finding damage remedy inappropriate for a violation of the fifth amendment due process clause
How later courts described this case
- finding damage remedy inappropriate for a violation of the fifth amendment due process clause
- facing the Bivens issue whether, and under what conditions, a cause of action should be implied from the Constitution
- relying on Cort factors as basis for denying private action under Fifth Amendment
- no right of action may be implied from the Due Process Clause of the fifth amendment
Written by the judges who cited it.
The opinion
JONES, Circuit Judge,
specially concurring:
Given these consequences and our inability to construct a plausible measure for acceptable limits on the right of action Davis would have us imply to remedy the wrong alleged, we refuse to take even a first step down the slippery slope until the Supreme Court answers the open question of whether any such right should exist. Because no right of action may be implied from the Due Process Clause of the fifth amendment, the district court correctly ruled that no civil action for damages may be maintained here. Absent such a right of civil action, the district court cannot exercise jurisdiction under 28 U.S.C.A. § 1331 (a), which confers jurisdiction only for “civil actions wherein the matter in controversy . . arises under the Constitution ... of the United States.” To the extent that Weir is inconsistent with this position, it is overruled. Our affirmance on the jurisdictional ground means we do not reach Davis’ second contention. Therefore, we vacate the district court’s decision on the ground that Pass-man’s conduct in firing her did not violate the Constitution.
The judgment of the district court is
AFFIRMED IN PART, AND IN PART VACATED.
If there is a constitutional barrier against the exercise of the judicial power to decide the controversy between Mrs. Davis and Mr. Passman then, so I believe, that bar should be raised rather than denying relief because the Congress has failed to enact legislation providing a remedy.
I do not believe that the constitutional provisions here pertinent are to be confined to the Speech and Debate clause. 1 The broader provision by which all legislative powers are vested in the Congress 2 is relevant to this cause. It might be said that •the doctrine of inclusio unius est exclusio alterious permits or requires a construction that a Congressman may be judicially questioned for any and all else that a Congressman might do in the exercise of the legislative power except in speech or debate. Obviously the Constitution has no such meaning. We may remind ourselves of Chief Justice Marshall’s reminder as to constitutional construction. 3
In no small measure the genius of the Founding Fathers in framing that most wonderful work ever struck off by man 4 is the separation of powers among the three branches of government. Although the' need for checks and balances requires that no one of the departments shall be wholly unrelated to each of the others 5 the essential functions of each are, by the terms of the instrument, separate from those of the others. 6
Notwithstanding the Gravel 7 and Brewster 8 cases and Senator Ervin’s critical *802 comments upon them 9 the doctrine of separation of powers survives.
It is not necessary to say that all of the activities of the members of a Congressman’s staff are legislative. It will not be said that they are not so in large measure. Their activities are as many and as varied as those of the members served by them. It has been well stated that “the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos . . . ” Gravel v. United States, supra, 408 U.S. at 616-17, 92 S.Ct. at 2623.
It seems to me the court held that judicial relief is denied because the Congress has failed to provide a judicial remedy. Rather I think the court should say that the hiring and firing of his “alter ego” is a legislative activity and a part of the exercise of the legislative power. The question is not one of whether there is a judicial remedy. The question, as I see it, is whether or not the controversy is one involving the exercise of the legislative power and within the jurisdiction of the Congress. Let it decide whether there should be absolute immunity. Let it determine whether there is a right and if so to fashion a remedy and designate a tribunal to declare and enforce it. I think it should have been held that the complaint does not state a claim upon which relief can be granted.
. The Senators and Representatives . . . for any speech or debate in either House . . shall not be questioned in any other place. U.S.Const. Art. I, § 6(1).
. U.S.Const. Art. I, § 1.
. “We must never forget that it is a constitution we are expounding.” McCulloch v. Maryland, 4 Wheat. (17 U.S.) 316, 4 L.Ed. 579 (1819)
. William E. Gladstone, 127 North American Review 179 (Sept. — Cot. 1878).
. J. Madison, The Federalist, No. XLV11I (1852 ed.).
. It may be appropriate to take note of a recent comment of the Attorney General that although the Constitution and statutes provide that the President shall nominate and by and with the advice and consent of the Senate shall appoint federal judges and U.S. attorneys the reality is that "the Senate nominates and the President confirms persons to fill those offices.” Griffin B. Bell, Washington Post, February 27, 1978.
. United States v. Gravel, 408 U.S. 606 , 92 S.Ct. 2614 , 33 L.Ed.2d 583 (1972).
. United States v. Brewster, 408 U.S. 501 , 92 S.Ct. 2531 , 33 L.Ed.2d 507 (1972).
. Sam J. Ervin, Jr., The Gravel and Brewster cases: An Assault on Congressional Independence, 59 Va.L.Rev. 175 (1973).