, FDIC v. Meyer :: 510 U.S. 471 (1994) :: US LAW US Supreme Court Center

FDIC v. Meyer :: 510 U.S. 471 (1994) :: US LAW US Supreme Court Center

    OCTOBER TERM, 1993

    Syllabus

    FEDERAL DEPOSIT INSURANCE CORPORATION v.

    MEYER

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

    No.92-741. Argued October 4, 1993-Decided February 23,1994

    After the Federal Savings and Loan Insurance Corporation (FSLIC), as receiver for a failing thrift group, terminated respondent Meyer from his process as a senior officer of that organization, he filed this healthy inside the District Court, claiming that his summary discharge deprived him of a property proper with out due method of regulation in violation of the Fifth Amendment. In making this declare, he relied on Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 397, wherein the Court implied a purpose of action for damages towards federal dealers who allegedly violated the Fourth Amendment. The jury returned a verdict against FSLIC, whose statutory successor, petitioner Federal Deposit Insurance Corporation (FDIC), appealed. The Court of Appeals affirmed, protecting that, even though the Federal Tort Claims Act (FTCA) affords the distinctive remedy against the USA for all "claims that are cognizable under [28 U. S. C. § ] 1346(b)," Meyer s claim become now not so cognizable; that the "sue-and-be-sued" clause contained in FSLIC s natural statute constituted a waiver of sovereign immunity for Meyer s declare and entitled him to maintain an action against FSLIC; and that he have been disadvantaged of due manner while he turned into summarily discharged without notice and a listening to.

    Held:

    (a) Meyer s constitutional tort claim is not "cognizable" beneath § 1346(b) due to the fact that phase does now not offer a purpose of movement for this kind of declare. A claim is actionable under the phase if it alleges, inter alia, that the USA might be in charge as "a personal man or woman" "according with the regulation of the location where the act or omission occurred." A declare which includes Meyer s couldn't incorporate such an allegation due to the fact the reference to the "law of the location" way law of the State, see, e. g., Miree v. DeKalb County, 433 U. S. 25, 29, n. four, and, with the aid of definition, federal law, no longer country regulation, offers the supply of legal responsibility for a declare alleging the deprivation of a federal constitutional right. Thus, the FTCA does now not constitute Meyer s distinct remedy, and his claim became nicely brought against FSLIC. There certainly is not any basis in the statutory language for the translation counseled by means of FDIC, which could deem all


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    Syllabus

    claims "sounding in tort" -together with constitutional torts-"cognizable" underneath § 1346(b). Pp.475-479.

    (b) FSLIC s sue-and-be-sued clause waives sovereign immunity for Meyer s constitutional tort declare. The clause s phrases are simple and wide: FSLIC "shall have energy ... [t]o sue and be sued, complain and defend, in any court of capable jurisdiction inside the United States." FDIC does not try to make the "clear" displaying of congressional cause this is necessary to triumph over the presumption that one of these clause fully waives immunity. See, e. g., Federal Housing Admin. v. Burr, 309 U. S. 242, 245; International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U. S. 72, 86, n. eight. Instead, FDIC argues that the statutory waiver s scope ought to be restricted to instances wherein FSLIC could be subjected to liability as a non-public entity. This class could not encompass times of constitutional tort. The cases on which FDIC is based, Burr, supra, Loeffler v. Frank, 486 U. S. 549, and Franchise Tax Bd. of California v. Postal Service, 467 U. S. 512, do no longer assist the difficulty counseled through FDIC. Pp. 480-483.

    2. A Bivens purpose of motion can not be implied at once towards FSLIC.

    The logic of Bivens itself does now not support the extension of Bivens from federal dealers to federal corporations. In Bivens, the petitioner sued the dealers of the Federal Bureau of Narcotics who allegedly violated his rights, no longer the Bureau itself, 403 U. S., at 389-390, and the Court implied a purpose of action towards the sellers in part because a direct motion towards the Government became no longer available, id., at 410 (Harlan, J., concurring in judgment). In essence, Meyer asks the Court to suggest a damages movement primarily based on a selection that presumed the absence of that very action. Moreover, if the Court were to suggest such an movement at once in opposition to federal companies, thereby permitting claimants to pass the qualified immunity protection invoked with the aid of many Bivens defendants, there would now not be any motive for aggrieved events to convey damages moves towards character officials, and the deterrent results of the Bivens remedy could be lost. Finally, there are "special elements counselling hesitation" inside the introduction of a damages treatment towards federal groups. Such a remedy could create a probably widespread economic burden for the Federal Government, a count number affecting financial policy this is better left to Congress. Pp. 483-486.

