IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

___________________

No. 95-50637

___________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ROLAND C. REYES,

Defendant-Appellant.

________________________________________________

Appeal from the United States District Court for the

Western District of Texas

________________________________________________

June 26, 1996

Before GARWOOD, HIGGINBOTHAM and BENAVIDES, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Roland C. Reyes (Reyes) appeals the denial

of his motion to dismiss the indictment charging him with operating

a motor vehicle while intoxicated at Kelly Air Force Base (Kelly

AFB) in violation of 18 U.S.C. § 13, incorporating section 49.04 of

the Texas Penal Code.

Facts and Proceedings Below

Reyes is charged with driving while intoxicated at Kelly AFB,

on or about January 31, 1994. Reyes, a civilian employee of the

Department of the Air Force who works at Kelly AFB, argues that his

prosecution is barred by principles of double jeopardy because he

has already been "punished" by a three-day, unpaid suspension from1 Reyes’ privilege to drive on the base was also revoked for

three days. This was not asserted as a basis for his motion to

dismiss before the magistrate judge or the district court.

2 work pursuant to Department of the Air Force regulations and 5

U.S.C. §§ 7501-7543. 1 The magistrate judge denied the motion to

dismiss the indictment on the ground that the suspension did not

constitute punishment under the Double Jeopardy Clause, precluding

any punishment imposed by the criminal proceeding from being a

second punishment for double jeopardy purposes. The district court

denied Reyes' appeal of the denial of his motion to dismiss. Reyes

now appeals to this Court.

Discussion

This Court has jurisdiction over an interlocutory appeal from

a refusal to dismiss an indictment on grounds of double jeopardy.

United States v. Perez, 70 F.3d 345, 346-47 (5th Cir. 1995). The

Double Jeopardy Clause states: “nor shall any person be subject to

the same of fense to be twice put in jeopardy of life or limb.”

U.S. C ONST

. A MEND

. V. I t provides protection fro m both multiple

prosecutions and multiple punishments for the same offense. I d. at

348. Only the protection from multiple punishments is before us in

the instant case.

The Supreme Co urt has held that certain civil sanctions may

constitute “p unishment” under the Double Jeopardy Clause and

trigger its protection. United States v. Halper , 109 S.Ct. 1892,

1901 (1989). Whether such a civil sanction is punishment within

the meaning of the Double Jeopardy Clause may depend upon the

purposes of the civil sanction. E .g.

, id. In H alper , the Court2 H alper states “a civil sanction that cannot fairly be said

solely to serve a remedial purpose, but rather can only be

explained as also serving either retributive or deterrent purposes,

is punishment

. . . ." H alper

, 109 S.Ct. at 1902 (emphasis added).

The Halper opinion then precedes to restate its holding,

ch aracterizing punishment as a sanction that “may not fairly be

characterized as remedial, but only as a deterrent or retribution.”

Id. (emphasis added). The varying placement and inclusion of

solely and only in these two statements is somewhat confusing. We

recognize that Justice O’Connor reads Halper in accordance with the

second iteration of the punishment test, which may be described as

a “punitive purposes only” test. See Department of Revenue of

Montana v. Kurth Ranch

, 114 S.Ct. 1937, 1953 (1994)(O’Conno r, J.

dissenting). This Court, however, has relied on the first Halper

statement of the test, characterizing the standard for determining

whether a sanction is punishment as “whether the civil sanction

serves solely a remedial purpose, or also a retributive or

deterrent purpose.” Perez , 70 F.3d at 348 (emphasis added).

3 The government argues that the suspension was to promote the

efficiency of the service, but the only efficiency the government

identifies wa s to be gained by deterring Reyes (and possibly

others) from driving while intoxicated on Kelly AFB.

