Petition — Davis v. Passman

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

78-5072

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978 RECEIVED

JUL 1 71978

OFFICE OF THE CLERK

SHIRLEY DAVIS, Petitioner, SUPREME COURT, U.S.

v. “r_

OTTO E. PASSMAN, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

SANA F. SHTASEL

PETER BARTON HUTT

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

Of Counsel:

COVINGTON & BURLING

888 Sixteenth Street, N.W.

Washington, D.C. 20006

July 1978

Table of Contents

Pane Gee 6 sk el we 8 ee we ee ee

JURISDICTI

QUESTIONS

CONSTITUTI

ON .

PRESENTED.

ONAL AND STATUTORY PROVISIONS

INVOLVED .

STATEMENT

REASONS FO

TI.

OF THE CASE.

R GRANTING THE WRIT.

The Decision Below Misconstrues the

Leading Opinion of This Court, Conflicts

with the Decisions of Nine Other Courts

of Appeals, and Eviscerates a Fundamental

Guarantee of the Bill of Rights.

The Legislative Immunity Provided By

The Speech or Debate Clause Does Not

Protect Respondent From Suit .

CONCLUSION .

Appendix A

Appendix B

Appendix C

Appendix D

Appendix E

- Opinion of the Court of Hasire

En Banc ‘

Opinion of the Panel of the

Court of Appeals

Opinion and Judgment of the

District Court

Order Granting Petition for

Rehearing and Rehearing En Banc.

- Judgment of the Court of ee

on Rehearing En Banc

> ae a

Table of Authorities

CASES:

Ammond v. McGagh, 390 F. Supp. 655 (D.N.J. 1975),

rev'd on other grounds, 532 F.2d 325 li Gir.

SOTeGs Sh 4 a. See é

Bennett v. Campbell, 564 F.2d 329

(9th Cir. 1977). si ; ‘

Bethea v. Reid, 445 F.2d 1163 (3d Cir. 1971),

cert. denied, 404 U.S. 1061 (1972) “es ee

Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics,

ie Win es oes ee ltl tt

Bolling v. Sharpe, 347 U.S. 497 (1954)

Butler v. United States, 365 F. Supp. 1035

(D. Hawaii 1973) EE. 6. « *

Butz v. Economou, 46 U.S.L.W. 4952 (U.S. June 29,

1978)

Califano v. Goldfarb, 430 U.S. 199 (1977)

Cannon v. University of Chicago, 559 F.2d 1063

(7th Cir. 1977), cert. granted, 46 U.S.L.W.

3803 (U.S. July 3, 1978) (No. 77-926)

Cort v. Ash, 422 U.S. 66 (1975)

Davis v. Passman, 544 F.2d 865 (5th

Cir. 1977) eee ie Me

Davis v. Passman, 571 F.2d 793

(Sth Cir. 1978) (en banc)

Dellums v. Powell, 566 F.2d 167 (D.C.

Cir. 1977), cert. denied, 46 U.S.L.W. 3803

(U.S. July 3, 1978) (No. 77-955)

District of Columbia v. Carter, 409 U.S. 418

Bg» OES ge ee ee ee

Doe v. McMillan, 412 U.S. 306 (1973)

Dombrowski v. Eastland, 387 U.S. 82 (1967)

Dry Creek Lodge, Inc. v. United States,

515 F.2d 926 (10th Cir. 1975) ‘

Eastland v. United States Servicemen's

Fund, 421 U.S. 491 (1975) als

Eslinger v. Thomas, 476 F.2d 225 (4th Cir. 1973)

Ex Parte Virginia, 100 U.S. 339 (1879)

Fitzgerald v. Porter Memorial Hospital,

523 F.2d 716 (7th Cir. 1975), cert. denied,

425 U.S. 916 (1976) ee eS lw lt

Page

Passim

18,19, 21

§,6,13,14

21,23

21,22

- iii -

Frontiero v. Richardson, 41l U.S. 677 (1973)

Gardels v. Murphy, 377 F. lease! 1389 (N.D.

Baas Sere) U's eee be

Gentile v. Wallen, 552 F.2d 193 (2d Cir. 1977)

Gravel v. United States, 408 U.S. 606 (1972)

Gray v. Union County Intermediate Education

District, 520 F.2d 803 (9th Cir. 1975)

Hostrop v. Board of Junior College District

Mo. 525, 523 F.2d $69 (7th Cir. 19758), sert.

denied, 425 U.S. 963 (1976). ar ee le

Imbler v. Pachtman, 424 U.S. 409 (1976).

J.I. Case Co. v. Borak, 377 U.S. 426 (1964).

Jacobson v. Tahoe Regional Planning

Agency, 566 F.2d 1353 (9th Cir. 1978),

amending on denial of sehearing,

$58 F.2d 928 (9th Cir. 1977) ..

Johnson v. Reagan, 524 F.2d 1123 (9th Cir. 1975)

Kilbourn v. Thompson, 103 U.S. 168 (1880).

Kostka v. Hogg, 560 F.2d 37 (lst Cir. 1977).

Lynch v. Household Finance Co., 405 U.S. 538

(1972) Rae orgy’ Ue eres ar fae ee a ge er

McDonald v. Illinois, 557 F.2d 596 (7th Cir.)

cert. denied, 98 §.Ct. 508 (1977) a ae

Marbury v. Madison, 1 Cranch 137 (1803).

Mitchum v. Foster, 407 U.S. 225 (1972)

Monell v. New York City Dept. of Social Services,

46 U.S.L.W. 4569 (U.S. June 6, 1978)

Monroe v. Pape, 365 U.S. 167 (1961).

Owen v. City of Independence, 560 F.2d™

925 (8th Cir. 1977) oe et eee ee

Parker v. McKeithen, 488 F.2d 553 (Sth Cir.)

cert. denied, 419 U.S. 838 (1974).

Paton v. La Prade, 524 F.2d 862

(3d Cir. 1975) Hohe a

Patterson v. City of Chester,

389 F. Supp. 1093 (E.D. Pa. 1975).

Payne v. District of Columbia, 559 F.2d

609 (D.C. Ciz. 12977) . . ce alPe- tee kr

Page

21,22

9,13

21,22

11,13,19

12,19

Peacock v. Board of Regents, 380 F. Supp. 1081

(D. Ariz. 1974), aff'd, 510 F.2d 1324 a Cir. Rs

cert. denied, 422 U.S. 1049 (1975)

Powell v. McCormack, 395 U.S. 486 (1969)

Reeves v. City of Jackson, 532 F.2d 491

(Sth Cir. 1976) a ee

Roane v. Callisburg Independent School

District, 511 F.2d 633 (5th Cir. 1975)

Rodriguez v. Barcelo, 358 F. Supp. 43

Sean BOVOe «2s & 0 we ae sc 4s

Rodriguez v. Ritchey, 556 F.2d 1185

(Sth Cir. 1977) (en banc) 7,

Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942)

Snowden v. Hughes, 321 U.S. 1 (1944)

States Marine Lines, Inc. v. Schultz,

498 F.2d 1146 (4th Cir. 1974)

Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir. a

cert. denied, 414 U.S. 880 (1973) ‘ ‘

Tenney v. Brandhove, 341 U.S. 367 (1951)

Traylor v. City of veueecniviniea 492 F.2d 1156

(Sth Cir. 1974) ; :

Turpin v. Mailet, No. 77-7345 bei Cir’.

June 5, 1978) (en banc) .

United Farmworkers of Florida Housing

Project, Inc. v. City of Delray Beach,

493 F.2d 799 (Sth Cir. 1974) oy ca

United States v. Brewster, 408 U.S. 501

(1972) ste el

United States v. Johnson, 383 U.S.™169 (1966).

United States ex rel. Moore v. Koelzer,

457 F.2d 892 (3d Cir. 1972)

Walker v. McCune, 363 F. Supp. 254

Case Wes, Meee S46 pe es

Washington v. Brantley, 352 F. — 559

(M.D. Fla. 1972) . os Hs

Washington v. Davis, 426 U.S. 229 (1976)

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975).

Weir v. Muller, 527 F.2d 872 (Sth Cir. 1976)

Page

17,21,22

9,11,15

21,22,23

21,22

Yiamouyiannis v. Chemical Abstracts

Service, 521 F.2d 1392 (6th Cir. 1975)

Zwickler v. Koota, 389 U.S. 241 (1967)

UNITED STATES CONSTITUTION:

Article l, § 6

First Amendment.

Fourth Amendment

Fifth Amendment.

Eighth Amendment

Fourteenth Amendment

STATUTES AND REGULATIONS:

-S.C. § 92

-S.C. § 2101(1)

5S U.S.C. § 2105(a)(1)(B)

U C. § 7151

U.S.C. § 1254(1)

U.S.C. § 1331(a)

42 U.S.C. § 1983

Civil Rights Act of 1871.

Title VII, Civil Rights Act of 1964,

er er ee ee a ee ee

MISCELLANEOUS :

1 Annals of Congress (Gales & Seaton eds. 1789).

Congressional Globe, 42d Cong., lst Sess. 569

(1871) . ee Ue, @ ee: eee ee ee

Dellinger, Of Rights and Remedies: The

Constitution as a Sword, 85 Harv. L.

Rev. 1532 (1972)

Frankfurter & Landis, The Business of the

Supreme Court: A Study in the Federal

JuUuGiCial Syetem 65 (1927) ..+.+-<«e-s

Monaghan, Foreword: Constitutional Common Law,

89 Harv. L. Rev. 1 (1975) se SS” Se

Page

2,4,20,21

12,13,17,19

Passim

12,33

Passim

16,17

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTUBER TERM, 1978

SHIRLEY DAVIS, Petitioner,

Vv.

OTTO E. PASSMAN, Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner Shirley Davis prays that a writ of

certiorari issue to review the judgment on rehearing en banc

of the United States Court of Appeals for the Fifth Circuit

entered in this case.

OPINIONS BELOW

The opinion of the en banc court of appeals,

reported at 571 F.2d 793, appears at Appendix A. The opinion

of the panel of the court of appeals, reported at 544 F.2d

865, appears at Appendix B. The opinion of the United States

District Court for the Western District of Louisiana, which

is not reported, appears at Appendix C.

JURISDICTION

A divided panel of the Fifth Circuit Court of

Appeals reversed a judgment of the district court in respon-

dent's favor on January 3, 1977. Timely petitions for rehear-

ing and rehearing en banc were granted by order dated May 17,

1977, which appears at Appendix D. The judgment of the court

of appeals on rehearing en banc was entered April 18, 1978,

and appears at Appendix E. This Court has jurisdiction under

28 U.S.C. § 1254(1).

QUESTIONS PRESENTED

1. Whether a cause of action for money damages

may be implied directly from the fifth amendment to the

United States Constitution under the rationale of Bivens v.

Six Unknown Named Agents of the Federal Bureau of Narcotics,

403 U.S. 388 (1971).

2. If so, whether the speech or debate clause of

the United States Constitution bars this action against a

federal congressman who fired his office supervisor solely

and expressly on the basis of her sex.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

The fifth amendment to the Constitution of the

United States provides in pertinent part:

"No person shall .. . be deprived of life,

liberty, or property, without due process of

law rt

Article 1, § 6 of the Constitution of the United

States provides in pertinent part:

“. . . for any speech or debate in either House,

they {the Senators and Representatives] shall not

be questioned in any other place."