    944 F.2d 562, reversed.

    THOMAS, J., brought the opinion for a unanimous Court.

    Deputy Solicitor General Bender argued the reason for petitioner. On the briefs have been Solicitor General Days, Act-


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    Full Text of Opinion

    OCTOBER TERM, 1993

    Syllabus

    FEDERAL DEPOSIT INSURANCE CORPORATION v.

    MEYER

    CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

    No.ninety two-741. Argued October four, 1993-Decided February 23,1994

    After the Federal Savings and Loan Insurance Corporation (FSLIC), as receiver for a failing thrift organization, terminated respondent Meyer from his task as a senior officer of that institution, he filed this match within the District Court, claiming that his precis discharge disadvantaged him of a belongings right without due manner of regulation in violation of the Fifth Amendment. In making this declare, he trusted Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, 397, wherein the Court implied a purpose of action for damages in opposition to federal marketers who allegedly violated the Fourth Amendment. The jury again a verdict against FSLIC, whose statutory successor, petitioner Federal Deposit Insurance Corporation (FDIC), appealed. The Court of Appeals affirmed, holding that, despite the fact that the Federal Tort Claims Act (FTCA) affords the one-of-a-kind treatment towards the USA for all "claims which can be cognizable underneath [28 U. S. C. § ] 1346(b)," Meyer s claim changed into not so cognizable; that the "sue-and-be-sued" clause contained in FSLIC s organic statute constituted a waiver of sovereign immunity for Meyer s declare and entitled him to preserve an motion against FSLIC; and that he had been disadvantaged of due procedure whilst he was summarily discharged without note and a listening to.

    Held:

    (a) Meyer s constitutional tort declare is not "cognizable" beneath § 1346(b) due to the fact that phase does not offer a cause of motion for the sort of claim. A claim is actionable beneath the phase if it alleges, inter alia, that the USA could be in charge as "a private character" "in accordance with the regulation of the vicinity wherein the act or omission befell." A claim such as Meyer s couldn't comprise such an allegation because the connection with the "regulation of the place" way law of the State, see, e. g., Miree v. DeKalb County, 433 U. S. 25, 29, n. four, and, by way of definition, federal law, no longer kingdom regulation, offers the supply of liability for a declare alleging the deprivation of a federal constitutional proper. Thus, the FTCA does no longer constitute Meyer s distinctive treatment, and his declare changed into nicely brought against FSLIC. There truely is not any foundation inside the statutory language for the interpretation cautioned through FDIC, which could deem all


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    claims "sounding in tort" -such as constitutional torts-"cognizable" underneath § 1346(b). Pp.475-479.

    (b) FSLIC s sue-and-be-sued clause waives sovereign immunity for Meyer s constitutional tort declare. The clause s terms are easy and large: FSLIC "shall have energy ... [t]o sue and be sued, complain and defend, in any court of in a position jurisdiction within the United States." FDIC does now not try to make the "clean" displaying of congressional motive that is vital to overcome the presumption that such a clause absolutely waives immunity. See, e. g., Federal Housing Admin. v. Burr, 309 U. S. 242, 245; International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U. S. seventy two, 86, n. eight. Instead, FDIC argues that the statutory waiver s scope must be restricted to instances wherein FSLIC might be subjected to liability as a non-public entity. This class would now not consist of times of constitutional tort. The instances on which FDIC relies, Burr, supra, Loeffler v. Frank, 486 U. S. 549, and Franchise Tax Bd. of California v. Postal Service, 467 U. S. 512, do not assist the issue suggested through FDIC. Pp. 480-483.

    2. A Bivens reason of motion can not be implied at once towards FSLIC.

    The good judgment of Bivens itself does now not assist the extension of Bivens from federal marketers to federal groups. In Bivens, the petitioner sued the marketers of the Federal Bureau of Narcotics who allegedly violated his rights, now not the Bureau itself, 403 U. S., at 389-390, and the Court implied a purpose of action against the retailers in part because a right away movement against the Government turned into no longer to be had, identification., at 410 (Harlan, J., concurring in judgment). In essence, Meyer asks the Court to imply a damages motion based on a decision that presumed the absence of that very movement. Moreover, if the Court were to suggest such an movement without delay against federal businesses, thereby allowing claimants to pass the qualified immunity protection invoked by way of many Bivens defendants, there would no longer be any purpose for aggrieved events to convey damages movements against person officers, and the deterrent effects of the Bivens treatment might be misplaced. Finally, there are "special factors counselling hesitation" inside the creation of a damages remedy towards federal businesses. Such a treatment could create a probably extensive monetary burden for the Federal Government, a matter affecting economic coverage that is higher left to Congress. Pp. 483-486.

