MEMPHIS COMMUNITY SCHOOLS, ET AL., PETITIONERS V. EDWARD J. STACHURA No. 85-410 In the Supreme Court of the United States October Term, 1985 On Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit Brief for the United States as Amicus Curiae Supporting Petitioners TABLE OF CONTENTS Question Presented Interest of the United States Statement Summary of argument Argument: An award of substantial damages for constitutional violations must be based on actual injury, not on the fact-finder's assessment of the intrinsic value of the constitutional rights at stake Conclusion QUESTION PRESENTED Whether the court of appeals erred by approving a jury instruction authorizing the award of substantial damages under 42 U.S.C. 1983 based on the intrinsic value of the procedural and substantive constitutional rights at stake without regard to actual injury. INTEREST OF THE UNITED STATES This case concerns the correct measure of damages under 42 U.S.C. 1983 for alleged violations of constitutional rights. Under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), federal officials may be held liable in many of the same circumstances and to a similar extent as are state and local officials under Section 1983. Since the Court's decision may affect the determination of damages that may be awarded against federal officials for acts committed in the course of their employment, the United States has a clear interest in this case. STATEMENT 1. During the 1978-1979 school year, respondent was a tenured teacher in the Memphis, Michigan Community School District responsible for teaching life science to seventh grade students. In April 1979, respondent showed his students two films concerning human reproduction. These films, which were provided by the county health department, had been shown for a number of previous years in the Memphis schools. Respondent used an approved textbook and the principal had approved his teaching methods. Pet. App. C4-C5. Respondent's presentation of the films prompted a protest by a group of parents. At a regularly scheduled public school board meeting on April 23, 1979, several parents vehemently criticized respondent. In view of the disruptive situation, the superintendent of schools suspended respondent with pay. The school board approved the suspension on May 21 pending further inquiry. On May 29, the superintendent formally reprimanded respondent. The board subsequently advised respondent that his teaching contract would not be renewed unless he accepted the letter of reprimand. Pet. App. C5-C7. 2. a. Respondent commenced this action in the United States District Court for the Eastern District of Michigan, seeking damages under 42 U.S.C. 1983 from petitioners, the school district, the board of education, and various school board members and administrators. /1/ Respondent alleged that petitioners violated his First Amendment right to academic freedom and deprived him of property and liberty interests without due process. /2/ At trial, the district court instructed the jury on damages as follows (J.A. 96): /3/ If you find that the Plaintiff has been deprived of a Constitutional right, you may award damages to compensate him for the deprivation. Damages for this type of injury are more difficult to measure than damages for a physical injury or injury to one's property. There are no medical bills or other expenses by which you can judge how much compensation is appropriate. In one sense, no monetary value we place on Constitutional rights can measure their importance in our society or compensate a citizen adequately for their deprivation. However, just because these rights are not capable of precise evaluation does not mean that an appropriate monetary amount should not be awarded. The precise value you place upon any Constituional right which you find was denied to Plaintiff is within your discretion. You may wish to consider the importance of the right in our system of government, the role which this right has played in the history of our republic, the significance of the right in the context of the activities which the Plaintiff was engaged in at the time of the violation of the right. The jury awarded a total of $266,750 in compensatory damages and $36,000 in punitive damages against petitioners. The great portion of the compensatory award, $233,750, was against the board of education; the remainder of the compensatory damages and all of the punitive damages were against the individual petitioners. Pet. App. A1-A3. /4/ b. The district court denied petitioners' motions for judgment notwithstanding the verdict and for a new trial on damages or a remittitur. Pet. App. B1-B10. The district court found evidence to support respondent's First Amendment claim that petitioners unjustifiably suspended him in retaliation for his teaching methods, which the district court found were entitled to constitutional protection. Id. at B3-B4. The district court also concluded that respondent had a property interest in his employment and a liberty interest in his good name and that there was evidence to show that these interests had been infringed without adequate notice or an opportunity to be heard. Id. at B4-B6. The district court justified its damages instruction on the basis of "the mental anguish, destruction of reputation, and personal humiliation which arguably flowed from the (petitioners') actions." Id. at B8. Finally, the district court concluded that there was sufficient evidence of malice to support the award of punitive damages and that the total award was not excessive. Id. at B7, B8. 