Equal Employment Opportunity Commission v. Arabian American Oil Co. Brief Amici Curiae

    N o. 80-1074

In The

(&mrt at tJfr Inltri Btutv#
October Term, 1980

Richard W. Velde, el al,
Petitioners,v.

National Black Police A ssociation, Inc., et al.

On Certiorari to the United States Court 
of Appeals for the District of Columbia Circuit

: ; : A  _  . •

BRIEF FOR RESPONDENTS

E. Richard Larson *
Isabelle Katz Pinzler 
Bruce J. Ennis 

American Civil Liberties 
Union Foundation 

132 West 43rd Street 
New York, New York 10036 
212-944-9800

W illiam L. Robinson 
Norman J. Ciiachkin 

Lawyers’ Committee for 
Civil Rights Under Law 

733 15th Street, N.W. 
Washington, D.C. 20005 
202-628-6700 

Counsel for Respondents 
* Counsel of Record

W il s o n  - Ep e s  P r in t in g  Co . .  In c . - 7 8 9 - 0 0 9 6  - W a s h in g t o n , D .C . 2 0 0 0 1



COUNTER-STATEMENT OF QUESTIONS PRESENTED
1. Are the administrators of federal grant-in-aid pro­

grams, who must insure that funds are expended by 
their grantees in accordance with applicable federal re­
strictions, entitled to an absolute immunity from damages 
liability for their allegedly willful, unconstitutional re­
fusal to enforce federal civil rights requirements?

2. Do allegations that LEAA program administrators 
willfully and maliciously refused to carry out any of their 
civil rights enforcement obligations and continued to ex­
pend federal funds to support the admittedly discrimina­
tory practices of LEAA grantees state a cause of action 
for damages under the Fifth Amendment?

3. Should the district court have granted petitioners’ 
motion for summary judgment, insulating them from any 
liability to respondents on the theory that petitioners 
acted “ in good faith” albeit unconstitutionally, where the 
only admissible evidence submitted by the government 
contained no assertions of “good faith,” and where re­
spondents’ submissions— despite the denial of any dis­
covery by the district court—would have supported a 
finding on this record that petitioners deliberately vio­
lated respondents’ constitutional rights?

(i)





TABLE OF CONTENTS

STATEMENT ...........    1

SUMMARY OF ARGUMENT..............    10

ARGUMENT ........         14

Page
TABLE OF AUTHORITIES ......... -..... .................... . iv

I. Administrators Of Grant Programs, Whose Re­
sponsibilities Include The Enforcement Of Fed­
eral Restrictions Upon The Use Of Funds By 
Grantees, Are Not Prosecutors Protected By An 
Absolute Immunity From Damages Liability 
For Their Unconstitutional Actions ...................  14

II. Respondents Have A Cause Of Action For Dam­
ages To Redress The Deprivation Of Their Fifth 
Amendment Rights Based Upon Their Allega­
tions Of Petitioners’ “Willful And Malicious” 
Refusal To Enforce Restrictions Imposed By 
The Fifth Amendment And By The Crime Con­
trol Act Upon The Use Of Federal Funds To
Support Discriminatory Practices Of LEAA 
Grantees ........    30

III. Petitioners, On This Record, Cannot Demon­
strate That They Should Be Accorded Qualified 
Immunity As A Matter Of Law__ ________.... 42

CONCLUSION ..............................................................   50

APPENDIX—Relevant Portions Of The Legislative 
History Of § 518(c) Of The Crime Con­
trol Act As Enacted In 1973 And As 
Amended In 1976...... .    la

(iii)



Cases
TABLE OF AUTHORITIES

Page
Adams v. Richardson, 480 F.2d 1159 (D.C. Cir.

1973) (en banc) ........................... ................... „... 36, 41
Adi ekes v. S.H. Kress & Co., 398 U.S. 144 (1970).. 13, 45,

47, 48, 49, 50
Bane v. Spencer, 393 F.2d 108 (1st Cir. 1968)-... 47
Bivens v. Six Unknown Fed. Narcotics Agents, 403

U.S. 388 (1971)............ ................ ...............11,12, 30, 32
Bolling v. Sharpe, 347 U.S. 497 (1954) ...............  31
Briggs v. Goodwin, 569 F.2d 10 (D.C. Cir. 1977),

cert, denied, 437 U.S. 904 (1978) .......... ...... .....  28
Butz v. Economou, 438 U.S. 478 (1978) ________ passim
Carey v. Piphus, 435 U.S. 247 (1978) ...................  32
Carlson v. Green, 446 U.S. 14 (1980) ___ _____30,31,32
Coit v. Green, 404 U.S. 997 (1971), aff’g Green v.

Connally, 330 F. Supp. 1150 (D.D.C. 1971) ....35, 40, 49 
Committee for Full Employment v. Blumertthal,

606 F.2d 1062 (D.C. Cir. 1979) ....... ..................  36
Committee for Nuclear Responsibility, Inc. v. Sea-

borg, 463 F.2d 783 (D.C. Cir. 1971) ............. 47
Conley v. Gibson, 355 U.S. 41 (1957) _______ __  46
Costlow v. United States, 552 F.2d 560 (3d Cir.

1977) _______ _____ ___ ______ ___ _______ _______ 47
Davis v. Passman, 442 U.S. 228 (1979)........30, 31, 32, 37
Dellums v. Powell, 50 U.S.L.W. 2101 (D.C. Cir.,

July 24, 1981) _____________ _______________ 20
Duke Power Co. v. Carolina Environmental Study

Group, Inc., 438 U.S. 59 (1978) .......... ..... ........  38,42
Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir.

1979) ______________ __ ___ ___________ _______ 27
Francis-Sobel v. University of Maine, 597 F.2d 15

(1st Cir.), cert, denied, 444 U.S. 949 (1979).... 37
Gautreaux v. Romney, 448 F.2d 731 (7th Cir.

1971) _____ __________ ____ ______ _______ _____  36
Gilmore v. City of Montgomery, 417 U.S. 556

(1974) ......_____ ______ _____________________ 35,40
Gladstone, Realtors v. Village of Bellwood, 441 

U.S. 91 (1979) 38



V
TABLE OF AUTHORITIES— Continued

Page

Gomez v. Toledo, 446 U.S. 635 (1980) .......... ........ 33
Guerro v. Mulheam, 498 F.2d 1249 (1st Cir.

1974) ....—....... ........... .............. -........................ -  28
Halperin v. Kissinger, 606 F.2d 1192 (D.C. Cir.

1979), aff’d by equally divided court, 69 L. Ed.
2d 367 (1981) .............. -.........-............. -........ ----- 27

Hampton v. City of Chicago, 484 F.2d 602 (7th
Cir. 1973), cert, denied, 415 U.S. 917 (1974).... 28

Hampton v. Hanrahan, 600 F.2d 600 (7th Cir.
1979), cert, denied on relevant issue, 446 U.S.
754, 759 (1980) ......... ............... ...........................  27

Helstoski v. Goldstein, 552 F.2d 564 (3d Cir.
1977)....... .................... -....................-----....... -.... - -  28

Hunt v. Washington Apple Advertising Comm’n,
423 U.S. 333 (1977)..... ........ .......... .... ...............  39

Imbler v. Pachtman, 424 U.S, 409 (1976)..........20, 27, 43
Legal Aid Society of Alameda County v. Brennan,

608 F.2d 1319 (9th Cir. 1979), cert, denied, 447
U.S. 921 (1980) ......... ...............  . ..-------- -------  35-36

Mancini v. Lester, 630 F.2d 990 (3d Cir. 1980).... 27
Marrero v. Hialeah, 625 F.2d 499 (5th Cir. 1980).. 27
Marshall v. Jerrico, Inc., 446 U.S. 238 (1980)   21
Martinez v. California, 444 U.S. 277 (1980) — ....  37
Miller v. DeLaune, 602 F.2d 198 (9th Cir. 1979).. 27
Morrison Flying Serv. v. Denting Nat’l Bank, 340

F.2d 430 (10th Cir. 1965)....... .............. -....... . 47
NAACP v. Button, 371 U.S. 415 (1963)................  39
NAACP, Western Region v. Brennan, 360 F. Supp.

1006 (D.D.C. 1973) ........ - ........ ------........— -  36
NLRB v. Sears, Roebuck & Co., 421 U.S. 132

(1975)  ..... -----..... - - - - - ....... -------....  42
Norwood v. Harrison, 413 U.S. 455 (1973) ...11-12, 31, 35,

36, 37, 39, 40, 49
O’Connor v. Donaldson, 422 U.S. 563 (1975)------  45
Procunier v. Navarette, .434- U.S. 555 (1978) .......  45
Quinn v. Syracuse Model Neighborhood Corp., 613

F.2d 438 (2d Cir. 1980).......... —- ........- ............. 47
Ramsey v. United Mine Workers, 401 U.S. 302

(1971) .......... .......... -...... -............ 42



Rizzo v. Goode, 423 U.S. 362 (1976)___ ____ ____ 37
Scheuer v. Rhodes, 416 U.S. 232 (1974) ...........11,13,14,

26, 29, 45
Sierra Club v. Morton, 405 U.S. 727 (1972)____  39
Slavin v. Curry, 574 F.2d 1256 (5th Cir. 1978).... 27-28 
United States v. City of Chicago, 549 F.2d 415

(7th Cir.), cert, denied, 434 U.S. 875 (1977).— 41-42 
United States v. Diebold, Inc., 369 U.S. 654

(1962) ........ .......... .................................................  45,50
Washington v. Cameron, 411 F.2d 705 (D.C. Cir.

1969) ................................ .................. ......... ....... . 47
Wood v. Strickland, 420 U.S. 308 (1975) .........13, 28, 45,

48-49
Zweibon v. Mitchell, 516 F.2d 594 (D.C. Cir. 1975), 

cert, denied, 425 U.S. 944 (1976) ______ ____ ___ 28

Constitution and Statutes
U.S. Const., A rt. II, § 3 ............... ...................... . 16
U.S, Const., Art. I l l _________ ___ ____________ 38, 40
U.S. Const, Amend. V ___ ___________ 16, 30, 31, 37, 38
29 U.S.C. § 816(c)(1) (Supp. II 1978) ............... 19
29 U.S.C. § 818(d) (1976) ...........    19
29 U.S.C. § 991(b) (1976) ______    19
42 U.S.C. § 2000d-l (1976) ......      18
42 U.S.C. § 3766(c) (1976) ......................   7,1a
42 U.S.C. § 3766(c) (Supp. V 1975)....................  la
42 U.S.C. § 3766(c) (2) (Supp. V 1975) ___  2
42 U.S.C. § 5309(b) (1976) .....................   18
42 U.S.C. § 5311 (1976) ...............      18
49 U.S.C. § 1615(a) (3) (B) (1976) .........    18-19
Crime Control Act of 1976, Pub. L. No. 94-503,

§ 122, 90 Stat. 2404, 2418 ______ __________ .....2, 7, la
Crime Control Act of 1973, Pub. L. No. 93-83, § 2,

87 Stat. 197 .... ...... ................ ....... ......... ..... ......passim

Rules
F.R. CIV. P. 5 6 ..................................... ....... ............. 13, 47
F.R. Civ. P. 56(c) ................. ...... ................ .45, 47, 50
F.R. CIV. P. 56(e)   .................. .... ................. .47,48,49
F.R. Civ. P. 56(f)  ...... ............... ............ ..............  46

vi
TABLE OF AUTHORITIES— Continued

Page



vii

TABLE OF AUTHORITIES— Continued

Regulations Page
28 C.F.R. § 42.206(a) (1973) .................................. 22
41 Fed. Reg. 28478 (June 12, 1976) ................... 23
40 Fed. Reg. 56454 (December 3, 1975)............. 23
37 Fed. Reg. 16671 (August 18, 1972) .......   22

Legislative Materials
Reports

H.R. Rep. No. 94-1155, 94th Cong., 2d Sess.
(1976)............................................... ........ ....6, 22-23,12a

H.R. Rep. No. 93-249, 93rd Cong., 1st Sess.
(1973) .......................................................    la

Debates
119 Cong. Rec. (1973) ................1, 2, 3, 20, 23, 40, la, 4a

Hearings
LEAA Hearings Before the Subcommittee on 

Crime of the House Committee on the Judiciary,
94th Cong., 2d Sess. (1976) ........... ....... 3, 6, 7, 23, 13a

LEAA Hearings Before Subcommittee No. 5 of 
the House Committee on the Judiciary, 93rd 
Cong., 1st Sess. (1973) ..... ............................ 2, 3, 40, 4a

Bills
H.R. 12364, 94th Cong., 2d Sess. (1976) .................  12a

Other Authorities
6 Moore’s Federal Practice (2d ed. 1976)........  47
U.S. Comm’n on Civil Rights, The Federal Civil 

Rights Enforcement Effort— 1974 (Vol. VI,
To Extend Federal Financial Assistance)
(1975) ........... ..................... .. .....................5, 6, 40-41

C. Wright & A. Miller, Federal Practice and 
Procedure (1 9 7 3 ).... ...................................... ........  47



In The

g>ttpranp (tart at %  Initris Ĵ tatr a
October Term , 1980

No. 80-1074

R ichard W. V elde, et al,
Petitioners, v. ’

National Black Police Association, Inc., et al.

On Certiorari to the United States Court 
of Appeals for the District of Columbia Circuit

BRIEF FOR RESPONDENTS

STATEMENT

Respondents accept most of the petitioners’ description 
of the factual circumstances which shape this case, sub­
ject to the additions and clarifications below concerning 
(1) petitioners’ statutory civil rights enforcement obliga­
tions, (2) the scope of respondents’ complaint, and (3) 
the posture of this case in the trial court.

1. Petitioners’ description of their statutory civil 
rights enforcement responsibilities, Pet. Br. 4-5, fails to 
note that § 518(c) (2) was added to the Omnibus Crime 
Control and Safe Streets Act in 1973 (through an amend­
ment introduced by Rep. Barbara Jordan) because of 
the fact that LEAA theretofore had “had no civil rights



2

enforcement program.” 1 In fact, “ [i]t took over 2 years 
. . . [after its establishment in 1968] before LEAA 
recognized its responsibilities to prevent racial discrimi­
nation in the use of its funds.” 2

Even after LEAA formally recognized in 1970 that it 
had a civil rights enforcement “ obligation [which] stems 
from the Fifth and Fourteenth Amendments and [which] 
is reflected in the policy underlying Title VI of the Civil 
Rights Act of 1964,” 3 its “ inaction of the previous two 
years” continued to be defended at the highest levels of 
its parent agency, the United States Department of Jus­
tice,4 and LEAA officials continued to refuse “ to deal

1 H 9 CONG. Rec. 20071 (June 18, 1973) (Rep. Jordan). The 
Crime Control Act of 1973, Pub. L. No. 93-83, § 2  (August 6, 
1973), 87 Stat. 197, added Rep. Jordan’s amendment as § 518(c) (2) 
of the Act. See 42 U.S.C. § 3766(c) (2) (Supp. V 1975). The 
complete text of § 518(c) (2) as enacted in 1973 is set forth at 
Pet. Br. 2-3.

Relevant portions of the legislative history pertaining to the 
civil rights enforcement provisions of the Crime Control Act of 
1973 and of the Crime Control Act of 1976 are set forth in the 
appendix to this Brief, at la-24a infra.

2 119 Cong. Rec. 22059 (June 28, 1973) (Sen. Bayh).

3 LEAA Hearings Before Subcommittee No. 5 of the House Com­
mittee on the Judiciary, 93rd Cong., 1st Sess. 621 (1973) (Rep. 
Hawkins).

4 As Representative Hawkins explained, id. at 621-22 :

In July 1970, the Office of Legal Counsel of the Department 
of Justice (then headed by William Rehnquist) issued a legal 
position letter attempting to justify the inaction of the previ­
ous two years by declaring that Title VI of the Civil Rights 
Act of 1964 was not applicable to employment practices of 
LEAA grantees and subgrantees. This position received scath­
ing criticism from civil rights groups and from the Civil 
Rights Commission. On October 23, 1970, an additional opin-



3

with complaints in an expeditious manner,” “ performed 
[no] pre-award [civil rights compliance] reviews,” and 
adopted “ regulations indicat [ing] a strong preference 
that a judicial proceeding rather than the more logical 
one of an administrative proceeding be used [to secure 
com p lian ce]8

In enacting § 518(c) (2) in 1973, Congress not only 
sought to “ reverse LEAA’s traditional reliance on court 
proceedings to correct discrimination, rather than un­
dertaking administrative enforcement of civil rights re­
quirements,” * 5 6 but also “ imposed upon LEAA the most 
stringent statutory civil rights mandate” governing any 
federal agency.7

2. Respondents filed this lawsuit because, according to 
the allegations of the complaint, petitioners had utterly 
failed to carry out their constitutional and statutory civil 
rights enforcement obligations and had knowingly con­
tinued to distribute millions of dollars in federal

ion, from the Department of Justice’s Office of Title VI, ad­
dressed to Jerris Leonard in his capacity as Assistant At­
torney General for the Civil Rights Division, argued force­
fully— and apparently convincingly— that LEAA programs 
were indeed covered by Title VI. The LEAA acquiesced and 
promulgated regulations implementing the law.

5 Id. at 622 (Rep. Hawkins).

6 119 Cong. Rec. 20071 (June 18, 1973) (Rep. Jordan). As Rep. 
Jordan explained her amendment, which became § 518(c) (2 ), id.:

The effect of my amendment . . .  is to require LEAA to first 
use the same enforcement procedure which applies to any 
other violation of LEAA regulations or statutes. That proce­
dure of notification, hearings, and negotiations is spelled out 
in Section 509, which provides the ultimate sanction of fund­
ing cutoff if compliance is not obtained.

7 LEAA Hearings Before the Subcommittee on Crime of the 
House Committee on the Judiciary, 94th Cong., 2d Sess. 606 
(1976) (Rep. Rangel).



4

grants to state and local police departments practicing 
discrimination.

