We note that even if the limitations period commenced with the
plaintiffs' first discovery of evidence in the spring of 1974, we
would hold that since the denial in 1976 of the motion to amend
and join these defendants was without prejudice, that motion is
subject to renewal and was sufficient to toll the statute of
limitations. We will therefore permit the plaintiffs to join the
proposed individual federal defendants.*fn5
There are two methods for proceeding against individual federal
officials for violations of a plaintiff's constitutional rights.
First, if the federal officials acted in complicity with the
state officials, and the injury to the plaintiffs was perpetrated
under color of state law, the federal officials are subject to
suit under 42 U.S.C. § 1983. Hampton II, 600 F.2d at 623.
Second, if the conduct of the federal officials was independent
of the state actors, and was in violation of the Constitution,
plaintiffs may bring an action based directly upon the section of
the Constitution violated by the federal defendants. Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics,
403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
These causes of action do not overlap. To the extent that the
allegedly illegal actions of the federal officials were carried
out under color of state law, § 1983 provides an adequate and
exclusive remedy. Where an adequate statutory remedy exists,
there is no need to imply the existence of a constitutional cause
of action. See Neely v. Blumenthal, 458 F. Supp. 945 (D.D.C.
1978). See also Thedford v. Joyce, No. 79 C 3061, Slip Op. at 6
(N.D.Ill. June 8, 1980), and cases cited therein. However, since
§ 1983 does not apply to those actions of the federal
officials which were not done in complicity with the state
officials, plaintiffs may assert a Bivens action against the
federal defendants for any conduct which does not fall within the
ambit of the statutory remedy.
Although the facts asserted in the proposed amendment clearly
allege that the federal officials participated in a violation of
the plaintiffs' constitutional rights, plaintiffs fail to specify
the particular jurisdictional base for their cause of action. It
is difficult to discern from this rambling, conclusory and
narrative amendment precisely what if any of the conduct of the
federal officials is alleged to have been independent of the
state actors, and what if any of their conduct was done in
complicity with the state actors. Although we would guess from
the earlier proceedings in this case that plaintiffs allege that
all the injurious conduct of the federal officials was done in
complicity with the state actors, and therefore § 1983 will
be the exclusive basis for our jurisdiction over these federal
defendants, plaintiffs should redraft their amendment, stating
specifically the grounds for this court's jurisdiction and the
conduct which gives rise to this jurisdiction in light of the
above discussion. See p. 150 infra.
(B) FBI, DOJ and the United States
Plaintiffs seek to join certain federal agencies and the United
States as defendants in this action. For reasons discussed supra
at pp. 143-145 and pp. 145-146, the statute of limitations
presents no bar to the joinder of these parties. However, we hold
that sovereign immunity bars this court from asserting any
jurisdiction over these parties and accordingly deny plaintiffs
leave to join the FBI, the DOJ and the United States as
We note at the outset that despite plaintiffs' argument to the
contrary, a suit against a federal agency for money
damages is tantamount to an action against the United States
itself, since any damages would be paid from the Treasury of the
United States. See Monell v. Dept. of Social Services,
436 U.S. 658, 690 n. 55, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978); 1
Moore's Federal Practice, ¶ 0.65[2-1] at p. 700.94. Compare
Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662
(1974). Just as the United States cannot be sued eo nomine
without its express consent, the unincorporated departments and
agencies of the federal government cannot be sued eo nomine
unless Congress has explicitly or impliedly denominated the
agency as amenable to such suits. Blackmar v. Guerre,
342 U.S. 512, 72 S.Ct. 410, 96 L.Ed. 534 (1951); Benima v. Smithsonian
Institution, 471 F. Supp. 62, 66-67 (D.Mass. 1979); Moore's,
supra, at pp. 700.87-.88.
Although plaintiffs do not specify any specific basis for this
court's jurisdiction in their proposed amendment, a reading of
Plaintiffs' Brief at p. 2 n. "* *" reveals that their claims are
brought directly under the Constitution, and pursuant to
42 U.S.C. § 1981 et seq., against the FBI and DOJ.
(1) Section 1983
In support of their argument for jurisdiction over the United
States under § 1983, plaintiffs argue that the policy
underlying the Supreme Court's decision to subject municipalities
to suit under § 1983 in Monell and Owen v. City of
Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673
(1980), justifies waiving the sovereign immunity of the United
States in this action, particularly since the federal government
acted in complicity with the City.
The Supreme Court's decision to deny the immunity from suit
under § 1983 formerly enjoyed by municipalities under Monroe v.
Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), was based
upon a close reexamination of the legislative history of the
Civil Rights Act of 1871 and recognition that municipalities have
never enjoyed immunity of the scope to which states are entitled
under the Eleventh Amendment. The Court found that Congress had
intended that municipalities be considered "persons" for the
purposes of § 1983; the issue in Monell was not whether the
protections afforded citizens under § 1983 should take precedence
over sovereign immunity. The holding in Monell was "limited to
local government units which are not considered part of the State
for Eleventh Amendment purposes." 436 U.S. at 690 n. 54, 98 S.Ct.
at 2035. The limited scope of Monell was later recognized in
Quern v. Jordan, 440 U.S. 332, 338-40, 99 S.Ct. 1139, 1143-1144,
59 L.Ed.2d 358 (1979), where the Court held that states and state
agencies are immune from suit under § 1983.
The reasoning in Quern is directly analogous to the question of
federal immunity presented in this case. Quern cites with
approval the decision in Tenney v. Brandhove, 341 U.S. 367, 376,
71 S.Ct. 783, 788, 95 L.Ed. 1019 (1951), that Congress did not
intend to infringe upon the sovereign immunity of either the
federal or the state governments when passing the Civil Rights
Act of 1871. 440 U.S. at 340-45, 99 S.Ct. at 1144-1147. Compare
42 U.S.C. § 2000e-2 et seq. (Title VII of the Civil Rights
Act of 1964), where Congress expressly held states amenable to
suit for employment discrimination. As stated in Tenney and Quern
there is absolutely no evidence in the legislative history that
Congress intended to overrule the sovereign immunity of the
federal government when § 1983 was passed. Not only are
plaintiffs unable to cite any case in which the United States has
been sued under § 1983 even where there has been complicity
with state actors, but plaintiffs cite no case, and we find none,
in which Monell has been extended to governmental bodies other
than local governments. We thus reject plaintiffs' argument that
we have jurisdiction over the United States under § 1983 on
the basis of Monell and Owen.
(2) The Constitution
Plaintiffs next argue that jurisdiction can be asserted over
the United States under the substantive provisions of the
Constitution itself.*fn6 They argue that the violation of any
constitutional provision by the federal government automatically
creates a cause of action against the United States; if this were
not so, the victim would have a right without a remedy.
Therefore, plaintiffs conclude that violations of the Fourth or
Fifth Amendments are sufficient in themselves to confer
jurisdiction upon this court over the federal government.
Although this theory has been accepted by the Supreme Court
where plaintiffs have sought money damages from federal agents
sued as individuals for violations of a plaintiff's Fourth
Amendment constitutional rights, Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971), this argument has been rejected when
the defendant named in the suit or the real party in interest was
a federal agency or the United States itself. United States v.
Testan, 424 U.S. 392, 96 S.Ct. 948, 47 L.Ed.2d 114 (1976).
The United States, as sovereign, "is immune from suit save as
it consents to be sued . . . and the terms of its consent to be
sued in any court define that court's jurisdiction to entertain
the suit." United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct.
767, 85 L.Ed. 1058 (1941). In Testan, the Court held that, "In a
suit against the United States, there cannot be a right to money
damages without a waiver of sovereign immunity, and we regard as
unsound the argument . . . that all substantive rights of
necessity create a waiver of sovereign immunity such that money
damages are available to redress their violation." (Emphasis
supplied). 424 U.S. at 400-01, 96 S.Ct. at 954.
Plaintiffs cite Larson v. Domestic and Foreign Commerce Corp.,
337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1948), Wounded Knee
Defense/Offense Committee v. FBI, 507 F.2d 1281 (8th Cir. 1974),
and Schlafly v. Volpe, 495 F.2d 273 (7th Cir. 1974), as examples
of cases in which courts have entertained suits against the
sovereign. However, these cases do not stand for the proposition
that district courts have jurisdiction over claims for money
damages when the sovereign has not consented to suit.
In Larson, the Court held that when a suit brought against a
federal official seeks relief which would involve the disposition
of the property of the United States, the real party defendant in
interest is the United States. Sovereign immunity bars such suits
unless (1) the conduct of the federal official was ultra vires
his authority and therefore not the act of the sovereign, and
these actions are the object of specific relief; or (2) the
statute or order conferring power upon the federal official is
claimed to be unconstitutional. The Court immediately qualified
this holding in what has been termed the "famous and debatable
Of course, a suit may fail, as one against the
sovereign, even if it is claimed that the officer
being sued has acted unconstitutionally or beyond his
statutory powers, if the relief . . . will require
affirmative action by the sovereign or the
disposition of unquestionably sovereign property.
337 U.S. at 691 n. 11, 69 S.Ct. at 1462.