3. The court of appeals affirmed primarily for the reasons stated by the district court. Pet. App. C1-C8. With respect to damages, the court of appeals stated (id. at C7): (T)here was ample proof of actual injury to (respondent) Stachura both in his effective discharge by the Memphis Community School District and by the damage to his reputation and to his professional career as a teacher. Contrary to the situation in Carey v. Piphus, 435 U.S. 247 (1978), relied on by (petitioner) School District, there was proof from which the jury could have found, as it did, actual and important damages. The court of appeals concluded that the award was not excessive in light of the embarrassment, harassment, and damage to his career suffered by respondent. Pet. App. C8. SUMMARY OF ARGUMENT In Carey v. Piphus, 435 U.S. 247 (1978), this Court held that substantial damages may be awarded for violations of constitutional rights under 42 U.S.C. 1983 only to the extent of compensating plaintiffs for the actual injury, if any, that they suffered. This rule accords with the Court's consistent understanding that Section 1983 "create(s) 'a species of tort liability.'" Smith v. Wade, 461 U.S. 30, 34 (1983); see, e.g., Imbler v. Pachtman, 424 U.S. 409, 417 (1976). The Court made clear in Carey that under Section 1983, as under tort law generally, the focus in awarding damages must be on the harm to the interests protected by the rights in question, not on the rights themselves. The jury instruction approved by the court of appeals in this case resulted in the award of an extravagant sum of money merely on the basis of the jury's unguided assessment of the intrinsic value of the constitutional rights that were claimed to have been violated. This standardless approach is unfaithful to Carey, grants needless windfalls to plaintiffs, and imposes unjustified and unforeseeable liability on government officials and agencies. "The jury cannot simply be set loose to work its discretion informed only by platitudes about priceless rights." Dellums v. Powell, 566 F.2d 167, 195-196 (D.C. Cir. 1977) (Wright, J.). There is no warrant for limiting the principles enunciated in Carey to violations of procedural due process. The difficulties inherent in granting juries the authority to award substantial damages based on the perceived work of constitutional guarantees rather than on the harm actually suffered by the plaintiffs are present to the same degree when substantive rather than procedural norms have been violated. Presumed damages are inappropriate because actual injury is neither virtually certain to result in every case of a constitutional violation nor incapable of proof where it has occurred. Moreover, even where a presumption of damages might be appropriate, the award should still be designed to compensate the plaintiffs for the injuries that they are assumed to have suffered, not the value of the rights that were violated. The harm resulting where jury awards are not grounded in compensatory principles is amply shown by this case. Although respondent was not deprived of a day's pay and indeed was reinstated to his teaching duties, he was awarded well over a quarter of a million dollars. While the courts below noted various harms that respondent may have suffered, they did not undertake to measure respondent's actual injury or to determine whether those harms were in fact attributable to petitioners' conduct. Even if they had, that was of course a function for the jury in the first instance, to be carried out upon proper instructions. The awards of large sums of money that predictably will follow upon instructions such as the one in this case upset the balance that the Court has carefully crafted between fairly compensating plaintiffs and avoiding unduly chilling government agencies and officials. The award in this case reasonably furthers neither compensatory nor deterrent purposes. The jury instruction on which it was based should be rejected. ARGUMENT AN AWARD OF SUBSTANTIAL DAMAGES FOR CONSTITUTIONAL VIOLATIONS MUST BE BASED ON ACTUAL INJURY, NOT ON THE FACT-FINDER'S ASSESSMENT OF THE INTRINSIC VALUE OF THE CONSTITUTIONAL RIGHTS AT STAKE 1. a. In Carey v. Piphus, 435 U.S. 247 (1978), the Court held that plaintiffs could not recover substantial damages under 42 U.S.C. 1983 for a violation of their right to procedural due process in the absence of proof of actual injury. The Court started from the premise that "'(t)he cardinal principle of damages in Anglo-American law is that of compensation for the injury caused to plaintiff by defendant's breach of duty.'" Id. at 254-255, quoting 2 F. Harper & F. James, Law of Torts Section 25.1, at 1299 (1956) (emphasis in original; footnote omitted). Consistent with this premise, the purpose of an award under Section 1983 is "to compensate persons for injuries caused by the deprivation of constitutional rights." 