Respondents’ lawsuit sought declaratory and injunc­
tive relief (in the nature of mandamus) to compel pe­
titioners and their successors in office to enforce the law, 
and damages on account of petitioners’ prior conduct. 
Respondents’ complaint did not merely attack a few un­
related failures by petitioners to investigate individual 
complaints or to take administrative enforcement actions 
when investigations established civil rights noncompliance; 
instead, respondents alleged a consistent policy and prac­
tice that bore no relation to individualized decisionmaking 
or to the exercise of discretion on a case-by-case basis. 
For example, petitioners were charged with:

— systematically responding not at all or ineffectively 
to all administrative complaints of discrimination 
filed by aggrieved individuals, and taking no ef­
fective enforcement action against any grantees 
found to be in civil rights noncompliance, J.A. 21, 
26-28, 30-32, 35-36, 40-41;

—maintaining “ a policy of not conducting any pre­
award [civil rights] compliance reviews of law 
enforcement agencies which applied for LEAA 
funding,” undertaking very few post-award com­
pliance reviews, and taking no administrative ac­
tion when discrimination was found, J.A. 20, 34- 
35, 36-38;

— refusing to take action against grantees which had 
been adjudicated to be discriminatory or which 
had been sued because of alleged discrimination,
J.A. 18-19, 28-30, 32-34, 38-40;

— refusing to take action against, but continuing to 
fund, grantee law enforcement agencies which pe­
titioners knew to maintain prima facie discrimina­
tory policies and practices, J.A. 19-20, 22-41;



5

— asserting, contrary to LEAA’s own published reg­
ulations, “ that the utilization of women in police 
service is a ‘novel question’ ” and refusing to 
“ terminate LEAA funding to any law enforce­
ment agency which denies sworn police officer em­
ployment to women,” J.A. 21, 26-28, 80-32, 34-38, 
40-41;

— never having conducted an administrative hear­
ing that could lead to terminating, and never hav­
ing “ denied or terminated LEAA funding . . . 
on the grounds that the law enforcement agency 
was engaged in race or sex discrimination or was 

' otherwise in civil rights noncompliance,”  J.A. 21.
Petitioners’ refusals to respond effectively to the adminis­
trative complaints and requests of the individual plain­
tiffs were alleged, in detail, as examples of these broad 
policies and practices. Petitioners’ actions were alleged 
to be unconstitutional, in excess of their authority, will­
ful, and malicious, J.A. 41-44.8

8 A report issued by the Civil Rights Commission two months 
after this lawsuit was filed closely paralleled the allegations of the 
complaint. U.S. Comm’n on Civil Rights, The Federal Civil 
R ights Enforcement Effort— 1974 (Vol. VI, To Extend, Federal 
Financial Assistance) 271-393, 773-77 (1975).

The Commission found, for example, that “LEAA was slow to 
investigate its complaints,” a fact due in part “to LEAA’s re­
luctance to' take enforcement action when the recipients are re­
sistant to coming into compliance voluntarily.” Id. at 374-75, 
reprinted in C.A. App. 599-600. “LEAA rarely conducts compli­
ance reviews,” id. at 355, C.A. App. 580, and when it did, the 
agency often found that discrimination had occurred but took no 
action: “Despite the apparent frequency, diversity, and severity 
of civil rights problems uncovered by LEAA in its compliance 
reviews, none of these reviews resulted in LEAA’s finding re­
cipients to be in noncompliance.” Id. at 364, C.A. App. 589. Al­
though 26 of the 50 largest police departments in the nation had 
been sued for alleged race or sex discrimination, “LEAA had not 
examined these cases to ascertain if they show primei facie civil 
rights violations.” Id. at 380, C.A. App. 605. The agency’s record



6

Respondents’ charges were virtually duplicated by the 
findings of subsequent congressional investigation. Al­
though “ LEAA has both a constitutional and a statutory 
responsibility to enforce [its] civil rights law,” * 9 the 
House Judiciary Committee concluded in 1976 that “ [t]he 
response of LEAA to the 1973 civil rights amendments 
has been less than minimal.”  10 The “ attempt by Con­
gress [in 1973] to make clear to LEAA that it is to 
utilize and give preference to its administrative enforce­
ment powers rather than its traditional reliance on ju­
dicial remedies has been blatantly disregarded.”  11 The 
1973 amendment had “not been enforced,” 12 and “was

was especially poor with regard to sex discrimination, inasmuch 
as “LEAA has indicated that its reason for not enforcing equal 
employment opportunity of women is that it believes sex may be a 
valid criterion for selecting persons for police work.” Id. at 366, 
C.A. App. 591. Finally, the report observed, “LEAA staff states 
that the agency has never terminated funding because of a civil 
rights violation,” id. at 383, C.A. App. 607, and “LEAA continues 
to fund jurisdictions in which there is prima facie evidence of 
civil rights violations.” Id. at 378, 777, C.A. App. 603, 623.

The Commission’s report was filed with the district court as an 
exhibit to respondents’ motion for preliminary injunction, and 
relevant portions of the report were reprinted in the Appendix filed 
in the court of appeals, C.A. App. 481-623.

9 LEAA Hearings Before the Subcommittee on Crime of the 
House Committee on the Judiciary, 94th Cong., 2d Seas. 447 
(1976) (Rep. Jordan).

10 H.R. Rep. N o. 94-1155, 94th Cong., 2d Sess. 11 (1976). The 
Judiciary Committee also observed, id.: “LEAA has never termi­
nated payment of funds to any recipient because of a civil rights 
violation. Despite positive findings of discrimination by courts and 
administrative agencies, LEAA has continued to fund violators of 
the Act.”

11 LEAA Hearings Before the Subcommittee on Crime of the 
House Committee on the Judiciary, 94th Cong., 2d Sess. 606 (1976) 
(Rep. Rangel) (emphasis added).

12 Id. at 442 (Rep. Jordan).



7

ignored,” 13 “ in effect making the federal government a 
party to the discrimination which pervades our criminal 
justice system. Our taxpayers’ dollars cannot be tun­
neled in this discriminatory manner.” 14

3. The district court did not reach the merits of re­
spondents’ complaint. It dismissed the request for in­
junctive relief as moot and held that petitioners as fed­
eral officials were protected from any damage claims by 
an absolute immunity. Cert. Pet, App. 28a-29a. Both 
of these rulings were reversed by the court of appeals. 
Cert. Pet. App. la-23a. Petitioners do not seek review 
here of the court of appeals’ reinstatement of the injunc­
tive claims, Pet. Br. 6 n.8, but they do argue that the 
court of appeals incorrectly denied them absolute im­
munity from damages liability, Pet. Br. 14-28. The

13 Id. at 443 (Rep. Conyers).

14 Id- at 606 (Rep. Rangel). The legislative response to LEAA’s 
record of nonenforcement was the enactment in 1976 of yet another 
§ 518(c) (2) amendment, again authored by Rep. Jordan, which 
added additional triggers to the already existing mandatory fund 
termination requirements governing LEAA officials. Crime: Con­
trol Act of 1976, Pub. L. No. 94-503, § 122 (October 15, 1976), 90 
Stat. 2404, 2418; see 42 U.S.C. § 8766(c) (1976).

Although Representative Jordan remarked at the time that 
“something” had to be done “about civil rights enforcement in the 
Law Enforcement Assistance Administration,” LEAA Heariyigs 
Before the Subcommittee on Crime of the House Committee on 
the Judiciary, 94th Cong., 2d Sess. 442 (1976), there was of course 
no guarantee that the response of LEAA officials would be any 
different from that which greeted the 1973 amendment. As Repre­
sentative Conyers observed, id. at 443:

We all enacted a law; everyone understood what it meant; it 
went on the books; the President signed it; and then it was 
ignored.

Now, some of us— yourself included— are getting a little 
tired of this. We can pass civil rights laws year in and year 
out, and the agency charged with the enforcement ends up 
being the prime noncompliant.



8

petitioners also make two arguments here which were 
not addressed by either court below: that respondents 
failed to allege or prove the requisite elements of a 
constitutional cause of action, and that even if they had 
only a qualified immunity petitioners were on this record 
unquestionably entitled to summary judgment in their 
favor. Pet. Br. 28-44. Because of these arguments, it 
is important to describe accurately the posture of this 
case in the trial court.

a. Respondents were allowed no discovery. Ten days 
after the case was commenced, respondents filed four 
sets of discovery demands upon petitioners, and later 
noticed a deposition of one of the petitioners. J.A. 1-3, 
341-45.13 The government obtained an order staying 
all discovery which the trial court thereafter refused to 
vacate. Id.

b. Nevertheless, in January, 1976 respondents filed 
affidavits and documentary evidence, obtained prior to 
the commencement of this litigation through requests 
made to LEAA under the Freedom of Information Act, 
supporting their complaint and motion for preliminary 
injunction. J.A. 2, 46-233.

c. When the government three weeks later moved to 
dismiss, or alternatively for summary judgment, J.A. 
3, 234-35, it filed only cursory affidavits in which the 
petitioners stated that they had acted as administrators 
within the scope of their official duties, and in which 
they made no assertions that they had acted in good faith, 
J.A. 236-64. The government also submitted an unsworn, 
uncertified, discursive document entitled “Statement of 
Reasons and Appendix,” * 16 * 18 but it simply is wrong to say,

16 See note 47 at 46 infra.

16 Part of this document is reprinted in the Joint Appendix
before this Court. J.A. 265-303. The entire document appears in 
the Appendix filed in the Court of Appeals. C.A. App. 624-720.

[Footnote continued on page 9]



as the government does, that the “ Statement” was “ in­
corporated by reference in [petitioner] Velde’s affidavit,” 
Pet. Br. 27. The Velde affidavit refers to, but neither 
incorporates the document nor attests to its accuracy. 
See, e.g., J.A. 243.* 17

d. In opposition to the government’s motion, respond­
ents relied not only upon the materials submitted with 
their motion for preliminary injunction but also filed 
additional affidavits and documentary evidence. J.A. 340- 
494. They also submitted a 38-page statement of gen­
uinely disputed issues.18 It is thus untrue to say that 
“ respondents have not disputed any of the factual repre­
sentations made in the Statement of Reasons and its 
Appendix,”  Pet. Br. 43, and it is also incorrect for the 
government to characterize its summary judgment ma­
terials as “ uncontradicted” or “ undisputed,” and to refer

18 [Continued]
In addition to these documents and to petitioners’ affidavits, the 

government also submitted a four-paragraph, one-and-one-half-page 
statement of material facts, which stated no facts at all. C.A. 
App. 188-89.

17 Petitioner Velde could not have done so. See note 48 at 47 
infra.

18 The statement of genuine issues filed by respondents, J.A. 309-
39, points out that the government’s submissions were inadequate 
to establish the policies which petitioners actually followed or the 
motivations for their actions or inactions, see, e.g., J.A. 315-18. 
And the affidavits of the respondents and their counsel, see J.A. 51- 
233, 346-494, were more than adequate to call into question the 
government’s assertion that “petitioners made extensive efforts to 
enforce the Act’s antidiscrimination provisions . . . [and] the only 
conclusion that can be supported by the record is that petitioners 
acted reasonably and in good faith in attempting enforcement 
measures before considering whether to resort to funding termina­
tion,” Pet. Br. 43. Finally, respondents reminded the district court 
that its stay of all discovery prevented them from submitting addi­
tional “sworn, admissible evidence in opposition” to the assertions 
of, the government. See J.A. 340-42. .



10

to the record as an “uncontradicted record,”  Pet. Br. 11, 
13, 25.

SUMMARY OF ARGUMENT 
I

In Butz v. Ecommon, 438 U.S. 478 (1978), this Court 
held that federal officials, like their state counterparts, 
are entitled only to a qualified, “ good faith” immunity 
from damages liability for misconduct while in office. 
The Court recognized a very few, narrow exceptions to 
this general rule for, inter alia, those officials who are 
akin to prosecutors because they have “broad discretion 
in deciding whether a [civil penalty] proceeding should 
be brought and what sanctions should be sought,”  id. at 
515. Butz does not support the government’s claim of 
absolute immunity here.

A. The Butz exception is inapplicable to this case 
because the misconduct alleged by the respondents ex­
tends far beyond any role which petitioners might have 
played in connection with adjudicatory administrative 
proceedings (had there been any). Petitioners were 
charged with an across-the-board refusal to carry out 
any of their constitutional and statutory civil rights en­
forcement obligations. The exception cannot be stretched 
to cover all of petitioners’ alleged misconduct, on the 
premise that it was ultimately connected to petitioners’ 
failure to conduct administrative proceedings, without 
swallowing up the Butz holding.

B. Even if this case concerned only petitioners’ re­
fusal to initiate fund termination proceedings, the ex­
ception in Butz still would not apply because petitioners 
had no prosecutorial discretion.

1. Congress in the Crime Control Act mandated the 
use of this enforcement tool against grantees not in 
compliance with civil rights requirements— using lan­
guage quite different from that in other statutes such



11

as Title VI of the Civil Rights Act of 1964. Hence pe­
titioners lacked “ broad discretion in deciding whether a 
proceeding should be brought.”  438 U.S. at 515. And 
they had no discretion to decide “what sanctions should 
be sought,”  id., since the statute provides only for the 
termination of “ federal payments.” This mandated sanc­
tion also is entirely unlike the range of civil penalties 
(such as license revocation, in Butz) available to Execu­
tive Branch officials whom this Court has recognized as 
“ prosecutors.”

2. The record here also bars the government’s claim 
of prosecutorial immunity. The evidence establishes that 
petitioners deprived themselves of any discretion by main­
taining and rigidly following a policy against ever in­
itiating fund termination proceedings. Significantly, no­
where in their summary judgment affidavits did peti­
tioners describe themselves as exercising prosecutorial 
functions.

C. Even if petitioners were to be regarded as prosecu­
tors, it would be inappropriate in this case for the Court 
to accord them absolute immunity from liability for their 
allegedly deliberate, unconstitutional maetion. The adver­
sarial checks or other safeguards on prosecutorial mis­
conduct upon which the Court relied in Butz are absent 
when officials are alleged to have willfully failed to take 
any action at all. Indeed, the policy of encouraging execu­
tive actions and decisionmaking which underlies all im­
munities— absolute or qualified, see Scheuer v. Rhodes, 
416 U.S. 232, 242 (1974)— is inapplicable in this
situation.

II

The allegations of respondents’ complaint are more 
than sufficient to state a Bivens cause of action under 
the Fifth Amendment, see Butz v. Economou, supra, to 
remedy violations of a government agency’s “ constitu­
tional obligation . . .  to steer clear . . .  of giving signifi­



12
cant aid to institutions that practice racial or other in­
vidious discrimination,” Norwood v. Harrison, 418 U.S. 
455, 467 (1973).

A. Not only did respondents extensively document 
their allegations that petitioners funded grantees which 
they knew to be discriminatory, but respondents also 
specifically charged petitioners with “willful and mali­
cious” refusals to carry out their civil rights enforcement 
obligations, in violation of the principle applied in Nor­
wood and similar cases. (In its argument on this point, 
the government curiously does not cite Bivens, Butz, or 
Norwood. )

B. Since these allegations concerned the behavior and 
constitutional obligations of petitioners—-and not the dis­
criminatory practices of their grantees— any uncertainty 
about how those grantees might have responded had peti­
tioners undertaken any civil rights enforcement efforts 
does not affect respondents’ cause of action against peti­
tioners. As the Chief Justice observed in Norwood v. 
Harrison, supra, 413 U.S. at 465-66: “ We do not agree 
with [the government’s] analysis of the legal conse­
quence of this uncertainty, for the Constitution does not 
permit [government] to aid discrimination even when 
there is no precise causal connection between [govern­
ment] financial aid to a [discriminator] and the con­
tinued well-being of that [discriminator].”

C. Even if the government’s arguments are viewed as 
questioning respondents’ Article III standing, they are 
without merit, both for the reasons stated above and be­
cause the allegations of the complaint were ample to 
survive a motion to dismiss, as Judge Tamm, partially 
dissenting below, recognized.

I ll

The government’s final submission— that this Court 
should perform the functions of a trial court by ruling 
on contested factual issues decided by neither court be­



is
low, and by holding that petitioners on this record are 
entitled to qualified immunity as a matter of law—mis­
takes the role of this Court, misinterprets the law of 
official immunity, and misconstrues the record in this 
case.

According to the teaching of cases such as Scheuer v. 
Rhodes, supra, and Wood v. Strickland., 420 U.S. 308 
(1975), cited approvingly in Butz v. Economou, supra, 
a determination of entitlement to qualified immunity re­
quires an exploration into the facts, circumstances, and 
motivations surrounding the actions or inactions of the 
officials charged with constitutional violations. The trier 
of fact must determine whether the officials behaved mali­
ciously, or in a manner which they knew (or should have 
known) would violate constitutional rights. As the gov­
ernment itself pointed out in its Brief in Butz, these is­
sues are not ordinarily susceptible of determination on 
the basis of affidavits which might be filed in connection 
with a summary judgment motion; testimony and cross- 
examination are necessary.

Summary judgment for petitioners would have been 
particularly inappropriate in this case, since the govern­
ment’s motion was inadequately supported (for example, 
petitioners nowhere claimed in their affidavits that they 
had acted in good faith), since respondents were denied 
any discovery by a protective order obtained by petition­
ers, and since respondents’ own affidavits and documen­
tary material submitted in opposition to the government’s 
motion amply demonstrated the existence of genuine fact 
issues. See F.R, Civ. P. 56; Adickes v. S.H. Kress & Co., 
398 U.S. 144, 157 (1970).



14

ARGUMENT
I. Administrators Of Grant Programs, Whose Responsi­

bilities Include The Enforcement Of Federal Restric­
tions Upon The Use Of Funds By Grantees, Are Not 
Prosecutors Protected By An Absolute Immunity 
From Damages Liability For Their Unconstitutional 
Actions

In Butz v. Economou, supra, 438 U.S. at 507, this 
Court applied the “Schemer principle of only qualified im­
munity for constitutional violations . . . [to hold fil ederal 
officials liable . . . [for damages if they] discharge their 
duties in a way that is known to them to violate the 
United States Constitution or in a manner that they 
should know transgresses a clearly established constitu­
tional rule.” In reaching this conclusion, the Court re­
jected the government’s argument

that all of the federal officials sued in this case are 
absolutely immune from any liability for damages 
even if in the course of enforcing the relevant stat­
utes they infringed respondent’s constitutional rights 
and even if the violation was knowing and deliberate.

Id. at 485. Undeterred, the United States, on behalf of 
the petitioners here, resurrects its Butz arguments in an 
attempt to expand this Court’s narrow exception for 
prosecutors, see id. at 509-11, 515-17, so as to swallow 
up the ruling in Butz. The government seeks to ac­
complish this by renaming all of the administrators with­
in LEAA’s hierarchy who had any connection with its 
civil rights enforcement activities as “prosecutors.”