Section 133l(a) of Title 28 of the United States

Code provides in pertinent part:

"The district courts shall have original juris-

diction of all civil actions wherein the matter in

controversy exceeds the sum or value of $10,000,

exclusive of interest and costs, and arises under

the Constitution, laws, or treaties of the United

States .. ..*

STATEMENT OF THE CASE

This is a case of indisputable sex discrimination

in employment. Petitioner Shirley Davis was employed by

respondent Otto E. Passman, United States Congressman from

the Fifth Congressional District of Lougsiana, as his Deputy

Administrative Assistant from February 1, 1974 through July 31,

1974. In this capacity, petitioner was responsible for general

supervision of the office clerical staff. As respondent him-

self acknowledged, petitioner has “experience and talent" and

is an “extremely capable secretary." (App. A, p. 15a n.1.)

Nonetheless, respondent terminated petitioner's employment,

stating in his June 21, 1974 letter of dismissal:

"You are able, energetic and a very hard

worker. Certainly you command the respect of

those with whom you work; however, on account

of the unusually heavy work load in my Washing-

ton Office, and the diversity of the job, I

concluded that it was essential that the under-

study to my Administrative Assistant be a man." Id.

Petitioner has no federal or state remedy, under

statute or common law, available to redress her injuries. She

therefore filed this action in the United States District Court

for the Western District of Louisiana on August 7, 1974 alleging

that the conduct of respondent constituted sex discrimination

in violation of the equal protection component of the due proc-

ess clause of the fifth amendment. Petitioner requested money

damages, ..ncluding back pay, as well as various forms of

specific relief that are now moot because respondent is no

longer in office.’

Respondent moved to dismiss the action under Rule

12(b)(6) of the Federal Rules of Civil Procedure, contending

that (1) his alleged conduct -- discharging petitioner because

1/ Respondent was defeated in the 1976 primary election and

his tenure in office ended January 3, 1977.

of her sex -- did not violate the fifth amendment; (2) peti-

tioner had no private right of action; and (3) the suit was

barred by the doctrines of sovereign and official immunity.

On February 26, 1975, the district court granted the motion,

ruling in respondent's favor on the first two issues, but

also holding that the immunity doctrines would not bar peti-

tioner's suit. (App. C, pp. lc-2c.)

On appeal, a panel of the United States Court of

Appeals for the Fifth Circuit, in a 2-1 decision, reversed and

remanded. (App. B.) The majority held (1) dismissal of staff

by a member of Congress on the basis of sex violates the equal

protection component of the fifth amendment due process clause

(App. B, pp. 2b-5b); (2) petitioner has a private right of

action for damages arising directly under the fifth amendment

(App. B, pp. 6b-10b); (3) sovereign immunity is no bar to a

damage award against the Congressman as an individual (App.

B, p. 11b); (4) legislative immunity, granted by the speech

or debate clause of the United States Constitution, art. I,

§ 6, does not extend to staff dismissals since that conduct

is not within the "sphere of legislative activity" (App. B,

pp. 11b-15b); and (5) a congressman enjoys no absolute immu-

nity outside that afforded by the speech or debate clause

(App. B, pp. 15b-16b). The dissenting judge concluded that

the doctrine of separation of powers required affirmance of

the district court's action (App. B, p. 16b).

Following rehearing en banc’, the court of appeals

reversed the opinion and judgment of the panel in a 12-2

2/ In his petition for rehearing and rehearing en banc,

respondent directed the court's inquiry only to the ques-

tions whether legislative immunity barred this action and

whether a congressman's firing his office supervisor 1s a

political question rendering the controversy nonjusticiable.

decision, and affirmed in part and vacated in part the judg-

ment of the district court. (App. E.)

Addressing only the question whether petitioner has

an implied cause of action for money damages arising directly

under the equal protection component of the fifth amendment

due process clause, the majority held that this Court's analy-

sis in Bivens v. Six Unknown Named Agents of the Federal

Bureau of Narcotics, 403 U.S. 388 (1971), was bottomed on

federal common law and the cause of action there created was

"not wholly of constitutional dimensions." (App. A, p. 4a.)2/

The court (1) looked to the jurisprudence of statutory impli-

cation as articulated in Cort v. Ash, 422 U.S. 66 (1975),2/

to determine whether to imply a damage action of nonconsti-

tutional dimension (App. A, pp. Sa-8a.), and (2) finding the

Cort criteria unmet, held that the Constitution did not

nonetheless compel the existence of a remedy in damages to

vindicate the rights asserted. (App. A, pp. 8a-9a.)

Specially concurring, Judge Jones expressed the view

that the doctrine of separation of powers, operating through

the speech or debate clause of the Constitution, provided

3/ In Bivens, this Court held that a private action for

money damages arises directly under the fourth amendment

to the United States Constitution, 403 U.S. at 389; that the

federal claim based upon unconstitutional conduct by a federal

agent is independent of any state tort claim which might be

raised, id. at 394-95; and that money damages are a “remedial

mechanism normally available in the federal courts," id. at

397. Bivens had claimed that his fourth amendment right to be

secure against unreasonable search and seizure had been vio-

lated by agents of the Federal Bureau of Narcotics acting under

color of federal authority, and that this unconstitutional

conduct gave rise to a federal cause of action for money

damages.

4/ In Cort, this Court addressed the question whether a cause

of action for money damages could be implied under a fed-

eral statute, setting forth four criteria as a basis for making

such determinations. See nn.12-13, infra, and accompanying text.

absolute immunity to the congressman. (App. A, pp. 9a~10a.)

In a separate special concurrence, Judge Roney stated that

in his view the Bivens rationale was premised on the nature

of the personal right asserted, and that a constitutional

cause of action for money damages should be implied only where

the damage remedy is rooted in pre-constitutional notions of

tort law. (App. A, pp. 10a-14a. )

In dissent, Judge Goldberg, joined by Chief Judge

Brown, concluded that Bivens, a decision of constitutional

magnitude, mandated the implication of a cause of action here.

(App. A, pp. 16a-24a.) [In his view, that decision held that

the Constitution compels some remedy for a petitioner whose

constitutional rights have been violated. While Congress

may substitute remedies for a constitutionally-based cause

of action, it may not eliminate all means of vindicating a

federal constitutional right. (App. A, pp. 3la-32a.) Addi-

tionally, he believed that a proper application of Cort v.

Ash to a constitutional claim would justify implication of

a cause of action for money damages directly from the fifth

amendment on the facts of this case. (App. A, pp. 19a,

24a-30a.)

REASONS FOR GRANTING THE WRIT

This case presents two major constitutional questions.

The first is whether a cause of action for money damages may

be implied directly from the fifth amendment where there is

no alternative remedy available to the petitioner. The

second is whether the speech or debate Clause of the Consti-

tution bars this suit, assuming the answer to the first

question is affirmative.

In reaching its decision, that no cause of action

mr. 7 2@ implied directly from the fifth amendment, the Fifth

‘ircuit misconstrues several decisions of this Court upon which

it expressly relies and puts itself in conflict with nine other

circuits which have interpreted these decisions. The result

is contrary to the intention of the framers in drafting the

Bill of Rights. The importance of this issue -- vindication

of a constitutionally guaranteed right -- makes it particular-

ly appropriate for this Court's resolution.

A decision to permit petitioner a cause of action

for money damages will necessitate a decision whether she is

nonetheless barred from vindicating her rights because of

the applicability of legislative immunity. Although the en

banc court did not reach the immunity issue, both the panel

and the district court earlier held in petitioner's favor.

Whether the speech or debate clause protects a congressman

‘from liability for unconstitutional staff dismissals is a

determination of extreme importance. This Court should make

that judgment.

= The Decision Below Misconstrues the Leading

Opinion of This Court, Conflicts with the

Decisions of Nine Other Courts of Appeals,

and Eviscerates a Fundamental Guarantee

of the Bill of Rights.

The decision below would permit a United States

congressman deliberately to violate petitioner's right to

equal protection under the due process clause of the fifth

amendment. 2/ It would render petitioner helpless to seek

S/ It is well settled that the due process clause of the

fifth amendment imposes an obligation on the federal

(footnote cont'd)

damages for unconstitutional sex discrimination by a federal

legisiator. In question are the constitutional rights of

thousands of congressional employees.

The decision below seriously misconstrues the

opinion of this Court in Bivens. The core issue in Bivens

was the availability of a federal remedy for effectuating a

fundamental guarantee of the Bill of Rights. Without the

implication of a cause of action under the fourth amendment,

the petitioner in Bivens would have had no means of seeking

redress in federal court for the violation of his right to

freedom from unreasonable search and seizure. In determining

that a cause of action was so implied, this Court held that

a remedy in money damages need not be "essential" or "indis-

pensable" or even "necessary" to effectuate constitutional

rights generally. 403 U.S. at 397. 2/ Rather, the standard

for determining whether this traditional form of Judicial

(footnote cont'd)

government and its officials to afford equal protection of

the laws. Califano v. Goldfarb, 430 U.S. 199 (1977); Wein-

berger v. Wiesenfeld, 420 U.S. 636 (1975); Frontiero v.

Richardson, 411 U.S. 677 (1973); Bolling v. Sharpe, 347 U.S.

497 (1954). In the instant case, petitioner has clearly

alleged discrimination based on a scheme of classification,

thereby meeting the requirement of a valid equal protection

Claim. Washington v. Davis, 426 U.S. 229 (1976); Snowden v.

Hughes, 321 U.S. 1 (1944).

6/ "(W]e cannot accept respondent's formulation of the

question as whether the availability of money damages is

necessary to enforce the Fourth Amendment. . .. The question

is merely whether petitioner, if he can demonstrate an injury

consequent upon the violation by federal agents of his Fourth

Amendment rights, is entitled to redress his injuries through

a particular remedial mechanism normally available in the

federal courts. . . . 'The very essence of civil liberty

certainly consists in the right of every individual to claim

(footnote cont'd)

relief should be accorded the litigant is whether compensa-

tory relief is "appropriate" to the vindication of the right

asserted by those in his position. Id. at 406-407 (Harlan,

Joy concurring. )2’

See also Turpin v. Mailet, No. 77-7345

(2d Cir. June 5, 1978) (en banc) (rejecting the analysis of

the court below and holding Bivens applicable to a cause of

action arising under the fourteenth amendment due process

clause) .2/ The constitutional claim is independent of any

state law violation, and the federal remedy in damages for

an invasion of personal interests has been sanctioned by the

(footnote cont'd)

the protection of the laws, whenever he receives an injury.'"

Bivens, supra, 403 U.S. at 397, quoting Marbury v. Madison, 1

Cranch 137, 163 (1803) (citations omitted).

The en banc majority's inquiries "whether the Constitu-

tion . . . compels an action for money damages implied

directly from the fifth amendment Due Process Clause" and

"whether, in this case, a damage action is indispensable to

{its] effectuation", App. A, p. 8a (emphases added), are in

direct conflict with this Court's standards.

T/ "The focus should . . . be upon whether there are other

remedies available to those in the plaintiff's position

that would as fully effectuate the purposes of the

constitutional guarantee as the remedy sought; as in

(J.I.Case Co. v. Borak, 377 U.S. 426 (1964)], the fact

that persons in other situations may have access to

remedies that will vindicate their rights under the

constitutional provision in question should not pre-

clude the judicial creation of remedies for a particu-

lar plaintiff who is without effective means of redress."

Dellinger, Of Rights and Remedies: The Constitution as a Sword,

8S Harv. L. Rev. 1532, 1551 L972).

8/ "In most instances . . . courts arefree to imply reme-

dies where the relief requested is merely appropriate

to the vindication of the interest asserted. When one analyzes

Bivens, he is driven to the conclusion that Bivens decided that

precise issue. The Court refused to accept the premise that

a remedy must be necessary or indispensable to warrant its

implication . ..." Turpin v. Mailet, Supra, slip op. at 8

(emphasis added), citing Bivens, supra, 403 U.S. at 397.

es 10 «

courts in the absence of affirmative action by Congress creat-

ing aiternative but equally effective remedies. 403 U.S. at

392, 395, 396, 397.

