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right is invaded. . . . [I]t is a settled and invariable principle in the laws of England, that every right, when withheld, must have a remedy, and every injury its proper redress.” 3 Commentaries *23, *109.

       See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 428 (1971) (Black, J., dissenting).

       See, e. g., United States v. Lee, 106 U. S. 196 (1882) (ejectment action against federal officers to enforce Takings Clause of Fifth Amendment); Wiley v. Sinkler, 179 U. S. 58, 64-65 (1900) (damages against state officer for denying plaintiff’s right to vote in federal election); Ex parte Young, 209 U. S. 123 (1908) (injunctive relief against state official for violation of Fourteenth Amendment); Weeks v. United States, 232 U. S. 383, 398 (1914) (exclusion in federal criminal case of evidence seized in violation of Fourth Amendment); Jacobs v. United States, 290 U. S. 13, 16 (1933) (award of interest as well as principal in just compensation claim founded on the Fifth Amendment); Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U. S. 1, 15-16 (1971) (school busing to remedy unconstitutional racial segregation). See generally Hill, Constitutional Remedies, 69 Colum. L. Rev. 1109, 1124-1127 (1969).

       “Moreover, since respondent is no longer a Congressman, see n. 1, supra, equitable relief in the form of reinstatement would be unavailing. And there are available no other alternative forms of judicial relief. For Davis, as for Bivens, ‘it is damages or nothing.’ Bivens, supra, at 410 (Harlan, J., concurring in judgment).” 442 U. S., at 245.

       We need not reach the question whether the Constitution itself requires a judicially fashioned damages remedy in the absence of any other remedy to vindicate the underlying right, unless there is an express textual command to the contrary. Cf. Davis v. Passman, 442 U. S. 228, 246 (1979). The existing civil service remedies for a demotion in retaliation for protected speech are clearly constitutionally adequate. See infra, at 386-388.

       “Whatever the merits of the policy, its conversion into law is a proper subject for congressional action, not for any creative power of ours. Congress, not this Court or the other federal courts, is the custodian of the national purse. By the same token it is the primary and most often the exclusive arbiter of federal fiscal affairs. And these comprehend, as we have said, securing the treasury or the government against financial losses however inflicted, including requiring reimbursement for injuries creating them, as well as filling the treasury itself.” 332 U. S., at 314-316.
      The Court further noted that the type of harm for which the Executive sought judicial redress was not new, and that Congress presumably knew of it but had not exercised its undoubted power to authorize a damages action. Id., at 315-316.

       The Report of the Committee on Civil Service and Retrenchment submitted by Senator Pendleton on May 15,1882, contained a vivid description of the patronage system, reading in part as follows:
      “The fact is confessed by all observers and commended by some that ‘to the victors belong the spoils;’ that with each new administration comes the business of distributing patronage among its friends. . . . [The President] is to do what some predecessor of his has left undone, or to undo what others before him have done; to put this man up and that man down, as the system of political rewards and punishments shall seem to him to demand.” S. Rep. No. 576, 47th Cong., 1st Sess., 2 (1882).
      See generally House Committee on Post Office and Civil Service, History of Civil Service Merit Systems of the United States and Selected Foreign Countries, 94th Cong., 2d Sess., 26-173 (1976).

       See S. Rep. No. 576, supra, n. 16, at 9; cf. H. R. Rep. No. 1826, 47th Cong., 2d Sess., 1-2 (1882) (rejected provisions of House bill permitting removals only for cause).

       Section 13 provided:
      “No officer or employee of the United States mentioned in this act shall discharge, or promote, or degrade, or in manner change the official rank or compensation of any other officer or employee, or promise or threaten so to do, for giving or withholding or neglecting to make any contribution of money or other valuable thing for any political purpose.” 22 Stat. 407.
      Other sections made it unlawful for Government employees to solicit political contributions from, and to give such contributions to, other Government employees, §§ 11, 14, and to receive any political contributions on Government premises, § 12. Section 2 required the Civil Service Commission to promulgate rules providing, inter alia, “that no person in the public service is for that reason under any obligations to contribute to any political fund, or to render any political service, and that he will not be removed or otherwise prejudiced for refusing to do so,” and also “that no person in said service has any right to use his official authority or influence to coerce the political action of any person or body.” 22 Stat. 404. See 5 U. S. C. § 2302(b)(3) (1982 ed.); 5 U. S. C. §§7321-7323.