The government’s immunity claim must be rebuffed. 
Petitioners here were charged not just with refusing to 
initiate administrative proceedings but with an across- 
the-board refusal to perform any of their constitutional 
and statutory civil rights enforcement obligations. Even 
if this case concerned only the failure to initiate adminis­



15

trative fund termination proceedings, petitioners still 
could not be clothed with an absolute prosecutorial im­
munity because the Crime Control Act allowed them no 
discretion once a grantee was determined to be out of 
compliance, and because the statute in any event does not 
provide for the imposition of a civil penalty against 
grantees. Further, the record in this case established 
that petitioners exercised no discretion but uniformly 
followed a policy against initiating administrative pro­
ceedings, and in their own affidavits, petitioners nowhere 
described their functions as prosecutorial. Finally, the 
Court should not allow the government’s claim here be­
cause the justifications for absolute immunity— official 
acts subject to adversarial checks or similar safeguards 
against prosecutorial misconduct— are not present when 
federal officers refuse to act at all,

A. Contrary to petitioners’ characterization of this 
case, see Pet. Br. 16-17, respondents did not challenge 
only petitioners’ refusal to initiate administrative fund 
termination proceedings upon finding civil rights non- 
compliance. Instead, as is pointed out at 3-5, supra, 
respondents claimed that they, and the class they seek 
to represent, had been harmed by petitioners’ long­
standing and consistent refusal to carry out any of their 
constitutional and statutory civil rights enforcement ob­
ligations, J.A. 18-41. In other words, the foundation of 
this action is quite different in degree from that in Blitz. 
This lawsuit was not brought by a single disgruntled 
corporate official complaining that he had been unfairly 
targeted and thereafter penalized in an individual ad­
ministrative enforcement proceeding. And, it involves 
much more than executive decisionmaking about one or 
even numerous administrative proceedings, see Pet. Br. 
25. Respondents here charged petitioners with a whole­
sale refusal to exercise any of the meaningful enforce­
ment tools available to them, resulting in continued un­
constitutional government support for discriminatory



16

practices. As Justice White observed in his opinion for 
the Court in Blitz, 438 U.S. at 506, “ [ejxtensive Gov­
ernment operations offer opportunities for unconstitu­
tional action on a massive scale. In situations of abuse, 
an action for damages against the responsible official [s] 
can be an important means of vindicating constitutional 
guarantees.”  This is such a case.

For petitioners to argue that all of their inactions and 
refusals to act were carried out under the guise of 
prosecutorial discretion is to say that the duty of all 
Executive Branch officials, to take care that the laws 
shall be faithfully executed, is a nullity. It also is to 
say (quite apart from Art. II § 3 of the Constitution, 
from the limitations imposed upon federal officials by 
the Fifth Amendment, and from the specific limitations 
imposed upon petitioners by Congress’ enactment of § 518 
(c) (2) of the Crime Control Act) that this Court’s de­
cision in Butz— holding that federal officials in general 
are not protected from liability by an absolute immunity 
— actually applies to no federal officials. All officials are 
prosecutors, in the government’s submission. Pet. Br. 
14-28. Even if there were any merit to the government’s 
arguments with respect to LEAA’s policy and practice 
of never initiating fund termination proceedings, those 
contentions clearly fail of application so broad as to 
shield all LEAA officials from liability for all of their 
unconstitutional actions.

B. Even if this case were limited only to petitioners’ 
regulatory policy and practice of never initiating ad­
ministrative fund termination proceedings, petitioners 
here still could not, on this record, avail themselves of 
the absolute immunity allowed by this Court in Butz to 
the federal officials in that case who could demonstrate 
on remand that they exercised prosecutorial functions.19

m We recognize that in Butz, this Court itself gave absolute 
immunity to three of the twelve federal officials involved: the



17

In Butz, because of the impartiality built into, and the 
opportunity for review of, the administrative proceed­
ings, this Court recognized that an agency official’s “de­
cision to initiate” administrative proceedings in which 
a civil penalty may be imposed upon an individual or 
corporation “ is very much like the prosecutor’s decision 
to initiate or move forward with a criminal prosecution,” 
and that such an official accordingly may have an abso­
lute immunity with regard to that decision. Id. at 515. 
As the Court emphasized, “ [a]n agency official, like a 
prosecutor, may have broad discretion in deciding whether 
a proceeding should be brought and what sanctions should 
be sought.” Id. (emphasis added). Petitioners here meet 
none of these criteria.

1. Under their governing statute, § 518(c) (2) of the 
Crime Control Act, see Pet. Br. 2-3, petitioners enjoyed 
no discretion once they determined that a grantee was 
not in compliance with the nondiscrimination require­
ment in § 518(c) (1) of the Act. Following that determi­
nation, petitioners were required by § 518(c) (2) to in­
itiate fund termination proceedings by requesting the 
appropriate chief executive to secure compliance, and, 
that failing, to terminate “ further payments”  under 
§ 509 of the Act. Concurrent with, but not before these 
steps, petitioners also were authorized to refer the matter 
to the Justice Department for it to decide whether to 
initiate litigation.20

prosecuting attorney who was responsible for presenting the gov­
ernment’s case at the administrative hearing, the Chief Hearing 
Examiner who was responsible for hearing and deciding the case, 
and the Judicial Officer who was responsible for reviewing the 
ruling of the Chief Hearing Examiner. Butz v. Economou, supra, 
438 U.S. at 508-18. Petitioners here do not purport to claim that 
they or anyone else within LEAA performed these functions.

ao The mandatory nature of the requirement in § 518(c) (2) that 
administrative fund termination proceedings be invoked either 
prior to or concurrently with other steps (such as referral to the



18

a. This statutory scheme led the court of appeals be­
low to conclude that petitioners “have virtually no dis-

Justice Department for the possible filing of a civil action) is not—  
contrary to the government’s assertion, Pet. Br. 18 n,14, 19, 22—  
at all “typical” of the discretionary options under Title VI and 
other civil rights enforcement provisions. The significant difference 
between § 518(c) (2 ), see Pet. Br. 2-3, and the other statutory 
provisions is illuminated by the comparison suggested by the 
government at Pet. Br. 18 n.14.

Title VI of the 1964 Civil Rights Act provides, at 42 U.S.C. 
§ 2000d-l (1976) (emphasis added) :

Compliance with any requirement adopted pursuant to this 
section may be effected (1) by the termination of or refusal 
to grant or to continue assistance . . .  or (2) by any other 
means authorized by law.

The Housing and Community Development Act of 1974 contains 
two relevant sections. 42 U.S.C. § 5309(b) (1976) states (emphasis 
added) :

Whenever the Secretary determines that a State or unit . . . 
has failed to comply . . . the Secretary is authorized to (1) 
refer the matter to the Attorney General . . .  ; (2) exercise 
the powers and functions provided by Title VI . . . ; (3) exer­
cise the powers and functions provided for in section 111(a) 
of this Act; or (4) take such other action as may be provided 
by law.

42 U.S.C. § 5311 (1976), §111 of the Act, provides (emphasis 
added):

(a) If the Secretary finds . . . that a recipient of assistance 
. . . has failed to comply . . . the Secretary . . . shall— (1) 
terminate payments . . . , or (2) reduce payments . . . ,  or 
(3) limit the availability of payments . . . .

( b )  (1) In lieu of, or in addition to, any action authorized 
by subsection (a), the Secretary may . . . refer the matter to 
the Attorney General . . . .

The Urban Mass Transit Act, 49 U.S.C. § 1615(a) (3) (B) (1976) 
provides (emphasis added) :

[Footnote continued on page 19]



19

cretion under the relevant statute in deciding whether 
to terminate LEA A funding of discriminatory recipi­
ents,” Cert. Pet. App. 6a; and that since “ [t]he purpose 
of shielding discretionary prosecutorial decisions from 
fears of civil liability has no place where, as here, agency 30

30 [Continued]
If . . . such person fails or refuses to comply . . .  the Secre­
tary shall— (i) direct that no further Federal financial assist­
ance . . .  be provided . . .  ; (ii) refer the matter to the At­
torney General . . .  ; (iii) exercise the powers and functions 
provided by Title VI . . . ; or (iv) take such other actions as 
may be provided by law.

Finally, as originally enacted, the Comprehensive Employment 
and Training Act of 1973 stated, at 29 U.S.C. § 818(d) (1976) 
(emphasis added) :

Whenever the Secretary determines . . . that any prime 
sponsor . . . is— (1) maintaining a pattern or practice of 
discrimination . . .  the Secretary . . . to the extent necessary 
and appropriate shall not make any further payments . . . .

Likewise, 29 U.S.C. § 991(b) (1976) provided, until 1978, that 
(emphasis added) :

Whenever the Secretary determines that a prime sponsor 
. . has failed to comply . . .  the Secretary, in addition to 

exercising the powers and functions provided for the termina­
tion of financial assistance under this Act, is authorized (1) 
to refer the matter to the Attorney General . . . ; (2) to 
exercise the powers and functions provided by Title VI . . .  ; 
or (3) to take such other action as may be provided by law.

The statutory language in each of these- instances is markedly 
different from the mandatory phrasing of the Crime Control Act. 
See Pet. Br. 2-3. In light of the government’s broad statements 
about similarities, however, it is interesting to note that in 1978 
Congress amended the CETA statute in a manner similar to its 
earlier amendment of the Crime Control Act, so as to provide for 
mandatory fund termination. See 29 U.S.C. § 816(c) (1) (feupp. II 
1978) ; compare id. at § 816(c) (2).



20

officials lack discretion,” id., these officials accordingly 
cannot claim an absolute immunity.21

This view of § 518(c) (2) is entirely supported by the 
law’s legislative history. Mandatory fund termination, 
in fact, was the express purpose of § 518(c) (2). Rep. 
Jordan, the author of the amendment which became 
§ 518(c) (2), quite clearly described both its purpose and 
its intended effect:

The effect of my amendment. . .  is to require LEAA 
to first use the same enforcement procedure which 
applies to any other violation of LEAA regulations 
or statutes. That procedure of notification, hearings, 
and negotiations is spelled out in Section 509, which 
provides the ultimate sanction of funding cutoff if 
compliance is not obtained.

* * * * *
This amendment was necessary to reverse LEAA’s 
traditional reliance on court proceedings to correct 
discrimination, rather than undertaking administra­
tive enforcement of civil rights requirements.22

Although the government makes no effort to harmonize 
its peculiar view of the legislative history, see Pet. Br. 
22-23 n.19, with the statements of Rep. Jordan, it none­
theless asserts that § 518(c) (2) and its legislative his­
tory “ do not negate the proposition that petitioners, pos­
sessed broad discretion in their administration of the 
Act’s antidiscrimination 'provision.”  Pet. Br. 23 n.19 
(emphasis added). This merely underscores the breadth 
of the absolute immunity claim which the government is 
making in this case— not limited, in accordance with

21 The court of appeals, it should be pointed out, has not at all 
abandoned the concern for protecting the exercise of true prose­
cutorial discretion which this Court expressed in Imbler v. Pacht- 
man, 424 U.S. 409 (1976) and Butz v. Economou, supra. See, e.g., 
Dellums v. Powell, 50 U.S.L.W. 2101 (D.C. Cir., July 24, 1981).

22 119 Cong. Rec. 20071 (June 18, 1973).



21

Butz, to “prosecutors” but encompassing every federal 
official connected in any way with the administration, of 
the civil rights provisions of the law.

b. Petitioners also lack discretion to apply any sanc­
tions other than fund termination to grantees who fail 
to comply with the restrictions imposed on the use of 
federal funds. Under § 509 of the Act, petitioners are 
required simply to make no “ further payments” to non­
complying grantees.

c. Apart from this lack of discretion, nowhere does the 
Crime Control Act authorize the imposition of a civil 
'penalty on grantees for their failure to comply with the 
statutory restrictions on the use of funds under this 
federal grant-in-aid program. Unlike the petitioners in 
Butz who initiated prosecutorial proceedings, petitioners 
here have neither the discretion nor the authority to seek 
a license revocation or any other civil penalty. Cf. Mar­
shall v. Jerrico, Inc., 446 U.S. 238 (1980) (imposition 
of a monetary fine). Instead, the only sanction here—  
which the government admits is “ coercive not punitive,” 
J.A. 297— is one that denies to a noncomplying grantee 
the federal aid for which it is not eligible.

Because of the nature of fund termination proceedings 
in grant-in-aid programs, and particularly because of 
§§ 518(c ) (2) and 509, petitioners do not fit within the 
exception for prosecutors recognized in Butz. Petitioners 
do not “have broad discretion in deciding whether a 
proceeding should be brought and what sanctions should 
be sought,” 438 U.S. at 515, and they in fact have no 
authority whatsoever to seek the imposition of a civil 
penalty on their grantees. The pursuit of their policy 
against ever initiating administrative proceedings ac­
cordingly has none of the characteristics of a “prosecu­
tor’s decision to initiate or move forward with a crimi­
nal prosecution.” Id.



22

2. Petitioners also cannot be accorded an absolute im­
munity on the record in this case. Under their own reg­
ulatory policy, petitioners denied themselves the decision­
making power to initiate administrative proceedings. 
Moreover, nowhere in the affidavits they filed in the trial 
court did petitioners describe their functions in any way 
resembling those of prosecutors.

a. At the time this litigation was commenced, peti­
tioners still adhered to a regulation which stated an ex­
press preference for referring matters of noncompliance 
to the Civil Rights Division of the Department of Justice 
in lieu of initiating administrative fund termination pro­
ceedings. While that regulation, adopted prior to amend­
ment of § 518 in 1973, stated:

Where the responsible Department official determines 
that judicial proceedings . . . are as likely or more 
likely to result in compliance than administrative 
proceedings . . . , he shall invoke the judicial remedy 
rather than the administrative remedy23

it was interpreted by petitioner Velde to “require LEAA 
to pursue court action and not administrative action to 
resolve matters of employment discrimination,” J.A. 90.24 
The uniform pursuit of this policy is reflected by the con­
clusion reached by the House Judiciary Committee in 
1976: “ LEAA has never terminated payment of funds to

23 28 C.F.R. § 42.206(a) (1973) ; see 37 Fed. Reg. 16671 (August 
18, 1972).

24 This statement by petitioner Velde was made in a letter sent 
to Rep. Charles Rangel in an attempt to explain why LEAA had 
not initiated administrative proceedings against the Philadelphia 
Police Department, J.A. 90, a grantee which LEAA in 1974 had 
formally determined to be in noncompliance, see J.A. 97.

The existence of this absolute policy was also confirmed by the 
senior attorney in LEAA’s Office of Civil Rights Compliance, in a 
1975 interview: “She reports that, when the agency discovers dis­
crimination, its policy is to seek judicial relief rather than to stop 
paying out the money.” C.A. App. 844 (emphasis in original).



23
any recipient because of a civil rights violation/’ 125 To be 
sure, this regulatory policy contravened the statutory 
mandate in § 518(c) (2) of the Crime Control Act.26 But 
the point here is simply that, under LEAA’s own regu­
lations as interpreted by Mr. Velde, none of the petition­
ers had discretion— much less a broad “prosecutorial” 
discretion—to do other than decline to initiate adminis­
trative proceedings.

b. Even more compelling, none of the petitioners 
claimed— in the affidavits filed by the government in the 
trial court— either the authority or the responsibility for 
refusing to initiate administrative fund termination pro­
ceedings. See J.A. 236-64. Although the government here 
cites to petitioners’ affidavits, see Pet. Br. 7 n.9, 25-28, 
it conveniently does not quote from them. Nowhere in

25 H.R. Rep. No. 94-1155, 94th Cong., 2d Sees. 11 (1976). Addi­
tional findings by the Judiciary Committee are set forth in n.10 at
6 supra. Similar findings were made in November, 1975 by the 
United States Commission on Civil Rights, see n.8 at 5-6 supra.

2'* * 6 It is precisely this regulatory policy which Congress in 1973 
sought “to reverse,” 119 CONG. Rec. 20071 (June 18, 1973) (Rep. 
Jordan), when it enacted Rep. Jordan’s amendment as § 518(c) (2 ). 
See generally the legislative history discussed at 1-3 supra, and 
in the Appendix to this Brief at la-24a infra.

Contrary to the express action and intent of Congress in 1973, 
petitioners neither reversed their practices nor even altered their 
regulation. Instead, at the time this lawsuit was filed in September, 
1975, petitioners still adhered to their regulation and policy against 
initiating administrative fund termination proceedings. Finally, 
three months after this lawsuit was filed, petitioners proposed 
to eliminate the policy, 40 Fed. Reg. 56454 (December 3, 1975), 
although they did not alter their practices. As Rep. Charles 
Rangel observed in the spring of 1976: “LEAA’s unlawful regula­
tory preference remains in effect today.” LEAA Hearings before 
the Subcommittee on Crime of the House Committee on the Ju­
diciary, 94th Cong., 2d Sess. 606 (1976). Rep. Jordan was a bit 
more blunt: “Simply put, LEAA’s civil rights regulations contra­
vene the law.” Id. at 446. Ultimately, ten months after this law­
suit was filed, petitioners promulgated the proposed regulation as a 
final rule. 41 Fed. Reg. 28478 (July 12, 1976).



24

those affidavits did petitioners describe their functions as 
prosecutorial or their roles as involving prosecutorial dis­
cretion. Instead, petitioners uniformly described them­
selves as administrators and consistently asserted that 
they had acted within the scope of their administrative 
duties.27

27 Petitioner Richard W. Velde stated that he had held several 
administrative positions at L E A A : first he was “Associate Ad­
ministrator,” later he was “Deputy Administrator for Policy De­
velopment,” and finally, on September 5, 1974, he became the “Ad­
ministrator” of LEAA. J.A. . 236. He noted that in the latter 
capacity, as Administrator, he had “delegated” to the “director 
of the Office of Civil Rights Compliance” the “authority and 
responsibility for insuring that recipients of LEAA funds com­
ply with applicable civil rights laws, statutes, orders, rules and 
regulations.” J.A. 237; see also J.A. 244-46. Petitioner Velde 
also stated that he nonetheless remained “responsible for establish­
ing the basic policy and direction that LEAA will pursue in meeting 
its civil rights obligations.” Id. In carrying out this responsibility 
among others, petitioner Velde was authorized only to “perform 
predominantly executive rather than quasi-legislative or quasi­
judicial functions.” C.A. App. 205 (Attachment 1 to the Affidavit of 
Edward H. Levi). Petitioner Velde concluded that all of his actions 
“were fully in the discharge of my official duties and responsibilities 
as Administrator.” J.A. 243.