The lower court failed to recognize the constitu-

tional significance of Bivens and to apply its rationale to

the facts here presented. Instead, the court relied on its

determination that Bivens was based on federal common law

and applied to a constitutional claim the criteria for

implying a cause of action from a federal statute. This was

error.

The damage remedy here is both "necessary" and

"appropriate" fo vindication of the rights asserted. The

court below applied an erroneous standard in deciding that

this remedy was not "constitutionally compelled." (App. A,

pp. 8a-9a.) The facts argue even more strongly for a judi-

cially-created remedy in the instant case than in Bivens.

There, the petitioner could have brought a tort action in

state court against the federal agents who had infringed his

fourth amendment rights. Petitioner in this case has no

cause of action under Louisiana law, and she is foreclosed

from equitable relief since respondent is no longer in

. Office. Her only means of vindicating her constitutional

right is an action for money damages arising directly under

the fifth amendment.

Moreover, in refusing to recognize a constitutionally

compelled remedy for violation of the right to due process,

the Fifth Circuit is alone among the six circuit courts which

have confronted the issue. Five circuits have specifically

applied the Bivens rationale to actions arising under the

due process provisions of either the fifth or fourteenth

9/ a 10/

amendments, one of them subsequent to the decision below.—

These courts have adhered to the reasoning of the Ninth

Circuit, which in Jacobson v. Tahoe Regional Planning Agency,

566 F.2d 1353, 1364 (9th Cir. 1978), amending on denial of

rehearing, 558 F.2d 928 (9th Cir. 1977), ccacluded: "The

due process rights protected by the Fifth Amendment are as

fundamental as those protected by the Fourth Amendment.

Nothing in Bivens warrants limitation to Fourth Amendment

Claims; its rationale clearly supports extension. . .."

Four other courts of appeals have either applied Bivens to

claims arising under other constitutional amendments or have

indicated their willingness to do so.4)/

9/ Jacobson v. Tahoe Regional Planning Agency, 566 F.2d 1353,

1364 (9th Cir. 1978), amending on denial of rehearing,

558 F.2d 928 (9th Cir. 1977) (fifth amendment); Gentile v.

Wallen 562 F.2d 193, 196-97 (2d Cir. 1977) (fou.teenth amend-

ment); States Marine Lines, Inc. v. Shultz, 498 F.2d 1146,

1156-57 (4th Cir. 1974) (fifth amendment); United States ex

rel. Moore v. Koelzer, 457 F.2d 892, 893-94 (3d Cir. 1972)

(fifth amendment due process and fourth amendment). The Eighth

Circuit's determination that a cause of action is implied

under the fourteenth amendment and that a municipality may be

sued for money damages under a vicarious liability theory,

Owen v. City of Independence, 560 F.2d 925, 932-34 (8th Cir.

1977), was recently vacated and remanded for further consid-

eration, 46 U.S.L.W. 3792 (U.S. June 26, 1978), in light of

this Court's holding that a municipality cannot be subjected

to liability under a respondeat superior theory in Monell v.

New York City Dept. of Social Services, 46 U.S.L.W. 4569 (U.S.

June 6, 1978). See n.26, infra. See also Bethea v. Reid,

445 F.2d 1163 (3d Cir. 1971), cert. denied, 404 U.S. 1061

(1972) (fourth and fifth amendments). Cf. Bennett v. Campbell,

564 F.2d 329, 331-32 (9th Cir. 1977) (reversing denial of

motion to amend complaint in order to permit assertion of

Bivens claims under fourth and fifth amendments); Gray v.

Union County Intermediate Education District, 520 F.2d 803,

805 (9th Cir. 1975) (apparently assuming availability of

cause of action for back pay and damages for violation of

first amendment and due process rights).

10/ Turpin v. Mailet, supra, slip op. at 7: "Bivens, if

anything, established that damages could flow from

injuries caused by an invasion of other [than fourth

amendment] constitutional provisions."

ll/ The District of Columbia and Sixth Circuits have not

yet confronted the due process question, but both

(footnote cont'd)

oe 12 «

The court below, however, viewed Bivens differently

than did the other circuits, failing to recognize the significance

(footnote cont'd)

courts have applied the Bivens rationale to first amendment

actions. See Dellums v. Powell, 566 F.2d 167, 194-95 (D.C.

Cir. 1977), cert. denied, 46 U.S.L.W. 3803 (U.S. July 3,

1978) (No. 77-955); Yiamouyiannis v. Chemical Abstracts

Service, 521 F.2d 1392, 1393 (6th Cir. 1975). The Third

Circuit has also upheld a cause of action under the first

amendment. See Paton v. La Prade, 524 F.2d 862, 870 (3d

Cir. 1975). See also Payne v. District of Columbia, 559

F.2d 809, 818-19 (D.C. Cir. 1977) (fifth amendment jurisdic-

tion, favorable dicta on cause of action); Sullivan v.

Murphy, 478 F.2d 938, 965 & n.47 (D.C. Cir.), cert. denied,

414 U.S. 880 (1973) (fourth and fifth amendment jurisdiction,

favorable dicta on cause of action). The Seventh and Tenth

Circuits have not yet directly confronted the question of an

implied cause of action under an amendment other than the

fourth, but both have commented favorably on the issue. See

McDonald v. Illinois, 557 F.2d 596, 604 (7th Cir.), cert. denied,

98 S. Ct. 508 (1977) (denying relief on vicarious liability

theory but stating, "A cause of action (without benefit of

42 U.S.C. § 1983) may be implied in favor of one who suffers

injuries as a result of a government agent's violation of

the Constitution"); Cannon v. University of Chicago, 559 ~

F.2d 1063, 1082 (7th Cir. 1977), cert. granted, 46 U.S.L.W.

3803 (U.S. July 3, 1978) (No. 77-926) (denying implied

remedy under a federal statute but indicating position would

have differed had case involved a fundamental constitutional

right); Fitzgerald v. Porter Memorial Hospital, 523 F.2d

716, 718 n.7 (7th Cir. 1975), cert. denied, 425 U.S. 916

(1976) (suggesting availability of cause of action under

fourteenth amendment but denying relief); Hostrop v. Board

of Junior College District No. 515, 523 F.2d 569, 577=78

(7th Cir. 1975), cert. denied, 425 U.S. 963 (1976) (fourteenth

amendment due process jurisdiction, favorable dicta on cause

of action); Dry Creek Lodge, Inc. v. United States, 515 F.2d

926, 931-32 (10th Cir. 1975) (equal protection and due

process jurisdiction, favorable dicta on cause of action.)

The Fifth Circuit, prior to its en banc decision in

petitioner's case, had found jurisdiction present where

Bivens-type actions were brought under constitutional pro-

visions other than the fourth amendment. App. A, p. 3a.

See Reeves v. City of Jackson, 532 F.2d 491 (5th Cir. 1976)

(suggesting availability of cause of action under eighth

amendment and/or fourteenth amendment, granting jurisdiction);

Weir v. Muller, 527 F.2d 872 (Sth Cir. 1976) (fifth amendment

jurisdiction); see also Roane v. Callisburg Independent

School District, 511 F.2d 633, 635 n.1 (Sth Cir. 1975);

United Farmworkers of Florida Housing Project, Inc. v. City

of Delray Beach, 493 F.2d 799, 801-02 & n.2 (Sth Cir. 1974);

Traylor v. City of Amarillo, 492 F.2d 1156, 1157 n.2 (Sth

Cir. 1974). But see Rodriguez v. Ritchey, 556 F.2d 1185,

1192 aig Cir. 1977) (en banc) (declining to address Bivens

issue).

The one remaining court of appeals -- the First Circuit --

has refused to imply a cause of action against a municipality

(footnote cont'd)

of the absence of alternative remedies. In an attempt to

apply the principles of statutory implication?2/ articulated

by this Court in Cort v. Ash, +3/ the court of appeals

(footnote cont'd)

under the fourteenth amendment. Kostka v. Hogg, 560 F.2d 37

(lst Cir. 1977). However, as Judge Goldberg noted in his

dissent below, App. A, pp. 29a-30a & n.21, this case involved

a municipal "deep pocket defendant," sued under a vicarious

liability theory. The First Circuit held that plaintiff could

maintain an action under 42 U.S.C. § 1983 against those per-

sons directly responsible for his injuries and rested its

decision on the adequacy of that remedy. (This situation

will no longer arise given this Court's recent decision in

Monell v. New York City Dept. of Social Services, supra.

See n.26, infra.)

These are not all of the cases in which courts of

appeals have touched upon the Bivens issue. Rather, these

are the cases which have addressed the Bivens question most

directly. An overwhelming number of district courts have

also applied the Bivens rationale to claims arising under

constitutional provisions other than the fourth amendment.

See, e.g., Gardels v. Murphy, 377 F. Supp. 1389, 1398 (N.D.

Ill. 1974) ("Bivens recognizes a cause of action for damages

for violations of any constitutionally protected interest");

Rodriguez v. Barcelo, 358 F. Supp. 43, 48 (D.P.R. 1973) ("if

{defendants] are federal employees, then, under Bivens,

there is an action whenever a federally guaranteed right is

violated"); Washington v. Brantley, 352 F. Supp. 559, 563-64

(M.D. Fla. 1972) ("Bivens recognizes a cause of action for

any constitutionally protected interest"). See also Patterson

v. City of Chester, 389 F. Supp. 1093 (E.D. Pa. 1975) (first

and fourteenth amendments); Peacock v. Board of Regents, 380

F. Supp. 1081 (D. Ariz. 1974), aff'd, 510 F.2d 1324 (9th

Cir.), cert. denied, 422 U.S. 1049 (1975) (first amendment);

Walker v. McCune, 363 F. Supp. 254 (E.D. Va. 1973) (eighth

amendment); Butler v. United States, 365 F. Supp. 1035 (D.

Hawaii 1973) (first, fourth and fifth amendments).

12/ The standard for implication of statutory remedies,

first articulated in J.I. Case Co. v. Borak, was

whether a remedy is "necessary" and “appropriat[(e]," 377 U.S.

at 433, 434, to effectuate the federal statute. In Bivens,

this Court declined to require that the remedy sought be

"necessary to enforce the Fourth Amendment." 403 U.S. at

397. See pp. 8-10 and nn.6-8, supra. Citing both these

earlier precedents, this Court articulated the current

standard in Cort v. Ash: the remedy must be consistent

with the purpose of the legislation and not “inappropri-

ate" as a basis for a federal cause of action. 422 U.S. at 78.

13/ Cort articulated four criteria to be considered in deter-

mining whether a remedy is implied under a federal statute:

(1) whether plaintiff is one of the class for whose especial bene-

fit the statute was enacted; (2) whether there are any indications

of legislative intent, explicit or implicit, to create or deny a

remedy; (3) whether implication of the remedy would be consistent

with the underlying purpose of the legislative scheme; (4) whether

(footnote cont'd)

= 14 @

questioned whether Congress intended to preclude noncompeti-

tive congressional employees from pursuing judicial remedies

for sex discrimination by its silence on this subject in Title

VII of the Civil Rights Act of 1964, as amended, and its broad

mandate regarding discharge of congressional staff in 2 U.S.C.

§ 92.44/ The answer was supplied by Judge Goldberg dissenting

below: "Where, as here, no alternative has been made available,

that inquiry is simply irrelevant. ... There is no suggestion

in Bivens that Congress can negate the existence of every remedy

which might vindicate a constitutional right. uid/ App. A, pp.

(footnote cont'd)

the cause of action was traditionally relegated to state law

and would be inappropriate for a cause of action solely under

federal law. 422 U.S. at 78.