    944 F.second 562, reversed.

    THOMAS, J., brought the opinion for a unanimous Court.

    Deputy Solicitor General Bender argued the motive for petitioner. On the briefs have been Solicitor General Days, Act-


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    ing Solicitor General Bryson, Acting Assistant Lawyer General Schiffer, James A. Feldman, Barbara L. Herwig, Jacob M. Lewis, Alfred J. T. Byrne, Jack D. Smith, and Jerome A. Madden.

    Gennaro A. Filice III argued the reason and filed a brief for respondent. *

    JUSTICE THOMAS brought the opinion of the Court.

    In Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), we implied a motive of action for damages against federal agents who allegedly violated the Constitution. Today we're asked to imply a similar motive of motion at once in opposition to an agency of the Federal Government. Because the good judgment of Bivens itself does no longer assist such an extension, we decline to take this step.

    I

    On April 13, 1982, the California Savings and Loan Commissioner seized Fidelity Savings and Loan Association (Fidelity), a California-chartered thrift group, and appointed the Federal Savings and Loan Insurance Corporation (FSLIC) to function Fidelity s receiver beneath country regulation. That identical day, the Federal Home Loan Bank Board appointed FSLIC to serve as Fidelity s receiver beneath federal regulation. In its potential as receiver, FSLIC had large authority to "take such action as can be essential to place [the thrift] in a valid solvent situation." 48 Stat. 1259, as amended, 12 U. S. C. § 1729(b)(1)(A)(ii) (repealed 1989). Pursuant to its wellknown coverage of terminating the employment of a failed thrift s senior control, FSLIC, thru its special consultant Robert L. Pattullo, terminated respondent John H. Meyer, a senior Fidelity officer.

    Approximately twelve months later, Meyer filed this lawsuit against a number of defendants, inclusive of FSLIC and Pat-

    *David W Graves and Gary M. Laturno filed a brief for the National Employment Lawyers Association as amicus curiae urging affirmance.


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    tullo, inside the United States District Court for the Northern District of California. At the time of trial, Meyer s sole declare in opposition to FSLIC and Pattullo became that his precis discharge deprived him of a assets right (his right to continued employment below California law) with out due system of law in violation of the Fifth Amendment. In making this declare, Meyer relied upon Bivens v. Six Unknown Fed. Narcotics Agents, supra, which implied a reason of motion for damages towards federal marketers who allegedly violated the Fourth Amendment. The jury back a $one hundred thirty,000 verdict against FSLIC, however located in desire of Pattullo on qualified immunity grounds.

    Petitioner Federal Deposit Insurance Corporation (FDIC), FSLIC s statutory successor,1 appealed to the Court of Appeals for the Ninth Circuit, which affirmed. 944 F.2nd 562 (1991). First, the Court of Appeals decided that the Federal Tort Claims Act (FTCA or Act), 28 U. S. C. §§ 1346(b), 2671-2680, did no longer provide Meyer s unique remedy. 944 F. second, at 568-572. Although the FTCA treatment is "distinct" for all "claims which might be cognizable underneath phase 1346(b)," 28 U. S. C. § 2679(a), the Court of Appeals decided that Meyer s declare turned into not cognizable underneath § 1346(b). 944 F. second, at 567, 572. The courtroom then concluded that the "sueand-be-sued" clause contained in FSLIC s natural statute, 12 U. S. C. § 1725(c)(4) (repealed 1989), constituted a waiver of sovereign immunity for Meyer s claim and entitled him to preserve an action in opposition to the corporation. 944 F. 2d, at 566, 572. Finally, on the deserves, the court affirmed the jury s end that Meyer had been disadvantaged of due procedure when he was summarily discharged with out note and a hearing. Id., at 572-575. We granted certiorari to take into account

    1 See 12 U. S. C. § 1821(d) (1988 ed., Supp. IV). After FSLIC changed into abolished by using the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L. one zero one-seventy three, 103 Stat. 183, FDIC was substituted for FSLIC on this healthy.


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    the validity of the damages award in opposition to FSLIC. 507 U. S. 983 (1993).2

    II

    Absent a waiver, sovereign immunity shields the Federal Government and its agencies from healthy. Loeffler v. Frank, 486 U. S. 549, 554 (1988); Federal Housing Administration v. Burr, 309 U. S. 242, 244 (1940). Sovereign immunity is jurisdictional in nature. Indeed, the "terms of [the United States ] consent to be sued in any court docket define that court docket s jurisdiction to entertain the in shape." United States v. Sherwood, 312 U. S. 584, 586 (1941). See also United States v. Mitchell, 463 U. S. 206, 212 (1983) ("It is axiomatic that america may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction"). Therefore, we must first decide whether FSLIC s immunity has been waived.

