RICHARD W. VELDE, ET AL., PETITIONERS V. NATIONAL BLACK POLICE
ASSOCIATION, INC., ET AL.

   No. 83-1254

   In the Supreme Court of the United States

   October Term, 1983

   The Solicitor General, on behalf of Richard W. Velde, Edward H.
Levi, Charles R. Work, and Herbert C. Rice, petitions for a writ of
certiorari to review the judgment of the United States Court of
Appeals for the District of Columbia Circuit in this case.

   Petition for a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit

                       PARTIES TO THE PROCEEDING

   In addition to the parties named in the caption, the petitioners
are Edward H. Levi, Herbert C. Rice, and Charles R. Work;  the
respondents are Penelope Brace, Bruce Bailey, Kristen Heemstra, Ollie
S. Glover, Joel Michelle Schumacher, Raymond Clark, Kent G. McKinney,
Penny Orazetti, Roberta Ledyard, Robert Booth, William Harris, and
Jennie McAllister.  The Law Enforcement Assistance Administration and
the United States Department of Justice were named as defendants and
were appellees in the court of appeals but are not petitioners.

            TABLE OF CONTENTS
   Opinions below
   Jurisdiction
  Constitutional and statutory provisions involved
   Statement
   Reasons for granting the petition
   Conclusion
   Appendix A
   Appendix B
   Appendix C
   Appendix D
   Appendix E

                            OPINIONS BELOW

   The opinion of the court of appeals on remand from this Court
(App., infra, 1a-28a) is reported at 712 F.2d 569.  This Court's order
remanding the case to the court of appeals (App., infra, 34a) is
reported at 458 U.S. 591.  The prior opinion of the court of appeals
(App., infra, 35a-55a) is reported at 631 F.2d 784.  The district
court's order (App., infra, 56a-57a) is unreported.

                              JURISDCTION

   The judgment of the court of appeals was entered on June 30, 1983
(App., infra, 29a-30a).  A petition for rehearing was denied on
September 1, 1983 (App., infra, 31a).  On November 23, 1983, the Chief
Justice extended the time in which to file a petition for a writ of
certiorari to January 29, 1984.  The jurisdiction of this Court is
invoked under 28 U.S.C. 1254(1).

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   1. The Fifth Amendment to the United States Constitution provides
in part:

         No person shall * * * be deprived of life, liberty, or
      property, without due process of law * * *.

   2. Section 509 of the Omnibus Crime Control and Safe Streets Act of
1968, Pub. L. No. 90-351, 82 Stat. 206, as reenacted by Section 2 of
Pub. L. No. 93-83, 87 Stat. 211, codified at 42 U.S.C. (1970 ed.,
Supp. V) 3757, provided:

         Whenever the (Law Enforcement Assistance) Administration,
      after reasonable notice and opportunity for hearing to an
      applicant or a grantee under this chapter, finds that, with
      respect to any payments made or to be made under this chapter,
      there is a substantial failure to comply with --

         (a) the provisions of this chapter;

         (b) regulations promulgated by the Administration under this
      chapter;  or

         (c) a plan or application submitted in accordance with the
      provisions of this chapter;

         the Administration shall notify such applicant or grantee
      that further payments shall not be made (or in its discretion
      that further payments shall not be made for activities in which
      there is such failure), until there is no longer such failure.

   3. Section 518(c) of the Omnibus Crime Control and Safe Streets Act
of 1968, as added by Section 2 of Pub. L. No. 93-83, 87 Stat. 214,
codified at 42 U.S.C. (1970 ed., Supp. V) 3766(c), provided:

         (1) No person in any State shall on the ground of race,
      color, national origin, or sex be excluded from participation
      in, be denied the benefits of, or be subjected to discrimination
      under any program or activity funded in whole or in part with
      funds made available under this chapter.

         (2) Whenever the Administration determines that a State
      government or any unit of general local government has failed to
      comply with paragraph (1) of this subsection or an appplicable
      regulation, it shall notify the chief executive of the State of
      the noncompliance and shall request the chief executive to
      secure compliance.  If within a reasonable time after such
      notification the chief executive fails or refuses to secure
      compliance, the Administration shall exercise the power and
      functions provided in section 3757 of this title, and is
      authorized concurrently with such exercise --

         (A) to institute an appropriate civil action;

         (B) to exercise the powers and functions pursuant to title VI
      of the Civil Rights Act of 1964 (section 2000d of this title);
      or

         (C) to take such other action as may be provided by law.

         (3) Whenever the Attorney General has reason to believe that
      a State government or unit of local government is engaged in a
      pattern or practice in violation of the provisions of this
      section, the Attorney General may bring a civil action in any
      appropriate United States district court for such relief as may
      be appropriate, including injunctive relief.

                          QUESTIONS PRESENTED

   Respondents seek personal damages from petitioners, who are former
high officials of the Department of Justice, claiming that petitioners
failed to terminate federal funding by the Law Enforcement Assistance
Administration to state and local government agencies that practiced
discrimination on the basis of race and sex.  The questions presented
are:

   1. Whether respondents have stated a claim for damages under the
Fifth Amendment, when they have not alleged that petitioners acted
with discriminary intent and when they acknowledge that petitioners
took actions (other than terminating funds) in response to the
recipient agencies' alleged discrimination.

   2. Whether, even assuming respondents have stated a claim under the
Fifth Amendment, petitioners are entitled to qualified immunity as a
matter of law because they did not violate any clearly established
constitutional rights.

   3. Whether petitioners are entitled to absolute immunity because,
in deciding whether to initiate funding termination proceedings, they
performed functions analogous to those of a prosecutor.

   4. Whether respondents may seek damages from petitioners under
Title I of the Omnibus Crime Control and Safe Streets Act of 1968, 42
U.S.C. 3701 et seq.