435 U.S. at 254. The Court's reliance in Carey on the common law tort principle of compensation is in accord with its general understanding of Section 1983 as a statute that "creates a species of tort liability." Imbler v. Pachtman, 424 U.S. 409, 417 (1976). Thus, "(i)n the absence of more specific guidance, (the Court) look(s) first to the common law of torts (both modern and as of 1871), with such modification or adaptation as might be necessary to carry out the purpose and policy of the statute." Smith v. Wade, 461 U.S. 30, 34 (1983); see also, e.g., Pierson v. Ray, 386 U.S. 547, 556 (1967) (citation omitted) (Section 1983 must be "'read against the background of tort liability'"); cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 408-409 (1971) (Harlan, J., concurring in the judgment) (analogizing cause of action for damages under the Fourth Amendment to common law tort actions). As the Court held in Carey, there is no warrant for departing from the common law -- and indeed every reason not to do so -- with respect to the award of damages for constitutional violations under Section 1983. See 435 U.S. at 253-257. In elaborating on the compensation principle in the context of damages for constitutional violations, the Court reasoned in Carey that "(r)ights, consitutional and otherwise, do not exist in a vacuum. Their purpose is to protect persons from injuries to particular interests, and their contours are shaped by the interests they protect." 435 U.S. at 254. Accordingly, the Court held that "the rules governing compensation for injuries caused by the deprivation of constitutional rights should be tailored to the interests protected by the particular rights in question." Id. at 259. The Court refused to allow presumed damages, which it characterized as an "'oddity of tort law,'" for violations of procedural due process. Id. at 262, quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 349 (1974). Rather, the Court held that plaintiffs may recover substantial damages only where they can prove actual injury, which could encompass such harm as emotional distress. Id. at 262. While "essentially subjective, genuine injury in this respect may be evidenced by one's conduct and observed by others." Id. at 264 n.20. An award of substantial damages would therefore be proper, the Court concluded, where the jury was "guided by appropriate instructions" and the damages were "supported by competent evidence concerning the injury." Ibid. Absent proof of actual consequential injury, the Court held that plaintiffs are limited to an award of nominal damages. Through such an award, "the law recognizes the importance to organized society that (certain 'absolute') rights be scrupulously observed; but at the same time, it remains true to the principle that substantial damages should be awarded only to compensate actual injury or, in the case of exemplary or punitive damages, to deter or punish malicious deprivations of rights." 435 U.S. at 266. b. The court of appeals quite plainly departed from this Court's teachings in Carey v. Piphus in affirming the award of damages in this case. The damages instruction directed the jury to assess the value of the constitutional rights at stake and to make its award based on this assessment. Carey teaches, however, that damages must be based not on the rights themselves, which "do not exist in a vacuum," but on the "interests protected by" those rights. 435 U.S. at 254, 259. Rather than focusing the jury's attention on the interests furthered by opportunities for notice and hearing and by a protected zone of "academic freedom," /5/ the district court invited the jury to speculate, in its "discretion," on "the importance of the right(s) in our system of government" and on the "role" that they have "played in the history of our republic." J.A. 96. See also Corriz v. Naranjo, 667 F.2d 892, 897 (10th Cir. 1981), cert. dismissed, 458 U.S. 1123 (1982); Herrera v. Valentine, 653 F.2d 1220, 1227-1229 (8th Cir. 1981). Such speculation is completely foreign to the premises on which compensatory damages are awarded in this country, for the intrinsic importance of the right that was violated bears no necessary correlation to the actual harm, if any, suffered by the plaintiff. /6/ Measuring damages by the intrinsic value of the constitutional rights at stake not only is a wholly inappropriate means of compensating plaintiffs, it would also have significant and sometimes catastrophic consequences both for private defendants who may be sued under Section 1983 or Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), /7/ and for municipalities. See pages 19-20 & note 17, infra. As this Court has recognized, "once the door is opened to * * * inquiries" into the relative importance of a right, "it is difficult to limit their scope in any principled manner." Davis