3 held that if either retribution or deterrence is a purpose of such

a civil sanction, then it is punishment. H alper

, 1 09 S.Ct. at

1901-02. 2 We refer to this purpose-oriented test as the H alper

punishment test. Reyes argues that the imposition of a criminal

punishment for his drunk driving would be a second punish ment

prohibited by the Due Process Clause pursuant to the Halper

punishment test because his suspension from work was for deterrent

or retributive purposes, not for any remedial purpose. The

government does not essentially dispute that th e suspension was

imposed, at least in part, for purposes of deterrence, to deter

Reyes, or other employees at the base, from similar on-base

conduct. 3

The fact that the government su spended Reyes at least

partially for a deterrent purpose does not end our inquiry. The4 This Circuit has applied the H alper punishment test outside

the context of civil fines. S ee, e.g., United States v. Woods

, 949

F.2d 175 (5th Cir. 1991), cert. denied , 112 S.Ct. 1263 (1992). In

Woods

, the defendant-appellant argued that he was pre viously

“punished” by the placement of his savings and loan association

(S&L) in receivership. W oods

, 949 F.2d at 176-77. This Court held

that the S&L was placed in receivership to protect the United

States Treasury from avoidable insurance losses by assuring proper

bank management. I d. at 177. Because there was no retributive or

deterrent purpose, there was no punishment. Id. ; see also Bae v.

Shalala

, 44 F.3d 489, 493-95 (7th Cir. 1995 )(applying H alper

punishment test to debarment from pharmaceutical industry); United

States v. Hudson

, 14 F.3d 536, 540 (10th Cir. 1994)(applying Halper

punishment test to debarment from banking industry); U nited States

v. Newby

, 11 F.3d at 1144-45 (3d Cir. 1993)(purporting to apply

Halper in prison disciplinary context), cert. denied

, 115 S.Ct. 111

(1994).

At le ast four circuits have refused to extend the H alper

punishment test to certain other contexts. S ee United States v.

Stoller

, 78 F.3d 710, 717 (1st Cir. 1996)(applying totality of

circumstances test

—— instead of Halper test

— — t o indefinite bar on having any association with the banking industry); United States v.

Hernandez-Fundora

, 58 F.3d 802, 806 (2d Cir. 1995)(refusing to

apply Halper punishment test to the prison disciplinary context),

cert. denied

, 115 S.Ct. 2288 (1995); Garrity v. Fiedler

, 41 F.3d

1150, 1152-53 (7th Cir. 1994)(same), cert. denied , 115 S.Ct. 1420

(1995); Manocchio v. Kusserow , 961 F.2d 1539, 1541-42 (11th Cir.

1992)(holding that Halper analysis not applicable to administrative

order barring doctor from participating in federal Medicare program

and applying a totality of the circumstances test to find that the

purpose of the exclusion was to protect the public).

We have cited Hernandez-Fundora, Garrity, and Newby with

approval in holding that a prison disciplinary proceeding resulting

in loss of good tim e credits and transfer to a higher security

facility does not constitute a double j eopardy bar to subsequent

prosecuti on for the same conduct, but without expressly stating

that this conclusion followed from an application of Halper or a

determination that the Halper test was inapplicable. U nited States

v. Galan

, No. 95-30491, slip op. 3412 (5th Cir. April 25, 1996).

4 question facing us, which is one of first impression in this

Circuit, is whether literal a pplication of the H alper punishment

test is appropriate in the context of government-imposed employee

discipline of a type which an ordinary private employer generally

could lawfully impose without invoking the machinery of the

sovereign. 4 In other words, does this kind of government-imposedSee also United States v. Brown

, 59 F.3d 102, 103-05 (9th Cir.

1995).

5 S ee, e.g.

, Kurth Ranch

, 114 S.Ct. at 1948 (unworkable in tax

context); see also Bennis v. Michigan , 116 S.Ct. 994, 1000 (1996)

(noting that civil forfeiture serves a deterrent purpose “distinct

from any punitive purpose”). Two circuits have held that specific

government-imposed employee discipline failed to trigger double

jeopardy protection. See United States v. Payne , 2 F.3d 706 (6th

Cir. 1993); United States v. Reed , 937 F.2d 575 (11th Cir. 1991).

The Reed Court distinguished Halper by noting that it is the rule

for a rare case, and Payne relied exclusively on Reed

. P ayne

, 2

F.3d at 710-11; Reed

, 937 F.2d at 577. The defendant-appellants in

both Reed and Payne were postal employees who were disciplined for

on-the-job misfeasance. P ayne

, 2 F.3d at 707-08; Reed

, 937 F.2d at

575-76. The R eed Court held that the employee’s suspension served

the “legitimate nonpunitive governmental objective[]” of

vindicating the government’s contract rights under the collective

bargaining agreement. Reed , 937 F.2d at 578. It then went on to

note that allowing employee disciplinary actions to c onstitute

punishment under the Double Jeopardy Clause could lead to the

“absurd result” of law-breaking employees forum-shopping (i.e.

trying to get d isciplined as an employee to avoid criminal

prosecution). Id.