    A

    When Congress created FSLIC in 1934, it empowered the enterprise "[t]o sue and be sued, whinge and defend, in any court of competent jurisdiction." 12 U. S. C. § 1725(c)(four) (repealed 1989).three By allowing FSLIC to sue and be sued, Congress effected a "vast" waiver of FSLIC s immunity from in shape. United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992). In 1946, Congress passed the FTCA, which waived the sovereign immunity of the United States for certain torts dedicated through federal personnel. 28 U. S. C.

    2 Meyer filed a cross-appeal challenging the jury s finding that Pattullo become covered by means of qualified immunity. The Ninth Circuit affirmed this finding. 944 F. 2d, at 575-577. We declined to review this issue of the case. Meyer v. Pattullo, 507 U. S. 984 (1993).

    3The statute governing FDIC consists of a almost equal sue-and-besued clause. See 12 U. S. C. § 1819(a) Fourth (1988 ed., Supp. IV) (FDIC "shall have strength ... [t]o sue and be sued, and whinge and protect, in any court docket of regulation or equity, State or Federal").


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    § 1346(b).4 In order to "vicinity torts of suable agencies ... upon exactly the same footing as torts of nonsuable corporations," Loeffler, supra, at 562 (inner quotation marks unnoticed), Congress, thru the FTCA, limited the scope of sueand-be-sued waivers inclusive of that contained in FSLIC s organic statute. The FTCA hassle affords:

    "The authority of any federal agency to sue and be sued in its personal name shall not be construed to authorize fits towards such federal agency on claims which can be cognizable below segment 1346(b) of this name, and the treatments furnished by means of this title in such cases will be distinctive." 28 U. S. C. § 2679(a).

    Thus, if a fit is "cognizable" under § 1346(b) of the FTCA, the FTCA treatment is "distinctive" and the federal corporation cannot be sued "in its own call," regardless of the life of a sue-and-be-sued clause.

    The first question, then, is whether or not Meyer s claim is "cognizable" under § 1346(b). The term "cognizable" is not described within the Act. In the absence of one of these definition, we construe a statutory term in accordance with its everyday or natural which means. Smith v. United States, 508 U. S. 223, 228 (1993). Cognizable in general means "[c]apable of being tried or examined before a chosen tribunal; inside [the] jurisdiction of [a] court docket or strength given to [a] courtroom to adjudicate [a] controversy." Black s Law Dictionary 259 (sixth ed. 1990). Under this definition, the inquiry makes a speciality of the jurisdictional supply supplied by using § 1346(b).

    4 Section 1346(b) provides:

    "[T]he district courts ... shall have different jurisdiction of civil moves on claims against the United States, for cash damages, ... for damage or loss of assets, or private injury or loss of life as a result of the negligent or wrongful act or omission of any employee of the Government even as performing in the scope of his office or employment, beneath occasions in which the United States, if a personal character, could be susceptible to the claimant according with the regulation of the area wherein the act or omission occurred."


    477

    Section 1346(b) presents the federal district courts jurisdiction over a certain category of claims for which the US has waived its sovereign immunity and "render[ed]" itself responsible. Richards v. United States, 369 U. S. 1, 6 (1962). This category consists of claims which might be:

    "[1] towards america, [2] for money damages, ... [3] for harm or loss of property, or non-public harm or dying [4] because of the negligent or wrongful act or omission of any employee of the Government [5] while performing in the scope of his workplace or employment, [6] below occasions wherein the US, if a non-public character, might be prone to the claimant in accordance with the law of the area wherein the act or omission befell." 28 U. S. C. § 1346(b).

    A declare comes within this jurisdictional grant-and consequently is "cognizable" beneath § 1346(b)-if it's far actionable underneath § 1346(b). And a claim is actionable under § 1346(b) if it alleges the six factors mentioned above. See Loeffler, supra, at 562 (§ 2679(a) limits the scope of sue-and-be-sued waivers "inside the context of fits for which [Congress] supplied a purpose of action below the FTCA" (emphasis delivered)).5

    Applying these standards to this situation, we finish that Meyer s constitutional tort declare is not "cognizable" under § 1346(b) as it is not actionable beneath § 1346(b)-this is, § 1346(b) does not provide a reason of movement for one of these declare. As noted above, to be actionable below § 1346(b), a declare must allege, inter alia, that the United States "would be prone to the claimant" as "a personal individual" "in accordance with the regulation of the vicinity wherein the act or omission passed off." A constitutional tort claim along with Meyer s ought to

    5 Because we were now not requested to define "cognizability" in Loeffler, our language changed into a piece obscure. The question isn't whether or not a declare is cognizable below the FTCA generally, as Loeffler shows, but alternatively whether or not it is "cognizable beneath section 1346(b)." 28 U. S. C. §2679(a) (emphasis introduced).