   5. Whether respondents have standing to maintain this action.

                               STATEMENT

   1. The Law Enforcement Assistance Administration (LEAA) was an
agency within the Department of Justice authorized to give technical
and financial assistance to state and local governments for the
purpose of aiding law enforcement.  See 42 U.S.C. 3701 et seq.  /1/
While the LEAA distributed substantial funds overall, its grants
generally constituted only a small percentage of the budgets of
recipient law enforcement agencies.  /2/ At all times relevant to this
suit, Section 518(c)(1) of the Omnibus Crime Control and Safe Streets
Act of 1968 provided that "(n)o person * * * shall on the ground of
race, color, national origin, or sex * * * be subjected to
discrimination under any program or activity funded in whole or in
part with funds" from the LEAA.  42 U.S.C. (1970 ed., Supp. V)
3766(c)(1).

   The Crime Control Act authorized the LEAA to enforce this
prohibition by invoking an enforcement scheme consisting of several
stages.  First, under Section 518(c)(2) of the Act, if "the
Administration determine(d)" that a recipient was discriminating, it
was to "notify the chief executive of the (relevant) State of the
noncompliance" and "request the chief executive to secure compliance."
The LEAA was then to allow the chief executive "a reasonable time" to
secure compliance.  If the chief executive failed to do so, the LEAA
could take a number of steps:  it could "institute an appropriate
civil action";  it could act under Title VI of the Civil Rights Act of
1964, 42 U.S.C. 2000d et seq.; or it could "take such other action as
may be provided by law." 42 U.S.C. (1970 ed., Supp. V) 3766(c)(2).

   Section 518(c)(2) also provided that if the chief executive failed
to secure compliance "within a reasonable time," "the Administration
shall exercise the powers and functions provided in" Section 509 of
the Act, 42 U.S.C. (1970 ed., Supp. V) 3757.  Section 509, in turn,
was a general funding termination provision applicable to cases in
which a recipient violated any provision of the Act or any LEAA
regulation.  It provided that if, after notice and an opportunity for
a hearing, "the Administration * * * finds that * * * there is a
substantial failure to comply," it shall terminate payments to the
recipient "until there is no longer such failure." /3/

   2. In 1975, respondents -- six blacks, six women, and an
organization that represents black police officers -- filed this suite
in the United States District Court for the District of Columbia.
They named as defendants the petitioners, who were then officials in
the Department of Justice -- Attorney General Edward H. Levi, LEAA
Administrator Richard W. Velde, LEAA Deputy Administrator Charles R.
Work, and Director of LEAA Office of Civil Rights Compliance Herbert
C. Rice.  Petitioners were sued in both their personal and their
official capacities.  The Department of Justice and the LEAA were also
named as defendants.  Respondents sought declaratory and injunctive
relief and, relying on Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), $20 million in personal
damages from petitioners.  Complaint, paras. 1-19, 112;  J.A. 13-17,
43-44.  /4/

   Respondents claimed that they were discriminated against, on the
basis of race and sex, by certain state and local police departments
that had received and were receiving LEAA grants.  /5/ They asserted
that petitioners' failure to terminate funds to these discriminating
agencies "served to finance and thus to perpetuate the discriminatory
and exclusionary employment practices of LEAA recipients" (Complaint,
para. 41(b);  J.A. 26).  In this way, respondents asserted,
petitioners discriminated against them and violated their
constitutional and statutory rights.

   Respondents did not allege that petitioners acted with
discriminatory intent at any time.  Nor did respondents claim that
petitioners failed to act in response to the alleged discrimination by
the state and local agencies;  on the contrary, the complaint itself
detailed a number of enforcement actions taken by petitioners.  For
example, the complaint stated that petitioners had conducted numerous
"onsite compliance reviews" of state and local law enforcement
agencies and had adopted a policy of conducting "pre-award compliance
reviews" of large recipients to determine if they were discriminating
(Complaint, paras. 28, 29;  J.A. 20).  The complaint further stated
that petitioners "attempted to secure voluntary civil rights
compliance from the Portland (Oregon) Police Bureau," one of the local
agencies that allegedly discriminated against respondents, "during the
past several years" (Complaint, para. 91;  J.A. 38), and that
petitioners had investigated complaints of discrimination made by
respondents against several of the allegedly discriminatory recipients
(Complaint, paras. 76, 82, 84, 102;  J.A. 34-36, 38, 41).  /6/

   The complaint also stated that petitioners had engaged in "several
months of investigation and unsuccessful efforts to achieve voluntary
civil rights compliance from the Philadelphia Police Department,"
another of the local agencies that allegedly discriminated against
respondents;  that petitioners had sent a written warning to that
Department, stating that it was not in compliance;  and that the
Department of Justice was considering litigation against the
Philadelphia Police Department (Complaint paras. 47-50;  J.A. 27-28).
Indeed, to support the allegation that some recipient law inforcement
agencies were engaged in discrimination, the complaint relied on the
fact that the Department of Justice had filed employment
discrimination actions against them (Complaint, para. 25;  J.A. 19).

   In sum, respondents acknowledged that petitioners took many steps
to enforce the civil rights obligations of recipient agencies.  The
centerpiece of their complaint was that petitioners violated the
Constitution simply by not invoking one particular measure, the
termination of funding.