Petitioner Charles R. Work stated that from November 2, 1973, 
until November 21, 1975, he had served as LEAA’s “Deputy Ad­
ministrator for Administration.” J.A. 251. He claimed that in this 
capacity he had been delegated authority which “involved taking 
final action on internal LEAA administrative management mat­
ters.” Id. ; see also J.A. 255-61. He stated that although he had 
no “delegated authority in the day-to-day operations of LEAA’s 
civil rights programs” and “had no regular direct contact with 
the day-to-day operations of the Office of Civil Rights Compliance,” 
he nonetheless was the supervisor of petitioner Herbert C. Rice, 
who “reported to me periodically with respect to operations ques­
tions.” J.A. 252-53.

Petitioner Herbert C. Rice stated that he had been the “Director 
of the Office of Civil Rights Compliance . . . since May of 1971,” 
and that his office had “the responsibility of establishing compre­
hensive procedures and programs for effective enforcement of civil 
rights responsibilities.” J.A. 262. These responsibilities, as dele-



25
Petitioners’ own affidavits thus fail even to raise a fac­

tual issue about the existence or scope of any prosecu­
torial responsibilities which they may have had. In view 
of their policy, they had no such responsibilities. They 
accordingly are not entitled to absolute immunity.

C. The absolute immunity recognized in Butz for fed­
eral officials who initiate prosecutorial proceedings is 
premised upon the adversarial checks and safeguards 
which govern the decision to prosecute, see 438 U.S. at 
512-17. Such checks and safeguards to protect respond­
ents’ constitutional rights are not present here, since 
respondents could not be parties to administrative actions 
designed to enforce those rights which petitioners dele­

gated by petitioner Velde, J.A. 244-46, included developing regu­
lations, directives and guidelines; developing policy on technical 
assistance; coordinating policies with other federal agencies; con­
ducting audits, compliance reviews, and complaint investigations; 
and conducting negotiations and recommending sanctions. In 
carrying out those responsibilities, petitioner Rice alleged “that 
a number of judgments must be made daily by me both in making 
policy and in making decisions to carry out policy.” On these 
policy matters, petitioner Rice noted that he sought advice and 
counsel from various of his supervisors including “the Adminis­
trator,” and he stated that he “reported directly” to petitioner 
Work. J.A. 263.

Petitioner Edward H. Levi stated that he had been Attorney 
General since February 6, 1975, and that he therefore had “certain 
powers and duties” with regard to LEAA including “general policy 
guidance, budgetary review and regulatory supervision.” J.A. 247. 
These powers and duties were considerable. See generally C.A. App. 
202-29 (Attachments 1 and 2 to the Affidavit of Edward H. 
Levi). Petitioner Levi was authorized “to prescribe policies for 
the guidance of the Administration in performing its functions,” 
and “to review such of the day-to-day operations of the Adminis­
tration as may be necessary to assure compliance with the pre­
scribed policies.” Id. at 204-05. The policy and regulatory roles 
were backed up by petitioner Levi’s “far-reaching budgetary powers 
over the Administration.” Id. at 206. For example, petitioner 
Levi’s “control over the budget” enabled him “to determine . . . the 
relative emphasis which the Administration will place on various 
functions.” Id.



erately never brought.28 29 Moreover, as Chief Justice Bur­
ger explained for the unanimous Court in Scheuer v. 
Rhodes, supra, the policy justification for a grant of im­
munity— whether absolute or qualified— is to encourage 
government officials to act. This justification disappears 
when officials, such as petitioners here, are charged with 
not acting at all.

1. In Butz, this Court held that the agency official 
who decides to initiate a prosecutorial proceeding may be 
entitled to an absolute immunity “ [b]ecause the legal 
remedies already available to the defendant in such a 
proceeding provide sufficient checks on agency zeal.”  438 
U.S. at 516 (emphasis added). Two sets of remedies, in 
fact, are available to a defendant as checks on agency 
zeal in such a proceeding. Initially, the “ decision to pro­
ceed with a case is subject to scrutiny in the proceeding 
itself,”  a proceeding in which “an impartial trier of 
fact” can render “ an independent judgment as to whether 
the prosecution is justified.” Id. Thereafter, because of 
the provisions for “ judicial review” of agency proceed­
ings, a defendant’s “ claims that the proceeding is uncon­
stitutional may also be heard by the courts.”  Id?9

28 In Butz, the Court granted prosecutors absolute immunity
from suits by the targets of prosecutorial proceedings because 
“the defendant in an enforcement proceeding has ample oppor­
tunity to challenge the legality of the proceeding.” 438 U.S. at 
515. The Court, however, did not consider whether this rationale 
would be applicable to suits by individuals in the position of the 
respondents here, because it thought that “there is not likely to 
be anyone willing and legally able to seek damages from the officials 
if they do not authorize the administrative proceeding Id.
It is obvious, of course, that this lawsuit is respondents’ only 
means of challenging the legality of petitioners’ failure to carry 
out their constitutional and statutory obligations, a challenge 
which would be completely frustrated if petitioners were accorded 
an absolute immunity.

29 These administrative and judicial checks on agency zeal are 
similar to “the safeguards built into the judicial process,” Butz v. 
Economou, supra, 438 U.S. at 512. It is the existence of these ju-

26



27

These “ safeguards,” id. at 512, 514; these “ checks on 
agency zeal,” id. at 516, are lost where there is no deci­
sion to prosecute, particularly where there is an across-

dicial checks and safeguards which earlier led this Court in Imbler 
v. Pachtman, supra, 424 U.S. at 431, to limit its decision to- “hold 
only that in initiating a prosecution and in presenting the State’s 
case, the prosecutor is immune from a civil suit for damages.” As 
the Court in Imbler summarized, the checks and safeguards on 
prosecutorial zealousness “include the remedial powers of the trial 
judge, appellate review, and state and federal post-conviction col­
lateral remedies. In all of these the attention of the reviewing 
judge or tribunal is focused primarily on whether there was a fair 
trial under law.” Id. at 427.

Because of the focus in Butz and Imbler on the checks and safe­
guards that surround a prosecutor’s decision to prosecute and his 
presentation of the case, and also because of the importance of a 
prosecutor’s “quasi-judicial” functions to the immunity doctrine, 
the courts of appeals subsequent to Butz have uniformly allowed 
prosecutors an absolute immunity only for their “advocacy” func­
tions of initiating and carrying out a prosecution, and not for 
the actions taken by prosecutors in their administrative or investi­
gative roles. Mancini v. Lester, 630 F.2d 990 (3d Cir. 1980) (county 
prosecutor and deputy attorney general are not entitled to abso­
lute immunity for actions taken in their administrative or in­
vestigative roles) ; Marrero v. Hialeah, 625 F.2d 499 (5th Cir. 
1980) (state prosecutors are not protected by absolute immunity 
for actions taken in their administrative or investigative roles) ; 
Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979), cert, denied 
on relevant issue, 446 U.S. 754, 759 (1980) (state- prosecutors and 
federal law enforcement officials are not protected by absolute 
immunity for actions taken in their administrative or investigative 
roles) ; Forsyth v. Kleindienst, 599 F.2d 1203 (3d Cir. 1979) (two 
former U.S. Attorneys General are not protected by absolute im­
munity for actions taken in their administrative roles); see also 
Miller v. DeLaune, 602 F.2d 198 (9th Cir. 1979) (federal Internal 
Revenue Service official is not protected by absolute immunity) ; 
cf. Halperin v. Kissinger, 606 F.2d 1192 (D.C. Cir. 1979), aff’d by 
equally divided court, 69 L. Ed. 2d 367 (1981) (the President 
and his advisors are not protected by absolute immunity). Even 
prior to this Court’s decision in Butz, the courts of appeals had 
uniformly denied absolute immunity to federal and state prosecutors 
who had been acting not in their “quasi-judicial,” prosecutorial 
capacities but in their administrative or investigative roles. Slavin



28

the-board policy never to initiate enforcement proceed­
ings. In this case, petitioners’ refusals to initiate admin­
istrative proceedings were never able to be subjected to 
scrutiny in any administrative proceeding, and thus were 
never able to be subjected thereafter to judicial review 
of an agency proceeding.

Since the remedial oversight premise for extending ab­
solute immunity to the official who has the discretion to 
initiate and who does initiate a proceeding is altogether 
absent here, and since the only means of providing re­
dress and of deterring official misconduct is an action 
such as this, there is no absolute immunity in an action 
such as this.* 30 Accordingly, even if petitioners here had 
enjoyed broad discretion with respect to a prosecutorial 
proceeding, they nonetheless would not be entitled to 
absolute immunity from liability for following an uncon­
stitutional and illegal policy of never enforcing the law.

2. The final legal roadblock barring petitioners from 
entitlement to absolute immunity arises from the very 
reason for the existence of the immunity doctrine. As

v. Curry, 574 F.2d 1256 (5th Cir. 1978) (state officials) ; Briggs v. 
Goodwin, 569 F.2d 10 (D.C. Cir. 1977), cert, denied, 437 U.S. 904 
(1978) (federal officials) ; Helstoski v. Goldstein, 552 F.2d 564 
(3d Cir. 1977) (federal officials) ; Guerro v. Mulhearn, 498 F.2d 
1249 (1st Cir. 1974) (state officials); Hampton v. Chicago, 484 
F.2d 602 (7th Cir. 1973), cert, denied, 415 U.S. 917 (1974) (state 
and federal officials) ; cf. Zweibon v. Mitchell, 516 F.2d 594 (D.C. 
Cir. 1975), cert, denied, 425 U.S. 944 (1976) (federal officials).

30 The absence of any administrative or judicial checks and 
safeguards also can be viewed as a sufficient reason to deny abso­
lute immunity even to officials who decide to- prosecute and who 
perform adjudicative functions. In Wood v. Strickland, supra, for 
example, the school board members concededly were “adjudicators 
in the school disciplinary process,” roles in which the school board 
members “must judge whether there have been violations of school 
regulations and, if so, the appropriate sanctions for the violations.” 
420 U.S. at 319. Nonetheless, the school board members were de­
nied absolute immunity for their allegedly unconstitutional de­
cisions to prosecute and to punish.



29

Chief Justice Burger explained at some length for the 
unanimous Court in Scheuer v. Rhodes, supra, the con­
sistent legal justification for allowing any immunity—  
absolute or qualified—is to encourage public officials to 
act, not to encourage them not to decide or not to act at 
all. “ Implicit in the idea that officials have some immu­
nity— absolute or qualified—for their acts, is a recogni­
tion they may err. The concept of immunity assumes 
this and goes on to assume that it is better to risk some 
error than not to decide or act at all.” 416 U.S. at 242. 
In other words, the immunity doctrine is based on a 
single “policy consideration [which] seems to pervade the 
entire analysis: the public interest requires decision and 
action to enforce laws.” Id. at 241. Officials “who fail 
to make decisions when they are needed or who do not 
act to implement decisions when they are made do not 
fully and faithfully perform the duties of their offices.” 
Id. at 241-42.

Although none of the petitioners here claimed respon­
sibility for not initiating the administrative proceedings 
required under their governing statute, J.A. 236-64, the 
fact of the matter is that there were no administrative 
proceedings despite formal determinations that their re­
cipients were in civil rights noncompliance. When offi­
cials such as petitioners here are responsible for acting 
but do not act, or even refuse to act at all, the immunity 
which they claim is drained of its justification. Accord­
ingly, petitioners here should be barred from claiming 
entitlement to any immunity whatsoever. At a minimum, 
petitioners have no claim to absolute immunity.



30

II. Respondents Have A Cause Of Action For Damages 
To Redress The Deprivation Of Their Fifth Amend­
ment Rights Based Upon Their Allegations Of Peti­
tioners’ “Willful And Malicious” Refusal To Enforce 
Restrictions Imposed By The Fifth Amendment And 
By The Crime Control Act Upon The Use Of Federal 
Funds To Support Discriminatory Practices Of 
LEA A Grantees

Petitioners’ second argument31 is nominally addressed 
to the question whether this Court should accord to these 
respondents the same right, to bring a constitutional cause 
of action for damages for the violation of Fifth Amend­
ment guarantees which they have alleged, as was recog­
nized in Davis v. Passman, 442 U.S. 228 (1979) ; see also 
Carlson v. Green, 446 U.S. 14 (1980) ; Bivens v. Six Un­
known Fed. Narcotics Agents, 403 U.S. 388 (1971). 
Their brief, however, fails to address the issue squarely 32

31 This issue was not decided below— in fact, it was never even 
raised by the government in either the district court or the court 
of appeals— and it should not be considered by this Court. See dis­
cussion in n.44 at 42-43 infra.

32 Perhaps the clearest indication of the government’ s approach 
is the fact that it neither cites nor discusses the seminal decision 
of this Court recognizing an implied constitutional cause of action 
for damages, Bivens v. Six Unknown Fed. Narcotics Agents, supra. 
Although Davis v. Passman, supra, and Carlson v. Green, supra, 
receive bare mention, nowhere in its brief does the government 
contend that this Court erred in Butz v. Economou, supra, 438 
U.S. at 504, when it stated that “the decision in Bivens, established 
that a citizen suffering a compensable injury to a constitutionally 
protected interest could invoke the general federal-question juris­
diction of the district courts to obtain an award of monetary 
damages against the responsible federal official.”

In any event, it is clear under the analysis of these cases that 
respondents’ complaint adequately alleges injury resulting from 
the deprivation of constitutional rights which justifies an implied 
cause of action for damages. The constitutional protection which 
respondents seek to enforce was succinctly recognized in Davis, 
442 U.S. at 234 (citations omitted) : “the Due Process Clause of 
the Fifth Amendment forbids the Federal Government from deny­
ing equal protection of the laws.” Since the substantive content



31

but instead presents a curious array of arguments about 
legal propositions which were not ruled on by the courts

of the equal protection guarantee does not differ between the Fifth 
and Fourteenth Amendments, see, e.g., Bolling v. Sharpe, 347 U.S. 
497 (1954), the federal (as well as the state) government’s “con­
stitutional obligation requires it to steer clear . . .  of giving sig­
nificant aid to institutions that practice racial or other invidious 
discrimination.” Norwood v. Harrison, 413 U.S. 455, 467 (1973).

Respondents have also alleged “a cause of action which asserts 
this right,” Davis v. Passman, supra, 442 U.S. at 234. Like the 
plaintiff in Davis, indeed, “ [1 j ike the plaintiffs in Bolling v. Sharpe, 
supra, [respondents rest their] claim[s] directly on the Due Process 
Clause of the Fifth Amendment [and claim] that [their] rights 
under the Amendment have been violated, and that [they have] 
no effective means other than the judiciary to vindicate these 
rights.” 442 U.S. at 243 (footnote omitted). Therefore, respond­
ents are “appropriate part[ies] to invoke the general federal ques­
tion jurisdiction of the District Court to seek relief.” Id. at 244.

Respondents’ cause of action under the Fifth Amendment may be 
defeated here only “in two situations. The first is when [peti­
tioners] demonstrate ‘special factors counseling hesitation in the 
absence of affirmative action by Congress.’ The second is when 
[petitioners] show that Congress has provided an alternative 
remedy which it explicitly declared to be a substitute for recovery 
directly under the Constitution and viewed as equally effective.” 
Carlson v. Green, supra, 446 U.S. at 18-19 (1980) (citations 
omitted.) Neither situation is present in this case.

First, as in Carlson, “ [p] etitioners do not enjoy such independent 
status in our constitutional scheme as to suggest that judicially 
created remedies against them might be inappropriate. Moreover, 
even if requiring them to defend [respondents’ ] suit might inhibit 
their efforts to perform their official duties, the qualified immunity 
accorded them under Butz v. Economou provides adequate protec­
tion.” Id. at 19.

Second, also as in Carlson, “we have here no explicit congres­
sional declaration that persons injured by federal officers’ viola­
tions of the [Fifth] Amendment may not recover money damages 
from the [officers].” Id.

Third, while respondents have not abandoned the claim (con­
trary to the assertion in Pet. Br. at 39 n.26) that they have an 
implied statutory cause of action under the Crime Control Act, as 
in Carlson additional factors suggest that the constitutional cause 
of action provides a more effective remedy. In addition to compen-



below and which for the most part were not even pre­
sented to the courts below. We address these contentions 
seriatim,

A. Petitioners say that the respondents are not en­
titled to proceed to discovery and trial on the allegations 
of their complaint because “ the complaint does not allege 
and the record does not indicate that petitioners purpose­
fully discriminated,”  Pet. Br. 29. To support this asser-

sating respondents for the denial of their rights, the constitutional 
claim “serves a deterrent purpose,” for “ [i]t is almost axiomatic 
that the threat of damages has a deterrent effect.” 446 U.S. at 21 
(footnote omitted). Further, “punitive damages may be awarded 
in a Bivens suit,” a remedy which is “especially appropriate to 
redress the violation by a Government official of a citizen’s consti­
tutional rights.” 446 U.S. at 22. In fact, as the Court noted when 
commenting on Carey v. Piphus, 435 U.S. 247 (1978), “punitive 
damages may be the only significant remedy available . . . where 
constitutional rights are maliciously violated but the victims can­
not prove compensable injury.” 446 U.S. at 22 n.9. Additionally, 
again as in Carlson, there is no question that respondents here 
are entitled to a jury trial on their Bivens cause of action, 446 
U.S. at 22. Finally, although respondents sought injunctive relief 
against petitioners to prevent future violations of the Fifth Amend­
ment, respondents’ damages claim is the only viable remedy avail­
able with regard to petitioners’ past conduct. In other words, for 
respondents, as “ [f]or Davis, as for Bivens, ‘it is damages or 
nothing.’ ” Davis v. Passman, supra, 442 U.S. at 245 (footnote 
omitted), quoting from 403 U.S. at 410 (Harlan, J., concurring 
in the judgment).

