Bush v. Lucas

LOCATION: Kansas State Legislature

DOCKET NO.: 81-469
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 462 US 367 (1983)
ARGUED: Jan 19, 1983
DECIDED: Jun 13, 1983

Kenneth Steven Geller - Argued the cause for the respondents
William Harvey Elrod, Jr. - Argued the cause for the petitioner

Facts of the case

Bush, an aerospace engineer at the George C. Marshall Space Flight Center (Center), a facility operated by the National Aeronautics and Space Administration (NASA), made a series of public comments critical of the Center. Lucas, the Center s director, demoted Bush on the ground that the comments were false and misleading. The Federal Employee Appeals Authority upheld the demotion, but the Civil Service Commission s (CSC) Appeals Review Board later found that the demotion had violated his First Amendment rights. NASA accepted the Board_s recommendation that Bush be restored to his former position retroactively, with back pay. While his administrated appeal was pending, Bush brought suit against Lucas in Alabama state court, seeking to recover damages for violation of his First Amendment rights. Lucas removed the action to federal district court, which granted summary judgment for Lucas. The Fifth Circuit affirmed, holding that Bush had no cause of action for damages under the First Amendment in view of the available remedies under the CSC regulations.


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, although one which does not fully compensate the employee for the harm suffered?

Media for Bush v. Lucas

Audio Transcription for Oral Argument - January 19, 1983 in Bush v. Lucas

Warren E. Burger:

Mr. Elrod, I think you may proceed whenever you are ready.

William Harvey Elrod, Jr.:

Mr. Chief Justice, and may it please the Court:

The petitioner in this case filed a complaint containing a Bivens-type complaint in a state court.

The respondent, who like the petitioner is a civilian employee of the Federal Government, obtained the removal of the case to the United States District Court for the Northern District of Alabama.

From that point forward, the government, for all intents and purposes, appears to have been cast in the role of defendant.

I say appears to have been cast in the role of defendant.

We are not suing the government.

The petitioner's Bivens-type claim was that the respondent had violated the petitioner's First Amendment rights by participating as chief conspirator, if not principal procurer in the concocting and consummating of the petitioner's demotion under color of federal law and by virtue of the positions which the conspirators held.

The avowed intent and purpose of the conspiracy is to punish the petitioner, to strike back, to retaliate, to pervert official power from its proper purpose for having publicly observed and spoken up about what he perceived to be rampant waste at George F. Marshall Space Flight Center in North Alabama.

Warren E. Burger:

Had he... does the record show to what extent, if any, he had passed these notions and ideas and his recommendations on up through channels before he went public?

William Harvey Elrod, Jr.:

The record reflects in a truncated fashion, since this comes up from summary judgment, the record reflects that the petitioner made some efforts within the organization through his representative in the manpower office to obtain some alleviation as to his personal problem.

And at... as he observed that he was not alone in being misclassified or a round... or a square peg in a round hole, it ate on him.

And he went public.

After a series of proceedings, administrative proceedings, Mr. Bush's having gone public eventually was perceived to be within the protection of the First Amendment.

I understand that the government from its--

William H. Rehnquist:

It was perceived by... perceived by whom, Mr. Elrod?

William Harvey Elrod, Jr.:

--By the what was then called the Appeals Review Board of what was then called the Civil Service Commission.

That happened in mid-passage.

This lawsuit, the Bivens claim and all, was already pending, not before the administrative proceedings had begun but they were pending concurrently because an Alabama statute of limitations would, in my judgment, possibly have cut off one of the claims that is not present before the Court had the suit not been filed when it was filed.

I say not present before the Court, it's not included within the petition.

It's in the record.

As I understand the government's brief in this case, the government concedes what it candidly describes as petitioner's well... the well-established constitutional right which the petitioner asserts.

What the government disputes is the petitioner's right... or is whether the petitioner has a Bivens-type remedy for the impairment of that right.

In effect, the government currently, in defense of an opinion rendered on remand by a Court of Appeals, currently espouses the second branch of the Carlson against Green formulation as to whether an alternative remedy or as to whether there is a basis for barring or defeating at the threshold a Bivens-type claim.

And that second ground, of course, is that Congress had manifested its intent.

I don't want to get into an area of semantics, but it specifically... explicitly states, but I will say clearly manifests its intent that an alternative remedy which it has adopted is intended as a substitute for a Bivens-type action and is viewed by Congress--

Sandra Day O'Connor:

Mr. Elrod.

William Harvey Elrod, Jr.:

--Yes, ma'am.

Sandra Day O'Connor:

I suppose it's your position on behalf of Mr. Bush that what was lacking here was a right to obtain compensatory damages for embarrassment or anxiety resulting from the demotion, and the failure to have a means of getting punitive damages and attorney's fees.

Is that right?