   3. In December 1976, the district court dismissed the complaint,
holding that respondents' "claims for monetary damages against
(petitioners) in their individual capacities are bared by the doctrine
of official immunity" (App., infra, 57a).  /7/ A divided court of
appeals reversed (id. at 35a-55a).  The court ruled that petitioners'
qualified immunity defense raised issues of fact that had to be
resolved by a trial (id. at 40a).  Judge Bazelon's opinion for the
panel majority then acknowledged that under Butz v. Economou, 438 U.S.
478, 515-516 (1978), administrative officials performing functions
similar to those of a prosecutor are entitled to absolute immunity
(id. at 38a-39a), but rejected petitioners' contention that they were
entitled to absolute immunity under this principle, reasoning (id. at
39a):

         The purpose of shielding discretionary prosecutorial
      decisions from fears of civil liability has no place where, as
      here, agency officials lack discretion.  (Petitioners) have
      virtually no discretion under the relevant statute in deciding
      whether to terminate LEAA funding of discriminating recipients.

   In a footnote, the majority rejected petitioners' contention that
respondents lacked standing, stating simply that respondents "have
alleged violations of their right to be free from federal funding of
state and local agencies that have discriminated against them" and
that this "interest is precisely that which is protected by the
Constitution and the statutes" invoked by respondents (App., infra,
40a n.16).

   Judge Tamm dissented on the ground that petitioners were entitled
to absolute immunity (App., infra, 48a-55a).  He noted that
petitioners were being sued for having made such decisions as "whether
to move forward with a proceeding to terminate funding, or, for
example, to seek voluntary compliance * * * (perhaps under the threat
of termination)" (id. at 50a).  These, Judge Tamm urged, were "exactly
what the Supreme Court had in mind when it spoke of functions
'analogous to those of a prosecutor'" (ibid., quoting Butz, 438 U.S.at
515).

   Judge Tamm also rejected the majority's assertion that the
enforcement provisions of the Crime Control Act left petitioners with
little or no discretion;  he pointed out that petitioners had to
exercise discretion at virtually every step of the enforcement scheme
(App., infra, 50a-53a).  /8/

   8.  This Court granted certiorari (451 U.S. 969 (1981)).  After the
case was briefed and the Court heard oral argument, however, it
vacated the decision of the court of appeals and remanded for further
consideration in light of Harlow v. Fitzgerald, 457 U.S. 800 (1982).
App. infra, 34a.

   On remand, the court of appeals reinstated its judgment reversing
the dismissal of the complaint (App., infra, 1a-28a).  The opinion of
Judge Bazelon, who again wrote for the majority, readopted the court's
prior holdings on absolute immunity and standing (id. at 2a n.3, 27a,
n.26).. The majority ruled that petitioners were not entitled to
qualified immunity under Harlow because "clear duties to terminate
funding existed under both the Crime Control Act and the fifth
amendment" (id. at 2a).

   Specifically, the majority stated that "it is a clearly established
principle of constitutional law that the federal government may not
fund local agencies known to be unconstitutionally discriminating"
(App., infra, 20a).  /9/ The majority recognized that respondents had
never claimed that petitioners acted with a discriminatory intent (id.
at 21a-23a).  But the majority stated that even if the government acts
without discriminatory intent, it may not "support() indirectly"
discriminatory activities "through the provision of support for other
persons engaged in such activity" (id. at 20a).  The court said that
the question in this case was whether the LEAA engaged in "a form of
involvement" that "requires us to impute the actions and motives of
the local agencies to the federal government" (id. at 24a), and it
asserted (ibid.; footnote omitted):  "(T)he constitutional prohibition
on intentional discrimination clearly prohibits the government from
funding other agencies engaged in such practices."

   The court accordingly ordered further evidentiary proceedings to
determine whether petitioners "knew or should have known" that
recipients of LEAA funds were engaged in discrimination (App., infra,
25a (emphasis and footnote omitted).  Judge Tamm adhered to his
earlier opinion dissenting on the basis of absolute immunity (id. at
28a).  Petitioners' suggestion of rehearing en banc was denied by a
vote of three to two, with five judges not participating (id. at
32a-33a).

                   REASONS FOR GRANTING THE PETITION

   Respondents seek $20 million in damages from former high officials
of the Department of Justice, including a former Attorney General, who
have never been alleged to have acted with an improper intent, or to
have authorized, controlled, supervised, or encouraged discrimination.
 This suit, now nine years old, has once more been kept alive by the
court of appeals, this time on the basis of the insupportable
conclusion that the Constitution clearly prohibited the actions in
which petitioners allegedly engaged.

   The court of appeals' action could not be more inconsistent with
this Court's decision in Harlow v. Fitzgerald, 457 U.S. 800 (1982),
and with the Court's repeated adminitions that insubstantial Bivens
actions against government officials are to be promptly ended.  No
reasonable interpretation of this Court's decisions supports the
holding of the court of appeals that petitioners violated a clearly
established constitutional prohibition.  By retrospectively inventing
a clearly established right in this fashion, and remanding for further
proceedings at which the plaintiffs will be able to explore the
defendant officials' state of mind, the court of appeals has defeated
the central purposes of Harlow.  In Harlow, the Court created a new
regime for the consideration of the defense of qualified immunity;
review is warranted here to assure that that regime is not emptied of
meaning in its very incipiency.

   In addition, the potential effects of the court of appeals'
decision on the operations of the government can scarcely be
overstated.  Numerous important federal programs involve the
distribution of funds to agencies of state and local governments.
These programs would be substantially affected if, as the court of
appeals appears to have held, the Constitution is violated whenever
any funds reach any recipient agency that is known to have
discriminated -- even if the discrimination consists of a minor
incident, the funding program serves inportant social objectives, and
the responsible officials are taking other steps to remedy the
discrimination.  Indeed, under the court of appeals' approach,
officials throughout the government who act with entirely proper
purposes in distributing funds and enforcing the civil rights
obligations of recipients can be faced with lengthy, burdensome
proceedings and the threat of ruinous personal liability.  In order to
"avoid (this) excessive disruption of government" (Harlow, 457 U.S.at
818) and unfairness to individuals, further review is warranted.