Of course, some or all of these remedies may also be available 
in respondents’ implied statutory cause of action, the precise con­
tours of which have not been determined because the district court 
never passed upon respondents’ implied statutory claims, although 
they were fully briefed. For this reason, and because the court of 
appeals’ majority held that respondents have an express cause of 
action under the statute, Cert. Pet. App. 7a n.16; compare id. at 
9a n.5 (dissenting opinion), we do not know what causes the 
government to misunderstand the respondents to be relinquishing 
their statutory claims, see Pet. Br. 39 n.26. The matter is simply 
not presented in this case because the government, in its Petition 
for Certiorari, did not seek review of the court of appeals’ deter­
mination on this issue.



tion, the government has erected a shadow-structure with­
out substance.

1. The government would have this Court simply ignore 
the explicit language of the complaint, which charges 
that petitioners’ actions were “ willful and malicious,” 
J.A. 44, on the ground that these are merely “ conclusory 
term[s],”  Pet. Br. 31 n.21. There is no basis in law for 
treating as surplusage a specific— and, in the govern­
ment’s own view of the law, critical— allegation of a 
plaintiff, or for imposing retrospectively an even more 
detailed burden of pleading upon a plaintiff. Cf. Gomez 
v. Toledo, 446 U.S. 635 (1980).

2. The government further urges that these “ conclu­
sory term[s]” are “not supported by any allegations of 
fact” in the complaint, Pet. Br. 29 n.21. To the con­
trary, respondents’ characterization of petitioners’ con­
duct not only is a specific elaboration of the manner in 
which petitioners were alleged to have been “acting un­
constitutionally and in excess of their authority,”  see J.A. 
41-43, but it is amply supported throughout the com­
plaint by repeated references to petitioners’ knowing re­
fusals to change their policies and practices, see, e.g., J.A. 
21-41. Based upon their own experiences and contacts 
with the petitioners, respondents had every reason to 
believe that petitioners’ conduct was “willful and mali­
cious,”  and so they alleged. The government’s incantation 
of a demand for further specificity can only be inter­
preted as a desire to limit triable cases to those in which 
the victim of unconstitutional conduct can allege that 
defendant officials confessed their racial animus.

3. The government also claims that the “ conclusory” 
allegations of intent are “ inconsistent with petitioners’ 
undisputed actions.”  Pet. Br. 29 n.21. Respondents’ alle­
gations about “petitioners’ [pre-complaint] extensive ef­
forts to secure compliance with the governing antidiscrim­
ination laws,” see Pet. Br. 30, speak for themselves: In 
every instance cited by the government the complaint

83



34

alleges that petitioners’ actions were deliberately and 
wholly inadequate to fulfill the civil rights obligations 
imposed on petitioners by the Constitution and by the 
Crime Control Act. As to the remainder of “petitioners’ 
undisputed actions,” id. at 31 n.21, it is sufficient merely 
to note, first, that most of the assertions made by the 
government were not submitted to the district court in 
“ uncontradicted affidavits,” id. at 30, but in an unsworn 
document, see discussion at 8-9 supra; second, that the 
blanket stay of discovery ordered by the trial court pre­
vented respondents from contravening those affidavits 
which the government did file, see text at 46 n.47 infra; 
and third, that the alleged enforcement steps on which 
the government relies were all taken after September 4, 
1975, the date on which this lawsuit was filed.33 Peti­
tioners’ belated actions could have no effect on respon­
dents’ claims for damages arising from injuries already 
suffered by them as a result of petitioners’ prior inactions 
and refusals to carry out their constitutional and statu­
tory civil rights enforcement obligations.

4. Finally, the government’s argument is flawed be­
cause, as we discuss more extensively in the next section, 
it misinterprets the nature of the constitutional violation

33 As previously discussed, ten months after this suit was com­
menced, petitioners adopted a final regulation withdrawing their 
previous policy against initiating administrative fund termination 
proceedings. See note 26 at 23, supra. In December, 1975, peti­
tioners allegedly hired a Special Assistant to the Administrator 
on Women and Minority Rights, see J.A. 239, a job which peti­
tioner Velde stated had been occupied by a different individual 
in an acting capacity for “a[n unspecified] period of time prior 
to that date.” Id. On January 29, 1976, nearly five months after 
this suit was filed and two weeks after respondents moved for a 
preliminary injunction requiring initiation of administrative fund 
termination proceedings against the Philadelphia Police Depart­
ment based upon petitioners’ then two-year-old determination of 
noncompliance, J.A. 2, 46-233, LEAA finally did start proceedings, 
see J.A. 242. (Petitioners’ prior consistent policy refusing to 
initiate formal administrative proceedings is described in notes 
23-25 and accompanying text at 22-23 supra.



alleged by the respondents. As part of its argument that 
the complaint contains inadequate allegation of intent, 
the government asserts, Pet. Br. 30, that it was

the state and local law enforcement agencies that 
received LEAA funds, not petitioners, [who] prac­
ticed illegal discrimination. . . . respondents did not 
allege that petitioners required, encouraged, aided, 
or affirmatively approved the discriminatory be­
havior of the recipient agencies.

Even assessed on its own terms, this is a misrepresenta­
tion of what is in the complaint.34 More fundamentally, 
however, it refuses to recognize what the Fifth Amendment 
requires of petitioners and other federal government offi­
cials. Nowhere in their argument do petitioners cite 
Norwood v. Harrison, 413 U.S. 455, 467 (1973), where 
the Chief Justice, for a unanimous Court, declared that 
a government agency’s “ constitutional obligation requires 
it to steer clear . . .  of giving significant aid to institu­
tions that practice racial or other invidious discrimina­
tion.” As the opinion pointed out, this was not a novel 
constitutional principle: “ This Court has consistently af­
firmed decisions enjoining state tuition grants to students 
attending racially discriminatory private schools.” Id. at 
463. See also Gilmore v. City of Montgomery, 417 U.S. 
556 (1974).35 With the relevant constitutional principles

34 The complaint alleges that petitioners’ “refusal to enforce 
their constitutional and statutory civil rights obligations has 
served to finance and thus to perpetuate the discriminatory and 
exclusionary employment practices of LEAA recipients,” J.A. 26.

35 In an accompanying footnote to the text quoted from Nonvood 
v. Harrison, supra, the Chief Justice cited three tuition grant 
cases along with other decisions such as Coit v. Green, 404 U.S. 
997 (1971), aff’g Green v. Connally, 330 F. Supp. 1150 (D.D.C. 
1971).

The government here fails to consider that decision, Norwood or 
Gilmore, or the many similar lower court rulings reaffirming the 
constitutional principle that government agencies may not provide 
funding to recipients which are known to practice discrimination. 
E.g., Legal Aid Soc. of Alameda County v. Brennan, 608 F.2d

35



in mind, the adequacy of respondents ’complaint to state 
a cause of action is patent.

B. Petitioners next assert that the complaint was 
deficient because “ it does not allege an adequate causal 
connection between petitioners’ actions and respondents’ 
injury.” Pet. Br. 31. Petitioners can make this state­
ment only because they both misstate the nature of re­
spondents’ cause of action and misconstrue the applicable 
law.

1. The government begins its argument by repeating 
its erroneous characterization of the injury which re­
spondents claim to have suffered: “Respondents essen­
tially claim that by failing to initiate fund termination 
proceedings against recipient agencies that discriminate, 
petitioners themselves became responsible for the discrim­
ination and may be held liable in damages.” Pet. Br. 31- 
32. But the constitutional violations alleged here oc­
curred not when discrimination was practiced by local 
recipients, but when the federal officials knowingly pro­
vided financial assistance which supported that race- and 
sex-based discrimination. Petitioners’ “ constitutional ob­
ligation requires [them] to steer clear . . .  of giving 
significant aid to institutions that practice racial or other 
invidious discrimination.”  Norwood v. Harrison, supra, 
413 U.S. at 467.86 * 38

36

1319 (9th Cir. 1979), cert, denied, 447 U.S. 921 (1980) ; Committee 
for Full Employment v. Blumenthal, 606 F.2d 1062 (D.C. Cir. 
1979) ; Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) (en 
banc) ; Gautreaux v. Romney, 448 F.2d 731 (7th Cir. 1971) ; 
NAACP, Western Region v. Brennan, 360 F. Supp. 1006 (D.D.C. 
1973).

38 Because the government improperly identifies the injury alleged 
by respondents, the lines of cases cited in its brief have little or no 
bearing upon this case.

Most curious is the government’s discussion of “state action” 
decisions under the Fourteenth Amendment. See Pet. Br. 36-37. 
Those decisions concerned the circumstances in which private 
parties— otherwise unencumbered by constitutionally based limi­
tations upon their conduct— will be considered so closely related,



37

2. The government attempts to buttress its argument 
by suggesting that “ it cannot be maintained that . . . the 
recipient agencies would necessarily have stopped dis­
criminating if LEAA funding had been terminated,” 
Pet. Br. 35. The virtually identical argument was ex­
pressly rejected by this Court in Norwood v. Harrison, 
supra. The Chief Justice pointed out, in that decision, 
that the lower court had erroneously justified its dis­
missal of the case by placing “ great stress on the absence 
of a showing by appellants that ‘any child enrolled in 
private school, if deprived of free textbooks, would with­
draw from private school and subsequently enroll in the 
public schools.’ ”  413 U.S. at 465 (citation omitted). 
While not accepting this factual uncertainty, the Court

entwined or entangled with government as to make their actions 
subject to constitutional rules nominally addressed only to govern­
ment officials. Since “the Due Process Clause of the Fifth Amend­
ment [itself] forbids the Federal Government from denying equal 
protection of the laws,” Davis v. Passman, supra, 442 U.S. at 234, 
respondents here are not seeking to impose restrictions upon peti­
tioners on the basis of petitioners’ relationship to discriminating 
grantees. As they allege in their complaint, respondents’ Fifth 
Amendment rights have been violated by petitioners’ refusals to 
carry out petitioners’ Fifth Amendment and statutory civil rights 
obligations.

The government makes the same error in its treatment of the 
other cases it cites. In Martinez v. California, 444 U.S. 277 (1980), 
for example, the plaintiff did not allege that the parole board’s 
decision to release the prisoner violated an affirmative obligation 
(such as the obligation to terminate funds which support discrim­
inatory practices) imposed by the Constitution or federal law. 
The instant case also bears no resemblance to Rizzo v. Goode, 423 
U.S. 362 (1976), where the trial court found after an evidentiary 
hearing that the defendant police officials were not responsible 
for acts of misconduct by subordinate officers, and where this 
Court recognized no affirmative federal constitutional or statutory 
obligation imposed upon the police officials to assume responsibility 
for subordinate officers’ day-to-day behavior. Similarly, Francis- 
Sobel v. University of Maine, 597 F.2d 15 (1st Cir.), cert, denied, 
444 U.S. 949 (1979), also turned upon the lack of any affirmative 
constitutional or statutory obligation of the EEOC.



38

held that in any event it was irrelevant: “ We do not 
agree with the District Court in its analysis of the legal 
consequences of this uncertainty, for the Constitution 
does not permit [government] to aid discrimination even 
when there is no precise causal relationship between [gov­
ernment] financial aid to a private school and the con­
tinued well-being of that school.” 413 U.S. at 465-66.

C. The government’s causal connection argument— es­
pecially in view of its reliance upon Article III “ case or 
controversy” decisions—might be construed as challeng­
ing respondents’ standing to maintain this action. While 
respondents’ standing is not among the questions pre­
sented and is nowhere directly questioned by petitioners, 
we nonetheless address this Art. I ll jurisdictional matter 
here to demonstrate that the court below was surely 
correct in holding that respondents “have standing to 
maintain this action,”  Cert. Pet, App, 7a n.16.37

“ In order to satisfy Art. Ill, the plaintiff must show 
that he personally has suffered some actual or threatened 
injury as a result of the putatively illegal conduct of the 
defendant.”  Gladstone, Realtors v. Village of Bellwood, 
441 U.S. 91, 99 (1979). As summarized by the Chief 
Justice in Duke Power Co. v. Carolina Environmental 
Study Group, Inc., 438 U.S. 59, 72 (1978) :

[T]his requirement of a “ personal stake” has come 
to be understood to require not only a “ distinct and 
palpable injury” to the plaintiff, Warth v. Seldin, 
422 U.S. 490, 501 (1975), but also a “ fairly trace­
able” causal connection between the claimed injury

37 The court below was unanimous in its view that respondents 
possessed the requisite Art. I ll  standing' to maintain this action. 
The majority upheld respondents’ standing based upon their char­
acterization of the case as one in which respondents had suffered 
injury caused directly by petitioners’ alleged Fifth Amendment 
and statutory violations. Cert. Pet. App. 7a n.16. See discussion 
at 36-37 supra and 39-40 infra. In a separate opinion, Judge 
Tamm held that respondents, even under petitioners’ mischaracter- 
ization of this case, had sufficiently alleged their standing to sur­
vive the motion to dismiss. Cert. Pet. App. 8a-14a,



39
and the challenged conduct. Arlington Heights v. 
Metropolitan Housingr Dev. Corp., 429 U.S. 252, 261 
(1977). See also Simon v. Eastern Ky. Welfare 
Rights Org., 426 U.S. 26, 41-42 (1976) ; Linda R.S. 
v. Richard D., 410 U.S. 614, 617 (1973).

These injury and causation/redressability requirements 
are abundantly satisfied, as the court below held, in this 
case.38

Respondents were injured, as they alleged, by peti­
tioners’ refusals to carry out their constitutional and 
statutory civil rights obligations and by petitioners’ con­
sequent continuation of federal funding to grantees which 
were also discriminating against respondents and other 
members of the class they seek to represent. See J.A. 
18-41.39 As in Norwood v. Harrison, supra, the alleged 
constitutional (and, here, statutory) violations by the 
petitioner government officials caused the injuries which 
respondents assert as the basis for their claim against 
petitioners; similarly, here the relief sought by respon­
dents would remedy and compensate for the injuries 
caused by petitioners’ transgressions: injunctive relief 
(in the nature of mandamus) to compel petitioners and 
their successors to carry out their constitutionally and

38 Cert. Pet. App. 7a n.16.

39 Respondents also alleged additional injuries caused by peti­
tioners’ refusals to carry out their constitutional and statutory 
civil rights enforcement obligations. For example, respondent 
National Black Police Association ( “NBPA” ) alleged in ([ 41d 
that petitioners’ “refusal to enforce their constitutional and statu­
tory civil rights obligations has required NBPA member organi­
zations and their members to file administrative complaints and 
costly lawsuits to obtain their civil rights, to deplete their own 
financial resources through such complaints and lawsuits, to ex­
pose themselves to extra-legal sanctions and harassment for assert­
ing their civil rights and to jeopardize the member organizations’ 
existence and the individuals’ employment by asserting their civil 
rights.” J.A. 26. These allegations were more than sufficient to 
confer standing on respondent NBPA. Hunt v. Washington Apple 
Advertising Comm’n, 423 U.S. 333, 341-45 (1977) ; Sierra Club v. 
Morton, 405 U.S. 727, 738-39 (1972) ; NAACP v. Button, 371 U.S. 
415, 428 (1963).



40

statutorily mandated civil rights enforcement obligations, 
and damages to redress petitioners’ past violations. See 
J.A. 43-44. In other words, respondents here are in a 
position no different from that of the plaintiffs in Nor­
wood v. Harrison, supra; Gilmore v. City of Montgomery, 
supra; or Coit v. Green, supra. See also cases cited in 
note 35 at 35-36 supra.

Even under petitioners’ mischaracterization of this case 
— as one in which respondents’ only injury was caused not 
by petitioners’ Fifth Amendment violations but by the dis­
crimination practiced by LEAA grantees, see Pet. Br. 28- 
39— respondents also have met the injury and causation/ 
redressability requirements of Article III. As Judge Tamm 
stated in his separate opinion below, Cert. Pet. App. Sa­
ida, respondents’ complaint was adequate to survive the 
government’s motion to dismiss since respondents would 
have to be given the opportunity, through discovery, to show 
that the initiation of fund termination proceedings (or the 
termination of funding to discriminatory recipients) would 
ultimately effect nondiscriminatory behavior by grantees 
— as the government itself has elsewhere suggested,40 as 
the Congress expected when it amended the Crime Control 
Act in 1973,41 and as the Civil Rights Commission 42 and

40 The government has aptly described the fund termination 
provisions of the Crime Control Act as “coercive not punitive.” 
J.A. 297.

41 Anticipated efficacy of fund termination to eliminate discrim­
inatory conduct was the premise underlying congressional adoption 
of § 518(c) (2) of the Crime Control Act in 1973. See 119 Cong. 
Rec. 20071 (June 18, 1973) (Rep. Jordan) ; id. at 22059 (June 28, 
1973) (Sen. Bayh) ; LEAA Hearings before Subcommittee No. 5 
of the House Committee on the Judiciary, 93rd Cong., 1st Sess. 
623 (1973) (Rep. Hawkins).

42 See U.S. Comm’n on Civil Rights, T he Federal Civil Rights 
E nforcement Effort— 1974 (Vol. VI, To Extend Federal Finan­
cial Assistance) 384-85 (1975) :

One argument set forth by the Department of Justice against 
fund termination is that it risks “potential injury” to the 
intended beneficiaries of Federal assistance. And the Director 
of OCRC [the Director of L EAA’s Office of Civil Rights Com-



41

the federal courts43 have found to be the case.

pliance, petitioner Herbert C. Rice] has argued that fund 
termination would only serve to hurt those programs that 
LEAA funding was designed to help. This Commission be­
lieves that, on the contrary, fund termination can be extremely 
effective, with minimal injury to intended beneficiaries. For 
example, between the passage of the Civil Rights Act in 1964 
and March 1970, HEW  initiated approximately 600 adminis­
trative proceedings against noncomplying school districts. In 
400 of these cases, HEW  found that the school districts came 
into compliance following the threat of termination, with no 
need for termination. In only 200 cases were funds termi­
nated. HEW  subsequently determined that compliance was 
achieved and Federal assistance was restored in all but four of 
these districts.

See also C.A. App. 608-09.

43 In Adams v. Richardson, 480 F.2d 1159 (D.C. Cir. 1973) (en 
banc) (per curiam), the court expressed no doubt about the effec­
tiveness of fund termination proceedings to bring about compliance:

H EW ’s decision to rely primarily upon voluntary compliance 
is particularly significant in view of the admitted effectiveness 
of fund termination proceedings in the past to achieve the 

. Congressional objective.