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    no longer incorporate such an allegation. Indeed, we've continually held that § 1346(b) s reference to the "law of the region" means law of the State-the supply of noticeable liability beneath the FTCA. See, e. g., Miree v. DeKalb County, 433 U. S. 25, 29, n. 4 (1977); United States v. Muniz, 374 U. S. one hundred fifty, 153 (1963); Richards, supra, at 6-7, eleven; Rayonier Inc. v. United States, 352 U. S. 315, 318 (1957). By definition, federal law, now not state law, offers the supply of legal responsibility for a claim alleging the deprivation of a federal constitutional proper. To use the terminology of Richards, the United States truely has no longer rendered itself dependable below § 1346(b) for constitutional tort claims. Thus, due to the fact Meyer s constitutional tort claim isn't always cognizable beneath § 1346(b), the FTCA does not represent his "different" treatment. His claim turned into therefore nicely introduced against FSLIC "in its very own call." 28 U. S. C. § 2679(a).

    FDIC argues that by way of exposing a sue-and-be-sued business enterprise to constitutional tort claims, our interpretation of "cognizability" runs afoul of Congress knowledge that § 2679(a) could vicinity the torts of "suable" and "nonsuable" organizations at the identical footing. See Loeffler, 486 U. S., at 562. FDIC might deem all claims "sounding in tort"-consisting of constitutional torts-"cognizable" under § 1346(b). Under FDIC s analyzing of the statute, best the part of § 1346(b) that describes a "tort"-i. e., "claims in opposition to the USA, for money damages, ... for damage or lack of assets, or personal injury or demise caused by the negligent or wrongful act or omission of any employee of the Government"-could govern cognizability. The last part of § 1346(b) could definitely describe a "dilemma" on the waiver of sovereign immunity.6

    6FDIC relies upon United States v. Smith, 499 U. S. one hundred sixty (1991), for its interpretation of the time period "cognizable." In Smith, the "foreign country" exception, 28 U. S. C. § 2680(ok), barred plaintiffs healing in opposition to the Federal Government for injuries allegedly as a result of the negligence of a Government employee operating abroad. 499 U. S., at a hundred sixty five. We held that the


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    We reject this reading of the statute. As we've got already cited, § 1346(b) describes the scope of jurisdiction with the aid of connection with claims for which the USA has waived its immunity and rendered itself responsible. FDIC seeks to uncouple the scope of jurisdiction beneath § 1346(b) from the scope of the waiver of sovereign immunity underneath § 1346(b). Under its interpretation, the jurisdictional grant would be wide (protecting all claims sounding in tort), however the waiver of sovereign immunity would be slim (covering simplest the ones claims for which a personal individual would be held in charge underneath nation regulation). There sincerely isn't any basis inside the statutory language for the parsing FDIC shows. Section 2679(a) s reference to claims "cognizable" below § 1346(b) manner cognizable below the entire of § 1346(b), now not simply a portion of it.7

    FTCA furnished plaintiffs "extraordinary remedy," despite the fact that the FTCA itself did not provide a method of recovery. Id., at 166. Smith did now not involve § 2679(a), the supply at issue in this case, however alternatively § 2679(b)(1), which presents that the FTCA remedy is "distinct of every other civil action or proceeding for cash damages ... against the employee whose act or omission gave upward thrust to the claim." The Court had no occasion in Smith to address the meaning of the term "cognizable" because § 2679(b)(1) does now not contain the time period. We consequently discover Smith unhelpful in this regard.

    7 Nothing in our decision in Hubsch v. United States, 338 U. S. 440 (1949) (according to curiam), is to the contrary. In Hubsch, the parties submitted to this Court for approval a settlement agreement beneath 28 U. S. C. § 2677 (1946 ed., Supp. IV), which on the time furnished that the Lawyer General, "with the approval of the court," should "settle any claim cognizable underneath segment 1346(b)." 338 U. S., at 440 (emphasis delivered). We construed § 2677 "as enforcing at the District Court the authority and obligation for passing on proposed compromises," however the truth that it had discovered that the claimant did not prove the Government worker acted inside the scope of his authority (the 5th detail of § 1346(b) stated above). Id., at 441. See also Hubsch v. United States, 174 F.2nd 7 (CA51949). Our maintaining in the case identified that a claim does now not lose its cognizability really because there was a failure of proof on an detail of the declare. In this situation there was no failure of proof; as a substitute, Meyer s claim does no longer fall in the phrases of § 1346(b) within the first instance.