   1. Respondents' complaint -- which never asserted, in any of its
prolix allegations, that petitioners acted with discriminatory intent
-- does not state a claim under the Constitution.  /10/ "Proof of
racially discriminatory intent or purpose is required to show a
violation of the Equal Protection Clause." Village of Arlington
Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265
(1977).  "(P)urposeful discrimination is "the condition that offends
the Constitution.'" Personnel Administrator v. Feeney, 442 U.S. 256,
274 (1979), quoting Swann v. Charlotte-Mecklenburg Board of Education,
402 U.S. 1, 16 (1971).  "(T)he absence of proof of discriminatory
intent forecloses any claim that * * * official action * * * violates
the Equal Protection Clause" (City of Memphis v. Greene, 451 U.S. 100,
119 (1981)).  See also Washington v. Davis, 426 U.S. 189, 208-209
(1973).

   Respondents' failure to allege that petitioners acted with
discriminatory intent should, therefore, have been fatal to their
claim.  Even if petitioners are alleged to have acquiesced in
discriminatory practices of the recipients, "(s)uch acquiescence is
not the equivalent of a discriminatory purpose" (Pullman-Standard v.
Swint, 456 U.S. 272, 292 n.23 (1982);  see also Blum v. Yaretsky, 457
U.S. 991, 1004-1005 (1982)).  /11/ In fact, the complaint repeatedly
alleged (paras. 25, 47-50, 76, 84, 88-91, 102;  J,A. 19, 27-28, 34-38,
41) that the local agencies continued to discriminate despite
petitioners' efforts;  as this Court has recently said, "(d)
iscriminatory purpose' * * * implies that the decisionmaker * * *
selected or reaffirmed a particular course of action at least in part
'because of,' not merely 'in spite of," its adverse effects upon an
identifiable group." Feeney, 442 U.S. at 279 (footnote omitted).  /12/

   The court of appeals nevertheless refused to affirm the dismissal
of the complaint.  In doing so, the court principally relied (App.,
infra, 21a-25a) on Norwood v. Harrison, 413 U.S. 455 (1973), which
invalidated a Mississippi program of lending textbooks to schools to
the extent that discriminatory private schools were among the
recipients.  But Norwood cannot possibly be read as standing for a
general rule that the government violates the Constitution whenever
governmental aid in any form reaches parties that engage in
discrimination.

   As the Court in Norwood noted, the Mississippi textbook lending
program was implemented against a background of steadfast resistance
to court decree ordering the dismantling of a segregated dual school
system.  See 413 U.S. at 463 & n.6 and cases cited;  id. at 467 & n.9.
 See also Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 163 (1978);
Gilmore v. City of Montgomery, 417 U.S. 556, 568-569, 570-571 n.10
(1974).  /13/ Petitioners, by contrast, were carrying out a civil
rights enforcement scheme and -- as is apparent from the complaint
itself -- their decisions not to terminate funding occurred in the
contest of other enforcement actions.  A discretionary choice among
civil rights enforcement techniques is not remotely comparable to a
measure that promotes private "segregation academies," and no
reasonable Department of Justice official would have throught it clear
-- or even possible -- that these two actions would be treated alike
by a court.

   In addition, the Court in Norwood emphasized the material
importance of the textbook program to the schools (see 413 U.S. at
464-465, 466).  LEAA assistance was, by contrast, only a minor part of
the budgets of the recipient agencies involved here.  See page 4 and
note 2, supra.  Many government programs that may have the incidental
effect of aiding parties engaged in discrimination do not violate the
Constitution even though they are far more valuable to the recipients
than LEAA aid was to the law enforcement agencies in this case.  For
example, government agencies do not violate the Constitution if they
provide police and fire protection and utilities to parties engaged in
overt discrimination (see, e.g., Norwood, 413 U.S. at 465;  Gilmore v.
City of Montgomery, 417 U.S. 556, 573-574 (1974), or a liquor license
to a private club that refuses to admit blacks (Moose Lodge No. 107 v.
Irvis, 407 U.S. 163, 176-177 (1972)).  See also Jackson v.
Metropolitan Edison Co., 419 U.S. 345, 351-352 (1974).

   The court of appeals appeared to believe that it was significant
that LEAA aid took the form of a direct grant of funds.  /14/ But this
Court has recently stated that even if "virtually all of (a party's)
income (is) derived from government funding," that party's actions
will not necessarily be imputed to the government for constitutional
purposes.  Rendell-Baker v. Kohn, 457 U.S. 830, 840 (1982).  "Grants
of federal funds generally do not create a partnership or joint
venture with the recipient, nor do they serve to convert the acts of
the recipient from private acts to governmental acts absent extensive,
detailed, and virtually day-to-day supervision." Forsham v. Harris,
445 U.S. 169, 180 (1980).  See also United States v. Orleans, 425 U.S.
807, 818 (1976).  "That programs undertaken by the State result in
substantial funding of the activities of a(nother) entity is no(t) * *
* persuasive * * * in demonstrating that the State is responsible for
decisions made by the entity in the course of its business." Blum v.
Yaretsky, 457 U.S. at 1011.  See also Polk County v. Dodson, 454 U.S.
312 (1981).

   LEAA funding provided not a "substantial" amount of the revenues of
the recipients but only a minor proportion.  And far from exercising
extensive and detailed supervision, the LEAA was specifically
forbidden, by statute, from "exercis(ing) any direction, supervision,
or control over any police force or any other law enforcement and
criminal justice agency of any State or political subdivision thereof"
(42 U.S.C. 3766(a)).  /15/ In view of these explicit statements by
this Court, the court of appeals cannot have been correct in
concluding that the mere distribution of relatively modest funds to
agencies that allegedly discriminate, in the context of other civil
rights enforcement measures, violates the Constitution.  In fact, the
court of appeals' holding represents a dramatic innovation in the
constitutional law governing the activities of federal and state
governments and their officials.  It therefore fully warrants plenary
review.