480 F.2d at 1163 n,4. A more extensive discussion of the effective­
ness of fund termination, this time in the context of a judicial 
decree withholding federal revenue sharing funds from the City 
of Chicago, is found in United States v. City of Chicago, 549 F.2d 
415 (7th Cir.), cert, denied, 434 U.S. 875 (1977). There, the Court 
of Appeals unanimously affirmed the trial court’s findings of dis­
crimination, but the panel split on whether the trial judge should 
have ordered further payments of revenue sharing funds withheld 
pending correction of the wrongs. The majority opinion viewed 
the withholding as less intrusive than a wide-ranging injunctive 
order:

[It was a] less drastic step of enjoining the payment of fed­
eral funds in an effort to force the noncomplying government 
to itself choose a means of ending illegal discrimination.

*  *  *  *

[T]he withholding of revenue sharing funds . . . was prop­
erly perceived by the district court as a necessary tool in 
prodding the City toward ending discrimination.

549 F.2d at 440, 441. Judge Pell dissented on the ground that the 
withholding was too effective, too powerful:

[Footnote continued on page 42]



42
Because respondents’ complaint establishes more than 

the “ substantial likelihood” required by Article III that 
the relief requested would redress the injury, see Duke 
Power Co. v. Carolina Environmental Study Group, Inc., 
supra, 438 U.S. at 74, 75 n.20, the decision below was 
clearly sound.

Thus, whether the government’s contentions are viewed 
as “ standing,” “cause of action,” “ case or controversy” 
or “ substantive” arguments, they are unpersuasive at­
tempts to demonstrate that respondents should be denied 
the opportunity to initiate discovery and submit evidence 
in support of their allegations of constitutional violations 
on the part of the petitioners.

III. Petitioners, On This Record, Cannot Demonstrate That 
They Should Be Accorded Qualified Immunity As A 
Matter Of Law

The government’s final submission— which, like its sec­
ond argument, was not passed upon by the court of ap­
peals 43 44—is that even if the court of appeals correctly

43 [Continued]
[W ]hat should have been stayed was the equitable hand of the 
district court rather than the flow of essential operating funds 
to one of the largest metropolises of this country.

*  *  -X* *

Certainly the withholding of millions of dollars from finan­
cially plagued megapolitan cities is a device designed to bring 
them quickly to their knees.

Id. at 442, 447.

44 The claim that petitioners were entitled to qualified immunity 
as a matter of law was not made by the government before the 
district court, see Memorandum of Points and Authorities in Sup­
port of Motion to Dismiss or for Summary Judgment, filed Febru­
ary 9, 1976, at 31-34, and, although articulated in the government’s 
brief, see C.A. Brief for Appellees at 51-53, it was not decided by 
the court of appeals. In such circumstances, this Court normally 
refuses to pass upon a legal claim. NLRB v. Sears, Roebuck & Co., 
421 U.S. 132, 163-64 (1975) ; Ramsey v. United Mine Workers, 401 
U.S. 302, 312 (1971).

Moreover, the fact that in order to decide this claim, the Court 
would have to perform the usual functions of a trial judge— weigh­



43

ruled that petitioners are not prosecutors entitled to an 
absolute immunity, and even if respondents’ complaint 
adequately stated a cause of action for damages against 
petitioners, nevertheless the dismissal by the district 
court should have been affirmed because the record es­
tablishes petitioners’ “ entitle [ment] to qualified immunity 
as a matter of law,” Pet. Br. 39.

If the Court decides to consider the claim, it must 
be rejected. Three years ago, the United States candidly 
and correctly articulated the basic legal doctrine applicable 
to, and the factual showing necessary to establish, a de­
fense of qualified immunity.4'5 In the instant case, the 
government does not appear to dispute those principles 
(except insofar as it previously suggested that resolu­
tion of a qualified immunity claim could not be made on 
the basis of affidavits or a summary judgment motion). 45

ing and sifting the adequacy of affidavits and other record mate­
rials— provides further justification for adhering to the practice of 
addressing only matters decided below.

45 In its Brief for Petitioners in Butz v. Economou, supra, at 11, 
28-29, 31-32, the government partially explicated the nature of the 
inquiry that must be undertaken before qualified immunity can 
be accorded a government official. In general, as the government 
there said, “under the qualified immunity standard the motives 
and intent of the official are key elements of his ultimate liability.” 
Id. at 31-32. In other words, “the defense of qualified immunity 
is likely to open up a wide range of questions concerning the 
official’s motives and intent in performing his duties.” Id. at 28. 
This line of “inquiry undoubtedly would entail broad discovery.” Id.

Additionally, “the broad-ranging issues under a qualified im­
munity standard normally are not susceptible of determination on 
the basis of affidavits, but would require testimony and cross- 
examination.” Id. at 29. “ [M]any and perhaps most of the cases 
would require a more searching analysis of the defendant’s motives 
and intent than can effectively be made under the summary judg­
ment procedure.” Id. at 31. Quoting from Imbler v. Pac.htman, supra, 
424 U.S. at 419 n.13, the government petitioners in Butz also 
pointed out that “ [t]he fate of an official with qualified im­
munity depends upon the circumstances and motivations of his 
actions, as established by the evidence at trial.” Brief for Peti­
tioners, supra, at 29.



44

But petitioners* arguments on this point again misrepre­
sent the respondents’ claims and also overlook the critical 
facts that: (1) respondents were denied any discovery 
in this case; (2) none of petitioners’ affidavits contains 
a claim that their actions were undertaken in good faith, 
and none supplies any supporting information which 
might buttress such a claim; and (3) even if they had 
done so, the extensive affidavits submitted by respondents 
gave rise to numerous, relevant, factual controversies 
which could not be resolved on either a motion to dismiss 
or a motion for summary judgment.

A. The government focuses undue attention upon a 
single aspect of respondents’ claims, the failure ever to 
terminate funding to discriminatory grantees:

The pleadings and accompanying affidavits in the 
record demonstrate that petitioners sought to enforce 
the antidiscrimination provisions in the Act and that 
they could not possibly have known that their failure 
to initiate funding termination proceedings violated 
respondents’ Fifth Amendment rights. Accordingly, 
petitioners are entitled to a summary disposition in 
their favor.

Pet. Br. 40. As we have previously emphasized, respond­
ents’ claims involve far more than just funding termina­
tion— and respondents alleged far more than “mere fail­
ure” to utilize this particular enforcement mechanism. 
Rather, respondents complained of petitioners’ deliberate, 
willful and malicious refusal to carry out an effective 
civil rights enforcement program, in every respect. Thus, 
disposition of petitioners’ qualified immunity claims re­
quires an evaluation of their overall course of conduct, 
not just consideration of the funding termination issue.

B. In Butz v. Economou, supra, this Court held that 
federal officials are subject to the same standards of con­
stitutional immunity law that govern state officials, and 
it quoted from or cited with approval a number of deci­
sions defining the scope of the qualified immunity avail­
able to state officers. “ It is the existence of reasonable



45

grounds for the belief [in the propriety of actions taken] 
formed at the time and in light of all of the circum­
stances, coupled with a good faith belief, that affords a 
basis for qualified immunity.”  Id. at 497-98, quoting 
from Scheuer v. Rhodes, supra, 416 U.S. at 247-48. The 
Court also observed that good faith immunity is not avail­
able if the government official “ knew or reasonably should 
have known that the action he took . . . would violate . . . 
constitutional rights . . .  or if he took the action with 
the malicious intention to cause a deprivation of constitu­
tional rights or other injury.”  Butz v. Economou, supra, 
438 U.S. at 498, quoting from Wood v. Strickland, 420 
U.S. 308, 322 (1975). See also Procunier v. Navarette, 
434 U.S. 555, 562 (1978) and O’Connor v. Donaldson, 
422 U.S. 563, 577 (1975), both cited with approval in 
Butz, 438 U.S. at 498.

Under these standards, the state of mind of the offi­
cials is a key element in determining the applicability of 
qualified immunity, together with all of the circumstances 
surrounding the officials’ acts. See note 45 at 43 supra. In 
appropriate cases, factual issues concerning the surround­
ing circumstances and motivations for an official’s con­
duct can be resolved “ on a properly supported motion for 
summary judgment,” Butz v. Economou, supra, 438 U.S. 
at 508 (emphasis added). The motion must be properly 
supported because the moving party has the burden of 
proving that there are no material facts in dispute, 
Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970), 
and because the trial court must resolve all ambiguities 
and draw all favorable inferences to the benefit of the 
party against whom summary judgment is sought, United 
States v. Diebold, Inc., 369 U.S. 654, 655 (1962). See 
generally F. R. Civ. P. 56(c). In this case, where re­
spondents were denied any discovery, where petitioners’ 
affidavits failed to allege that they acted in good faith, 
and where respondents’ affidavits put the basis for re­
spondents’ actions and inactions at issue, the trial court 
would have erred grievously if it had granted qualified



immunity to petitioners as a matter 6f summary judg­
ment.46

1. It would have been improper, under F. R. Civ. P. 
56 (f), to grant summary judgment to petitioners in light 
of the fact that respondents were denied any discovery 
by the trial court. Respondents attempted to explore the 
facts, circumstances, and motivations surrounding pe­
titioners’ conduct through attempted discovery initiated 
shortly after this action was filed.47 Petitioners responded 
by obtaining a protective order staying that discovery. 
J.A. 1-3; see also id. at 340-45. Respondents’ motion to 
vacate the stay on discovery was opposed by petitioners 
and was never acted upon by the trial court. J.A. 1-3.

Where a party opposing summary judgment is denied 
discovery of relevant facts— to say nothing of the cir­
cumstances and motivations surrounding official action 
which are crucial to the question of immunity— summary 
judgment for the movant is erroneous. The federal courts

46 The motion filed in the trial court by petitioners was framed 
in the alternative, as a motion to dismiss or for summary judg­
ment. J.A. 234-35. Although we do not understand petitioners’ 
argument here to be that this action should have been dismissed 
by the trial court entirely apart from the affidavits and other mate­
rials submitted in connection with its request for summary judg­
ment, we nonetheless are constrained to point out again that the 
complaint charges petitioners with across-the-board inactions and 
■“willful and malicious” refusals to carry out their constitutional 
and statutory civil rights enforcement obligations. J.A. 11-45; see 
3-5, 15-16 supra. Since these allegations must be taken as true 
on a motion to dismiss, Conley v. Gibson, 355 U.S. 41, 45-46 (1957), 
dismissal of this case would have been erroneous as a matter 
of law.

47 Ten days after this action was commenced, respondents filed 
their (a) first interrogatories and first request for admissions, 
(b) first request for production of documents, (c) second interroga­
tories, and (d) second request for admissions. J.A. 1, 341. Peti­
tioners obtained a protective order. J.A. 2. Thereafter, believing 
the stay of discovery under the protective order to be of limited 
duration, respondents in mid-January, 1976 served and filed a 
notice of deposition upon petitioner Herbert C, Rice. J.A. 2, 342. 
Mr. Rice refused to appear at the deposition. See J.A. 342-45.

46



47
of appeals have consistently reversed such judgments 
where the moving parties had failed to respond to inter­
rogatories, e.g., Costlow v. United States, 552 F.2d 560 
(3d Cir. 1977) ; Washington v. Cameron, 411 F.2d 705 
(D.C. Cir. 1969) ; Bane v. Spencer, 393 F.2d 108 (1st 
Cir. 1968), or where they refused to permit the taking of 
a deposition, e.g. Quinn v. Syracuse Model Neighborhood 
Corp., 613 F.2d 438 (2d Cir. 1980) ; Committee for Nu­
clear Responsibility, Inc. v. Seaborg, 463 F.2d 783 (D.C. 
Cir. 1971) ; Morrison Flying Serv. v. Doming Nat’l Bank, 
340 F.2d 430 (10th Cir. 1965). Summary judgment for 
petitioners here would have been error as a matter of law.

2. Further, summary judgment for petitioners would 
have been improper under F.R. Civ. P. 56(c) and (e) 
because of the inadequacy of their submissions. The Rules 
require a motion for summary judgment to be supported 
by admissible evidence showing that there is no genuine 
issue as to any material fact.48 Petitioners’ short affi­
davits, while admissible, set forth few facts pertaining to 
their civil rights enforcement activities; instead, see note

48 F.R. Civ. P. 56(c) requires that a motion for summary judg­
ment may be considered only on “the pleadings, depositions, an­
swers to interrogatories, and admissions on file, together with the 
affidavits, if any.” The use of affidavits is governed by Rule 56(e), 
which specifies that the “affidavits shall be made on personal knowl­
edge [and] shall set forth such facts as would be admissible in 
evidence” (emphasis added). Rule 56(e) also allows the submis­
sion of “ [s]wom or certified copies of all papers or parts thereof 
referred to in an affidavit” and provides that the “court may per­
mit affidavits to be supplemented or opposed by depositions, answers 
to interrogatories, or further affidavits.”

The entire thrust of Rule 56 is thus to allow summary judg­
ment only upon material facts established by admissible evidence. 
See Adickes v. S.H. Kress & Co., supra, 398 U.S. at 159. This is 
the view of the leading commentators: “Affidavits . . . [and other] 
evidence on a summary judgment motion, may be utilized under 
Rule 56(e) only if the information they contain . . . would be 
admissible at trial,” C. Wright & A. Miller, Federal Practice 
and Procedure §2738, at 684 (1973). “And, of course, submitted 
exhibits and documents must be admissible in evidence,” 6 Moore’s 
Federal Practice j[56 .22[l], at 56-1328 (2d ed. 1976).



48

27 at 24-25 supra, for the most part they simply asserted 
that petitioners had acted as administrators within the 
scope of their authority. Their unsworn, uncertified, 94- 
page document entitled Statement of Reasons and Ap­
pendix was not admissible.49

Even if the Statement of Reasons and Appendix had 
been admissible, in combination with petitioners’ affidavits 
it was still insufficient to establish the absence of genuine 
factual issues.50 Nowhere in these submissions did peti­
tioners assert that they had acted in good faith; nowhere 
did they indicate their motives for refusing to take effec­
tive civil rights enforcement actions while continuing to 
fund grantees whom they knew to practice discrimina­
tion ; and nowhere did petitioners—who were lawyers 
surrounded with lawyers 51— indicate that they did not

49 The Statement of Reasons and Appendix, see C.A. App. 624- 
720, reprinted in part at J.A. 265-303, is unsworn and uncertified. 
Not only is it hearsay, but it contains hearsay-upon-hearsay. Al­
though petitioner Velde refers to it as “my Statement,” J.A. 243 
H 22, his concession in f  4 of his affidavit, J.A. 236-37, that he was 
“not involved in the day-to-day civil rights compliance activities 
of the agency” wholly precluded him from incorporating the State­
ment into his affidavit— since Rule 56(e) affidavits must be made 
“ on personal knowledge.” Compare the sworn hearsay statement 
(“one of my students saw . . .” ) and the unsworn statement 
which were both rejected under Rule 56(e) by this Court in 
Adickes v. S.H. Kress & Co., supra, 398 U.S. at 159 n.19.

50 In support of their motion for summary judgment, petitioners 
also filed a four-paragraph, one-and-one-half page “statement of 
material facts.” C.A. App. 188-89. This pleading stated no facts 
whatsoever. Instead, it provided an introduction to the legal argu­
ments made in petitioners’ accompanying memorandum of points 
and authorities.

In any event, petitioners’ failure to show— in any of their sub­
missions— that there was no genuine issue as to any material fact 
is amply demonstrated by respondents’ statement of genuine issues, 
J.A. 309-39. For example, it is readily apparent that petitioners’ 
submissions simply do not even address the question why they did 
not undertake any other enforcement activities beyond those which 
they asserted in the Statement of Reasons and Appendix.

51 Although “it may safely be assumed that few school boards 
and school officials have ready access to counsel,” Wood v. StricJc-



49
know and reasonably should not have known of the con­
stitutional principle established in such cases as Norwood 
v. Harrison, supra, and Coit v. Green, supra. See also 
cases cited in note 35 at 35-36 supra.

These omissions and unexplained gaps in petitioners’ 
submission would have precluded them, as a matter of 
law, from obtaining summary judgment in the trial court. 
See, e.g., Adickes v. S. H. Kress & Co., supra, 398 U.S. at 
158 (“unexplained gaps” with regard to one “ element in 
[one] aspect of the case” made summary judgment inap­
propriate) .

3. Petitioners’ motion also would have failed because 
of the materials submitted by respondents in opposition 
to it. These included not only affidavits but official docu­
ments and reports demonstrating petitioners’ inactions 
and refusals to act, see J.A. 219-33, 304-494, and docu­
ments obtained from petitioners through Freedom of In­
formation Act requests, J.A. 51-218. As a separate ex­
hibit, respondents filed the findings of the United States 
Commission on Civil Rights concerning LEAA’s civil 
rights enforcement program, which were released two 
months after this action was commenced. C.A. App. 481- 
623.'52 Respondents also tendered a statement of genuine 
issues in dispute listing sixty-one separate questions, and 
providing for each references to respondents’ unanswered 
discovery and to the supporting affidavits and documents 
filed by respondents. J.A. 309-39.

In view of these materials submitted by the respond­
ents pursuant to F.R. Civ. P. 56(e), and in view of the

land, supra, 420 U.S. at 331 (Powell, J., dissenting), that certainly 
is not the case here. Petitioners were literally surrounded with 
lawyers. For example, each of the three employees immediately 
below petitioner Rice held the title of “Attorney-Advisor (Civil 
Rights),” J.A. 67; petitioner Rice, a lawyer himself, also reported 
to a lawyer, petitioner Work, and Rice also on occasion sought 
“counsel and advice” from “the General Counsel of LEAA,” J.A. 
263.

s- See note 8 at 5-6 supra.



50

established principle that all “ inferences to be drawn 
from the underlying facts contained in the [movant’s] 
materials must be viewed in the light most favorable to 
the party opposing the motion,” United States v. Diebold, 
Inc., supra, 369 U.S. at 655, petitioners could not under 
F.R. Civ. P. 56 (c) have met their “burden of showing 
the absence of a genuine issue as to any material fact,” 
Adickes v. S. H. Kress & Co., supra, 398 U.S. at 157.

For these reasons, there is no basis for the govern­
ment’s argument that on this record, the district court 
would have been compelled as a matter of law to grant 
qualified immunity, and summary judgment, to the peti­
tioners.

CONCLUSION
For the foregoing reasons, respondents respectfully pray 

that the judgment below be affirmed.

