Velde v. National Black Police Assn., Inc.

RESPONDENT: National Black Police Assn., Inc.
LOCATION: Fort Bragg

DOCKET NO.: 80-1074
DECIDED BY: Burger Court (1981-1986)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 458 US 591 (1982)
ARGUED: Dec 09, 1981
DECIDED: Jun 30, 1982

E. Richard Larson - on behalf of the Respondents
Kenneth Steven Geller - on behalf of the Petitioners

Facts of the case


Media for Velde v. National Black Police Assn., Inc.

Audio Transcription for Oral Argument - December 09, 1981 in Velde v. National Black Police Assn., Inc.

Warren E. Burger:

We will hear arguments next in Velde against National Black Police Association.

Mr. Geller, I think you may proceed when you are ready.

Kenneth Steven Geller:

Thank you, Mr. Chief Justice.

May it please the Court, this is a constitutional damages action, so called Bivens action against former Attorney General Edward Levi, former head of the Law Enforcement Assistance Administration, Richard Velde, and two former subordinate LEAA officials, Charles Work and Herbert Rice.

The plaintiffs are six blacks and six women, and an organization that represents black police officers.

Plaintiffs filed this lawsuit in September, 1975, claiming that a number of police organizations that received LEAA monetary grants were engaging in race and sex discrimination in employment.

Plaintiffs allege that the defendants' failure to institute administrative proceedings under the LEAA statute to cut off federal funds to these organizations violated their rights under the due process clause of the Fifth Amendment.

For this alleged constitutional violation, Plaintiffs demanded that the four defendants pay them $20 million in compensatory and punitive damages.

The district court dismissed the complaint on the ground that the defendants were entitled to official immunity from these personal damage claims.

However, the District of Columbia circuit reversed by a two to one vote.

The majority recognized that this Court in Butz versus Economou had held that administrative officials who perform functions analogous to that of a prosecutor are absolutely immune from personal damages liability, even when constitutional claims are involved.

The court of appeals concluded, however, that Attorney General Levi and the other defendants were not entitled to absolute immunity here, because under the LEAA statute as the court read it they had virtually no discretion in deciding whether to terminate LEAA funding to recipients who were alleged to have engaged in discrimination.

Now, the Department of Justice has brought this case to this Court because we believe that the court of appeals decision seriously misconstrues governing legal principles not only of absolute immunity for federal officials but also of what governmental action constitutes a violation of the Equal Protection Component of the due process clause.

William H. Rehnquist:

Mr. Geller, are you also going to address the Simon versus Eastern Kentucky standing problem?

Kenneth Steven Geller:

We have not raised standing as a separate issue in this case, although we do think that the failure of these plaintiffs to show how the defendant's actions violated their constitutional rights shows that the complaint in this case does not allege violation of the due process clause, and we have raised that question.

We have raised as our second question the failure of the complaint to state a claim.

William H. Rehnquist:

Well, but standing is an Article 3 requirement in many cases, is it not?

Kenneth Steven Geller:

Yes, yes, it is.

William H. Rehnquist:

A jurisdictional thing which both counsel and the court are obliged to notice--

Kenneth Steven Geller:


We have discussed Simon in our brief, in the section of the brief that is devoted to showing why the complaint does not state a cause of action.

Harry A. Blackmun:

--All three judges below felt there was sufficient standing here on the motion to dismiss, I take it.

Kenneth Steven Geller:

Well, we said that, I think, in our petition, but on further reading of the case, I am not sure that is correct.

I think that Judge Tam did not find there was standing as to the claim that the plaintiffs now tell this Court they are raising.

I think Judge Tam misconstrued plaintiffs' complaint as alleging that they were harmed by the actions of the grantees, and what Judge Tam said was, well, he thinks under cases like Simon versus Eastern Kentucky the plaintiffs are at least entitled to a trial to show that if the federal government had not terminated... had terminated funding, it would have had some effect on the actions of the grantees--

Harry A. Blackmun:

So you are... off the statement in your brief then.

Kenneth Steven Geller:

--Yes, but as I reread the court of appeals opinion just the other day, it seems quite clear that Judge Tam is saying that as to the claimant, the plaintiffs now tell the court they are raising, which has nothing at all to do with the discrimination allegedly practiced by the grantees, but only focuses on the federal government's failure to enforce the laws, he says that is essentially a citizen standing suit, and he does not agree that these plaintiffs have standing.

I was explaining to the Court why the federal government thinks this case is so important.

Byron R. White:

Well, do you agree with him or not?

Kenneth Steven Geller:

We think that the case should be analyzed in terms of whether the complaint states a cause of action under the Fifth Amendment.