   2. Under Harlow, respondents' complaint should have been dismissed
on grounds of qualified immunity unless it alleged a violation of
"clearly established * * * constitutional rights" (457 U.S. at 818).
Even if the complaint states a claim under the Fifth Amendment, the
court of appeals' ruling that petitioners violated a clearly
established constitutional prohibition is palpably erroneous.
Further, the error was committed in a case remanded for the very
purpose of reconsideration in light of Harlow.  This Court should make
it clear that lower courts are not to defeat or evade the rules
established in Harlow by conjuring up a "clearly established"
constitutional right where none exists.

   The arguments we have made in showing that the complaint failed to
state a claim demonstrate, a fortiori, that the complaint does not
allege a violation of clearly established rights.  But beyond that,
the court of appeals' own discussion betrays on its face the absence
of any clear standard.  The court acknowledged, for example, that
"equal protection principles do not prohibit the provision of all
forms of government services provided to discriminatory institutions"
(App., infra, 21a n.61);  but the court never specified any clear
principle that distinguishes permissible from impermissible forms of
aid, much less showed that such a principle had become well
established in the law.

   Similarly, in describing the constitutional standard that was to be
applied to petitioners' alleged conduct, the court stated:  "The
proper inquiry is whether the relationship between the federal
government and the (discriminatory) activity * * * is of such nature
that the activity will be treated as an action of the government.  * *
* (T)he issue (is) whether funding is a form of involvement that
requires us to impute the actions and motives of the local agencies to
the federal government" (App., infra, 23a-24a).  It is immediately
clear that these formulations do not clearly establish anything.  No
reasonable official, if told that these were the constitutional rules
he was obligated to apply, would have had any idea which forms of
governmental support to discriminatory recipients were permissible and
which were not.  And, as we have shown, the court of appeals' ultimate
conclusion that funding is per se an impermissible form of aid, far
from being clearly established, not only lacked support but was
directly contrary to rulings of this Court (see pages 15-17 and note
14, supra).

   In Harlow, this Court repeatedly emphasized the importance of not
permitting insubstantial Bivens actions to be prolonged.  See 457 U.S.
at 813, 814, 815-186, 817-818.  "Insubstantial lawsuits undermine the
effectiveness of government as contemplated by our constitutional
structure" (id. at 820 n.35).  The Court also emphasized the corrosive
and "peculiarly disruptive" effects of permitting inquiries into the
state of mind of an official (id. at 817).  It was for these reasons
that the Court modified the definition of qualified immunity and
ordered that a Bivens complaint be dismissed unless it alleged a
violation of clearly established rights.

   The court of appeals, acting under this Court's express direction
to reconsider its earlier decision in light of Harlow, invented a
clearly established constitutional right and remanded for an inquiry
into petitioners' state of mind.  This eviscerates Harlow.  Harlow
will have little meaning if courts of appeals can engage in
tendentious legal reasoning -- stretching some of this Court's
decisions beyond the limits of their logic while ignoring others,
failing to resolve obvious doctrinal inconsistencies and tensions, and
formulating purported standards that provide no practical guidance --
and then pronounce the outcome of that process "clearly established."

   3. In Butz v. Conomou, 438 U.S. 478 (1978), this Court held that
"agency officials performing certain functions analogous to those of a
prosecutor should be able to claim absolute immunity with respect to
such acts" (id. at 515).  This Court previously granted certiorari to
determine whether petitioners' functions were analogous to those of a
prosecutor in the requisite sense;  that question is no less worthy of
the Court's review now.

   Petitioners were like prosecutors because they were responsible for
determining whether to initiate a formal enforcement proceeding,
leading to a sanction (the termination of funds) imposed on account of
unlawful activities (discrimination).  In Butz, the Court noted that
officials exercising judicial and quasi-judicial functions require
absolute immunity because "controversies sufficiently intense to erupt
in litigation are not easily capped by a judicial decree" (438 U.S. at
512).  Similarly, any controversy over politically sensitive subjects
like federal funding and discrimination that could not be resolved by
conciliation, even after the intercession of the chief executive of a
state, would not be easily capped by an administrative proceeding and
order.  There would be "a serious danger (of) * * * a retaliation
response" (id. at 515);  for example, local government officials, who
are not even restrained by the budgetary constraints of private
parties (see ibid.) might well think it advantageous to respond to a
funding termination by filing a well-publicized Bivens action against
the responsible federal officials.

   Petitioners, of course, are being sued because they did not
initiate proceedings;  but the Court has left no doubt that the
absolute immunity for quasi-prosecutorial functions must apply to such
decisions as well.  Just as a criminal prosecutor has absolute
immunity "in deciding which suits to bring" (Imbler v. Pachtman, 424
U.S. 409, 424 (1976);  see id. at 426 n.24, 432 n.33), so an
administrative official may not be held personally liable for his
decision "whether a proceeding should be brought" (Butz, 438 U.S. at
515).  The reason is apparent:  under any other approach, the
official's decisions would be biased in favor of initiating
proceedings.  "The discretion which executive officials exercise with
respect to the initiation of administrative proceedings might be
distorted if their immunity from damages arising from that decision
was less than complete" (ibid.).

   The court of appeals did not dispute any of these propositions.
Instead, it denied absolute immunity to petitioners because it
concluded that the enforcement provisions of the Crime Control Act
gave them "virtually no discretion" (App., infra, 39a).  In its later
opinion, however, the court of appeals -- discussing the statute in a
different context -- apparently retreated from this position (see id.
at 17a) and acknowledged what is apparent from the statute, that
petitioners were responsible for making important discretionary
judgments at several stages of the enforcement scheme.  As the court
of appeals belatedly recognized, petitioners had to determine whether
a recipient "failed to comply with" the nondiscrimination provisions,
so that the chief executive of the state was to be notified;
petitioners then had to decide whether "a reasonable time" had elapsed
after such notification, so that efforts at conciliation were to be
abandoned;  and, if termination proceedings were instituted,
petitioners had to decide whether there was a sufficiently
"substantial" failure to comply to justify fund termination.  See 42
U.S.C. (1970 ed., Supp. V) 3757, 3766.