The implicit holding behind the explicit one in Reed is that

governmental employer discipline is not necessarily punitive even

if the discipline itself is intended to deter employee behavior.

Once this is recognized, it is clear that Reed is no longer

following the Halper method of defining punitive. S ee id. at 577-

78 (failing to mention punitive goal of deterrence). Thus, we read

these cases as authority for refusing to employ the Halper method

for defining punitive to include all deterrent-based employee

discipline.

5 employee discipline constitute punishment for double jeopardy

purposes if its goal is employee deterrence? We could answer

negatively for two possible reasons, either (1) even if the

suspension was imposed for a deterrent, and hence under Halper a

punitive, purpose, such e mployee discipline does not constitute

punishment for purposes of the Doub le Jeopardy Clause; or (2)

Halper ’s method of defining punishment is unworkable in the context

of this sort of employee discipline. 5 Because we hold that this

character of employee discipline, even where it has a deterrent6

pur pose, is not punishment under the Double Jeopardy Clause, we

need not determine whether the Halper method for defining

punishment would be appropriate in this context.

The D ouble Jeopardy Clause is a “restraint on governmental

power.” U

nited States v. Sanchez-Escareno

, 950 F.2d 193, 197 (5th

Cir. 1991), cert. denied 113 S.Ct. 123 (1992). “In order for the

Double Jeopar dy Clause to have any application, there must be

actions by a sovereign, which place an individual twice in

jeopardy. The Double Jeopardy Clause does not apply to actions

involving private individuals.” U nited States v. Beszborn

, 21 F.3d

62, 67-68 (5th Cir. 1994), cert. denied

, 115 S.Ct. 330 (1994).

Thus, we have applied the Halper punishment test to civil sanctions

imposed by the government when acting in its capacity as sovereign.

E.g.

, Perez

, 70 F.3d at 348 (property forfeiture); United States v.

Tilley

, 18 F.3d 295, 298-301 (5th Cir. 1994)(forfeiture of illegal

drug proceeds), cert. denied 115 S.Ct. 574 (1994); Woods

, 949 F.2d

at 176 (placing an entity in receiver ship); s ee also SanchezEscareno

, 950 F.2d at 200 (noting that Halper punishment test would

a pply to civil fines). And we have declined to apply the Halper

punishment te st to civil sanctions imposed by a governmental

entity, the Resolution Trust Corporation, acting i n its “unique

non-governmental role” as receiver of failed financial

institution

—— instead of in its role as sovereign. B eszborn

, 21 F.3d

at 68 (holding Double Jeopardy Clause inapplicable); see also

United States v. Heffner

, Nos. 95-50396 and 95-50397, slip op., at

*4, 1996 WESTLAW 277405 (9th Cir. May 28, 1996) (adopting Beszborn7

rea soning). Thus, if the government was acting in a role other

than as sovereign in its suspension of Reyes, and was doing no more

than a typical private employer generally could lawfully do without

invoking the machinery of the sovereign, we will not apply the

Halper test because the Double Jeopardy Clause is inapplicable.

There is ample support for constitutionally distinguishing

government acting as employer from government acting as sovereign.

This Court has noted that “[t]he role of the Government as an

employer toward its employees is fundamentally different from its

role as sovereign over private citizens generally.” B ush v. Lucas

,

647 F.2d 573, 576 (5th Cir. 1981), aff’d by 103 S.Ct. 2404 (1983).

The Supreme Court has differentiated between governmental actions

taken as sovereign and as employer. In C onnick v. Meyers

, 103

S.Ct. 1684, 1690 (1983), for example, the Court made it clear that

the First Amendme nt did not protect governmental employees from

even unreasonable adverse employm ent actions based on speech

unrelated to a public concern. Although the government acting in

its role as sovereign may not punish a private citizen for speech

it dislikes, the government acting as employer may pun ish its

employees for the same speech if it is not of public concern. S ee

id

. Similarly, governmental searches and seizures are held to a

less stringent standard under the Fourth Amendment when conducted

in the government’s role as employer than when made in its role as

sovereign. S ee O’Connor v. Ortega

, 107 S.Ct. 1492, 1500-02

(1987)(plurality opinion)(rejecting the requirement of probable

cause, which is necessary for searches as sovereign, and applying6 Reyes never contested or challenged his suspension. C f.