The second factor is discussed in the text. With

respect to the first, the lower court conceded, "The fifth

amendment Due Process Clause surely exists for the ‘especial

benefit' of Davis, as Cort required," App. A, p. Sa. The

third Cort criterion -- = that the remedy be "consistent with

the underlying purposes of the legislative scheme" -- is

Clearly met in this case. Without a means of effectuating

its guarantees, the Bill of Rights has only declaratory value.

Finally, the fourth factor is also satisfied in that it would

not be “inappropriate to infer a cause of action based solely

on federal law" to effectuate the fifth amendment. If there

is no such cause of action, then the protection afforded by

the Bill of Rights must depend on the vagaries of state law,

a result contrary to both the intent of the framers, see n.19

infra, and the teachings of Bivens, 403 U.S. at 394-95. There

1s no state remedy here.

14/ 2 U.S.C. § 92 provides generally for the “payment of

appropriations for clerk hire for Members, Delegates,

and Resident Commissioners" of the House of Representatives

and the number of such "clerks" to which each is entitled.

Its proviso states "(t]hat such persons shall be subject to

removal at any time by such Member, Delegate, or Resident

Commissioner with or without cause."

15/ Moreover, no such negative intent need be imputed to

Congress.

"(T]he traditional deference of Congress to the

Supreme Court in safeguarding individual liberties

makes it both less likely that Congress will act

affirmatively to implement the Bill of Rights, and

improbable that congressional silence indicates a

desire to retain state law."

Monaghan, Foreword: Constitutional Common Law, 89 Harv. L.

Rev. 1, 18-19 (1975).

= 15 «

22a, 26a (emphases in original). Congress is free to create

alternative remedies that are equally effective, in its judg-

ment, for vindication of petitioner's fifth amendment right.

Bivens, supra, 403 U.S. at 397. It cannot -- either by legis-

16/

lation or by silence— -- render the Constitution applicable

to and enforceable against everyone but its own Members.

Indeed, Congress has spoken affirmatively on this issue,

declaring unambiguously that employees of its Members shall

not be discriminated against .2/ The error of the lower court

is compounded by its refusal to consider this clear directive.

If the judiciary is to remain the guardian of our

constitutional liberties, it cannot -- as the court below

would do -- eviscerate them by permitting them to become

mere rights with no remedies. It was clearly the intent of

16/ "(Ljegislative silence can in [no] way be viewed as an

expression of congressional 'intent,' let alone the

sort of 'explicit congressional declaration' required by

Bivens." Turpin v. Mailet, supra, slip op. at 17. See also

Scripps-Howard Radio v. FCC, 316 U.S. 4, 11 (1942) ("The

search for significance in the silence of Congress is too

often the pursuit of a mirage.")

1i7/ 5 U.S.C. § 7151, enacted in 1966, provides:

"It is the policy of the United States to

insure equal employment opportunities for em-

ployees without discrimination because of race,

color, religion, sex, or national origin" (empha-

Sis added).

The term "employee" is defined in 5 U.S.C. § 2105(a)(1)(B)

to mean:

", . . am individual who is -- (1) appointed in

the Civil service by one of the following acting

in an official capacity --

x * *

(B) a Member or Members of Congress, or the

Comgrees ....*"

In turn, 5 U.S.C. § 2101(1) defines the term "civil service"

as used in 5 U.S.C. § 2105(a)(1) to include:

af - . all appointive positions in the executive,

judicial, and legislative branches of the Govern-

ment of the United States. ..."

« 46 «

the framers that the provisions of the Bill of Rights apply

to all branches and officials of the federal government.

The first ten amendments to the Constitution were enacted

for the very purpose of preventing encroachment upon individual

rights by the federal government, especially by the legislative

branch. 28/ In Bivens, this Court recognized that the fourth

amendment limits the exercise of power by the federal government

regardless of the laws of the state in which it is operating.

403 U.S. at 392. To effectuate the intent of the framers it

is necessary to read the fifth amendment similarly and to

imply a cause of action thereunder. By incorporating the

guarantees of the Bill of Rights into the Constitution,

rather than leaving their codification to the whim of state

governments, 22/ the framers sought to ensure that the judiciary

would defend them. As Madison said:

18/ "(T]he great mass of the people who opposed [the Consti-

tution], disliked it because it did not contain effectual

provisions against encroachments on particular rights ...."

1 Annals of Cong. 450 (Gales & Seaton eds. 1789) (James Madison

before the lst U.S. Congress, lst Session) (hereinafter cited

as Annals). cConferring far-reaching powers upon the federal

government was perceived as a grave danger by many Americans

who viewed state governments as the defenders of popular liberty

and the proper repositories of the great powers of government.

Nearly all of the state ratifying conventions passed resolutions

recommending amendments guaranteeing various rights against

infringement by federal authority. From these resolutions,

James Madison drafted the bill he presented to Congress on

June 8, 1791.

In presenting the Bill of Rights to Congress, Madison

stated:

"In our Government it is, perhaps, less

necessary to guard against the abuse in the exe-

cutive department than any other; because it is

not the stronger branch of the system, but the

weaker. It therefore must be levelled against

the legislative, for it is the most powerful,

and most likely to be abused, because it is under

the least control." Annals at 454 (emphasis added).

19/ Madison observed that leaving fundamental guarantees of

the Bill of Rights to the idiosyncracies of state govern-

ments was “too uncertain ground to leave this provision upon

Annals at 456.

o 37 -«

"If (these rights] are incorporated into the

constitution, independent tribunals of justice

will consider themselves in a peculiar manner

the guardians of those rights; they will be an

impenetrable bulwark against every assumption

of power in the legislative or executive;

they will be naturally led to resist every

encroachment upon rights expressly stipulated

for in the constitution by the declaration

of rights."20/

The error of the court below is even more striking

in light of the disparate treatment it would accord those whose

rights are violated by state rather than federal legislators.

As a consequence of the decision below, the former would have

a cause of action under 42 U.S.C. § 1983, 22/ while the latter

20/ Annals at 457.

21/ 42 U.S.C. § 1983 (1970), originally included as section 1

of the Civil Rights Act of 1871, provides that:

"Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory, subjects, or causes to be

subjected, any citizen of the United States or any

other person within the jurisdiction thereof to

the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding

for redress."

State legislators are, of course, absolutely immune

from liability for actions within the legitimate sphere

of legislative activity under the speech or debate clause of

the United States Constitution. Tenney v. Brandhove, 341

U.S. 367 (1951). See part II, pp. 20-23, infra. When their

conduct is not so protected, however, they are subject to

suit under 42 U.S.C. § 1983. Ammond v. McGagh, 390 F. Supp.

655 (D.N.J. 1975), rev'd on other grounds, 532 F.2d 325 (3d

Cir. 1976) (§ 1983 actions for first and fourteenth amendment

violations permissible against twenty-eight New Jersey state

senators and other legislative officials). See also Johnson v.

Reagan, 524 F.2d 1123, 1124 (9th Cir. 1975); Parker v. McKeithen,

488 F.2d 553, 555 (5th Cir.), cert. denied, 419 U.S. 838 (1974);

Eslinger v. Thomas, 476 F.2d 225, 228 (4th Cir. 1973), all

holding 42 U.S.C. § 1983 applicable to state legislators but

granting immunity from suit since the contested activities fell

within the ambit of the speech or debate clause.

« 18 «

would have no federal remedy. This anomalous result would

wholly distort the intent of the framers of the Bill of Rights

and that of Congress in enacting section 1983. The legisla-

tive history of the statute demonstrates that it was intended

to extend the same rights and remedies to victims of consti-

tutional violations by state officers -- “whether that action

be executive, legislative, or judicial"22/ -- as were

already available against federal officials.29/ In passing

section 1983, Congress believed it was "really reenacting the

Constitution." Cong. Globe, 42d Cong., lst Sess. 569 (1871)

24/

(emphasis added). "There is no reason to allow federal

officials to act with impunity in this context and to bar state

officials. The damage to the individual's [constitutional]

22/ Mitchum v. Foster, 407 U.S. 225, 242 (1972), quoting Ex

Parte Virginia, 100 U.S. 339, 346 (1879).

23/ This Court has recently refused to "draw a distinction

for purposes of immunity law between suits brought

against state officials under § 1983 and suits brought

directly under the Constitution against federal officials."

Butz v. Economou, 46 U.S.L.W. 4952, 4959 (U.S. June 29, 1978)

(holding federal officials entitled to qualified, rather

than absolute, immunity from suits charging unconstitutional

conduct). The analogue is equally applicable in the instant

case.

24/ It was not until the Act of March 3, 1875 that Congress

enacted the predecesscr to 28 U.S.C. § 1331(a), the broad

jurisdictional grant to the federal courts under which Bivens

Causes of action are entertained. Although there is virtually

no legislative history of the Act, it is well settled that by

that statute, "Congress gave the federal courts the vast range

of power which had lain dormant in the Constitution since 1789.

These courts . . . became the primary and powerful reliances

for vindicating every right given by the Constitution, the laws,

and treaties of the United States." Frankfurter & Landis,

The Business of the Supreme Court: A Study in the Federal

Judicial System 65 (1927), quoted in Zwickler v. Koota, 389

U.S. 241, 247 (1967) (emphasis added in part). See also id.

at 246-47 n.8. "In thus expanding federal judicial power,

Congress imposed the duty upon all levels of the federal

judiciary to give due respect to a suitor's choice of a

federal forum for the hearing and decision of his federal

constitutional claims." Id. at 248. Accord, District of

Columbia v. Carter, 409 U.S. 418, 427-29 (1973); Lynch v.

Household Finance Co., 405 U.S. 538, 546-48 (1972).

- 19 -

interests is the same regardless of the perpetrator of the

violation." Paton v. La Prade, 524 F.2d 862, 870 (3d Cir.

1975) (upholding a Bivens cause of action under the first

amendment ) . 22/

Finally, there is no warrant for the lower court's

suggestion that recognition of an implied cause of action

under the fifth amendment would be judicially unmanageable.

No new "floodgates" will be opened by a decision applying

the Bivens rationale to causes of action arising under con-

stitutional amendments other than the fourth; neither should

it be anticipated that other members of Congress will blatantly

violate the ccnstitutional rights of their employees. In the

eight years since this Court decided Bivens, nine circuits

have applied the Bivens rationale to actions arising outside

the fourth amendment, or have indicated their willingness to

do so. See nn.9-11, supra. The cases decided there, as well

as in the district courts, have vindicated the federal civil

rights of the litigants without unduly burdening the federal

forum. 2°/

25/ Citing Paton v. La Prade, supra, this Court has echoed

that analysis in Butz v. Economou, supra. "[(I]n the

absence of congressional direction to the contrary, there is

no basis for according to federal officials a higher degree

of immunity from liability when sued for a constitutional in-

fringement as authorized by Bivens than is accorded state offi-

cials when sued for the identical violation under § 1983

To create a system in which the Bill of Rights monitors more

closely the conduct of state officials than it does that of

federal officials is to stand the constitutional design on

its head." 46 U.S.L.W. at 4958, 4959.

26/ This Court's recent decision in Monell v. New York City

Dept. of Social Services, 46 U.S.L.W. 4569 (U.S. June 6,

1978), overruled Monroe v. Pape, 365 U.S. 167 (1961). Monell

permits 42 U.S.C. § 1983 suits against municipalities, except

those based on vicarious liability theories, for alleged un-

constitutional actions implementing government policy or custom.

This decision will eliminate many attempts to bring claims

under the fourteenth amendment that would not have been cogniz-

able under § 1983. Thus the fear of the court below, insofar

as it concerns an increased number of fourteenth amendment

claims, see App. A, pp. 7a-8a, should be alleviated. See also

Bivens, supra, 403 U.S. at 391 n.4.