       In 1906 President Roosevelt issued Executive Order No. 1142, which provided:
      “All officers and employees of the United States of every description, serving in or under any of the Executive Departments or independent Government establishments, and whether so serving in or out of Washington, are hereby forbidden, either directly or indirectly, individually or through associations, to solicit an increase of pay or to influence or attempt to influence in their own interest any other legislation whatever, either before Congress or its committees, or in any way save through the heads of the Departments or independent Government establishments in or under which they serve, on penalty of dismissal from the Government service. Theodore Roosevelt.”
      President Taft issued another Order, Executive Order No. 1514, in 1909:
      “It is hereby ordered that no bureau, office, or division chief, or subordinate in any department of the Government, and no officer of the Army or Navy or Marine Corps stationed in Washington, shall apply to either House of Congress, or to any committee of either House of Congress, or to any Member of Congress, for legislation or for appropriations, or for congressional action of any kind, except with the consent and knowledge of the head of the department; nor shall any such person respond to any request for information from either House of Congress, or any committee of either House of Congress, or any member of Congress, except through, or as authorized by, the head of his department. William H. Taft.”
      See 48 Cong. Rec. 4513, 5223, 5634, 5635, 10673, 10729-10730 (1912).

       See id., at 4513 (remarks of Rep. Gregg) (“[I]t is for the purpose of wiping out the existence of this despicable ‘gag rule’ that this provision is inserted. The rule is unjust, unfair, and against the provisions of the Constitution of the United States, which provides for the right of appeal and the right of free speech to all its citizens”). A number of the bill’s proponents asserted that the gag rule violated the First Amendment rights of civil servants. See, e. g., id., at 4653 (remarks of Rep. Calder); id., at 4738 (remarks of Rep. Blackmon); id., at 5201 (remarks of Rep. Prouty); id., at 5223 (remarks of Rep. O’Shaunessy); id., at 5634 (remarks of Rep. Lloyd); id., at 5637-5638 (remarks of Rep. Wilson); id., at 10671 (remarks of Sen. Ashurst); id., at 10673 (remarks of Sen. Reed); id., at 10793 (remarks of Sen. Smith); id., at 10799 (remarks of Sen. La Follette).

       The statute also required notice and reasons and an opportunity for the employee to answer the charges in writing with supporting affidavits. These requirements had previously been adopted by President McKinley in an Executive Order issued in 1897, but they were not judicially enforceable. History of Civil Service Merit Systems, supra n. 16, at 202-203.

       This provision was accompanied by a more specific guarantee that membership in any independent association of postal employees seeking improvements in wages, hours, and working conditions, or the presentation to Congress of any grievance, “shall not constitute or be cause for reduction in rank or compensation or removal of such person or groups of persons from said service.”

       H. R. Rep. No. 388, 62d Cong., 2d Sess., 7 (1912).

       Members of the House, which originated § 6, suggested that it would improve the efficiency and morale of the civil service. “It will do away with the discontent and suspicion which now exists among the employees and will restore that confidence which is necessary to get the best results from the employees.” 48 Cong. Ree. 4654 (1912) (remarks of Rep. Calder); see id., at 5635 (remarks of Rep. Lloyd).
      The Senate Committee initially took a different position, urging in its Report that the relevant language, see id., at 10732 (House version) be omitted entirely:
      “As to the last clause in section 6, it is the view of the committee that all citizens have a constitutional right as such to present their grievances to Congress or Members thereof. But governmental employees occupy a position relative to the Government different from that of ordinary citizens. Upon questions of interest to them as citizens, governmental employees have a right to petition Congress direct. A different rule should prevail with regard to their presentation of grievances connected with their relation to the Government as employees. In that respect good discipline and the efficiency of the service requires that they present their grievances through the proper administrative channels.” S. Rep. No. 955, 62d Cong., 2d Sess., 21 (1912).
      As Senator Bourne explained, “it was believed by the committee that to recognize the right of the individual employee to go over the head of his superior and go to Members of Congress on matters appertaining to his own particular grievances, or for his own selfish interest, would be detrimental to the service itself; that it would absolutely destroy the discipline necessary for good service.” 48 Cong. Rec. 10676 (1912).
      This view did not prevail. After extended discussion in floor debate concerning the right to organize and the right to present grievances to Congress, id., at 10671-10677, 10728-10733, 10792-10804, the Committee offered and the Senate approved a compromise amendment to the House version — guaranteeing both rights at least in part — which was subsequently enacted into law. Id., at 10804; 37 Stat. 555.

       Among the most significant are the Veterans Preference Act of 1944, 58 Stat. 390 (protecting veterans in federal employment by extending the 1912 Act’s procedural and substantive protections to adverse actions other than removals, and adding the right to respond orally and to appeal to the Civil Service Commission); the Back Pay Act of 1948, 62 Stat. 354 (extending the protections against removal contained in the 1912 Act to all employees who were suspended without pay; permitting backpay awards to certain categories of employees who were improperly removed or suspended and to victims of improper reductions in force); the Back Pay Act of 1966, 81 Stat. 203 (extending the right to backpay and lost benefits to every employee affected by a personnel action subsequently found to be unjustified); and the Civil Service Reform Act of 1978, 92 Stat. 1134 (shifting adjudicative functions of the Civil Service Commission to the Merit Systems Protection Board, modifying administrative appeals procedures, and providing new protections for so-called “whistleblowers”).