United States v. Schinnell

, Nos. 94-11155 & 95-10213, slip op. 3075

(5th Cir. April 9, 1996).

8 a reasonableness standard to governmental employer’s search); see

also National Treasury Employees Union v. Von Raab

, 109 S.Ct. 1384,

1393-94 (1989)(noting that certain forms of public employment

diminish expectations of privacy and subject governmental employees

to routine personal searches).

We recognize that the government even in its capacity as

employer is nevertheless subject to certain constitutional

restrictions that are inapplicable to the private emp loyer. For

example, the governmental employer is constitutionally prohibited

from discriminating on grounds of race. Likewise, the governmental

employer is subject to certain consti tutional due process

restrictions in terminating employees having a property interest in

their positions, restrictions that are not constitutionally imposed

on the private employer. S ee Cleveland Board of Education v.

Loudermill

, 105 S.Ct. 1487 (1985). There are, of course, other

examples. S ee, e.g., Von Raab; O rtega . These restrictions,

however, protect the governm ental employee from certain adverse

employment actions by his employer, they do not involve any

characterization of such adverse actions as “punishment.” If these

restrictions are transgressed, the employee’s remedy is to have the

adverse action set aside, or to assert a cause of action under

Bivens v. Six Unknown Named Agents

, 91 S.Ct. 1999 (1971), it is not

to preclude subsequent criminal prosecution for the same conduct. 6

The interests these restrictions protect are not the same as or9

even remotely analogous to the interests that the Double Jeopardy

Clause protects. We conclude that these constitutional

restrictions on governmental action in its capacity as an employer

are not a persuasive basis on which to hold that “punishment” for

Double Jeopardy Clause purposes embraces adverse employment action

taken by the government in its capacity as employer, rather than as

sovereign, particularly where, as here, the action is of a kind a

typical private employer genera lly could lawfully take without

invoking the machinery of the sovereign. To construe the Double

Jeopardy Clause to include this sort of employee discipline as

“punishment” would confer on governmental employees rights against

subsequent criminal prosecution

—— certainly the central thrust of the

Double Jeopar dy Clause

— — that private employees do not have. Such

unequal protection from criminal prosecution is inconsistent with

all our traditions.

We also note that the Framers’ intent does not support reading

the Double Jeopardy Clause to prohibit a criminal prosecution

because such employee discipline has been meted out by a

governmental employer. Courts may look to the common law to

determine what the Double Jeopardy Cl ause means by “punishment.”

See Ex parte Lange

, 85 U.S. 163, 170 (1873)(noting that salutary

principles of common law have been embodied in the Constitution);

United States v. Jenkins

, 490 F.2d 868, 873 (2d Cir. 1973)(Framers

intended Double Jeopardy Clause to import common law protections

into Constitution), aff’d

, 95 S.Ct. 1006 (1975). Colonial lawyers,

including the Framers, widely relied on treati ses by Sir Edward10

Coke and Sir William Blackstone for their understanding of English

common law. Jay A. Sigler, Double Jeopardy: The Development of a

Legal and Social Policy 16 (1969). According to Coke, the double

jeo pardy doctrine was “clearly delineated as a purely criminal

concept serving as a protection against the state

. . . .” I d. at

19. Similarly, Blackstone interpreted the double jeopardy

protection to apply only to felonies

. See id. at 20. It seems

evident that neither Coke nor Blackstone envisioned employee

discipl ine as falling under the protection of double jeopardy.

Furthermore, the discussions in the House regarding the wording of

the Double Jeopardy Clause only considered actions by the

government as sovereign. I d. at 30 (citing 1 Annals of Cong. 753).

And the Senate initially adopted a clause applying only to “public

prosecution.” I d. at 31. Though the “public prosecution” language

was dropped, neit her the common law nor the legislative debates

lead us to believe that the Framers conceived of governmental

employee discipline as falling within the scope of the clause.