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    B

    Because Meyer s declare is not cognizable underneath § 1346(b), we have to determine whether FSLIC s sue-and-be-sued clause waives sovereign immunity for the claim. FDIC argues that the scope of the sue-and-be-sued waiver should be restrained to instances in which FSLIC might be subjected to legal responsibility as a personal entity. A constitutional tort declare such as Meyer s, FDIC argues, would fall outside the sue-and-be-sued waiver because the Constitution typically does now not limit the behavior of private entities. In essence, FDIC asks us to engraft a portion of the sixth element of § 1346(b)-liability "under situations in which the United States, if a non-public person, might be liable to the claimant"-onto the sue-andbe-sued clause.

    On its face, the sue-and-be-sued clause incorporates no such trouble. To the opposite, its phrases are simple and broad:

    FSLIC "shall have power ... [t]o sue and be sued, complain and shield, in any court docket of in a position jurisdiction within the United States." 12 U. S. C. § 1725(c)(4) (repealed 1989). In the past, we've identified that such sue-and-be-sued waivers are to be "liberally construed," Federal Housing Administration v. Burr, 309 U. S., at 245, notwithstanding the overall rule that waivers of sovereign immunity are to be read narrowly in favor of the sovereign. See United States v. Nordic Village, Inc., 503 U. S., at 34. Burr makes it clear that sue-and-be-sued clauses can not be limited by implication except there has been a

    "clea[r] display[ing] that positive types of fits aren't constant with the statutory or constitutional scheme, that an implied restriction of the general authority is important to keep away from grave interference with the overall performance of a governmental function, or that for other motives it was it seems that the cause of Congress to use the sue and be sued clause in a narrow experience." 309 U. S., at 245 (footnote omitted).


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    See additionally Loeffler, 486 U. S., at 561; Franchise Tax Bd. of Gal. v. Postal Service, 467 U. S. 512, 517-518 (1984). Absent such a displaying, corporations "legal to sue and be sued are presumed to have absolutely waived immunity." International Primate Protection League v. Administrators of Tulane Ed. Fund, 500 U. S. seventy two, 86, n. eight (1991) (describing the conserving in Burr).

    FDIC does no longer try to make the "clean" displaying of congressional motive essential to triumph over the presumption that immunity has been waived.eight Instead, it bases its argument completely on language in our instances suggesting that federal groups should endure the burdens of healthy borne by way of private entities. Typical of those cases is Burr, which stated that "when Congress launche[s] a governmental company into the industrial global and endow[s] it with authority to sue or be sued, that agency isn't always much less amenable to judicial manner than a private organisation under like instances could be." 309 U. S., at 245 (emphasis introduced). See additionally Franchise Tax Bd., supra, at 520 ("[U]nder Burr no longer only must we liberally construe the sue-and-be-sued clause, but additionally we ought to presume that the [Postal] Service s legal responsibility is the same as that of some other enterprise") (emphasis introduced); Loeffler, supra, at 557 (via a sue-and-be-sued clause, "Congress waived [the Postal Service s] immunity from interest awards, authorizing healing of interest from the Postal Service to the quantity that interest is recoverable in opposition to a private birthday celebration as a everyday incident of in shape" (emphasis introduced)).

    When study in context, but, it's miles clean that Burr, Franchise Tax Board, and Loeffler do now not assist the limitation FDIC proposes. In those instances, the claimants sought to issue the companies to a particular in shape or incident of fit to which personal groups are amenable as a remember of course.

    8 In its brief dialogue of the sue-and-be-sued clause, FDIC does not point out-let alone attempt to triumph over-the presumption of waiver. See Brief for Petitioner 12-thirteen.


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    In Burr, as an example, the claimant, who had obtained a judgment against an employee of the Federal Housing Administration (FHA), served the FHA with a writ to garnish the worker s wages. 309 U. S., at 243, 248, n. eleven. Similarly, in Franchise Tax Board, the claimant directed the United States Postal Service to withhold amounts of antisocial kingdom profits taxes from the wages of 4 Postal Service employees. 467 U. S., at 513. And in Loeffler, the claimant, who turned into discharged from his employment as a rural letter provider, sought prejudgment hobby as an incident of his a success fit in opposition to the Postal Service below Title VII of the Civil Rights Act of 1964, 42 U. S. C. § 2000e et seq. 486 U. S., at 551-552.

