gainsay that they may be a harbinger of decisions to come.
The conclusions of the preceding paragraph bid us to determine whether, in the legal ambience of this case, a court should exercise its federal judicial power, see Bivens, supra at 402 n. 4, 403 (Harlan, J., concurring), to imply a vicarious damage remedy against a municipality for the actions of its police officials. After analyzing the above-described prerequisites of implication in the present setting, we have concluded that no such remedy against municipalities should be implied.
Addressing first the "necessity" question, we acknowledge our belief that implication of the proposed damage remedy against a municipality could serve a compensatory interest apparently consistent with the overall intent and purpose of the Fourteenth Amendment. Cf. text at note 7, supra. And while we cannot therefore say with any certainty that there is no necessity for implication, we feel constrained to observe that there appears to be no clearly defined need for a federal remedy against a municipality above and beyond available federal remedies against individual municipal employees under § 1983. Certainly the need here is much less than the need for a federal damages remedy against federal agents in Bivens. Accordingly, we have reservations about whether an implied Bivens damage remedy furthers the (identifiable) purpose of the Fourteenth Amendment in an important respect, using the word "important" not in an absolute, but in a relative sense.
Notwithstanding the foregoing discussion, our disinclination to imply a Bivens claim against a municipality is more a function of the appropriateness consideration, though we confess that we elide necessity and appropriateness, a procedure which itself seems appropriate in view of the interrelationship of these concepts. Thus, our decision not to imply, while set against the lack of a clearly defined necessity, stems primarily from our belief that the implication of a damage remedy against a municipality would conflict with the appropriateness considerations which we have defined above, and it is this important point which we now consider.
It is first of all our view that where the Congress has acted to provide a fairly broad remedial scheme, even though it may not be the complete much less the quintessential one, the Congressional undertaking as a whole is entitled to not inconsiderable deference when a court is faced with the question whether to fill lacunae which Congress itself has decided not to fill. Although (1) the legislative history of § 1983 does not clearly preclude a Bivens remedy; and (2) Monroe, Moor, Bruno and Aldinger are distinguishable from the issue at bar (see note 15 supra), the discussion of the history of § 1983, including the celebrated Sherman Amendment, in those cases does demonstrate that Congress at least considered the option of explicitly providing a direct remedy against municipalities before deciding to reject it.
This "deference" oriented aspect of appropriateness is, we think, consistent with Bivens, supra at 397. Cf. id. at 412-13 (Burger, C.J., dissenting).
We also believe that in these particular circumstances, the Congress, given its legislative resources and expertise, is in a superior position to assess empirically the true necessity of the proposed damage action and to measure whether there are serious countervailing factors weighing against such liability. Some such countervailing considerations may be the lessening of deterrence on unconstitutional conduct of employees who are assured in all cases that the city will be liable for their acts, or the possible impact on municipal fiscal integrity if, however desirable policy-wise, a municipality is made a "deep pocket" in all cases (see note 7 supra). Congress, by virtue of its role, is better able to fashion a remedy which can precisely balance a determined level of need with any other factors which may be found cognizable.
To recapitulate, we have considered the following factors: (1) the deference which we believe must be afforded to Congress' decision not to extend § 1983 liability to municipalities; (2) the superiority of Congress' position to define in precise terms the need for municipal liability; (3) the existence of possibly countervailing factors; (4) Congress' superior capacity to balance need with countervailing interests based upon a broad range of information. Taken together, these factors counsel that in the absence of clearly defined need, the implication of the proposed damages remedy is inappropriate.
We deem it important, before concluding, to stress our conviction that the problems with the implication of a damages remedy against a municipal entity based upon the Fourteenth Amendment and § 1331 jurisdiction do not arise in suits for injunctive or declaratory relief, regardless of the exclusions in § 1983. See Hupart v. Board of Higher Education, 420 F. Supp. 1087, 1103 & n. 38 (S.D.N.Y. 1976) (Frankel, J.). But see Pitrone, supra at slip op. pp. 10-11 & n. 14. We do not believe, for instance, that an injunction of the sort issued in Brown v. Board of Education, 347 U.S. 483, 98 L. Ed. 873, 74 S. Ct. 686 (1954), can be undermined. See Patterson v. Ramsey, 413 F. Supp. 523, 528 (D. Md. 1976); cf. Harvard Note at 950-51 n. 146.
Of special importance on this point is the analysis of Justice Harlan in his Bivens concurrence:
[If] a general grant of jurisdiction to the federal courts by Congress is thought adequate to empower a federal court to grant equitable relief for all areas of subject-matter jurisdiction enumerated therein, see 28 U.S.C. § 1331(a), then it seems to me that the same statute is sufficient to empower a federal court to grant a traditional remedy at law. [Footnote omitted.]
403 U.S. at 405. Justice Harlan thus determined that it would be unreasonable to distinguish between the power, in the absence of explicit Congressional declaration, to imply injunctive as opposed to compensatory remedies for constitutional infringements -- for at that basic level courts have the power to do either. It has been urged that once this symmetry has been established it must stand as authority for the proposition that an injunctive remedy and a damages remedy must, in the realm of implication, succeed or fail together. We disagree.
We rescribe, in this regard, our conclusion that our decision does not depend upon a view that there is no judicial power to imply a damage remedy in the circumstances of the cases before us, but rather that it is inappropriate to do so for the reasons we have detailed. Justice Harlan himself observed that the evaluation of appropriateness of equitable relief, in view of its tradition, may differ from an evaluation of the appropriateness of an implied damages remedy:
[The] special historical traditions governing the federal equity system [citation omitted] might still bear on the comparative appropriateness of granting equitable relief as opposed to money damages. That possibility, however, relates, not to whether the federal courts have the power to afford one type of remedy as opposed to the other, but rather to the criteria which should govern the exercise of our power.