« 20 «

II. The Legislative Immunity Provided By

The Speech or Debate Clause Does Not

Protect Respondent From Suit.

If this Court holds that petitioner has a private

cause of action for money damages arising under the fifth

amendment, the issue whether respondent can still cloak him-

self with absolute immunity from suit becomes one of con-

trolling importance .2/ Having won the right to proceed,

petitioner will still be prevented from securing redress for

her injuries if respondent is entitled to absolute legis-

lative immunity. If a qualified immunity is applicable,

petitioner can still proceed to trial on the merits and

respondent can attempt to present a good faith defense.

Imbler v. Pachtman, 424 U.S. 409, 419 n.13 (1976). The

issues presented are substantial. This Court is the proper

forum for their resolution.

The only immunity doctrine which respondent can

seriously seek to invoke is that of legislative immunity,

founded in the speech or debate clause of the United States

Constitution. Although at various points in the proceedings

below the respondent has asserted that sovereign or absolute

official immunity should apply, those contentions are patently

without merit. 2°/

27/ In the proceedings below, both the district court and

the panel of the Fifth Circuit Court of Appeals held

that no immunity doctrine would bar this action. Although

the question whether art. 1, § 6, the speech or debate

clause of the United States Constitution, protects the con-

gressman from judicial inquiry was expressly framed for re-

hearing, the en banc court of appeals did not address the issue.

28/ As to the claim of sovereign immunity, petitioner sues

respondent in his individual capacity. No relief against

the United States has been requested nor could be substantiated.

rs ac n is now limited to a claim for money damages which

will be assessed against respondent personally. The sovereign

immunity doctrine is inapplicable since no recovery against the

United States Treasury is contemplated.

(footnote cont'd)

» 2% =

It is well-established that the speech or debate

Clause has "finite limits." Doe v. McMillan, 412 U.S. 306,

317 (1973). This Court has nine times been faced with

determining where the boundaries of the clause in fact

lie. 2 Althouch the literal core of legislative immunity

is "speech or debate in either House," its protection has

been extended beyond its literal terms to include those

activities "essential to legislating." Gravel v. United

States, 408 U.S. 606, 621 (1972). This Court has read the

Clause “broadly to effectuate its purposes," Eastland v.

United States Servicemen's Fund, 421 U.S. 491, 501 (1975),

but it has been ever mindful of those purposes and has

cautioned against broadening the scope of the clause to a

grant of personal prerogative. The decision to discharge an

office supervisor on the basis of her sex is not an action

which is an “integral part" of the legislative process.

Gravel v. United States, supra, 408 U.S. at 625. To extend

the boundaries of the protection to conduct so removed from

the legislative process would controvert both the historical

(footnote cont'd)

As to the claim of absolute official immunity, this

Court has held that in the case of federal legislators, any

common law privilege against legal suit was incorporated

into the Constitution as art. I, § 6, Tenney v. Brandhove,

supra, 341 U.S. at 376, 379, and the immunity provided is

coextensive with that of the speech or debate clause, Doe v.

McMillan, 412 U.S. 306, 324 (1973). Even were this Court to

depart from precedent and accord respondent an immunity dif-

ferent from that afforded legislators by the speech or

debate clause, that immunity would not be absolute, but must

be limited to a good faith defense at trial. Butz v. Economou,

46 U.S.L.W. 4952 (U.S. June 29, 1978).

29/ Eastland v. United States Servicemen's Fund, 421 U.S.

491 (1975); Doe v. McMillan; Gravel v. United States,

408 U.S. 606 (1972); United States v. Brewster, 408 U.S. 501

(1972); Powell v. McCormack, 395 U.S. 486 (1969); Dombrowski v.

Eastland, 387 U.S. 82 (1967); United States v. Johnson, 3 U.s.

169 (1966); Tenney v. Brandhove; Kilbourn v. Thompson, 103 U.S.

168 (1880).

» 22 -

mandate of the framers and subsequent judicial interpretation

of the clause.

The purpose of the speech or debate clause was not

to grant a perquisite of office to individual members of

Congress. Rather, the framers sought to ensure the inde-

pendence of the Legislative Branch. The clause is in es-

sence a statement of separation of powers rather than a

grant of unfettered privilege. United States v. Brewster,

408 U.S. 501, 507-09 (1972); Eastland v. United States

Servicemen's Fund, supra, 421 U.S. at 502; United States v.

Johnson, 383 U.S. 169, 181 (1966); Gravel v. United States,

supra, 408 U.S. at 617-18. It protects the legislator only

in his legislating capacity.

This Court has consistently held that only actions

“in the sphere of legitimate legislative activity" are

protected. Tenney v. Brandhove, supra, 341 0.8. at 376.

Beyond literal speech or debate, the clause protects activi-

ties taking place "in a session of the House by one of its

members in relation to the business before it." Kilbourn v.

Thompson, 103 U.S. 168, 204 (1880). Such activities must be

"things generally said or done in the House or the Senate in

performance of official duties," United States v. Brewster,

supra, 408 U.S. at 512, and must be "an integral part of the

deliberative and communicative processes by which Members

participate in committee and House proceedings with respect

to the consideration and passage or rejection of proposed

legislation or with respect to other matters which the

Constitution places within the jurisdiction of either House."

Gravel v. United States, supra, 408 U.S. at 625.

An activity does not qualify for speech or debate

protection merely because it is in some remote or tangential

« 23 =

way "related" to the legislative process. United States v.

Brewster, supra, 408 U.S. at 516. Neither are all activi-

ties "regularly" done by members of Congress coterminous

with legislative activity protected by the clause. Doe v.

McMillan, supra, 412 U.S. at 313. The firing of petitioner,

solely on the basis of gender, has nothing to do with the

legislative process. Petitioner was in no way related to

the legislative or policy aspects of respondent's office.

Indeed, respondent himself described her work as secretarial

in nature. App. A, p. 15a n.l. Nor was respondent's stated

reason for discnarging petitioner remotely related to legis-

lative or policy considerations. Respondent was acting not

as a legislator, but as an employer. Upholding this cause of

action in no way undermines the purposes or protections of

the speech or debate clause.

CONCLUSION

The critical facts of this case are not in contro-

versy. It is the questions whether petitioner should be

permitted to enforce her constitutional rights against a

United States congressman in federal court and, if so,

whether that congressman is protected by constitutionally

mandated legislative immunity which require resolution. The

questions involved are important, and the lower court, in

rejecting the reasoning of the other circuits, has interpreted

this Court's decisions in a manner the Constitution cannot

sustain.

» 24 -

For all of the foregoing reasons, the petition for

a writ of certiorari should be granted.

Of Counsel:

COVINGTON & BURLING

888 Sixteenth Street, N.

Washington, D.C.

July 1978

20006

Respectfully submitted,

888 Sixteenth Street, N.W.

Washington, D.C. 20006

Attorneys for Petitioner

»** ed ee

APPENDICES

APPENDIX A

DAVIS vy. PASSMAN

Shirley DAVIS, Plaintiff-Appellant,

Vv.

Otto E. PASSMAN, Congressman of

the United States,

Defendant-Appellee.

No. 75-.691.

United States Court of Appeals,

Fifth Circuit.

April 18, 1978.

Action was brought against member

of United States House of Representa-

tives, alleging that he violated the Fifth

Amendment by discharging female staff

member because of her sex. The United

States District Court for the Western

District of Louisiana, Tom Stagg, J., dis-

missed and former staff member appeal-

ed. The Court of Appeals, Goldberg,

Circuit Judge, 544 F.2d 865, reversed and

remanded, and court granted rehearing

en bane. The Court of Appeals, Charles

Clark, Cirevit Judge, held that congres-

sional staff member allegedly discharged

by former Congressman because of her

sex had no private cause of action

against former Congressman for money

damages under due process clause of

Fifth Amendment, in view of fact that

Constitution did not compel an action for

money damiyres implied from due proc-

ess clause, Congress avoided creating: ac-

tion for money damayres for congression-

al aides in noncompetitive positions, and

implying such a damage action would

necessarily draw into the federal judici-

ary system a wide range of cases whose

resolution Congress had not committed

to federal judiciary and whose resolution

was better suited to courts of general

jurisdiction,

Affirmed in part, and vacated in

part.

Jones, Circuit Judge, concurred spe-

cially and filed opinion.

Roney, Circuit Judge, concurred spe-

cially and filed opinion.

Goldberg, Circuit Judge, dissented

and filed opinion in which Brown, Chicf

Judge, joined.

1. Action 3

Courts consider several factors in

determining whether to imply a cause of

action from a statutory right: whether

provision asserted creates a special right

in the plaintiff; whether action of Con-

gress in ficki indicates intent to allow

such remedy or at least an intent not to

‘deny the remedy: whether implication

of remedy would be consistent with pur-

pose of right asserted, and whether

cause of action implied would be one ap-

propriate for federal law.

2. Federal Courts 177

Not every right that conceivably

could be wedged within literal breadth

of due process demands federal protee-

tion through a cause of action for mone-

tary damages. U.S.C.A.Const. Amend. 5.

3. Federal Courts 178

Congressional staff member alleged-

ly discharged by former Congressman

because of her sex had no private cause

of action ayainst former Congressman

for money damages under due process

clause of Fifth Amendment, in view of

fact that Constitution did not compel an

action for money damages implied from

due process eliause, Congress avoided cre-

atingg action for money damages for con-

gressional aides in noncompetitive _post-

tions, and implying: such a damiyge action

would pecessarily draw into the federal

judiciary system a wide range of cases

whose resolution Congress had not ¢om-

Synopses, Svilati and Key Number Chossifieation

The Synepoes, Syllate and Key Number Classife

cation constitute no part of the opinion of the court

DAVIS v.

mitted to federal judiciary and whose

resolution was better suited to courts of

general jurisdiction. U.S.C.A.Const.

Amend. 5.

Appeal from the United States Dis-

trict Court for the Western District of

Louisiana.

Before BROWN, Chief Judge, JONES,

THORNBERRY, COLEMAN, GOLD-

BERG, AINSWORTH, GODBOLD,

MORGAN, CLARK, RONEY, GEE,

TJOFLAT, HILL and FAY, Circuit

Judges.

CHARLES CLARK, Circuit Judge:

In’ today’s decision the court en banc

reverses a panel opinion which implied a

cause of action for money damages from

the Due Process Clause of the fifth

amendment of the Constitution.!

In her complaint, Ms. Shirley Davis

alleged that former Louisiana Congress-

man Otto Passman dismissed her as his

Deputy Administrative Assistant solely

because she was a woman and he wanted

a man in the position. Davis claimed

Passman's actions violated the equal pro-

tection component of the fifth amend-

ment Due Process Clause. Invoking the

court’s jurisdiction under 28 U.S.C.A.

§ 1331(a), she sought specifie relief, dam-

ages, and declaratory relief. Beeause

Passmin’s service in Congress ended af-

ter the suit was brought, the claim has

narrowed to one for recovery of money

l. The opimon of the panel, 544 F.2d 865 (5th

Cir. 1977), had, in turn, reversed the district

court's dismissal of a complaint tiled by a dis-

charged female congressional employee.

2. Apart from the Due Process Clauses, lower

federal courts have looked favorably upon Bi-

vens actions based upon the first, sixth,

eighth, ninth, and thirteenth amendments,

See, 6 ¢., Cox v. Stanton, 629 F 2d 47 (4th Cu

1975) (thirteenth and fourteenth amendments);

PASSMAN

damages. The district court based its

dismissal of the complaint on alternative

grounds: (1) that the law affords Davis

no private right of action and (2) that

the conduct of which she complained did

not violate the Cons.itution. Addressing

only the surviving claim for money dam-

ages, we affirm the district court's dis-

missal on the first ground.