Reyes conceded at oral argument that the Double Jeopardy

Clause does not apply to governmental employee discipline that is

imposed for work-related misconduct. He argues, however, that

governmental employer sanctions imposed for non-work-related

conduct do trigger double jeopardy protections. Even if we

interpret this argument as one that the governmen t acts as

sovereign (instead of as an employer) when it sanctions its

employees for off-duty behavior, Reyes’ constitutional claim still

must fail.7 This is one of those instances where, despite the absence of

a relatively recent “spotted horse” case, our judicial intuition

—— or

common sense

—— tells us that the result is f oreordained. Often in

such situations it is preferable to simply announce the conclusion,

rather than to attempt to explicate its doctrinal basis.

Sometimes, however, the latter exercise serves as useful check on

potentially erroneous or simply reflexive intuition, particularly

where some of the contextual principles appear to be in at least

moderate flux. With these considerations in mind, we have written

at some length on what others might consider to be a question with

an obvious and simple answer.

11 The government was not able to suspend Reyes because it is

sovereign; it was able to, and actually did, suspend him because it

is his employe r. The government acts as sovereign when it uses

powers over which it has a monopoly. Generally speaking, any

private employer could have suspended him for the same conduct and

could have done so without invoking the machinery of the sovereign.

See Oil Chem. Atomic Workers Int’l Union, Local No. 4-228 v. Union

Oil Co.

, 818 F.2d 437, 441 (5th Cir. 1987)(rejecting argument that

discharge of private employee for off-duty/off-premises illegal

drug sales is an impermissible extension of employer’s power over

its employees); see also Bonet v. United States Postal Serv. , 712

F.2d 213 (5th Cir. 1983)(upholding discharge of postal worker based

on charges of sexually indecent conduct with his mi nor

stepdaughters). In temporarily suspending Reyes from its

employment, the government acted in its capacity as his employer

and exercised power that a private person ( i .e. non-sovereign)

could have used. For this reason, we reject Reyes’ invitation to

hold that a governmental employer’s suspension from its employment

w ithout pay of one of its employees constitutes punishment under

the Double Jeopardy Clause if that ac tion is taken on account of

the employee’s non-work-related conduct. 78 After the foregoing opinion was prepared and circulated, the

Supreme Court handed down its opinion in the consolidated cases of

United States v. Ursery and United States v. $405,089.23 In United

States Currency

, Nos. 95-345 & 95-346, June 24, 1996, 1996 WL

340815 (US), holding that certain contested “ in rem civil

forfeitures” under 21 U.S.C. § 881(a)(6) & (7) and 18 U.S .C. §

981(a)(1)(A) were “neither ‘punishment’ [of the contesting owner of

the forfeited items] nor criminal for purpo ses of the Double

Jeopardy Clause.” The U rsery opinion is not directly on point, as

it gives heavy emphasis to the in r em nature of the forfeitures

there at issue, and distinguishes Halper and Kurt h Ranch largely

because those cases involved in personam proceedings.

Nevertheless, Ursery certainly cautions against an expansive

reading of the Double Jeopardy Clause and reinforces our conclusion

that it is not implicated here. For example, U rsery cites with

approval the passage in Gore v. United States

, 78 S.Ct. 1280, 1284

(1958), which includes the reference to “double jeopardy” as a provision “which is rooted in history and is not an evolving

concept.” U

rsery at *8. Also, U rsery refers to the line of cases exemplified by Halper as invol ving “potentially punitive i n

personam civil penalties such as fines,” id . at *8, a description

wholly consistent with the idea that a necessary, albeit not always

sufficient, attribute of “punishment” for double jeopardy purposes is that it have been exacted by the government in the exercise of

its sovereign c oercive powers. Finally, we observe that U rsery plainly indicates that merely because a sanction may have a

deterrent purpose does not necessarily mean that it is a punishment

for double jeopardy pur poses, particularly where it “has not

historically been regarded as punishment,” i d

. at *16, as is

certainly the case with the employee suspension here.

12 Conclusion

For the foregoing reasons, we AFFIRM the denial of motion to

dismiss the indictment and REMAND to the district court for trial

on the merits. 8