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 from
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 offense to be twice put in jeopardy of life or limb.”
U.S. CONST. AMEND. V. It provides protection from both multiple
prosecutions and multiple punishments for the same offense. Id. at
348. Only the protection from multiple punishments is before us in
the instant case.
The Supreme Court has held that certain civil sanctions may
constitute “punishment” 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 Halper, the Court
1
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
held that if either retribution or deterrence is a purpose of such
a civil sanction, then it is punishment. Halper, 109 S.Ct. at
1901-02.2 We refer to this purpose-oriented test as the Halper
punishment test. Reyes argues that the imposition of a criminal
punishment for his drunk driving would be a second punishment
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 the 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 suspended Reyes at least
partially for a deterrent purpose does not end our inquiry. The
2
Halper 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 . . . ." Halper, 109 S.Ct. at 1902 (emphasis added).
The Halper opinion then precedes to restate its holding,
characterizing 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’Connor, 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 was to be gained by deterring Reyes (and possibly
others) from driving while intoxicated on Kelly AFB.
3
question facing us, which is one of first impression in this
Circuit, is whether literal application of the Halper 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-imposed
4
This Circuit has applied the Halper punishment test outside
the context of civil fines. See, 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 previously
“punished” by the placement of his savings and loan association
(S&L) in receivership. Woods, 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. Id. 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 Halper
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); United 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 least four circuits have refused to extend the Halper
punishment test to certain other contexts. See United States v.
Stoller, 78 F.3d 710, 717 (1st Cir. 1996)(applying totality of
circumstances test——instead of Halper test——to 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 time credits and transfer to a higher security
facility does not constitute a double jeopardy bar to subsequent
prosecution 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. United States
v. Galan, No. 95-30491, slip op. 3412 (5th Cir. April 25, 1996).
4
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 employee discipline does not constitute
punishment for purposes of the Double 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 deterrent
See also United States v. Brown, 59 F.3d 102, 103-05 (9th Cir.
1995).
5
See, 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. Payne, 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. Payne, 2 F.3d at 707-08; Reed, 937 F.2d at
575-76. The Reed 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 constitute
punishment under the Double Jeopardy Clause could lead to the
“absurd result” of law-breaking employees forum-shopping (i.e.
trying to get disciplined 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. See 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
purpose, 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 Double Jeopardy Clause is a “restraint on governmental
power.” United States v. Sanchez-Escareno, 950 F.2d 193, 197 (5th
Cir. 1991), cert. denied 113 S.Ct. 123 (1992). “In order for the
Double Jeopardy 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.” United 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 receivership); see also Sanchez-
Escareno, 950 F.2d at 200 (noting that Halper punishment test would
apply to civil fines). And we have declined to apply the Halper
punishment test to civil sanctions imposed by a governmental
entity, the Resolution Trust Corporation, acting in its “unique
non-governmental role” as receiver of failed financial
institution——instead of in its role as sovereign. Beszborn, 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 Beszborn
6
reasoning). 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.” Bush 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 Connick v. Meyers, 103
S.Ct. 1684, 1690 (1983), for example, the Court made it clear that
the First Amendment did not protect governmental employees from
even unreasonable adverse employment 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 punish its
employees for the same speech if it is not of public concern. See
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. See 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 applying
7
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 employer. For
example, the governmental employer is constitutionally prohibited
from discriminating on grounds of race. Likewise, the governmental
employer is subject to certain constitutional due process
restrictions in terminating employees having a property interest in
their positions, restrictions that are not constitutionally imposed
on the private employer. See Cleveland Board of Education v.
Loudermill, 105 S.Ct. 1487 (1985). There are, of course, other
examples. See, e.g., Von Raab; Ortega. These restrictions,
however, protect the governmental 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 or
6
Reyes never contested or challenged his suspension. Cf.
United States v. Schinnell, Nos. 94-11155 & 95-10213, slip op. 3075
(5th Cir. April 9, 1996).
8
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 generally 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 Jeopardy 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 Clause 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 treatises by Sir Edward
9
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
jeopardy doctrine was “clearly delineated as a purely criminal
concept serving as a protection against the state . . . .” Id. 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
discipline 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. Id. at 30 (citing 1 Annals of Cong. 753).
And the Senate initially adopted a clause applying only to “public
prosecution.” Id. at 31. Though the “public prosecution” language
was dropped, neither 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 government acts as
sovereign (instead of as an employer) when it sanctions its
employees for off-duty behavior, Reyes’ constitutional claim still
must fail.
10
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 employer. 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 minor
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
without pay of one of its employees constitutes punishment under
the Double Jeopardy Clause if that action is taken on account of
the employee’s non-work-related conduct.7
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 foreordained. 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
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
8
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 purposes of the Double
Jeopardy Clause.” The Ursery opinion is not directly on point, as
it gives heavy emphasis to the in rem nature of the forfeitures
there at issue, and distinguishes Halper and Kurth 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, Ursery 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.” Ursery at *8. Also, Ursery refers to the line of cases
exemplified by Halper as involving “potentially punitive in
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 coercive powers. Finally, we observe that Ursery
plainly indicates that merely because a sanction may have a
deterrent purpose does not necessarily mean that it is a punishment
for double jeopardy purposes, particularly where it “has not
historically been regarded as punishment,” id. at *16, as is
certainly the case with the employee suspension here.
12
United States v. Reyes
Court: Court of Appeals for the Fifth Circuit
Date filed: 1996-06-27
Citations: 87 F.3d 676
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