The roster of constitutional rights

which have been held to support implicd

damage actions began its growth with

the Supreme Court's seminal decision in

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). In Bivens, the Court noted that

historically damages have been regarded

as the “ordinary remedy for an invasion

of personal interests in liberty,” and im-

plied a cause of action for money dam-

ages for the invasion of the plaintiff's

liberty which abridged his fourth amend-

ment rights. 403 U.S. at 395, 91 S.Ct. at

2004, 29 L.Ed.2d at 626.

Althowyrh the Supreme Court has nei-

ther extended nor further explained its

initial position, many inferior federal

courts have cited Bivens as authorizing

implied actions for money damages

based on constitutional rights other than

the fourth amendment. Generally,

these decisions have recognized implicitly

that Bivens has some yet unreached lim-

its. Only isolated district court decisions

have asserted that Bivens created dam-

age actions for violation of constitution:

Paton vo La Prade, 524 F.2d 862, 870 (3d Ci

1975) (first amendment); Jihaad vo Carlson,

410 F Supp. 1132 (B.D Mich.1976) (first) ana

eighth amendments), Berlin Democratic Club

v. Rumsfeld, 410 F Supp. 144, 160 62 (DDC

1976) (first and sixth amendments), Patmore

v. Carlson, 392 F.Supp. 737 (b.D AL 1975) (hifth

and exhth amendments) Sce also M. Leh

mann, Bivens and Its Progeny, 4 thastingss

Const, L.Q. 531, 566 72 (1977)

DAVIS v. PASSMAN

rights as broadly as if it’ had decreed

that 42 U.S.C.A. § 1983 applicd to the

federal government? = This appeal re-

quires either that we join ether circuits

in projecting the scope of Bivens to the

Due Process Clauses of the fourteenth

and fifth amendments,‘ or decline to fol-

low their precedents. A choice is not

foreclosed. In more tian one decision

the Supreme Court specifically has point-

ed out that this issue remains open?

Our own decisions appear equivecal on

this point. We have ruled district courts

erred in finding no jurisdiction to con-

sider damage claims based upon implied

causes of action under the Due Process

Clauses of both the fifth amendment,

Weir v. Muller, 527 F.2d 872 (5th Cir.

3. E g., Saftron v Wilson, 70 F.R D. 51,53 0.1

(D.D.C.1975) (“This holding [Bivens } has been

interpreted almost unanimously as recognizing,

a cause of action for damages for violauion of

any constitutionally protected interest “): Gar-

dels v. Murphy, 377 F.Supp. 1389, 1398 (N.D

1.1974) (Bivens recognizes a cause of action

for damages tor violation of any constitutional-

ly protected interest.”)

4. Several circuits have allowed plaintiffs to

base Bivens implied actions solely’ upon the

concept of due process: the Second Circuit,

Gentile v. Wallen, 562 F.2d 193, 196 (2d Cir

1977) (fourteenth amendment), the Third Cir-

cuit, United States ex rel Moore v. Koelzer,

457 F.2d 892, SO4 (3d Cir. 1972) (fifth amend-

ment), but see Mahone v. Waddle, S64 F.2d

1018 (3d Cir. 1977) (declining to atlow cause of

action on fourteenth amendment alone), the

Fourth Circuit, States Marine Lines, Inc. ¥

Shultz, 498 F.2d 1146, 1156 57 (ath Cir. 1974)

(fifth amendment), the Seventh Circuit, Fitz-

gerald v. Porter Memortal Hospital, 523 F.2d

716, 718 19 & n7 (7th Cir, 1975) (denying

relief, but holding action could be brought

solely under fourteenth amendment), the

Exghth Cireuit, Owen v. City of Independence,

560 F.2d 925, 932 (Sth Cir. 1977) (lourteenth

amendment in suit seeking, back pay), the

Ninth Cureuit, Jacobsen vo Tahoe Reyronal

Plhianmay: Agency, 558 bold 928, O80 37, O41

43 (Oth Cir, 1977) (one cause of action availa

ble on fitth amendment just Compensation

1976), and the fourteenth amendment,

Reeves v. City of Jackson, 532 F.2t 491,

495 (Sth Cir. 1976). See also Roane v.

Callisburyy Independent School District,

511 F.2d 633, 635 n.1 (5th Cir. 1975):

United Farmworkers of Florida Housing

Project, Inc. v. City of Delray Beach, 493

F.2d 799, 801-02 & n.2 (5th Cir. 1974),

Traylor v. City of Amarillo, 492 F.2d

1156, 1157 n.2 (5th Cir. 1974). However,

in Rodriguez v. Ritchey, 556 F.2d 1185,

1192 (5th Cir. 1977) (en banc), we eXx-

pressly declined to speak as an en bane

court on the appropriateness of extend-

ing Bivens beyond the fourth amend-

ment. Now we find ourselves face-to-

face with the necessity to take a firm

position.

clause and another en fifth amendment due

process clause).

Other circuits have commented favorably

upon extension of Bivens to actions implied

from the concept of due process: the Tenth

Circuit, c.g. Drv Creek Lodge, Inc. United

States, 515 F.2d 926, 932 & n5 (10th Cir

1975) (apparently refermng to the fifth amend-

ment), the D.C. Circuit, e g, Lewis ¥. DC

Dep't of Corrections, 174 U.S.App.D.C. 483.

484, 533 F.2d 710, 711 (1976)

The First Circuit has dechned to mmply a

cause of action against municipalities from the

fourteenth amendment Due Process Clause to

grant damages for wrongful death. Kostka v

Hogg, 560 F.2d 37, 44 (ist Cir 1977).

5. In several cases since Bivens, the Supreme

Court has expressly left open the question

whether an action for damages might be int

plied from the Due Process Clauses. Mr

Healthy School Dist. v. Doyle, 429 US. 274,

277, 97 S.Ct. 568, 571, 50 LEd2d 471, 477

(1977), Aldinger v. Howard, 427 US 1,3 73.

96 S.Ct. 2413, 2415-16 n.3, 49 L.Ed.2d 276, 250

n.3 (1976), City of Charlotte v. Local 660, Int'l

Ass'n of Firefighters, 426 U.S. 283, 284 n 1, 96

S.Ct. 2036, 2038 nl, 48 LEd.2d 636, 639 m1

(1976), District of Columtna v. Carter, 409

ULS. 418, 482 33, 93 S.Ct. GO2, 610, 34 1 fad 2d

613, G24 (1972) See also City of Kenosha v

Bruno, 412 US. 507, 514, 93 S.Ct. 2222, 2227,

37 LEd.2d 109, 116 (1973).

DAVIS v. PASSMAN

To decide whether to imply « cause of

action for money damages from the fifth

amendment Duc Process Clause, we

must examine Bivens itself. While Bi-

vens is not without ambiguity, the analy-

sis employed by the Court shows .that

the cause of action created is not wholly

of constitutional dimensions. The opin-

ion of the Court expressly states:

we cannot accept respondents’ formu-

lation of the question as whether the

availability of money damages is nec-

essary to enforce the Fourth Amend-

ment. For we have here no explicit

congressional declaration that persons

injured by a federal officer's violation

of the Fourth Amendment may not

recover. money damages from the

agents, but must instead be remitted

to another remedy, equally effective in

the view of Congress.

See 403 U.S. at 396 97, 91 S.Ct. at 2005, 29

L.Ed.2d at 626 27, citing J. 1. Case Co. v. Bo-

rak, 377 U.S. 426, 433, 84 S.Ct. 1555, 1560, 12

L.Ed.2d 423, 428 (1964) (federal securities

laws); Wheeldin v. Wheeler, 373 U.S. 647, 83

S.Ct. 1441, 10 L.Ed 2d 605 (1963) (action for

‘abuse of process through misuse of statute

governing Congress’ subpvens power), United

States v. Gilman, 347 U.S. 507, 74 S.Ct. 695,

98 L.Ed. 898 (1954) (indemnity action by

government under Federal Tort Claims Act);

United States vo Standard Ou Co, 332 US

301, 311, G7 S.Ct. 1604, 1609 10, 91 L.Ed

2067, 2073 (1947) (vovernment sought impled

remedy, based upon established common law

action)

7. Bivens is cited in Cort to support the propo-

sition that causes of action for damapes should

not be implied to govern matters “traditionally

releyated to state haw, in an area basically the

concern of the States.” 422 US at 78, 95 S.Ct.

at 2088, 45 1. Ed 2d at 36, and the proposition

that where such actions have been tophed,

“there has generally been a clearly articulated

federal rphtom the plamath rd) at 82.95 S.Ct.

at 2090, 45 Lobd.2d at 39

8. Sce Kostka vo Hoge, 560 F.2d 37, 44 & 17

(ist Cur. 1977). See also Rodriguez vo Ritchey,

403 U.S. at 397, 91 S.Ct. at 2005, 29

L.Ed.2d at 627. The cases relied upon

for guidance by the Court in Bivens

dealt with implying a cause of action

from federal statutes that created rights

but provided no federal remedy.& More-

over, in Cort v. Ash, 422 U.S. 66, 95 S.Ct.

2080, 45 L.Ed.2d 26 (1975), the Supreme

Court’s most comprehensive treatment of

implied statutory causes of action, the

Court relied upon Bivens to support two

points of its four-part statutory analy-

sis.’

If the fourth amendment had mandiat-

ed a cause of action for monetary dam-

ages, Bivens would have had no occasion

to consult or discuss the action or inac-

tion of Congress. Since the Court ex-

plicitly reasoned its precedent on the lat-

ter ground, we take the Bivens remedy

to be one implied as a matter of federal

common law ® and therefore subject, like

556 F.2d 1185, 1193-94 (Sth Cir. 1977) (en

banc). See generally Jacobson v. Tahoe Re-

gional Planning Agency, 558 F.2d 928, 937 &

n.14 (9th Cir. 1977), C. Wright, Federal Courts

§ 60 (3d ed. 1976), citing D’Oench, Duhme &

Co. v. Federal Deposit Ins. Corp., 315 U.S. 447,

465-75, 62 S.Ct. 676, 683-88, 86 L.Ed. 956,

966, 971 (1942) (Jackson, J. concurring)

Federal common law implements the federal

Constitution and statutes, and is conditioned

by them. Within these limits, federal courts

are free to apply the traditional common haw

technique of decision and to draw upon all

the sources of the common law

315 ULS. at 472, 62 S.Ct. at 686, 86 L.Ed. at

969, Monaghan, Foreword: Constitutional

Common Law, 89 Harv Rev. 1, 10-13, 22 26

(1975)

Where a remedy is of constitutional dimen

sions and particular elements are not subject

to revisions by Congressional legislation, the

Court has clearly so indicated. See, eg, Jae

cobs vo United States, 200 US. 13, 54 S.Ct. 26,

78 Lobkd 142 (1943), Seabaud Ai Line Rs

Co. vo Uniteu States, 261 U.S. 209, 43 S.Ct

354, 67 Led) G64 (1923),

DAVIS v. PASSMAN

all such law, to the power of Congress to

alter or withdraw. Therefore, we em-

ploy a two-step analysis. First, we look

to the jurisprudence of statutory impli-

cation to determine whether to imply a

damage action of non-constitutional «i-

mensions. Second, if this initial inquiry

does not suggest that such an action

should be implied, we must determine

whether the Constitution nevertheless

compels the existence of a remedy in

dam: ges to vindicate the rights asserted.

See Kostka v. Hogg, 560 F.2d 37, 42 (1st

Cir. 1977). Applying this analysis to Da-

vis’ claim, we find that the district court

properly concluded that no cause of ac-

tion existed.