   These discretionary determinations were central to the enforcement
scheme, and even if petitioners exercised no other discretion, they
would be entitled to absolute immunity.  But the court of appeals
erred in its conclusion that petitioners were without underlying
discretion in implementing the funding termination scheme.  It is
implausible to suppose that Congress intended to impose on the LEAA a
rigid requirement that -- once it had made certain preliminary
determinations -- it institute a funding termination proceeding in
every case, no matter how limited the LEAA's enforcement resources or
how sound its judgment that those resources could be better devoted to
other cases.  Cf.  Cannon v. University of Chicago, 441 U.S. 677, 707
n.41 (1979).

   The court of appeals based its contrary conclusion primarily on the
statute's use of the word "shall." See App., infra, 13a, 39a.  But as
Judge Tamm pointed out (id. at 50a n.12), most criminal statutes
provide that a person who commits an offense "shall" be punished (see,
e.g., 18 U.S.C. 371, 1001);  and 28 U.S.C. 547(1) provides that United
States Attorneys "shall * * * prosecute for all offenses against the
United States" (emphasis added).  It is nonetheless well settled that
a federal prosecutor has broad discretion, unreviewable by the
judiciary, not to prosecute even if there is substantial evidence of
guilt.  See, e.g., United States v. Batchelder, 442 U.S. 114, 124
(1979);  Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978);  Newman v.
United States, 382 F.2d 479, 480 (D.C. Cir. 1967) (Burger, J.).
Similarly, this Court has repeatedly observed that administrative
prosecutors possess a comparable broad discretion notwithstanding the
seemingly mandatory language of the statutory schemes they are
responsible for enforcing.  See, e.g., Marshall v. Jerrico, Inc, 446
U.S. 238, 248 (1980);  Dunlop v. Bachowski, 421 U.S. 560, 571-573
(1975);  Vaca v. Sipes, 386 U.S. 171, 182 (1967);  Moog Industries,
Inc. v. FTC, 355 U.S. 411, 413-414 (1958).  /16/

   4. The court of appeals engaged in an extended discussion of the
question whether petitioners violated clearly established statutory
rights (App., infra, 8a-20a), without ever explaining why it
considered this discussion necessary.  We note that respondents have
previously asserted (80-1074 Br. 32 n.32) that the court of appeals
found an implied cause of action for damages under the Crime Control
Act.  Although the court of appeals never addressed the existence of
such an implied remedy in either of its opinions, the court's
discussion of whether petitioners violated clearly established
statutory rights might be viewed as resting on the unarticulated
premise that respondents have such a cause of action.  In order to
forestall respondents from pursuing this argument in future
proceedings, thus possibly necessitating further prolonged litigation,
we urge this Court to review the question whether respondents may
pursue a personal damages remedy against petitioners on the basis of
the Crime Control Act alone.

   An implied statutory cause of action for damages against federal
officials in their personal capacities would be novel indeed.  An
official's alleged failure correctly to administer a statute is
generally reviewable under the judicial review provisions of the
Administrative Procedure Act, 5 U.S.C. 701 et seq., not in a suit for
personal damages against the official.  Indeed, we know of no occasion
on which a court has permitted a personal damages recovery from
officials who did nothing more than violate the statute they were
charged with implementing.  Nothing in the language or the legislative
history of the civil rights enforcement scheme of the Crime Control
Act suggests that Congress intended to create such a novel remedy
here.  /17/

   5. The court of appeals' failure to respect the letter and spirit
of Harlow is magnified by its erroneous conclusion that respondents
have standing to maintain this action.  The costs and burdens of
insubstantial and unwarranted Bivens actions are multiplied if such
suits can be brought by all comers who feel aggrieved by the actions
of government officials, no matter how remote, indirect, and
attenuated the connection between the plaintiff's injuries (if any )
and the actions of the defendant officials.

   Indeed, in this case it has been unclear throughout the years of
litigation just how and why petitioners' actions have injured
respondents.  This is an unacceptable defect in a suit seeking
crushing personal damages from high government officials.  See Butz,
438 U.S. at 507-508.

   It appears to be respondents' claim that petitioners are liable for
the discriminatory acts committed against respondents by recipient
police departments because the continued funding of the recipients by
the LEAA "perpetuated" that discrimination.  See Complaint, para
41(b);  J.A. 26.  This claim is indistinguishable from that of the
plaintiffs in Simon v. Eastern Kentucky Welfare Rights Organization,
426 U.S. 26 (1976).  The plaintiffs in Eastern Kentucky sued the
government, claiming that its decision to extend favorable tax
treatment to a category of hospitals that did not provide free
services to indigents "encouraged" certain hospitals in that category
to deny services to the plaintiffs because of their indigency (see id.
at 32-34).  This Court held that the plaintiffs lacked standing.

   Respondents, like the Eastern Kentucky plaintiffs, were allegedly
injured by recipients of benefits from the government.  Respondents'
allegation that the LEAA funding "perpetuated" discrimination -- like
the Eastern Kentucky plaintiffs' allegation of "encouragement" -- is
"unadorned speculation (that) will not suffice to invoke the federal
judicial power" (426 U.S. at 44).  That is because "(i)t is purely
speculative whether the (discrimination) specified in the complaint
can fairly be traced to petitioners' (actions) or instead result(s)
from decisions made by the (recipients) without regard to the * * *
implications" for their continued ability to receive federal funds
(id. at 42-43).  The allegedly discrimination recipients might well
have chosen to forgo federal funds instead of changing their
employment practices.  See Guardians Ass'n v. Civil Service Comm'n,
No. 81-431 (July 1, 1983), slip op. 14 (opinion of White, J.);
Pennhurst State School v. Halderman, 451 U.S. 1, 17 (1981).