       Exec. Order No. 10988, § 14, 3 CFR 521 (1959-1963 Comp.), and Exec. Order No. 11491, § 22, 3 CFR 861 (1966-1970 Comp.), printed in note following 5 U. S. C. § 7301, gave all employees in the competitive service the right to appeal adverse actions to the Civil Service Commission, and made the administrative remedy applicable to adverse personnel actions other than removal and suspension without pay.

       See 5 CFR §§752, 772 (1975).

       Not all personnel actions are covered by this system. For example, there are no provisions for appeal of either suspensions for 14 days or less, 5 U. S. C. § 7503 (1982 ed.), or adverse actions against probationary employees, § 7511. In addition, certain actions by supervisors against federal employees, such as wiretapping, warrantless searches, or uncompensated takings, would not be defined as “personnel actions” within the statutory scheme.

       Petitioner received retroactive reinstatement and $30,000 in backpay. An empirical study found that approximately one quarter of the adverse actions in the federal civil service were contested. Merrill, Procedures for Adverse Actions Against Federal Employees, 69 Va. L. Rev. 196,198-199 (1973). In 1970, agency appeals succeeded in 20% of removal cases and 24% of demotion cases. Before the Civil Service Commission, 47% of those employees who appealed demotions and 24% of those who contested removal were successful. Id., at 204, n. 35.

       prjor enactment of the Civil Service Reform Act of 1978, this protection was accorded in part by statute, 5 U. S. C. § 7501(a) (removals and suspensions without pay of non-preference-eligible employees); § 7512(a) (removals, suspensions without pay, reductions in grade or pay, and other adverse actions against preference-eligible employees), and in part by Executive Orders, see n. 26, supra, implemented in Civil Service Commission regulations, 5 CFR §§ 752.104(a), 752.201 (1975) (adverse actions, including reductions in grade or pay, against covered employees, including non-preference-eligibles). The 1978 amendments retained the general rule, 5 U. S. C. § 7513(a) (1982 ed.), and supplemented it by specifying certain “prohibited personnel practices.” § 2302.

       Various aspects of the regulations discussed in text were added at different times. See generally Merrill, supra n. 29, at 214-218.

       Under the statute, before and after the 1978 amendments, the agency has the discretionary authority to provide an evidentiary hearing. 5 U. S. C. § 7501(b); 5 U. S. C. § 7513(c) (1982 ed.); see 5 CFR § 752.404(g) (1983). As amended in 1978, the statute gives the employee the right to representation by an attorney or other person. 5 U. S. C. § 7513(b)(3) (1982 ed.); see 5 CFR § 752.404(e) (1983).

       The 1978 Civil Service Reform Act gave the Commission's adjudicative functions to the Merit Systems Protection Board (MSPB). 5 U. S. C. §§ 1205, 7543(d), 7701 (1982 ed.).

       The Commission’s regulations did not specify which party carried the burdens of production and persuasion. Nevertheless, participants in the process and reviewing courts assumed that the burden was on the agency to prove that the adverse action was justified. Merrill, supra n. 29, at 251; Johnson & Stoll; Judicial Review of Federal Employee Dismissals and Other Adverse Actions, 57 Cornell L. Rev. 178, 192-193 (1972).

       Under the law now in effect, the United States Court of Appeals for the Federal Circuit has exclusive jurisdiction over appeals from the MSPB. 5 U. S. C. § 7703 (1982 ed.); Federal Courts Improvement Act of 1982, § 127(a), Pub. L. 97-164, 96 Stat. 37, 28 U. S. C. § 1295 (1982 ed.).

       S. Rep. No. 1062, 89th Cong., 2d Sess., 1 (1966).

       There is a remarkable similarity between comments made in Congress in 1912, when the Lloyd-La Follette Act was passed, and in 1978, when the Civil Service Reform Act was enacted. In 1912, Representative Calder stated: “There are always two sides to every question, and surely if any man is competent to express an opinion regarding the needs of the postal service it is the men who perform the actual work. If anyone is competent to make known unsatisfactory working conditions, who, might I ask, is better qualified to lay his proper grievances before Congress than the men who have complaints to make and who suffer from these grievances?” 48 Cong. Rec. 4653 (1912). In 1978, a Senate Committee Print stated: “Federal employees are often the source of information about agency operations suppressed by their superiors. Since they are much closer to the actual working situation than top agency officials, they have testified before Congress, spoken to reporters, and informed the public. Mid-level employees provide much of the information Congress needs to evaluate programs, budgets, and overall agency performance.” Senate Committee on Governmental Affairs, The Whistleblowers, 95th Cong., 2d Sess., 40 (Comm. Print 1978). See also H. R. Rep. No. 95-1403, pp. 386-387 (1978); S. Rep. No. 95-969, p. 8 (1978).

       See, e. g., Halperin v. Kissinger, 196 U. S. App. D. C. 285, 300-301, 606 F. 2d 1192, 1207-1208 (1979), aff’d in pertinent part by an equally divided Court, 452 U. S. 713 (1981).