{1} Courts have considered several

factors in determining whether to imply

a cause of action from a statutory right:

(1) whether the provision asserted cre-

ates an especial right in the plaintiff, (2)

whether the action of Congress in the

field indicates an intent to allow such a

remedy or at least an intent net to deny

the remedy, (3) whether implication of

the remedy would be consistent with the

purpose of the right asserted, and (4)

whether the cause of action implied

would be one appropriate for federal

law. Cort v. Ash, 422 U.S. at 78, 95

S.Ct. at 2088, 45 L.Ed 2d at 36 (1975).

Of course, the factors examined in ques-

tions of implied statutory causes of ac-

tion, as set forth in Cort and preceding

cases, cannot be applied in precisely the

same way where implying a Bivens -type

action is at issue. However, this cireuit

has held that the @rt factors do not set

forth a rigid pattern of analysis that a

court: must follow precisely. Rather,

“the Court simply said that several fae-

tors Were relevant and worthy of consid-

eration.” Olsen v. Shell Oil Co., 561 F.2d

1178, 1188S (5th Cir. 1977).

Where federal courts have inferred a

federal private cause of action not ex-

pressly provided, there generally has

been a clearly articulated federal right

in the plaintiff. Cort v. Ash, 422 U.S

66, 82, 95 S.Ct. 2080, 2090, 45 L.Exl.2d 26,

38 (1975), citing Bivens v. Six Unknown

Named Agents, 403 U.S. 388, 394-95, 91

S.Ct. 1999, 2003-04, 29 L.Fad.2d 619, 625 -

26 (1971). While the fifth amendment

right to due process certainly confers a

right upon Davis, the injury alleged here

does not infringe this right as directly as

the injury inflicted in the unreasonable

search of Webster Bivens offended the

fourth amendinent. The concept of due

process encompasses virtually all of the

civil liberties derived from the Constitu-

tion. While the fifth amendment Due

Process Clause surely exists for the “es-

pecial benefit” of Davis, as Cort re-

quired, it does not exist with equal cer-

tainty t protect her tenure in a non-

competitive personal aide position statu-

torily denominated as service at will. 2

U.S,C.A. § 92.

Cort looked to “legislative intent, ex-

plicit or implicit, cither to create such a

remedy or to deny one.” 422 U.S. at 78,

95 S.Ct. at 2U88, 45 L.Fab2d at 36. Bi-

vens recognized that congressional intent

to ereate a remedy must guide a court in

determining whether to imply a remedy

from provisions of the Constitution. 403

U.S. at 396-97, 91. S.Ct. at 2004-05, 29

L.Bd.2d at 626-27. Congressional reme-

dial legislation for employment diserimi-

nation has carefully avoided creating a

cause of action for money damages for

one in Davis’ position, In Section 701,

Tille VII of the Civil Rights Act of 1964,

Congress excluded the federal govern-

ment from the general definition of “em-

ployer,” thus denying federal employees

a statutory damage action under ‘Title

VII. 42 U.S.C.A. § 2000e(b). In) 1972,

Congress amended Tithe VII to add See-

DAVIS v. PASSMAN

tion 717, which provided a separate ad-

ministrative remedy for discrimination in

federal employment, but did not extend

the remedy to employees of Congress not

in the competitive service. Under See-

tion 717, other federal employees may

have review in the federal courts of fina!

action by their employing agencies or

the Civil Service Bourd of Review, 42

U.S.C.A. § 2000e-1@a) (1974). Congres-

sional action in designing Title VII rem-

edies shows Congress adhered to the leg-

islative judgment expressed in the stat-

ute under which Davis was hired: Mem-

bers of a congressman's personal staff

are removable by him “at any time .—.

with or without cause.” 2 U.S.C.A. § 92.

Implying the cause of action asserted

by Davis would have the anomalous re-

sult of granting federal employees in

nea-competitive positions, whom Con-

gress did not intend to protect, a remedy

far more extensive than Congress adopt-

ed for federal employees in the competi-

tive service, whom it did intend to pro-

tect. When Congress enacted Section

717, it believed that no other effective

remedy existed for federal employees

treated discriminatorily. See Brown v.

General Services Admin., 425 U.S. 820,

826-28, 96 S.Ct. 1961, 1965-66, 48

L.Ed.2d 402, 407-08 (1976); H.R.Rep.No.

92-238, 92d Cong. 2d Sess., [1972] U.S.

Code Cong. & Admin.News, pp. 2137,

2160. However, in amending Title VII

to make it the “exclusive, pre-emptive

administrative and judicial scheme for

the redress of federal employment dis-

crimination” for those federal employees

9. 425 US. at &28, 96 S.Ct. at 1966, 48 L-Ed.2d

at 408

10. Section 717, 42 USCA. § 20006 16(c)

(1974), allows an emplovee or appheant ag:

grieved by final action or a failure to take tinal

action on his adiumistrative complaint to file a

civil action under Section 706, 42 USCA

§ 200Ce-5 (1974). in which “the head of the

it covered? Congress did not grant fed-

cral employees in the competitive service

an action for damages against their su-

periors in their individual capacities."

The Supreme Court has upheld the ex-

clusivity of Title VII as a remedy for

federal employment discrimination

against employees in the competitive ser-

vice whom it covers. In Brown, the

Court held that Congress could require

federal employees alleging discrimination

to seek relief solely within the confines

of Title VII, a limitation which plaintiffs

could not surmount by the simple expe-

dient of putting a different label on the

pleadings. 425 U.S. at 832, 96 S.Ct. at

1968, 48 L.Ed.2d at 411. Congress can-

not have intended to deal more gener-

ously with those in Davis’ position, from

whom it deliberately withheld protection.

Cort calls for an examination of the

consistency of a statutory cause of action

with the statutory scheme enacted by

Congress. 422 U.S. at 78, 81, 95 S.Ct. at

2088, 2090 91, 45 L.Ed2d at 39. The

Court in Bivens made an analogous in-

quiry in considering the particular diffi-

culties presented in enforcing the guar-

antees of the fourth amendment. The

fourth amendment has presented the

Court with a series of remedial dilem-

mas, nol encountered in other contexts,

with which the Court has wrestled ac-

tively for over half a century. The

amendment’s subject matter is such that

law enforcement officials, who necessari-

ly make the searches and seizures it gov-

erns, are themselves the group most like-

department, agency, or unit shall be

the defendant.” However, under this section,

federal defendants may be sued only im their

official Capacities, and not as individuals. See

Keeler vo bills, 408 b Supp. 386, 387 (ND Ga

1975), see also Jones vo Brennan, 401 F Supp

622, 627 (N.D.Ga_1975)

DAVIS vy.

ly to be hostile to its barricrs. This hos-

tility of law enforcement officials to the

restraint of the fourth amendment led

the Court initially to adopt the exclu-

sionary rule for federal cases, Weeks v.

United States, 232 U.S. 383, 34 S.Ct. 341,

58 L.ed. 652 (1914), and then to apply it

to the states in Mapp v. Ohio, 367 US.

643, 81 S.Ct. 1684, 6 L.Ied.2d 1081 (1961),

when criminal actions and state law tort

actions proffered as a substitute remedy

in Wolf v Colorado, 388 U.S. 25, 69 S.Ct.

1359, 93 LF. 1782 (1949), showed them-

selves incffective. However, the exclu-

sionary rule—the remedy chosen to se-

cure the rght—also has proved less than

satisfactory. See Bivens vo Six Un-

known Named Agents, 403 U.S. at 411,

91 S.Ct. at 2012, 29 L.Ed.2d 635 (1973)

(Burger, C. J., dissenting). Thus the

Court continues to struggle for a just

means for enforcing the fourth amend-

ment. See Stone v. Powell, 428 U.S. 465,

96 S.Ct. 3087, 49 L.Ed.2d) 1067 (1976).

Violations of fourth amendment rights

occur in a well-defined setting familiar

to the courts. The relationship is always

one between law enforcement officials

and citizens suspected of possessing evi-

dence of crime. The context in) which

these violations may arise is sufficiently

limited to allow the court to determine

that an action for damapes would be

consistent with the purpose of the fourth

amendment in future instances in which

such an aetion might be invoked. The

fifth amendment Due) Process Chiuse

presents no similarly foeuscd remedial is-

sue. To the contrary, the breadth of the

concept of duc process indicates that the

damage remedy sought will not be judi-

cially manageable and that there is sim-

ply no way a court can judge whether

this remedy will be appropriate for se-

curing the right) in future situations

where some plaintiff might assert. it.

PASSMAN

The final factor considered in Cort is

whether “the cause of action is one tra-

ditionally relegated to state law, in an

area basically the concern of the States,

so that it would be inappropriate to infer

a cause of action based solely on federal

law.” 422 U.S. at 78, 84-85, 95 S.Ct. at

2088, 2091, 45 L.Rd.2d at 36, citing Bi-

vens ve Six Unknown Named Agents,

403 ULS. at 394-95, 91 S.Ct. at 2003-04,

2° L.EL2d at 625-26. Under this factor

we consider the effect that implying a

remedy would have upon both state law

and the federal judiciary. Santa Fe In-

dustries, Inc. v. Green, 430 U.S. 462, 477,

97 S.Ct. 1292, 13038, 51 L.Ed.2d 480, 494

(1977); Blue Chip Stamps v. Manor Drug

Stores, 421 U.S. 723, 739-741, 95 S.Ct.

1917, 1927 28, 44 L.Fal2d 589, 551-52

(1975). While the particular cireum-

stances of the case at bar raise questions

of federal rights in federal employment,

adoption of the broad principle upon

which the granting of relief to Davis

hinges would expand federal jurisdiction

into broad fields of law presently oceu-

pied by state court systems. Therefore,

we properly consider this factor.

Adoption of Davis’ interpretation of

Bivens would) project the penumbra of

federal court: constitutional duc process

jurisdiction over every legally cognizable

tortious injury inflicted by persons act-

ing under color of federal law because,

by its nature, every tort deprives the

victim of due process through unlawful

appropriation of liberty or property or

both. Indecd, logically, the expansive

effeet of such a holdings would) not end

there. Tt also would extend federal jur-

isdiction to cover all state action tort

claims, cither under pendent jurisdiction,

ef Hagans v. Lavine, 415 U.S. 528, 94

S.Ct. 1372, 39 L.Bal.2d 577 (1974), or un-

der a cause of action implied from the

fourteenth amendment. The latter of

DAVIS v. PASSMAN

these state action claims would be coyni-

zable without regard to diversity of citi-

zenship, amount in controversy or other

present statutory limitation. Because of

the breadth of due process, a decision

implying an action for money damages

from the fifth amendment Due Process

Clause alone would extend an action for

damages to any constitutional guarantee.

Thus, the danger of deluging federal

courts with claims otherwise redressable

in state courts or administrative proceed-

ings looms far more ominously than in

Bivens. 403 U.S. at 391 & n4, 91 S.Ct.

at 2002 & nd, 20 L.Ed.2d at 623 & nd.

Not only does this case fail to present

special remedial difficulties analogous to

those faced by the Court in dealing with

the fourth amendment, but also Con-

gress avoided creating an action for

money damages for Congressional aides

in non-competitive positions. Morcover,

implying this damage action necessarily

would draw into the federal judicial sys-

tem a wide range of cases whose resolu-

tion Congress has not committed to the

federal judiciary and whose resolution is

better suited to courts of general juris-

diction. These special considerations, not

present in Bivens, eliminate any question

of our creating a remedial right under

our federal common law powers. This

conclusion does not end our inquiry, how-

ever, for we still must determine wheth-

er the Constitution nevertheless compels

an action for money damages implied

from the fifth amendment Due Process

Clause.