v. Scherer, No. 83-490 (June 28, 1984), slip op. 11. These difficulties are of course exacerbated when jurors, who generally are untrained in the law, are called upon, with no real guidance, to make substantial damages awards based only on their own perceptions of the worth of various constitutional guarantees. Judge Wright has correctly observed that "(t)he jury cannot simply be set loose to work its discretion informed only by platitudes about priceless rights." Dellums v. Powell, 566 F.2d 167, 195-196 (D.C. Cir. 1977), cert. denied, 438 U.S. 916 (1978). /8/ Rather, the instructions must "require the jury to focus on the loss actually sustained by the plaintiffs." Ibid. See also, e.g., Bell v. Little Axe Independent School Dist. No. 70, 766 F.2d 1391, 1416 (10th Cir. 1985) (Barrett, J., dissenting) ("there must be some rational basis to guide jurors in measuring damages"); Hobson v. Wilson, 737 F.2d 1, 61 (D.C. Cir. 1984) (footnote omitted) (the inquiry "must not wander from the quantum of injury to protected interests into a consideration of the 'inherent value' of the constitutional right"), cert. denied sub nom. Brennan v. Hobson, No. 84-1139 (Mar. 25, 1985); Doe v. District of Columbia, 697 F.2d 1115, 1122-1123 (noting the many "problems associated with leaving juries free to guess at the 'inherent value' of constitutional rights"), sep. opinions, 701 F.2d 948 (D.C. Cir. 1983); Freeman v. Franzen, 695 F.2d 485, 492-494 (7th Cir. 1982), cert. denied, 463 U.S. 1214 (1983); Familias Unidas v. Briscoe, 619 F.2d 391, 402 (5th Cir. 1980); Davis v. Village Park II Realty Co., 578 F.2d 461, 463 (2d Cir. 1978). An "intrinsic worth" instruction utterly fails to guide the jury's discretion, and it deprives reviewing courts of any meaningful basis on which to determine whether a particular award was excessive. For all these reasons, the instruction given in this case is deeply flawed. 2. It has been suggested that the principles established by the Court in Carey are limited to allegations of procedural violations and do not apply to damages for violations of substantive constitutional norms. See Corriz v. Naranjo, 667 F.2d at 897; Herrera v. Valentine, 653 F.2d at 1228 (Carey is "specifically limited to its facts"); Konczak v. Tyrrell, 603 F.2d 13, 17 (7th Cir. 1979), cert. denied, 444 U.S. 1016 (1980). Even if valid, this distinction is not a sufficient basis on which to affirm the judgment of the court of appeals, since the jury instruction permitted the award of substantial damages without actual injury even for the alleged violations of procedural due process, in direct contravention of the square holding in Carey. /9/ In any event, the distinction is unsupported by the Court's reasoning in Carey or by considerations of sound policy. See 435 U.S. at 253-259; Hobson v. Wilson, 737 F.2d at 60; Lancaster v. Rodriguez, 701 F.2d 864, 866 (10th Cir.), cert. denied, 462 U.S. 1136 (1983); Doe v. District of Columbia, 697 F.2d at 1123; Freeman v. Franzen, 695 F.2d at 493. The difficulties inherent in permitting juries to roam free, awarding extravagant sums of money on the basis of their perceptions of the importance of various constitutional rights, are no less where the rights are substantive rather than procedural. /10/ Moreover, such a distinction contravenes the principle of compensation that the Court held in Carey must be the foundation for any award of substantial damages under Section 1983 in light of that statute's purpose and legislative history. See 435 U.S. at 254-257. The Court therefore made it abundantly clear in Carey that with respect to violations of any right, substantive or procedural, damages "must be considered with reference to the nature of the interests protected by the particular constitutional right in question." Id. at 265. Thus, the question is not whether the right is an important one and if so, how important, but whether the interests protected by the right justify a presumption of substantial damages. Carey left open the possibility that presumed damages might be appropriate with respect to violations of some substantive constitutional provisions. See 435 U.S. at 265. However, presumed damages may be appropriate only where, at the very least, the nature of the protected interests is such that actual harm to those interests is both "virtually certain" to follow whenever there is a violation and "extremely difficult to prove." Carey, 435 U.S. at 262; see also id. at 264. That is simply not the case here or indeed with respect to the vast majority of interests protected by the Constitution. See, e.g., Lancaster v. Rodriguez, 701 F.2d at 865-866 ("upon a proper showing actual damages, if present, can be established in any constitutional violation case, and can be recovered"). /11/ Actual and provable harm may, but need not, accompany deprivations of procedural due process, as the Court concluded in Carey. 