Respectfully submitted,

E. Richard Larson *
Isabelle Katz Pinzler 
Bruce J. Ennis

American Civil Liberties 
Union Foundation 

132 West 43rd Street 
New York, New York 10036 
212-944-9800

William L. Robinson 
Norman J. Chachkin 

Lawyers’ Committee for 
Civil Rights Under Law 

733 15th Street, N.W. 
Washington, D.C. 20005 
202-628-6700 

Counsel for Respondents

* Counsel of Record



APPENDIX



la

APPENDIX

RELEVANT PORTIONS OF THE LEGISLATIVE 
HISTORY OF § 518(c) OF THE CRIME CONTROL 

ACT AS ENACTED IN 1973 AND AS 
AMENDED IN 1976

Section 518(c) of the Crime Control Act was enacted 
in 1973 and amended in 1976 through amendments of­
fered by Rep. Barbara Jordan. The language of § 518 
(c), as enacted in 1973, is set forth in the Crime Con­
trol Act of 1973, Pub. L. No. 93-83, § 2 (Aug. 6, 1973), 
87 Stat. 197, see 42 U.S.C. § 3766(c) (Supp. V 1975), and 
also is set forth at Pet. Br. 2-3. Section 518(c) was 
later amended by the Crime Control Act of 1976, Pub. 
L. No. 94-503, § 122 (Oct. 15, 1976), 90 Stat. 2404, 2418, 
see 42 U.S.C. § 3766(c) (1976). This Appendix sets
forth the relevant legislative history pertaining to the 
reasons for the enactment and amendment of § 518(c).

The amendment authored by Rep. Jordan in 1973 was 
favorably reported by the House Judiciary Committee as 
set forth in H.R. Rep. No. 93-249, 93rd Cong., 1st Sess. 
27 (June 5, 1973). Thereafter, Rep. Jordan explained 
the reasons for her amendment on the floor of the House, 
119 Cong. Rec. 20070-71 (June 18, 1973) :

It is now more than 5 years since the National 
Advisory Commission on Civil Disorders identified 
the lack of adequate representation of minorities in 
law enforcement agencies as one of the key problems 
in the breakdown of communication between police 
and the citizens of the ghetto. While progress has 
been made in some areas in the employment of mi­
norities and women in law agencies, many problems 
of discrimination remain. One need go no further 
than the reports of decided Federal cases to obtain 
evidence of the persistence and prevalence of racism 
in employment.



2a

For example, a Federal district court in Missis­
sippi found in 1971 that the Mississippi Highway 
Patrol had never employed a single black officer. Of 
743 persons employed by the department of Public 
Safety in 1971, only 17 were blacks and they were 
all employed as cooks or janitors. Morrow v. Crisler, 
4 E.P.D. paragraph 7541 (S.D.Miss. 1971); aff’d 
------- F.2d ------  (5th Cir.; April 18, 1973).

While the situation in Mississippi is perhaps the 
most blatant, similar problems of discrimination 
have been found by Federal courts to exist in Ala­
bama, Massachusetts, and Bridgeport, Connecticut. 
See NAACP v. Allen, 340 F.Supp. 703 (M.D. ALA. 
1972); Castro v, Beecher, 459 F.2d 725 (1st Cir.
1972) ; Bridgeport Guardians Inc. v. Bridgeport Civil 
Service Commission 5 CCH E.P.D. 8502 (D. Conn.
1973) .

Other cases alleging discrimination are pending- 
before federal courts in Alabama, Pennsylvania, 
Georgia, Connecticut, Illinois, California and Ohio, 
and before State commissions in Missouri, Kansas, 
Massachusetts, Indiana, Pennsylvania and Connecti­
cut.

The existing LEAA statutes contain no provisions 
designed to prevent discrimination in benefits or em­
ployment on the basis of race, color, national origin, 
or sex. As a result, LEAA has been particularly 
slow to develop an effective civil rights enforcement 
program. In fact, it was not until 2 years after its 
establishment that LEAA admitted it has a civil 
rights enforcement responsibility and created a civil 
rights compliance office and implementing regulations.

The administration suggested new language for 
this legislation, with what I hope was the intention 
of strengthening LEAA’s civil rights enforcement



8a
powers and responsibilities, which has largely been 
incorporated in section 518(b) [Section 3766(c)] 
of H.R. 8152. These provisions parallel the language 
of title VI of the Civil Rights Act of 1964 with an 
added prohibition of discrimination on the basis 
of sex, but they also specify special procedures for 
enforcing those provisions. These special procedures 
are appropriate to the block grant nature of the 
LEAA program. They direct the administration, 
whenever it determines that a State or local unit of 
government has violated the civil rights provisions, 
to request the State’s Governor to secure compliance. 
If within 60 days he has failed or refused to secure 
compliance, LEAA is required to begin its own en­
forcement procedures.

The effect of my amendment to the administra­
tion’s suggested provisions is to require LEAA to 
first use the same enforcement procedure which ap­
plies to any other violation of LEAA regulations or 
statutes. That procedure of notification, hearings, 
and negotiations is spelled out in section 509 [Sec­
tion 3757], which provides the ultimate sanction of 
funding cutoff if compliance is not obtained. LEAA 
is also authorized to undertake civil action in any ap­
propriate U.S. district court for such relief as may 
be appropriate.

This amendment was necessary to reverse LEAA’s 
traditional reliance on court proceedings to cor­
rect discrimination, rather than undertaking ad­
ministrative enforcement of civil rights requirements. 
Despite this declared preference for judicial rem­
edies, which is not the procedure used for any other 
violation of LEAA guidelines or statutes, LEAA has 
not initiated a single action in court and has inter­
vened in only a limited number of cases brought 
by private groups. Even those interventions were 
begun long after the suits were filed and usually as



4a

a result of external pressures of court order. In 
effect, LEAA has had no civil rights enforcement 
program. The civil rights provisions in this bill give 
LEAA the necessary powers and require the estab­
lishment of an effective civil rights program.

This legislative history from the House was echoed in 
the Senate by Sen. Birch Bayh, 119 Cong. Rec. 22059 
(June 28, 1973) :

LEAA has also been accused of insensitivity to 
the constitutional rights of those its funds are spent 
to protect. It took over 2 years, and the persistent 
efforts of the Leadership Conference on Civil Rights, 
before LEAA recognized its responsibilities to pre­
vent racial discrimination in the use of its funds. 
Throughout this period, citizens were forced to turn 
to the Federal courts to end discrimination by 
States that were receiving these Federal funds. 
LEAA still makes little effort to examine possible 
discriminatory distribution of services. Nor does 
the Agency give sufficient attention to privacy 
rights. . . .

I could dwell at length on the misuse of funds, the 
insensitivity to constitutional rights, the bureau­
cratic redtape and delay that have characterized 
LEAA operations, but these have been well-docu­
mented through the careful and thorough investiga­
tions of the House Government Operations and 
Judiciary Committees, and by the report of the 
National Urban Coalition.

One of the reports mentioned by Sen. Bayh was the 
printed transcript of the LEAA hearings held by the 
House Judiciary Committee: LEAA Hearings Before 
Subcommittee No. 5 of the House Committee on the Ju­
diciary, 93rd Cong., 1st Sess. (1973). Although these 
hearings were held before the introduction of Rep. Jor­
dan’s amendment, much of the testimony was directed



5a

at the nonexistence of civil rights enforcement by LEAA. 
Particularly relevant are the remarks of Rep. Augustus 
Hawkins, id. at 621-23:

Mr. Chairman, members of the Committee, as 
chairman of the House Equal Opportunities Sub­
committee, I would like to discuss with you what I 
regard as a major failing of Title I of the Safe 
Streets Act and its administration by the Law En­
forcement Assistance Administration. I am refer­
ring specifically to the failure of the LEAA to meet 
its affirmative obligation to insure that the funds 
it distributes not only do not tend to support racial 
and sex discrimination but also work to reduce it. 
This obligation stems from the Fifth and Fourteenth 
Amendments and is reflected in the policy underlying 
Title VI of the Civil Rights Act of 1964, an act 
which this committee authored.

The LEAA has presided over the disbursement of 
$1 y2 billion of federal funds to the Nation’s crim­
inal justice agencies during the period of its ex­
istence. Yet, it has given only cursory recognition to 
the massive civil rights problems involved in the 
distribution of these sums. The criminal justice sys­
tem is the system that deals most directly, and, fre­
quently, most harshly with the poor and minorities. 
It has been often documented that each phase of the 
criminal justice decision making process is easily sub­
ject to discriminatory judgment and that in fact, 
minorities are usually treated unfairly. Nowhere 
is discrimination more evident than in the area of 
employment. In a report by the United States Com­
mission on Civil Rights, By All The People . . . For 
All the People, it was pointed out that police depart­
ments made one of the poorest showings among state 
and local employers as an employer of minorities. 
Indeed, the continued poor performance of state and



6a

local employers generally forced the Congress into ex­
tending the protections of Title VII of the 1964 
Civil Rights Act to these employees. That the 
Congress was justified in this observation can be at­
tested to by the number of complaints already before 
the EEOC.

Of course, the areas of discriminatory impact of 
the criminal justice system are broader than employ­
ment. But the problem of employment discrimina­
tion among the criminal justice agencies is the one 
I regard as the most serious.

It should be obvious that minority citizens cannot 
be expected to have respect for an institution in 
which they know they can never be employed, or, 
even if they are employed, in which they will never 
be permitted to rise through the ranks. Complicated 
civil rights problems abound in the area of law en­
forcement. However, I maintain that the key to 
solving a great many of them is in promoting 
equal employment. When employment of criminal 
justice agencies is truly reflective of the communi­
ties in which they operate, other problems will begin 
to resolve themselves.

The LEAA has two powerful weapons which could 
enable it to become a leader in the federal effort 
against discrimination. These are Title VI of the 
Civil Rights Act of 1964 and regulations promul­
gated pursuant to the general rule making authority 
of the Safe Streets Act.

Rather than welcoming its responsibilities and 
fully utilizing the tools available to it, the LEAA 
has only recently admitted that it had a civil rights 
responsibility. The LEAA program was in operation 
for almost two years before a civil rights compliance 
office was established or regulations issued to imple­
ment the Title VI mandate.



7a

In July 1970, the Office of Legal Counsel of the 
Department of Justice (then headed by William 
Rehnquist) issued a legal position letter attempting 
to justify the the inaction of the previous two years 
by declaring that Title VI of the Civil Rights Act 
of 1964 was not applicable to employment practices 
of LEAA grantees and subgrantees. This position 
received scathing criticism from civil rights groups 
and from the Civil Rights Commission. On October 
23, 1970, an additional opinion, from the Depart­
ment of Justice’s Office of Title VI, addressed to 
Jerris Leonard in his capacity as Assistant Attorney 
General for the Civil Rights Division, argued force­
fully— and apparently convincingly— that LEAA pro­
grams were indeed covered by Title VI. The LEAA 
acquiesced and promulgated regulations implement­
ing the law.

In late 1970, the Office of Civil Rights Compliance 
was established. Its director, Herbert Rice, is still 
at the GS-15 grade level, a level below that of other 
LEAA program administrators; thereby building 
into the LEAA structure an obstacle to civil rights 
input in key agency policy decisions. The office it­
self appears to have been the stepchild of the agency. 
Its staff has only recently been increased from four 
to eight professionals and its impact on LEAA pro­
grams does not appear to be very great. Additional 
compliance personnel are planned, but even these 
staff increases, the Civil Rights Commission main­
tains, would be grossly inadequate.

In its recent report, The Federal Civil Rights En­
forcement Effort, A Reassessment, the U.S. Commis­
sion on Civil Rights notes that the LEAA’s civil 
rights compliance program has shown some signs of 
improvement. However, the Commission does not 
have much enthusiasm for the LEAA’s programs.



8a

The Commission points out that the LEAA still 
does not appear to deal with complaints in an ex­
peditious manner (more of this later) and has not 
performed any pre-award reviews although it has 
finally begun post-award reviews. But, the Commis­
sion notes that the adequacy of these reviews and of 
complaint investigation is. unknown because the 
LEAA would not make reports of its investigations 
available to the Commission.

On December 31, 1970, the LEAA issued its equal 
employment regulations. On January 11, 1971, the 
Washington Post carried a story on these regula­
tions pointing out that they “ appear to have gone 
unnoticed when they were issued December 31.” 
While one cannot attach too much importance to this, 
it seems strange that an agency about to embark on 
a major civil rights compliance effort (which was 
the course suggested by these regulations) would do 
so without public announcement.

Neither the regulations implementing Title VI 
nor those based on the agency’s rulemaking authority 
provide for pre-award compliance reviews. When a 
review is undertaken, however, the regulations indi­
cate a strong preference that a judicial proceeding 
rather than the more logical one of an administra­
tive proceeding be used. The concern expressed in 
its regulations to the contrary, the agency has never­
theless funded a number of police and correctional 
agencies while legal proceedings were pending.

Ignoring what other agencies might regard as a 
golden opportunity, the LEAA has not required 
through its regulations that affirmative action plans, 
or other methods for achieving racial balance be 
implemented as a condition for receiving federal 
funds. The LEAA has defended this omission by 
quoting the Safe Streets Act’s provision precluding



the imposition of quotas. It has apparently eluded 
the agency that affirmative action programs can be 
established without the use of quotas. Furthermore 
the LEAA has generally ignored problems of sex 
discrimination. About a year ago it issued proposed 
rules forbidding sex discrimination but these were 
not formally promulgated until just this month.

In response to a series of questions on LEAA 
policy submitted by Senators Hart, Kennedy, and 
Bayh, Jerris Leonard stated that he considers “a 
cutoff of LEAA funds to be a last alternative to be 
resorted to only when I am satisfied that it is not 
feasible to pursue judicial remedies or some other 
means of achieving civil rights compliance that will 
permit funding to continue in the interim. * * * I 
do not favor withholding of funding as a means of 
enforcing compliance.”

Despite LEAA’s declared preference for judicial 
remedies, it has not initiated a single action and 
has intervened in only a limited number of cases 
brought by private groups. As pointed out in a re­
cently released report by the Lawyers Committee 
for Civil Rights, two of these' interventions—  
Morrow v. Crider, 4 FEP Cases 674 (D.Miss, 1971), 
and Castro v. Beecher, Civ. Action No. 70-1220 
(W.D. Mass. 1971), were initiated ten months after 
the suits were begun and then only as a result of 
external pressure. In another suit—against the Ala­
bama Highway Patrol— the Justice Department in­
tervened only after receiving a court order to do so.

Now that the recent amendments to Title VII 
give the EEOC the preliminary jurisdiction over 
employees of state and local governments, one would 
expect that the LEAA would be cooperating with the 
EEOC to the fullest extent possible. Such is not the 
case however. A call to the EEOC revealed that the



only consultation which they have had with the 
LEA A was several months ago on the question of 
devising a reporting form which both agencies could 
use. These discussions did not lead to a mutual solu­
tion and the EEOC has not been contacted since.

As I mentioned earlier, the U.S. Civil Rights Com­
mission has been especially critical of the LEAA’s 
delays in resolving complaints. Let me give an ex­
ample from our committee’s experience.

In June of 1971, the Afro-American Patrolmens 
League of the city of Chicago filed a formal com­
plaint with the LEAA charging the Chicago Police 
Department with purposefully and intentionally us­
ing personnel practices that discriminate against 
blacks and other minority group members. The 
charges alleged discriminatory treatment in the 
CPD’s hiring practices and techniques, including the 
use of medical examinations; methods of promotion 
selection; efficiency ratings; disciplinary procedures; 
and assignments within the Department. In early 
1972, the LEAA responded to this complaint by 
initiating a study of the CPD to determine the 
correctness of the allegations. The investigating 
team assigned to the job submitted its report in 
August 1972, substantiating all of the League’s 
charges. On the basis of this report, the LEAA rec­
ommended action, but now, almost 9 months from the 
issuance of the report and one and a half years 
since the filing of the charges, the status of the 
Black policemen’s complaints is essentially quo. The 
CPD has, according to Renault Robinson, President 
of the League, in testimony before our committee 
last year, ignored the requests and recommendations 
of the LEAA.

Conversations several weeks ago with Mr. Herbert 
Rice, and Congressional Liaison officers, indicated



that the LEAA’s response to Chicago’s action would 
go out in “ weeks” and that I would be notified. When 
asked if the agency contemplated a shutoff of funds, 
my office was given a vague reply and told that 
these matters are very complex.

Mr. Robinson told me in a recent phone conversa­
tion that it was only with the greatest of effort that 
this organization got the LEAA to send an investi­
gating team in the first place. Moreover, it was 
only as a result of continual pressure on the part 
of the League that the investigating team spent as 
much time and care on the report as it did. That 
such pressure was necessary to force the LEAA to 
do what it should have been doing all along says 
a good deal about the agency’s commitment. It also 
does not make one optimistic that the LEAA will 
use its considerable powers to give the Black em­
ployees of the Chicago police force the remedy they 
deserve and to which the law says they are entitled.

I think it is noteworthy to point out here that of 
those investigations completed by the LEAA, the 
Chicago investigation report was the only one made 
available to the Civil Rights Commission or to my 
committee. I frankly fail to understand why these 
reports were not submitted so that an independent 
appraisal of their thoroughness could be made by 
the Commission, a body with a great deal of exper­
tise in this area. I can only assume that their qual­
ity was embarrassingly low.

LEAA funds could be a powerful tool in the fight 
against discrimination, but the agency has been un­
willing to move with any decisiveness. It has only 
reluctantly admitted its Title VI responsibilities and 
belatedly adopted other equal employment require­
ments. In the case of both sets of regulations, too



12a

much discretion is vested in the Administrator, in 
this case an Administrator who does not believe in 
the application of administrative remedies. Further­
more, there is a lack of clearly defined objective 
standards as to what constitutes a violation of the 
equal employment obligation.