    Because the claimant in each of those instances turned into in search of to preserve the business enterprise responsible similar to "every other enterprise," Franchise Tax Board, supra, at 520, it changed into best herbal for the Court to appearance to the legal responsibility of private businesses for guidance. It stood to purpose that the organisation could not break out the legal responsibility a non-public company might face in similar occasions. Here, with the aid of contrast, Meyer does no longer are seeking to keep FSLIC liable just like another commercial enterprise. Indeed, he seeks to impose on FSLIC a shape of tort liability-tort legal responsibility bobbing up under the Constitution-that generally does no longer apply to private entities. Burr, Franchise Tax Board, and Loeffler simply do no longer speak to the issue of sovereign immunity inside the context of the sort of constitutional tort claim.

    Moreover, nothing in those decisions suggests that the legal responsibility of a private company should function the outer boundary of the sue-and-be-sued waiver. Rather, those cases "simply involve[d] a dedication of whether or not or no longer [the particular suit or incident of suit] [came] inside the scope of" the sue-and-be-sued waiver. Burr, supra, at 244. When we decided that the precise match or incident of in shape fell inside the sue-and-be-sued waiver, we regarded to the liability of a non-public employer as a floor underneath which the business enterprise s liability could not fall. In the prevailing case, by way of con-


    483

    trast, FDIC argues that a sue-and-be-sued agency s liability must in no way be greater than that of a non-public entity; that is, it tries to apply the liability of a non-public entity as a ceiling. Again, not anything in Burr, Franchise Tax Board, or Loeffler supports this type of result.

    Finally, we hesitate to engraft language from § 1346(b) onto the sue-and-be-sued clause while Congress, in § 2679(a), expressly set out how the former provision might restrict the latter. As supplied in § 2679(a), § 1346(b) limits sue-and-besued waivers for claims that are "cognizable" below § 1346(b). Thus, § 2679(a) contemplates that a sue-and-be-sued waiver could embody claims no longer cognizable under § 1346(b) and render an employer issue to match unconstrained through the specific obstacles of the FTCA. FDIC s production-taken to its logical conclusion-might no longer allow this end result because it would render coextensive the scope of the waivers contained in § 1346(b) and sue-and-be-sued clauses generally. Had Congress wanted to gain that final results, it actually might not have hired the language it did in § 2679(a). See Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253254 (1992) ("[C]ourts ought to presume that a legislature says in a statute what it manner and way in a statute what it says there"). Because "[n]o showing has been made to conquer [the] presumption" that the sue-and-be-sued clause "completely waived" FSLIC s immunity in this example, Franchise Tax Board, supra, at 520; International Primate Protection League, 500 U. S., at 86, n. 8, we keep that FSLIC s sue-andbe-sued clause waives the company s sovereign immunity for Meyer s constitutional tort claim.

    III

    Although we've got decided that Meyer s declare falls within the sue-and-be-sued waiver, our inquiry does no longer quit at this factor. Here we component approaches with the Ninth Circuit, which decided that Meyer had a motive of action for damages towards FSLIC because there were a waiver of sov-


    484

    ereign immunity. 944 F. 2d, at 572. The Ninth Circuit s reasoning confiates two "analytically wonderful" inquiries. United States v. Mitchell, 463 U. S., at 218. The first inquiry is whether there has been a waiver of sovereign immunity. If there was such a waiver, as in this case, the second inquiry comes into play-that is, whether or not the source of sizeable regulation upon which the claimant is based affords an road for relief. Id., at 216-217. It is to this 2nd inquiry that we now turn.

    Meyer bases his due process claim on our selection in Bivens, which held that an man or woman injured with the aid of a federal agent s alleged violation of the Fourth Amendment might also deliver an action for damages in opposition to the agent. 403 U. S., at 397. In our most recent choices, we've got "responded carefully to tips that Bivens remedies be prolonged into new contexts." Schweiker v. Chilicky, 487 U. S. 412, 421 (1988).nine In this situation, Meyer seeks a extensive extension of Bivens: He asks us to increase the class of defendants towards whom Bivens-type movements may be added to consist of now not simplest federal sellers, but federal groups as well.