435 U.S. at 262-264 & n.20. The same may be said of those interests in freedom of expression and conscience that are protected by the First Amendment. See, e.g., Bell v. Little Axe Independent School Dist. No. 70, 766 F.2d 1391, 1415 (Barrett, J., dissenting); Hobson v. Wilson, 737 F.2d at 61-62. Cf. Doe v. District of Columbia, 697 F.2d 1115, 1122-1123 (presumed damages not available under Eighth Amendment); Lancaster v. Rodriguez, 701 F.2d at 866 (same). /12/ Where no actual harm has been suffered in cases alleging violations of these rights, plaintiffs are limited to nominal damages under Carey. Some courts nonetheless have concluded that presumed damages are necessary because rights often are violated without causing actual injury and therefore, in the absence of presumed damages, those violations "would remain unredressed." Herrera v. Valentine, 653 F.2d at 1228 n.7. This reasoning is vompletely unpersuasive. In the first place, if actual injury commonly does not accompany constitutional violations, that is an argument against, not for, presumed damages. See Carey, 435 U.S. at 262. Second, in the absence of actual injury, there is no harm to be redressed by an award of substantial damages. /13/ Where the jury wishes to register its disapprobation of the defendant's conduct and to reaffirm the value of the rights in question, it may properly award nominal damages. Id. at 266. Furthermore, as the Court made clear in Carey, presumed damages cannot be justified on deterrence grounds: "To the extent that Congress intended that awards under Section 1983 should deter the deprivation of constitutional rights, there is no evidence that it meant to establish a deterrent more formidable than that inherent in the award of compensatory damages." 435 U.S. at 256-257. There are also other means available to ensure compliance with constitutional norms and to deter future violations, such as equitable relief and punitive damages, id. at 257 n.11, both of which respondent received in this case. /14/ Finally, even if damages might be presumed in certain situations, the appropriate jury instructions still would not be based on the intrinsic value of the rights in question. Rather, the plaintiff simply would be relieved of his burden of proving actual injury, which would be presumed. The appropriate measure of damages would be the harm to protected interests that is likely to have been caused by the defendant's conduct: even presumed damages are at least "purportedly compensatory." Carey, 435 U.S. at 262, quoting Gertz, 418 U.S. at 349; see also 435 U.S. at 265. There is no warrant for the wholly standardless approach approved by the courts below of inviting the jury to speculate in the abstract as to the relative worth of various constitutional guarantees and to award substantial and unforseeable sums of money on the basis of the outcome of that speculation. 3. The mischief that predictably will result if juries are not guided by compensatory principles is well illustrated by this case. Because he was suspended with pay, respondent did not suffer the greatest deprivation that reasonably could be expected to flow from an unconstitutional discharge, i.e., the attendant loss of income. Cf. Cleveland Board of Education v. Loudermill, No. 83-1362 (Mar. 19, 1985), slip op. 11 (footnote omitted) ("(I)n those situations where the employer perceives a significant hazard in keeping the employee on the job, it can avoid the problem by suspending with pay."). Yet the jury -- having been instructed to award damages based on its assessment of the value of the constitutional guarantees of the First and Fourteenth Amendment -- "compensated" respondent with an award of more than a quarter of a million dollars. Even if respondent did, as the courts below concluded, suffer such harms as "mental anguish" (Pet. App. B8; see also id. at C7-C8), it is difficult to conceive of how such an extravagant award could reasonably be related to those injuries. Moreover, not only is the extent of respondent's actual injuries subject to substantial doubt, petitioners' causal responsibility for them is as well. /15/ And even if the award could have been upheld on the basis of the injuries identified by the courts below had the jury been properly instructed, a new trial is nonetheless required because the jury was not properly instructed and therefore was permitted to assess damages not to compensate respondent for his injuries but rather on the erroneous basis of the intrinsic worth of the constitutional rights that were claimed to have been violated. See, e.g., Doe v. District of Columbia, 697 F.2d at 1125; see generally, e.g., City of Oklahoma City v. Tuttle, No. 83-1919 (June 3, 1985), slip op. 13 (plurality opinion); Stromberg v. California, 283 U.S. 359, 367-368 (1931). /16/ Respondent's windfall carries a heavy social cost. This Court has acknowledged "the harsh fact that numerous individual mistakes are inevitable in the day-to-day administration of our affairs." Bishop v. Wood, 426 U.S. 341, 349-350 (1976). Where those mistakes result in an infringement of constitutional interests, this Court has not hesitated to make appropriate remedies available to the wronged party. At the same time, through the development of official immunity, see, e.g., Harlow v. Fitzgerald, 