Shirley DAVIS, Plaintiff-Appellant, v. Otto E. PASSMAN, Congressman of the United States, Defendant-Appellee

RONEY, Circuit Judge,

concurring:

I concur in the result reached by the majority opinion, but I am constrained to articulate the difference I see between this case, in which I agree that plaintiff has no constitutional damage remedy based on an alleged fifth amendment violation, and the case of Rodriguez v. Ritchey, 556 F.2d 1185 (5th Cir. 1977) (en banc), in which I joined a dissent on the ground that plaintiff there could claim damages against federal officers for an alleged due process violation.

In his concurring opinion in Bivens, Justice Harlan intimated that “the appropriateness of money damages may well vary with the nature of the personal interest asserted.” Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 , 408 n.9, 91 S.Ct. 1999, 2011 , 29 L.Ed.2d 619, 634 (1971) (Harlan, J., concurring). The distinction I find between Rodriguez and the instant case lies in the nature of the personal interest asserted in the “due process” violations alleged. In Rodriguez the plaintiff was indicted, arrested, and held in bail for many months for a crime she knew nothing about and of which she was altogether innocent, because of the allegedly unconstitutional acts and conduct of a federal agent. In dissent, both Judges Coleman and Goldberg, with whom I concurred, held that plaintiff had a Bivens -type damage claim if the agent’s acts were so reckless as to constitute a willful violation of the plaintiff’s “right to remain free of unconstitutional intrusions by governmental agents.” 556 F.2d at 1195 .

To me, there is little distinction between the personal liberty invasion by arrest and indictment in Rodriguez and the personal liberty invasion by the private apartment search, seizure, and arrest in Bivens . Both cases involved the citizen’s right to be let alone by Government agents, unless the agents act within the governmental powers ordained by the Constitution. The Constitution gave limited power to the Government it created. Without a constitutional base, no individual has the legal authority to act against another individual in- the name of Government. Some governmental powers are specifically given, but to make absolutely sure that certain powers not given would not be read into the Constitution by overzealous Government officers, either executive, congressional, or judicial, there is a list of “shall nots” in the Bill of Rights. Many of the individual rights enumerated there were neither “created” nor “given” by the Constitution, but rather were recognized as being inherent rights of individuals long before the summer of 1787. The fram *803 ers’ approach to those rights in the written Constitution was to try to assure they would remain forever free of governmental intrusion.

Such were the fundamental rights at stake in Bivens and Rodriguez . Even before the drafting of our Bill of Rights, plaintiffs Bivens and Rodriguez had an inherent right to be free from the type of intrusions they suffered. The constitutional amendments — in Bivens , the fourth, and in Rodriguez , the fifth — merely protected those rights by specific prohibition against encroachment. I saw Rodriguez as being controlled by Bivens and would have there held that the case law provided plaintiff Rodriguez with a damage remedy, a damage remedy rooted in preconstitutional notions of tort law.

In this case, however, no similar right is at stake. The defendant has not intruded upon a liberty interest with preconstitutional origins. Historically, employers had an inherent right to hire and fire whom they pleased, for whatever reason, arbitrarily, with no need to account to anyone for their actions, except perhaps to their conscience and their God, and for governmental employers, to their voters. This understanding of the employer-employee relationship prevailed when the Constitution was drafted and, indeed, formed the basis for decisions of the United States Supreme Court in this century. See Adair v. United States, 208 U.S. 161 , 28 S.Ct. 277 , 52 L.Ed. 436 (1908); Coppage v. Kansas, 236 U.S. 1 , 35 S.Ct. 240 , 59 L.Ed. 441 (1915). Under this early theory, Ms. Davis had no right to be hired in the first place, and if hired, held her job subject to the whim of the individual who had the power to hire and fire.

But the Constitution has allegedly given her a right not to be fired on the basis of her sex. This right is not, however, a protected inherent right, but a right “created” by the Constitution, a right which in fact encroaches upon what was historically viewed as an inherent right of her employer.

Now the question is, Where does one find the roots for a damage remedy for a violation of this right so recently discovered in the recesses of the fifth amendment?

The dissenting opinion of Judge Goldberg repeatedly invokes the oft-quoted dictum that “where legal rights have been invaded, and a federal statute provides for a general right to sue for any such invasion, federal courts may use any available remedy to make good the wrong done.” Bell v. Hood, 327 U.S. 678, 684 , 66 S.Ct. 773, 777 , 90 L.Ed. 939, 944 (1946), quoted in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 396 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971). It is interesting to note, however, that the author of that statement, Justice Black, dissented in Bivens on the ground that “neither Congress nor the State of New York [had] enacted legislation creating . a right of action [for damages].” 403 U.S. at 428 , 91 S.Ct. at 2020 . (Black, J., dissenting).

The people, by both Constitution and statute, can and often do create rights for which they provide either no remedy or a restricted remedy for the violation thereof. In analyzing such rights, the courts are not entirely free to afford remedies which have not been provided by the creator of the rights. Thus, to me, Judge Clark makes a necessary analysis to determine whether a damage remedy is rooted in the document which created the violated right. Here we find the relevance of the analysis provided in Cort v. Ash, 422 U.S. 66 , 95 S.Ct. 2080 , 45 L.Ed.2d 26 (1975). To me also, this is where I part from Judge Goldberg, with whom I joined in Rodriguez .

The majority opinion does not “cut back” on Bivens . The underlying facts and concept of Bivens , by themselves, simply do not cover the rights asserted in this case. The question, then, is not whether Bivens applies, but whether the courts will infer from the Constitution itself a damage remedy for the violation of the kind of due process right here claimed. For here, a damage remedy must be rooted in the document— the Constitution — which created the violated right, or a subsequent statute, since there is no preconstitutional source for it.