   Indeed, the recipients' alleged discriminatory practices generally
antedated the LEAA;  LEAA funds accounted for only a small percentage
of their budgets;  and, according to the complaint itself, the
recipients resisted all of the petitioners' efforts to obtain
compliance.  In these circumstances it is not only speculative but
quite implausible to suppose that funding termination would have
prompted the recipient law enforcement agencies suddenly to change
their practices.  Because respondents cannot "establish that, in fact,
the asserted injury was the consequence of (petitioners') actions'"
(Eastern Kentucky, 426 U.S. at 44-45, quoting Warth v. Seldin, 422
U.S. 490, 505 (1975)), they lack standing.  See also Linda R.S. v.
Richard D., 410 U.S. 614, 618 (1973)).

   Bivens litigation must not be allowed to be endless;  otherwise the
salutory reforms sought to be instituted by this Court in Harlow will
be set wholly at naught.  The Court should grant review in order to
consider whether this unjust and disruptive litigation, which has for
nine years burdened former government officials who served their
country with distinction, should not now be brought to an end.

                              CONCLUSION

   The petition for a writ of certiorari should be granted.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   RICHARD K. WILLARD

      Acting Assistant Attorney General

   PAUL M. BATOR

      Deputy Solicitor General

   DAVID A. STRAUSS

      Assistant to the Solicitor General

   BARBARA L. HERWIG

   MARK W. PENNAK

      Attorneys

   JANUARY 1984

   /1/ The Justice System Improvement Act of 1979, Pub. L. No. 96-157,
93 Stat. 1167, codified at 42 U.S.C. (Supp. V) 3701 et seq.,
restructured the LEAA.  Congress last appropriated significant funds
for the LEAA in 1980, and in 1982 the Attorney General transferred its
remaining programs and staff to the Office of Justice Assistance,
Research, and Statistics (see 47 Fed.Reg. 16694-16695 (1982)).  These
developments do not affect the issues before the Court.

   /2/ For example, in 1974, the Philadelphia Police Department -- one
of the recipient agencies whose practices are complained of in this
case -- received a total of less than $800,000 in LEAA grants.  The
Department's total budget that year was almost $132 million.  Thus,
LEAA grants accounted for approximately 0.6% of the 1974 Philadelphia
Police Department budget.

   /3/ The LEAA had the option of terminating payments only to the
activities that were not in compliance.  42 U.S.C. (1970 ed., Supp. V)
3757.

   /4/ "J.A." refers to the Joint Appendix filed when this case was
previously before this Court (458 U.S. 591 (1982) (No. 80-1074)).

   /5/ For example, respondent Brace alleged that she was
discriminatorily harassed by the Philadelphia Police Department
(Complaint, paras. 43-46;  J.A. 26-28).  (We note that petitioners at
one point caused the Department of Justice to bring suit against the
Philadelphia Police Department to prevent respondent Brace's dismissal
(see page 7 note 6, infra).) Respondent Bailey, who is black, claimed
that the Indiana State Police Department, among other things, "limited
the breadth of experience of the few black troopers through
discriminatory assignments, thereby limiting the promotion
opportunities of the black troopers" (Complaint, para. 53;  J.A. 29).
Respondent Heemstra, a woman, claimed that three local police forces
in Iowa discriminated against her by maintaining minimum height and
weight requirements (Complaint, paras. 58-65;  J.A. 30-32).  The
Richmond, California, Oakland, California, New Orleans, and Honolulu
Police Departments were among the other local law enforcement agencies
named in the complaint as recipients that discriminated (paras. 66-83,
99-102;  J.A. 32-36, 40-41).

   /6/ The record shows that when one of the respondents, Penelope
Brace (see Complaint, paras. 42-50;  J.A. 26-28), complained to
petitioners that she was about to be dismissed from the Philadelphia
Police Department for discriminatory reasons, the Department of
Justice sued to prevent her dismissal (C.A. App. 692).

   /7/ The district court dismissed respondents' claims for
declaratory and injunctive relief as moot (App., infra, 56a), but the
court of appeals reversed (id. at 36a-37a).  On remand, the court of
appeals noted that the termination of the LEAA (see page 4 note 1,
supra) might raise new mootness questions, but it directed the
district court to resolve those questions in the first instance (App.,
infra, 2a n.3).  These issues are not now before this Court.

   /8/ Judge Tamm also disagreed with the majority's analysis of the
standing issue.  He noted that the only plausible basis on which
respondents could claim standing was that the termination of LEAA
funds would have caused the recipient agencies to cease discriminating
against them (App., infra, 44a-46a & n.7).  Judge Tamm expressed doubt
that respondents could make this showing but indicated that he would
be willing to allow the issue to be resolved on a motion for summary
judgment, after some evidence had been introduced, instead of on a
motion to dismiss (id. at 46a-48a, citing Simon v. Eastern Kentucky
Welfare Rights Organization, 426 U.S. 26 (1976)).

   /9/ In concluding that the Crime Control Act established a clear
duty that was allegedly violated by petitioners, the court relied
again on what it considered to be the "mandatory language" of the
enforcement provisions (App., infra, 13a).  The court acknowledged
that "some limited discretion under the statute does exist" but
asserted that "(t) hese limited areas of discretion do not * * *
render (petitioners') statutory obligation so unclear as to entitle
them to qualified immunity" (id. at 17a).