457 U.S. 800 (1982), and limitations on the exposure of local governmental bodies, see, e.g., City of Oklahoma City v. Tuttle, supra; City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), the Court has been solicitous that the threat of substantial liability not unduly chill government agencies and their officials from taking appropriate action in the public interest. The excessive and unpredictable awards that result from a jury instruction such as that approved by the court of appeals, however, will have the unfortunate effect of overdeterring government officials at every level from the vigorous decisionmaking that is appropriate to their exercise of discretion in the public interest. /17/ The Court's decision in Carey maintained a workable balance "(b)y making the deprivation of * * * rights actionable for nominal damages without proof of actual injury, * * * (while) remain(ing) true to the principle that substantial damages should be awarded only to compensate actual injury." 435 U.S. at 266; cf. Owen v. City of Independence, 445 U.S. 622, 657 (1980) (where harm is caused by governmental policy, public must bear "the costs of (the) injury inflicted"). Where actual injury has resulted from a constitutional violation, juries are not and should not be restrained from compensating the plaintiffs upon appropriate proof. But instructing the jury to award substantial damages based on its assessment of the intrinsic worth of the constitutional guarantees at stake is nonsense. The resulting awards will neither fairly compensate the plaintiffs nor provide a reasonable and measured deterrent to public agencies and officials. To the contrary, they will often be simply a thinly disguised form of punitive damages, unrestrained by the immunities and proof and proportionality requirements that properly limit such an extraordinary form of relief. See generally City of Newport v. Fact Concerts, Inc., supra (municipalities immune from punitive damages under Section 1983); Smith v. Wade, 461 U.S. at 51 (punitive damages available under Section 1983 only for "reckless or callous disregard for the plaintiff's rights, as well as intentional violations of federal law"). CONCLUSION The judgment of the court of appeals should be reversed. Respectfully submitted. CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General KENNETH S. GELLER Deputy Solicitor General BRUCE N. KUHLIK Assistant to the Solicitor General BARBARA L. HERWIG LARRY L. GREGG Attorneys DECEMBER 1985 /1/ The jury found in favor of certain of the individual defendants, and they are not before the Court. Respondent also sought damages from two parents who protested his teaching methods. The jury returned a verdict in favor of one of the parents and against the other, Delores Truszkowski. The district court granted judgment notwithstanding the verdict in Truszkowski's favor, and the court of appeals affirmed. Pet. App. B9, C3. Respondent did not cross-petition from this aspect of the judgment. James MacDonald, one of respondent's students, joined him in the action. The jury found for the defendants on his claims, and he did not appeal. Id. at B1, B2. /2/ Pursuant to a consent decree, respondent resumed his teaching duties during the 1979-1980 school year. Br. in Opp. 8-9. /3/ The court also instructed the jury that the award should "reasonably compensate (respondent) for such injury and damage as (the jury found) * * * that he sustained as a proximate result of the (petitioners') violation of his civil rights," and the court directed the jury to consider such injuries as "loss of earning capacity; out-of-pocket expenses; and any mental anguish or emotional distress." J.A. 93, 94. /4/ Including the award of $8,250 in compensatory damages and $10,000 in punitive damages against defendant Truszkowski, who successfully moved for judgment notwithstanding the verdict, see note 1, supra, the total jury award was $275,000 in compensatory damages and $46,000 in punitive damages. /5/ Because the Court limited its grant of certiorari, we assume arguendo that respondent's constitutional rights actually were violated /6/ It would be odd indeed if the jury were instructed in a garden variety battery case, for example, that the plaintiff's compensatory damages were to be based on the value of the right to bodily integrity rather than on his lost earnings, medical expenses, and pain and suffering. Cf. Dellums v. Powell, 566 F.2d at 195. There is no warrant for a completely different approach merely because the source of a particular right is the Constitutional rather than a statute or the common law. /7/ The principles enunciated by the Court in Carey apply equally to Bivens actions against federal employees. Doe v. District of Columbia, 697 F.2d 1115, 1123, sep. opinions, 701 F.2d 948 (D.C. Cir. 1983); see generally Bivens, 403 U.S. at 195 (Harlan, J., concurring in the judgment) (purpose of remedy is to compensate for injury to interests protected by constitutional rights); cf. Harlow v. Fitzgerald, 457 U.S. 800, 818 n.30 (1982) (no distinction between official immunity in Section 1983 actions and in Bivens actions); Butz v. Economou, 438 U.S. 478, 504 (1978) (same). /8/ In Dellums, the court of appeals held that an award of $7,500 -- two orders of magnitude less than the award in this case -- was "totally out of proportion to any harm that (was) suffered" as a result of a violation of First Amendment rights. 