*804 This gets down to the real difference between the majority and the dissent, in my view. Bivens can easily be grounded on the premise that courts may remedy the unlawful violation of constitutionally “protected” individual rights. But it will better satisfy the revered concept of Government “by the people” if the rights “created” by Constitution or statute are remedied in only those ways that can safely be inferred from the creating documents.

Bivens , which produced five separate opinions, was not an easy decision. Lower courts probably disserve the law by carrying obviously difficult, narrow, limited decisions of the Supreme Court far beyond their intended reach. Such judicial activity subverts a major objective of law in an organized society: to provide certainty for human action. The majority of this Court has shown precisely the restraint required. If the people, through their elected officials, choose to provide the remedy sought here, so be it; but until then the courts, through their appointed judges, should not require it.

It is impossible to completely align the cases in such a way as to support the distinction made here between Bivens and Rodriguez , and this case. But so is it impossible to line up the cases to support any other logical Bivens premise. There is a bit of symmetry, however, if we look only at the facts of the cases, and the results, and disregard the verbalization of principles in the written opinions. In the purest sense, the facts and the result are the precedent from which stare decisis should flow anyway.

As the Supreme Court held in Bell v. Hood, 327 U.S. 678, 681-82 , 66 S.Ct. 773 , 90 L.Ed. 939 (1946) federal question jurisdiction, as opposed to a federally recognized right of relief, is created by the mere allegation of matters in controversy arising under the Constitution or laws of the United States. Most of the circuit court cases dealing with Bivens-type claims in constitutional areas other than the fourth amendment have decided only the federal jurisdiction question. Dicta aside, these cases have merely found allegations of constitutional violations to be sufficiently substantial to ground federal jurisdiction under 28 U.S.C.A § 1331. This is altogether different from inferring a Bivens -type damage remedy from the constitutional provisions asserted. See, e. g., Weir v. Muller, 527 F.2d 872 (5th Cir. 1976); Lewis v. District of Columbia Dept. of Corrections, 174 U.S.App.D.C. 483 , 533 F.2d 710 (1976).

Indeed, the only cases cited by the dissent as extending Bivens beyond the fourth amendment to the due process rights of discharged employees were not Bivens remedy cases. In Gentile v. Wallen, 562 F.2d 193 (2d Cir. 1977) the Second Circuit held that a claimed denial of due process by a discharged elementary school teacher stated a cause of action arising directly under the fourteenth amendment. On the question of remedies, however, the court stated: “Whether money damages are available under this cause of action or only equitable relief . . . is a question of remedies that we need not reach . . . .” Id. at 197 n.4 (citation omitted). Since the power of federal courts to grant equitable relief for violations of constitutional rights was recognized prior to Bivens , the Gentile court did not really advance the march of Bivens into the area of fifth amendment rights. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 400 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971) (Harlan, J., concurring); Bell v. Hood, 327 U.S. 678, 684 , 66 S.Ct. 773 , 90 L.Ed. 939 (1946).

Likewise, in Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977), the Eighth Circuit held that a discharged city employee was entitled to monetary relief in the nature of backpay for violation of fourteenth amendment due process, but was careful to emphasize that it was discussing “only an equitable remedy . . . Id. at 933 n.9 and 940.

Cases in which circuit courts have inferred a Bivens -type damage remedy from constitutional amendments other than the fourth have varied widely in their facts, but have generally involved an intrusion into a liberty interest having preconstitutional ori *805 gins. For example, the first amendment did not “create” the right to express one’s views free from unlawful governmental intrusion; it merely protected an already present right from governmental interference.

Dellums v. Powell, 566 F.2d 167 (D.C.Cir. 1977) (speakers and demonstrators unlawfully arrested by District of Columbia police during 1971 “May Day” demonstration have cause of action for damages arising directly under first amendment); Paton v. LaPrade, 524 F.2d 862 (3rd Cir. 1975) (Bivens-type damage remedy for violation of first amendment rights available to 16-year-old school student who was investigated by FBI after sending off for literature from Socialist Workers Party in connection with her social studies class);

Yiamouyiannis v. Chemical Abstracts Service, 521 F.2d 1392 (6th Cir. 1975) (complaint alleging that because of anti-fluoridation speeches made by plaintiff, Department of Health, Education and Welfare coerced plaintiff’s employer to fire him stated a Bivens-type damages action for violation of first amendment rights).

Nor did the due process clause of the fifth amendment “create” a right in the individual to be free from deprivation of liberty and property interests; it merely provided that government encroachment would be constitutional only if it followed the criteria therein provided.

Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928 (9th Cir. 1977) (allegation that certain zoning ordinances enacted by agency operating under federal law effectuated a “taking” of plaintiff’s land states a Bivens -type damage claim arising directly under the fifth amendment);

States Marine Lines, Inc. v. Shultz, 498 F.2d 1146 (4th Cir. 1974) (unlawful seizure of plaintiff’s property by Customs agents gives rise to a Bivens-type damage action arising directly under fifth amendment); United States ex rel. Moore v. Koelzer, 457 F.2d 892 (3rd Cir. 1972) (allegations that FBI agents falsified documents and testified falsely in order to convict plaintiff state cause of action for damages arising directly under fifth amendment).

These fundamental rights, unlike the liberty interest asserted by Ms. Davis, are not “created” by the Constitution but are inherent in the individual, either absolutely “protected” by the framers from encroachment by the Government, or “protected” to the extent provided in the Constitution.

In sum, a claim for damages should not be foreclosed merely because it arises out of a fifth amendment violation, rather than a fourth, but should be considered on the basis of the personal interest asserted. The remedy sought for the personal interest asserted by Ms. Davis cannot be infused into the Constitution without unduly burdening the reasoning with the hope, faith, and personal preference of the reasoner. Therefore, I would affirm the district court.