Bush v. Lucas
Decided on June 13, 1983; 462 US 367


NASA engineer fired for publicly criticizing the agency

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: 1st amendment (press, speech, association)

B. Legal Question Presented:

Can a federal employee sue for damages for the violation of his First Amendment rights by his superior where Congress has provided a comprehensive remedial scheme?
II. CASE SUMMARY:

A. Background:

Petitioner, an aerospace engineer employed at the George C. Marshall Space Flight Center, a facility operated by the National Aeronautics and Space Administration (NASA), made a number of public statements highly critical of NASA. Subsequently, respondent William R. Lucas, Director of the Center, demoted petitioner for making the public statements on the ground that they were false and misleading.

The Federal Employee Appeals Authority upheld the demotion, but the Civil Service Commission's Appeals Review Board, upon reopening the proceeding at petitioner's request, found that the demotion had violated his First Amendment rights. NASA accepted the Board's recommendation that petitioner be restored to his former position retroactively and that he receive backpay.

Meanwhile, petitioner filed an action against respondent in an Alabama State Court, seeking to recover damages for violation of his First Amendment rights. NASA appealed the action to Federal District Court, which granted summary judgment on the agency's behalf.

On appeal, the Court of Appeals affirmed in favor of the agency, holding that petitioner had no cause of action for damages in view of the available remedies under the Civil Service Commission regulations.

The US Supreme Court granted certiorari to review the case. 
B. Counsel of Record:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
William Harvey Elrod, Jr., argued the cause and filed briefs for petitioner.

Deputy Solicitor General Geller 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.
C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Petitioner/Appellant)
Opposing Side
(Respondent/Appellee)
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. Unavailable
IV. THE SUPREME COURT'S DECISION:

"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...'

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,' 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 Vote: 0 Pro vs. 9 Con

  • Stevens, J.  Con (Wrote majority opinion)
  • Burger, W. Con (Joined majority opinion)
  • Brennan, W.  Con (Joined majority opinion)
  • White, B.  Con (Joined majority opinion)
  • Powell, L.  Con (Joined majority opinion)
  • Rehnquist, W.  Con (Joined majority opinion)
  • O’Connor, S.  Con (Joined majority opinion)
  • Marshall, T.  Con (Wrote concurring opinion)
  • Blackmun, H.  Con (Joined Marshall’s concurrence)
 
V. A WIN OR LOSS FOR THE ACLU?

The ACLU filed as amicus urging reversal; the US Supreme Court affirmed the Court of Appeals judgment in a 9-0 vote giving ACLU an apparent loss.