566 F.2d at 196. /9/ The district court appeared to suggest that this objection had not been preserved because petitioners did not request separate findings on damages with respect to each of respondent's claims. See Pet. App. B8. However, petitioners' objection to the damages instruction on the basis of Carey (J.A. 98) surely was sufficient to alert the district court to the issue, and in any event the instruction constituted plain error insofar as it applied to respondent's procedural claims. Although respondent alleged violations of both substantive and procedural due process (see J.A. 12), it seems clear from the opinions of the courts below that they considered that only respondent's procedural rights to notice and an opportunity to be heard had been violated. See Pet. App. B6, C8, /10/ There certainly is no basis for concluding that the procedural rights embodied in the Fifth and Fourteenth Amendments are somehow less important or deserving of vindication than are substantive constitutional rights. To the contrary, "(t)he history of liberty has largely been the history of observance of procedural safeguards." McNabb v. United States, 318 U.S. 332, 347 (1943); see also, e.g., Marshall v. Jerrico, Inc., 446 U.S. 238, 243 (1980) (footnote omitted) (noting the "powerful and independent constitutional interest in fair adjudicative procedure"). /11/ In its cases addressing common law actions for wrongful deprivations of the right to vote, such as Nixon v. Herndon, 273 U.S. 536 (1927), the Court "has not considered the prerequisites for recovery" of substantial damages. Carey, 435 U.S. at 265 n.22. /12/ Indeed, in this very case both courts below concluded that the evidence showed actual injuries that respondent had suffered. Pet. App. B8, C7-C8. Settled law would have permitted respondent to recover, on proper instructions, compensatory damages to whatever extent those injuries were attributable to unconstitutional conduct on the part of petitioners. The jury in fact received a substantially correct statement of the law of compensatory damages earlier in the district court's instructions. J.A. 93-94. There was simply no warrant for the additional instruction on the intrinsic value of constitutional rights, which could only have hopelessly confused the jurors to the extent that they considered themselves free, as the instruction authorized, to base the entire award on their own notions of value rather than on the actual harm suffered by respondent. /13/ We note that respondent was never deprived of his income and that he was permitted to resume his teaching duties pursuant to a consent decree, thus drastically limiting whatever actual harm he might otherwise have suffered. /14/ The prospect of liability for attorney's fees in Section 1983 actions "provides additional -- and by no means inconsequential -- assurance that agents of the State will not deliberately ignore (constitutional) rights." Carey, 435 U.S. at 257 n.11. /15/ Neither court below attempted to distinguish those harms that might have been caused by the First Amendment violation from those attributable to the procedural due process violation. Nor did the courts distinguish those injuries legitimately traceable to petitioners' actions from those independently caused by third parties; the "crank phone calls and refuse left on (respondent's) porch," for example, would seem to fall into the latter category. See generally Martinez v. California, 444 U.S. 277 (1980); Williams v. Bennett, 689 F.2d 1370, 1391 (11th Cir. 1982), cert. denied, 464 U.S. 932 (1983). These inquiries should have been performed -- first, of course, by the jury on proper instructions -- in order to provide a proper basis for any award of substantial compensatory damages. /16/ Doe v. District of Columbia is directly on point. There, as here, portions of the instructions suggested that damages should be measured by the actual harm that was suffered, but other parts permitted the award to be based on the value of the rights at stake. 697 F.2d at 1122. The court in Doe held that a new trial on damages was required because "the jury * * * was permitted to award more than liberal compensation for actual harm." Id. at 1125. /17/ We also note the increasing burden being placed on municipalities by the prospect of substantial damages awards and the difficulty and cost of obtaining liability insurance. See, e.g., N.Y. Times, Sept. 30, 1985, at B1; Committee on Local Governments, New York State Assembly, "Deep Pockets" A Study of Municipal Tort Liability 10-11 (1985). See generally City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 270 (1981) (excessive liability exposure for municipalities "may create a serious risk to the financial integrity of these governmental entities").