   /10/ The court of appeals asserted that the question whether
respondents have stated a claim on which relief can be granted "has
not been briefed for us" (App., infra, 7a n.27).  This is wrong.  It
was explicitly discussed at pages 6-14 of the Appellee's Supplemental
Memorandum filed in the court of appeals after remand.

   /11/ Indeed, it is not even clear from the complaint whether any of
the recipients are charged with intentional discrimination;  in at
least some instances (Complaint, paras. 26, 31, 60-63, 68, 74, 79, 83,
90, 93, 94, 100;  J.A. 19, 21, 31-36, 38-40) it is clear that the
allegedly discriminatory practices of the recipients violated only
Title VII of the Civil Rights Act of 1964, 42 U.S.C. (& Supp. V) 2000e
et seq., not the Constitution (see Washington v. Davis, 426 U.S. at
239).

   /12/ Moreover, the court of appeals' conclusion that petitioners
can be held to have violated the Constitution "regardless of (their)
purpose" (App., infra, 23a), is wholly inconsistent with the approach
recently taken by the Eighth Circuit in a similar case, Clients'
Council v. Pierce, 711 F.2d 1406 (1983).  Clients' Council v. Pierce,
711 F.2d 1406 (1983).  Clients' Council was a suit alleging that
officials of the Department of Housing and Urban Development violated
the Constitution by not terminating federal funds to the Texarkana
Housing Authority, which allegedly discriminated on the basis of race.
 The Eighth Circuit ruled (id. at 1409 (citations omitted)):

         The district court correctly stated that in order to
      establish a constitutional violation, the appellants must prove
      that HUD officials acted with a discriminatory purpose.
      Although there is simply evidence that the Texarkana Housing
      Authority intentially discriminated on the basis of race, HUD
      cannot be held liable unless its own conduct was tainted with a
      discriminatory purpose.

   /13/ We also stressed this point in our Memorandum for the United
States as Amicus Curiae in Norwood.  See 72-77 U.S. Am. Mem. 13-18.

   Norwood, of course, was a suit for injunctive relief from the
government, not for personal damages from individual officials.  To
obtain money damages from an individual official, something more than
"imputed" intent should be required.

   /14/ It appears that the court of appeals' only explanation for its
conclusion that the Constitution distinguishes -- indeed, clearly
distinguishes -- between LEAA assistance and other clearly permissible
forms of aid is that the LEAA aid took this form.  See App., infra,
24a ("(T)he constitutional prohibition * * * clearly prohibits the
government from funding other agencies engaged in (discriminatory)
practices.").  Not only does this view make little sense -- there is
no reason to treat monetary aid differently from equally valuable aid
that takes a different form -- but, as we explain in the text, it is
clearly contrary to this Court's precedents.

   In support of this supposedly clearly established proposition, the
court of appeals cited only two authorities -- a court of appeals
decision the reasoning of which has been explicitly rejected by this
Court, and ambigious dictum in the opinion of a three-judge district
court.  Specifically, the court of appeals cited (App., infra, 24a
n.72) Gautreaux v. Romney, 448 F.2d 731 (7th cir. 1971), and Green v.
Connally, 330 F.Supp. 1150 (D.D.C.), summarily aff'd sub nom.  Coit v.
Green, 404 U.S. 997 (1971).  The reasoning of Gautreaux v. Romney was
rejected by this Court in Washington v. Davis, 426 U.S. at 245 n.12.
The three-judge district court in Green v. Connally (which was also
decided before Washington v. Davis) expressly declined to reach any
constitutional issue.  See 330 F.Supp. at 1164-1165;  id. at 1171
("Our decree will have no declaration of constitutional rights").  See
also Bob Jones University v. United States, No. 81-3 (May 24, 1983),
slip op. 23-24 N.24.

   /15/ The government programs involved in Rendell-Baker and Blum not
only were the dominant source of funds but extensively regulated the
recipients (see Rendell-Baker, 457 U.S. at 841;  Blum, 457 U.S. at
1008-1010);  the Court nonetheless ruled that the recipients'
activities could not be imputed to the government.

   /16/ The legislative history of the Crime Control Act also belies
the court of appeals' conclusion.  The funding termination provision
-- Section 509, 42 U.S.C. (1970 ed.) 3757 -- was enacted in 1968 and
remained unchanged throughout the period relevant to this litigation.
Although that provision always used the word "shall," the House Report
accompanying the Act explained that "the Attorney General may
terminate or suspend payments * * * on a finding (that) there is a
substantial failure to comply" and that he has "broad discretionary
power" over the funding termination process (H.R. Rep. 488, 90th
Cong., 1st Sess. 14, 26 (1967) (emphasis added);  see also S. Rep.
1097, 90th Cong., 2d Sess. 85 (1968).

   In 1976, at a time when, according to the court of appeals, the
LEAA had "virtually no" discretion under the enforcement scheme,
Congress again amended the scheme precisely because it thought the
LEAA had too much discretion (see, e.g., H.R. Rep. 94-1155, 94th
Cong., 2d Sess. 11, 25-27 (1976);  122 Cong. Rec. 28498 (1976)
(remarks of Rep. McClory)).

   /17/ Even if there were a statutory cause of action against
petitioners, they would be entitled to absolute immunity, because of
their quasi-prosecutorial functions, and to qualified immunity.  The
court of appeals' ruling that petitioners violated clearly established
statutory rights was based on its conclusion that the Crime Control
Act left petitioners with only "limited discretion" (App., infra,
17a.) For the reasons we stated in our discussion of the absolute
immunity question (pages 20-22, supra), this conclusion is erroneous.
For the same reasons, we submit that respondents have failed to state
a claim under the Crime Control Act.

                               APPENDIX

   APPENDIX MATERIAL IS NOT AVAILABLE ON JURIS.