Nearly three years after the enactment of § 518(c), 
Congress considered and ultimately enacted another 
amendment authored by Rep. Jordan. This new amend­
ment— introduced on March 9, 1976 as H.R. 12364— was 
favorably reported by House Judiciary Committee in 
H.R. Rep. No. 94-1155, 94th Cong., 2d Sess. 2-5 (May 
15, 1976). In it report, the Committee briefly explained 
the reasons for the new amendment, id. at 10-11:

In 1973, the Congress adopted subsection 518(c) 
of title I of the Omnibus Crime Control and Safe 
Streets Act authored by Representative Barbara Jor­
dan, a member of the Committee. It provides a broad 
prohibition against the use of LEAA funds for a 
discriminatory purpose or effect. The amendments 
provide ample authority for LEAA to initiate civil 
rights compliance investigations, make findings, seek 
voluntary compliance, temporarily suspend payments, 
hold administrative hearings, order corrective actions 
and permanently terminate payments. The response 
of LEAA to the 1973 civil rights amendments has 
been less than minimal. In December, 1975, two 
years and four months after the enactment of the 
1973 amendments, LEAA published in the Federal 
Register proposed regulations to implement the 1973 
amendments.

LEAA has never terminated payment of funds to 
any recipient because of a civil rights violation. De­
spite positive findings of discrimination by courts 
and administrative agencies, LEAA has continued to 
fund violators of the Act.



13a

The Subcommittee members were assisted by Miss 
Jordan and guided by the testimony of a plaintiff 
in a civil rights discrimination lawsuit against 
LEAA in devising a legislative remedy to LEAA’s 
inaction. The Committee adopted an amendment in 
the nature of a substitute proposed by Miss Jordan 
for the language in H.R. 13636 as reported by the 
Subcommittee.

The reasons for the new amendment were explained 
in a more detailed manner by Rep. Jordan and by several 
of her colleagues in the LEAA Hearings Before the Sub­
committee on Crime of the House Committee on the Ju­
diciary, 94th Cong., 2d Sess. (1976). For example, in 
her prepared statement submitted on March 11, 1976, 
Rep. Jordan explained, id. at 446-47:

Mr. Chairman, members of the subcommittee, I 
have introduced legislation amending the civil rights 
section of LEAA’s basic authorization. I urge this 
Subcommittee to incorporate my bill into its 1976 
amendments.

The purpose of my bill is straight forward: to 
assure that LEAA funds will not continue to flow to 
state and local law enforcement and criminal justice 
agencies which have been found to have discrimi­
nated, unless corrective action is taken.

The reasons for my bill are equally straight for­
ward: First, LEAA has not seen fit to implement 
civil rights law adopted in 1973. Second, LEAA has 
never, on its own, suspended payment of funds to 
any recipient which has been found to have engaged 
in discriminatory practices.

In 1973, the Congress adopted subsection 518(c) 
of the Omnibus Crime Control and Safe Streets Act. 
I authored those 1973 amendments. They provide a 
broad prohibition against the use of LEAA funds for



14a

a discriminatory purpose or effect. The amendments 
provide ample authority for LEAA to initiate civil 
rights compliance investigations, make findings, seek 
voluntary compliance, temporarily suspend payments, 
hold administrative hearings, order corrective ac­
tions, and permanently terminate payments. The re­
sponse of LEAA to the 1973 civil rights amend­
ments has been less than minimal. LEAA’s civil 
rights regulations now in effect were adopted prior 
to the enactment of the 1973 amendments. Simply 
put, LEAA’s civil rights regulations contravene the 
law.

In December, 1975, two years and four months 
after the enactment of the 1973 amendments, LEAA 
published in the Federal Register proposed regula­
tions to implement the 1973 amendments. Since De­
cember, nothing further has emanated from LEAA.

LEAA has never terminated payment of funds to 
any recipient because of a civil rights violation. De­
spite positive findings of discrimination by courts 
and administrative agencies, LEAA has continued to 
dole out funds to the discriminators. A process of 
tortured reasoning and a blatant disregard of the 
1973 amendments keeps the money flowing.

LEAA’s reasoning can be illustrated by example. 
A complaint is filed alleging discrimination. At the 
same time the complainant files suit in either state 
or Federal court. LEAA reasons that pending the 
litigation it can do nothing. And it does nothing, 
except continue to pay the defendant. Later, the liti­
gation over, the defendant has been found by the 
court to have discriminated. The Court orders reme­
dies. LEAA reasons that the court ordered remedies 
solve the problem. LEAA continues to do nothing, 
except pay. Either way LEAA portends noninvolve­
ment. Either way a clear reading of the statute is



15a

ignored. “ No person . . . shall . . .  be subjected to 
discrimination under any program or activity funded 
in whole or part with funds made available under 
this Act.”

My bill proposes a simple set of steps which must 
be followed by LEAA if discrimination is found to 
exist. The Members have before them a diagram 
which summarizes these steps.

Step one. If one of three things occurs, LEAA 
must send to the Governor a notification of presumed 
discrimination. The three things which would trig­
ger the notification are: A finding of non-compliance 
by a federal or state court or administrative agency, 
the filing of a law suit by the U.S. Attorney General, 
or the finding of discrimination by LEAA’s own in­
vestigators.

Step two. The Governor is given 60 days in which 
to seek voluntary compliance. If, after 60 days, vol­
untary compliance is not achieved or an administra­
tive hearing has not absolved the recipient, payment 
of further LEAA funds would be temporarily sus­
pended.

Step three. After suspension, the recipient has 120 
days in which to request an administrative hearing. 
LEAA must grant the request for a hearing within 
30 days of receiving the request. Payment of fur­
ther LEAA funds may be terminated permanently 
if, after the hearing, the recipient is found to be in 
non-compliance. If the recipient fails to request a 
hearing, LEAA must make a finding based upon the 
record before it. Payment may resume if the recipi­
ent is found to be in compliance.

At any time during the process the recipient has 
access to the courts. Aggrieved citizens may file suit 
in federal court against alleged discriminators, and 
they may be awarded attorneys fees if their suit is



16a

successful. The Attorney General is given explicit 
authority to file suit in federal court, independent 
of any action or recommendation by LEAA. Reason­
able and specific time limits must be established by 
LEAA for dealing with complaints and for conduct­
ing independent reviews.

The steps required by my bill are similar to the 
steps the Department of Health, Education, and Wel­
fare uses to implement Title VI of the Civil Rights 
Act of 1964. Their inclusion in the LEAA authori­
zation will assure that if LEAA continues to ignore 
civil rights law, payment of funds to discriminators 
can be halted by action of the courts, administrative 
agencies or the Attorney General.

If LEAA continues to do nothing, at least my bill 
provides that federal money will not be spent in 
contravention of the civil rights prohibition. If 
LEAA wishes to implement the 1973 amendments, 
that will be fine also. Either way, my bill makes cer­
tain that the 1973 prohibition against the use of 
LEAA funds for a discriminatory purpose or effect 
will be meaningful.

LEAA has both a constitutional and a statutory 
responsibility to enforce civil rights law. Failure to 
take that responsibility seriously leads me to believe 
that further promises should not be taken seriously 
by the Congress. I am no longer willing to wait to 
see promises fulfilled. The law should be enforced. 
That is what my bill assures. To ask that an agency 
called the Law Enforcement Assistance Administra­
tion itself enforce the law, is not asking too much.

During her testimony, the need for the new amend­
ment was commented on not only by Rep. Jordan, but 
also by Rep. Robert McClory, and by Subcommittee 
Chairman John Conyers, id. at 442-45:



17a
Ms. Jordan. Thank you, Mr. Chairman, and thank 

you, Mr. McClory, for welcoming me to this com­
mittee, and for the words which you said, which are 
all kind.

Mr. Chairman, and Mr. McClory, I have intro­
duced a piece of legislation that attempts to 
strengthen the civil rights provisions of the Law En­
forcement Assistance Administration. I would hope 
that this subcommittee, in proposing legislation for 
the continued authorization of LEAA, would put my 
bill in your authorizing legislation.

Mr. Chairman, it is necessary that we do some­
thing about civil rights enforcement in the Law 
Enforcement Assistance Administration. I am sure 
it is not the only agency, but it is certainly one 
agency with the word “ Enforcement” in its title, 
which has declined to enforce the law.

In 1973 I proposed amendments when the LEAA 
authorization was in Subcommittee 5. I proposed 
civil rights amendments which were designed to 
strengthen civil rights enforcement at that time. 
What we wanted to do was to give the Law Enforce­
ment Assistance Administration the early option to 
cut off funds if a jurisdiction was found to be dis­
criminating. We passed the 1973 authorization law, 
including the civil rights amendments. The LEAA 
did not even promulgate regulations to carry out, to 
effectuate, the 1973 amendments until December of 
last year— I am talking about December of 1975—  
when they didn’t promulgate regulations, they “pro­
posed to promulgate” .

We have had the 1973 amendments longer than 2 
years. They have not been enforced. Regulations 
have not been promulgated. In December the Ad­
ministration proposed to promulgate regulations and 
has not done so.



18a

LEAA has not, on its own, terminated funds for 
any recipient who was found to be the perpetrator of 
discrimination. LEAA does not like to terminate 
funds at all because they say it is quite essential 
that the people in these communities continue to re­
ceive the benefits of whatever program it is. And 
so, consequently, the benefits keep flowing. LEAA 
keeps paying. And discrimination persists on the 
part of the recipients.

The bill which I have introduced is very simple. 
You probably have a diagram in front of you that 
will show the flow of enforcement of my bill. It is 
a little scheme called, “ Schematic of Proposed Civil 
Rights Procedures” .

*  *  *  *

If LEAA does nothing at all, at least the provi­
sions of this bill which I have introduced would pro­
vide for some remedy on the part of the recipient; 
some remedy on the part of that person who is dis­
criminated against. That’s what we’ve got to do, 
or the law just means absolutely nothing, as we 
approved it as a result of the 1973 amendments; and 
the whole policy of, “No Federal money shall be dis­
tributed to people, agents, which discriminate.”

So, Mr. Chairman, I recommend the bill to you 
for your consideration as you discuss civil rights 
provisions and continued authorization of LEAA.

Mr. Conyers. Thank you very much.
I think your proposal makes eminently good sense.
The consideration that arises with me is, what if 

the organization itself is in noncompliance, which is 
precisely the problem we have here. Your legislation, 
of 3 years ago is still in the process of being prom­
ulgated— it makes me want to find out how far along 
LEAA is.



19a

We all enacted a law; everyone understood what 
it meant; it went on the books; the President signed 
it; and then it was ignored.

Now, some of us— yourself included— are getting 
a little tired of this. We can pass civil rights laws 
year in and year out, and the agency charged with 
the enforcement ends up being the prime noncom- 
pliant. Now, how do you get tough in Texas legis­
lative proceedings?

Ms. Jordan. Well, Mr. Chairman, I wish that I 
could apply the law of the frontier—

[Laughter.]
Ms. Jordan, [continuing]. And go over there 

and mandate enforcement.
*  *  *  *

Mr. McClory. Thank you, Mr. Chairman.
Is the proposal that you make, Miss Jordan, is that 

consistent with another practice with regard to other 
legislation?

Ms. Jordan. It is consistent in a general way 
with the practice applied by HEW in the enforce­
ment of title VI.

Mr. McClory. Right.
Ms. Jordan. Now, as you know, HEW may, un­

der title VI, try to achieve compliance in school 
integration matters. They, with just the threat of 
termination of funds, are able to resolve almost 90 
percent of the disputes that occur.

So, the answer to your question is: Yes, it is cer­
tainly consistent with HEW’s enforcement under 
title VI.

Mr. McClory. Since it is already in the law that 
the funds should be dispensed and utilized without 
discrimination, the Administrator of LEAA would 
have authority, I assume, under existing law, to



20a

withhold if he found administratively—he hasn't ex­
ercised that authority, has he?

Ms. Jordan. He has the authority, but he has 
not chosen to exercise it at all.

Mr. McClory. We don’t have any mechanism.
Ms. Jordan. That is right, we don’t have any 

time frame.
Mr. McClory. What about the city of Chicago— 

those funds— aren’t they withholding $60 million?
Ms. Jordan. Those are LEAA funds, the police 

department. But that was not LEAA action, that 
was court action.

Mr. McClory. Right.
Ms. Jordan. And if  LEAA had acted, it might 

have been possible to get that situation worked out 
without going to court, having a decision and en­
forcement of the judicial decree.

Mr. McClory. So, at the present time under ad­
ministrative authority you can achieve the same 
thing as through court action.

Ms. Jordan. It only takes longer.
Mr. McClory. Of course, your suggestion in­

volves also the possibility of court action.
Ms. Jordan. Yes.
Mr. McClory. I think that is very good.

Additional reasons for the new amendment were pro­
vided by Rep. Charles Rangel, id. at 606-07:

Mr. Chairman, I am grateful for the opportunity 
you have given me to appear before your subcom­
mittee so that I might submit my views regarding 
the Law Enforcement Assistance Administration’s 
(LEAA) civil rights compliance activities. I com­
mend the subcommittee for taking the time out of 
its busy schedule to conduct hearings into the civil 
rights enforcement effort of LEAA, for there ap­
pears to be an urgent need to assess what in fact



21a

that agency is doing to carry out its statutory man­
date in light of the recently published adverse re­
ports and the American Civil Liberties Union’s pend­
ing litigation against LEAA. For reasons stated 
hereinafter, I urge the subcommittee to impose re­
strictions on LEAA’s existing authority and make 
clarifications with respect to those powers.

In 1973, the Crime Control Act of 1968, under 
which LEAA was created, was amended (Section 
518(c ) ) largely through the efforts of our colleague, 
Congresswoman Barbara Jordan, to clarify LEAA’s 
enforcement power regarding civil rights compliance. 
That section requires mandatory rather than dis­
cretionary fund termination when LEAA finds that 
an LEAA recipient is in non-compliance with Title 
VI of the 1964 Civil Rights Act or the civil rights 
provisions of the Crime Control Act. Thus the Con­
gress has imposed upon LEAA the most stringent 
statutory civil rights mandate among the federal 
enforcement agencies for ensuring nondiscrimination 
in its federal assistance programs.

However, this attempt by Congress to make clear 
to LEAA that it is to utilize and give preference to 
its administrative enforcement powers rather than 
its traditional reliance on judicial remedies has been 
blatantly disregarded. Even though the Jordan 
amendment has been law for more than two years, 
LEAA has not issued regulations which reflect a 
change in its existing policy preference for litigation 
over fund termination. A clear example of LEAA’s 
unlawful resistance to its statutory mandate is ex­
hibited in its response to my letter sent to that 
agency in January of last year regarding the civil 
rights activities of LEAA. One of my inquiries con­
cerned LEAA’s resolution of the complaints which 
it had investigated where there had been a finding



22a

for the complainant. LEAA provided me with a 
summary of the actions that were taken where a 
finding for the complainant was made. Out of the 
ten cases listed, half of those ten referred to the 
Department of Justice for litigation while the re­
maining five were resolved through voluntary com­
pliance or not resolved at all. LEAA’s record in im­
plementing the mandatory fund termination pro­
visions of the Jordan amendment is far from good.

LEAA’s unlawful regulatory preference remains 
in effect today. LEAA recently proposed regulations 
indicating a change in that policy after the ACLU 
initiated its suit. Those proposed regulations have 
not yet been adopted. Meanwhile, LEAA’s refusal 
to utilize its enforcement powers is in effect making 
the federal government a party to the discrimination 
which pervades our criminal justice system. Our 
taxpayers’ dollars cannot be funneled in this dis­
criminatory manner, and I appeal to the subcom­
mittee to initiate at the close of these hearings posi­
tive steps to address the unlawful activity of LEAA.

I recommended that Congresswoman Jordan’s pro­
posed amendment to the 1968 Crime Control Act be 
given immediate and favorable consideration. Her 
amendment addresses one of the primary issues 
which LEAA has taken advantage of as an excuse 
for delaying its enforcement powers. LEAA has re­
fused to take action against discriminatory agencies 
if a suit is pending against such agencies. The Jor­
dan amendment would in effect direct LEAA to 
initiate proceedings against any agency found in 
noncompliance, notwithstanding any litigation simul­
taneously pending against it. Moreover, the amend­
ment requires the discriminatory agency to submit 
post-review reports stipulating the progress that 
has been made toward correcting its noncompliance



23a

activity. Currently, LEAA has no mandatory post­
review mechanism of the type proposed in the Jor­
dan amendment. I have only addressed two of the 
solutions proposed in Congresswoman Jordan’s 
amendment for the sake of brevity, but I wish to 
communicate my strong support for the amendment 
in its entirety.

In regard to LEAA’s noncompliance with Title VI 
and the civil rights provisions of the Crime Control 
Act in general, several areas are lacking the requi­
site supervision and direction. Of primary concern 
is LEAA’s major focus on the compliance activities 
of large recipients. While it is commendable that 
LEAA is attempting to utilize its resources in the 
most economical manner, LEAA must also concen­
trate its energies toward “ smaller” recipients. It is 
often in the latter class of recipients, made up of 
smaller cities and rural areas, where discrimination 
is widespread, and if allowed to go unchecked, this 
has an effect just as malignant and oppressive as the 
discrimination practiced by the larger jurisdictions. 
Thus, it is not effective civil rights compliance for 
LEAA to concentrate its resources on the more visible 
recipients of its funds to the detriment of those 
who suffer equally from the discriminatory patterns 
of those agencies receiving a lesser amount of federal 
assistance.

LEAA’s complaints of insufficient civil rights com­
pliance staff is indeed a problem that many fed­
erally funded programs share. However, LEAA 
has not utilized the abundant resources available. 
LEAA has contracted with outside specialists to 
assist the State Planning Agencies (SPAs) in its 
development of technical assistance for civil rights 
training of personnel. Certainly, LEAA’s workload 
could be drastically reduced if it were to require that



24a

the SPA’s themselves conduct pre-award and post­
award compliance reviews in addition to complaint 
investigations. There is evidence that some of the 
SPAs have taken it upon themselves to assume this 
function. However, LEAA does not demand that 
the SPAs do so, nor does LEAA give full faith and 
credit to those SPA findings. Rather, LEAA causes 
delay in the implementation of compliance activity 
by requiring its approval before SPAs can under­
take enforcement action. If LEAA were to issue 
standards by which the capabilities of the SPAs 
might be assessed, duplication and delay could be 
avoided. Currently, no such standards have been 
employed.

LEAA is deficient in a great many other areas of 
its civil rights compliance activities. As a result of 
its inaction to correct those problems, it is clear 
that further legislative action is required to reem­
phasize our determination in the Congress that the 
Law Enforcement Assistance Administration imple­
ment an effective compliance program to prevent 
discrimination in federally-funded criminal justice- 
related activity. The new Jordan amendment should 
be considered and acted upon by this subcommittee 
to provide this congressional response.