    We recognize of no Court of Appeals choice, apart from the Ninth Circuit s beneath, that has implied a Bivens-type purpose of motion directly against a federal business enterprise. Meyer acknowledges the absence of authority assisting his function, however argues that the "common sense" of Bivens would help the sort of remedy. We disagree. In Bivens, the petitioner sued the sellers of the Federal Bureau of Narcotics who allegedly violated his rights, not the Bureau itself. 403 U. S., at 389-390.

    9For instance, a Bivens action alleging a violation of the Due Process Clause of the Fifth Amendment can be appropriate in some contexts, however now not in others. Compare Davis v. Passman, 442 U. S. 228, 248-249 (1979) (implying Bivens motion beneath the identical protection issue of the Due Process Clause inside the context of alleged gender discrimination in employment), with Schweiker v. Chilicky, 487 U. S., at 429 (refusing to imply Bivens movement for alleged due procedure violations in the denial of Social Security incapacity advantages on the floor that a damages treatment turned into now not blanketed in the tricky remedial scheme devised by Congress).


    485

    Here, Meyer delivered precisely the claim that the common sense of Bivens helps-a Bivens declare for damages towards Pattullo, the FSLIC worker who terminated him.10

    An additional problem with Meyer s "good judgment" argument is the reality that we implied a purpose of action against federal officers in Bivens in part because an immediate motion towards the Government became not to be had. Id., at 410 (Harlan, J., concurring in judgment). In essence, Meyer asks us to mean a damages movement based totally on a choice that presumed the absence of that very motion.

    Meyer s real criticism is that Pattullo, like many Bivens defendants, invoked the protection of qualified immunity. But Bivens actually pondered that reputable immunity could be raised. Id., at 397 (noting that "the District Court [had] dominated that ... respondents had been immune from liability with the aid of virtue in their authentic position"). More importantly, Meyer s proposed "answer"-basically the circumvention of certified immunity-might suggest the evisceration of the Bivens treatment, in preference to its extension. It must be remembered that the reason of Bivens is to deter the officer. See Carlson v. Green, 446 U. S. 14, 21 (1980) ("Because the Bivens remedy is recoverable in opposition to individuals, it is a extra effective deterrent than the FTCA remedy against america"). If we were to suggest a damages motion without delay in opposition to federal agencies, thereby allowing claimants to pass qualified immunity, there could be no cause for aggrieved events to deliver damages movements in opposition to individualofficers. Under Meyer s regime, the deterrent outcomes of the Bivens remedy would be lost.

    10 Although not critical to our evaluation, we notice that in addition to the Bivens claim against Pattullo, Meyer to begin with brought a contractual declare against FSLIC, which he later dropped. Meyer also could have filed a declare with FSLIC as receiver for the value of any contractual rights he believed were violated. See 12 U. S. C. § 1729(d) (repealed 1989); 12 CFR §§ 569a.6, 569a.7 (1982); Goit Independence Joint Venture v. FSLIG, 489 U. S. 561, 580-581 (1989).


    486

    Finally, a damages remedy in opposition to federal organizations could be irrelevant even supposing such a remedy have been regular with Bivens. Here, not like in Bivens, there are "unique factors counselling hesitation" within the advent of a damages treatment. Bivens, 403 U. S., at 396. If we have been to recognize a right away action for damages in opposition to federal agencies, we would be developing a probably full-size financial burden for the Federal Government. Meyer disputes this reasoning and argues that the Federal Government already expends substantial assets indemnifying its personnel who are sued underneath Bivens. Meyer s argument implicitly shows that the finances used for indemnification will be shifted to cowl the direct liability of federal groups. That mayor may not be actual, but choices involving" federal financial policy " are not ours to make. Ibid. (quoting United States v. Standard Oil Co. of Cal., 332 U. S. 301, 311 (1947)). We go away it to Congress to weigh the implications of one of these widespread growth of Government liability.ll

    IV

    An extension of Bivens to companies of the Federal Government is not supported by the common sense of Bivens itself. We consequently preserve that Meyer had no Bivens purpose of movement for damages towards FSLIC. Accordingly, the judgment under is reversed.12

    So ordered.

    11 In this regard, we word that Congress has taken into consideration numerous proposals that might have created a Bivens-kind treatment at once against the Federal Government. See, e. g., H. R. 440, 99th Cong., 1st Sess. (1985); H. R. 595, 98th Cong., 1st Sess. (1983); S. 1775, 97th Cong., 1st Sess. (1981); H. R. 2659, 96th Cong., 1st Sess. (1979).

    12 Because we discover that Meyer had no Bivens movement in opposition to FSLIC, we do no longer attain the merits of his due manner declare.

    Oral Argument - October 04, 1993
    Opinion Announcement - February 23, 1994
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