{2} Therefore, we next consider

whether, in this case, a damage aetion is

indispensible io the effectuation of the

fifth amendment Dae Process Clouse

and thus beyond the power of Congress

to preclude, Cr. Kostka ve Hog, 560

F.2d at 44. We conclude that the pro-

posed damaye remedy is not constitu-

tionally compelled. Not every right that

conceivably could be wedged within the

literal breadth of due process demands

federal protection through a cause of ac-

tion for monetary damages. In Paul v.

Davis, 424 U.S. 698, 96 S.Ct. 1155, 47

L.Ed.2d 405 (1976), the Court considered

the reach of federal remedies where

Congress, in 42 U.S.C.A. § 1983, express-

ly provided that violation of constitution-

al rights by one acting under color of

state law would give rise to a cause of

action for monetary damages. Even

with an express statutory mandate to

provide a federal damage action, the

Court noted that “ ‘the range of interests

protected by procedural due process is

not infinite.”” 424 U.S. at 709, 96 S.Ct.

at 1164, 47 L.Bd.2d at 418 (1976), citing

Board of Regents ». Roth, 408 U.S. 564,

570, 92 S.Ct. 2701, 2705, 33 L.Pal2d ods,

556 (1972). Here, we do not consider, as

the Court did in Paul, what due process

may encompass given an express suautulo-

ry mandate to extend a cause of action

for money damages to the full reach of

the right. Rather, we consider the ex-

tent to which the Constitution requires

that we countermand the clearly discern-

ible will of Congress to create a cause of

action where Congress declined to pro-

vide one. Paul thus teaches that we

should restrain our reach far more than

the Court did there.

Denyings an implied cause of action for

money damages does not render mean-

ingless any constitutional rights of con-

ressional employees. A plaintiff might

still seek equitable relief where the em-

ployer remained in office, although con-

yressional employees in the non-competl-

live service Whose allegedly diserimina-

ting employers are not in office may be

left without a remedy for sex discrimina-

tion in employment unless Congress ree

DAVIS v. PASSMAN

verses its present statutory stand."

Other due process wrongs would either

continue to be remedied in traditional

ways through tort actions in courts of

appropriate general jurisdiction — or

through special statutory remedies pro-

vided by state legislatures or Congress.

Admittedly, some not now covered would

remain inactionable.

Another provision of the Constitution

must aso be considered. Our rejection

of the broad principle asserted by Davis

is premised upon much more than just

another “floodgates” argument. The

prospect here is of so crushing an al-

ready precariously overloaded federal ju-

dicial system as to render meaningless

the power the Constitution vests in Con-

gress under Article IIL, Section 1, of the

Constitution to establish the jurisdiction-

al ambits of the inferior courts it has

created. We deeline to hold that by im-

plication the fifth amendment requires

such an anomalous result.

[3] Given these consequences and our

inability to construct a plausible measure

for acceptable limits on the right of ae-

tion Davis would have us imply to reme-

dy the wronjr alleped, 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. Beeause no right of action

may be implied from the Due Process

Clause of the fifth amendment, the dis-

trict court correetly ruled that no civil

action for damages may be maintained

here. Absent such a right of civil action,

the district court cannot exercise juris-

diction under 28 US.CLA. § 1331(a),

Hh. Davis has not challenged the distinction in

Title VIE between federal employees in com-

petitive positions and those in non-competitive

positions for the purposes of Title VIE reme-

dies

which confers jurisdiction only for “civil

actions wherein the matter in controver-

sy... arises under the Constitu-

tion . . . 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 Passman’s conduct in firing her did

not violate the Constitution.

The judgment of the district court is

AFFIRMED IN PART, AND. IN

PART VACATED.

JONES, Circuit Judge, specially con-

curring:

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 be-

lieve, 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 con-

fined to the Speech and Debate elause.!

The broader provision by which all lepis-

lative powers are vested in) the Con-

gress? is relevant te this cause. It

might be said that the doetrine of inclu-

sio unius est exclusio altérious permits or

requires a construction that a Congress-

man may be judicially questioned for

any and all else that a Congressman

might do in the exercise of the legisla-

live power exeept in speech or debate.

Obviously the Constitution has no such

1. The Senators and Representatives oe

for any speech or debate in either House 2.

shall not be questioned in any other place

U.S.Const. Art. t, § 6(1).

2. U.S.Const. Art. I, § },

10a

DAVIS v. PASSMAN

meaning. We may remind ourselves of

Chief Justice Marshall's reminder as to

constitutional construction?

In no small measure the genius of the

Founding Fathers in framing that most

wonderful work ever struck off by man‘

is the separation of powers among the

three branches of government. — Al-

though the necd for checks and balances

requires that no one of the departinents

shall be wholly unrelated to cach of the

others’ the essential functions of cach

are, by the terms of the instrument, sep-

arate from those of the others.

Notwithstanding the Gravel’ and

Brewster ® cases and Senator Ervin’'s

critical comments upon them® the doc-

trine of separation of powers survives.

It is not necessary to say that all of

the activities of the members of a Con-

gressman’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’ perform-

ance that they must be treated as the

latter's alter egos 2.) 2”) Gravel v.

United States, supra, 408 U.S. at 616-17,

92 S.Ct. at 2623.

It scems to me the court held that

judicial relief is denied because the Con-

gress has failed to provide a judicial

3. “We must never forset that ois a constitu.

tion we are expounding. McCulloch vo Mary

land, 4 Wheat. (17 US) 316, 4 Lbd 579

(1819)

4. Wilham FE. Gladstone, 127 North American

Review 179 (Sept. —-Cot. 1878)

5. J. Madison, The bederalist, Noo NLVITE (1852

ed.)

6. kt 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

remedy. Rather I think the court should

say that the hiring and firing of his “al-

ter 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 ii, is whether or not

the controversy is one involving the ex-

ercise 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 de-

clare and enforce it. 1 think it should

have been held that the complaint does

not state a claim upon which relief can

be granted.

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 | agree that plaintiff

has no constitutional damage remedy

based on an alleged fifth amendment \i-

olation, and the case of Rodriquez v. Rit-

chey, 556 F.2d 1185 (Sth 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.

shall appoint federal judges and US attorneys

the reality as that “the Senate nominates and

the President confirms persons to fill those

offices.” Griffin B. Bell, Washington Post,

February 27, 1978

7. United States v. Gravel, 408 US. 606, 92

S.Ct 2614, 33 L.Ed 2d 583 (1972)

& United States vo Brewster, 40S U.S. 501, 92

S.Ct. 2531, 33 L.Ed 2d 507 (1972)

9 Sam J. Ervin, Jr. The Gravel and Brewster

cases) An Assault on Congressional Independ

ence, 59 Va.L Rev. 175 (1973)

lla

DAVIS v. PASSMAN

In his coneurring opinion in’ Bivens,

Justice Harlan intimated that “the ap-

propriatencss of money damages may

well vary with the nature of the person-

al interest asserted.” Bivens v. Six Un-

known Fed. Narcotics Agents, 403 U.S.

388, 408 n.9, 91 S.Ct. 1999, 2011, 29

L.Ed.2d 619, 634 (1971) (Harlin. J., con-

curring). The distinetion I find between

Rodrirucz and the instant case lies in

the nature of the personal interest as-

serted in the “due process” violations al-

leged. In Rodriguez the plaintiff was

indieted, arrested, and held in’ bail for

many months for a crime she knew noth-

ing about and of which she was altogeth-

er innocent, because of the allegedly un-

constitutional acts and conduct of a fed-

eral agent. In) dissent, both Judges

Coleman and Goldberg, with whom I

concurred, held that plaintiff had a Bi-

vens-type damage claim if the agent's

acts were so reckless as to constetute a

Willful violation of the plaintiff's “right

to remain free of unconstitutional intru-

sions by povernmental agents.” 556

F.2d at 1195

To me, there is little distinetion be-

tween the personal liberty invasion by

arrest and indictment in) Rodriguez and

the personal liberty invasion by the pri-

vate apartment search, seizure, and ar-

rest in Bivens. Both eases involved the

citizen's right to be let alone by Govern-

ment agents, unless the agrents act with-

in the governmental powers ordained by

the Constitution. The Constitution gave

limited power to the Government it cre-

ated. Without a constitutional base, no

individual has the legal authority to act

against another individual in’ the name

of Government. Some povernmental

powers are specifically given, but. to

make absolutely sure that cortain powers

not piven would not be read inte the

Constitution by overzealous Government

officers, cither exceutive, conyressional,

or judicial, there is. a list of “shall nots”

in the Bill of Rights. Many of the indi-

vidual rights enumerated there were nei-

ther “created” nor “given” by the Con-

stitution, bul rather were recesnized as

being inherent rights of individuals long

before the summer of 1787. The fram-

ers’ approach to those rights in the writ-

ten Constitution was to try to assure

they would remain forever free of gov-

ernmental 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 consti-

tutional amendments—-in) Bivens, the

fourth, and in Rodripuez, the fifth—

merely protected those rights by specific

prohibition against eneroachment. IT saw

Rodriguez as being controlled by Bivens

and would have there held that the case

law provided plaintiff Rodriguez with a

damiyre remedy, a damage remedy root-

ed in preconstitutional notions of tort

lav...

In this case, however, no similar right

is at stake. The defendant has not in-

truded upon a liberty interest with pre-

constitutional origins. Historically, em-

ployers 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, ex-

cept perhaps to their conscience and

their God, and for governmental employ-

crs, 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 vy.

United Stites, 208 U.S. 161, 28 S.Ct. 277,

O2 LRAL 486 (1908); Coppage v. Kansas,

12a

DAVIS v. PASSMAN

236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441

(1915). Under this early theory, Ms. Da-

vis 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 yiv-

en her a right not to be fired on the

basis of her sex. This right is not, how-

ever, a protected inherent right, but a

right “created” by the Constitution, a

right which in fact encroaches upon

what was historically viewed as an in-

herent 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 dis-

covered in the recesses of the fifth

amendment?

The dissenting opinion of Judge Gold-

berg repeatedly invokes the oft-quoted

dictum that “where legal rights have

been invaded, and a federal statute pro-

vides for a general right to sue for any

such invasion, federal courts may use

any available remedy to make prood the

wrong done.” Bell ve Hood, 327 U.S.

678, 681, 66 S.Ct. 773, 777, 90 L.Ed. 939,

944 (1916), quoted in Bivens vo Six Un-

known Fed. Narcotics Agents, 403 U.S

388, 396, 91 S.Ct. 1999, 20 L.Bd.2d 619

(1971). It is interesting to note, how-

ever, that the author of that statement,

Justice Black, dissented in Bivens on the

ground that “neither Congress nor the

Stale of New York [had] enacted leyisla-

tion 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 ereator of the rights. Thus, to

me, Judge Clark makes a necessary anal-

ysis 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 26 (1975). To me also, this is

where ] 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.

This gets down to the real difference

between the majority and the dissent, in

my view. Bivens can casily 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

“ereated” by Constitution or statute are

remedicd ino only those ways that can

safely be inferred from the creating: doc-

uments.

Bivens, which produced five separate

opinions, Was not an easy decision. Law-

cr courts probably disserve the daw ty

carrying obviously difficult, narrow, lim-

ited decisions of the Supreme Court far

beyond their intended reach. Such judi-

cial activity subverts a major objective

of law in an organized society: to pro-

vide certainty for human action. The

l3a

DAVIS v. PASSMAN

majority of this Court has shown precise-

ly 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, shoukd not require it.

It is impossible te 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 sup-

port any other logical Bivens premise.

There is a bit of symmetry, however, if

we look only at the faets of the cases,

and the results, and disregard the ver-

balization 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.

stood, 327 U.S. 678, 681-82, 66 S.Ct. 773,

90 L.Fad. 939 (1946) federal question jur-

isdiction, as opposed to a federally recog:

nized right of relief, is created by the

mere allegation of matters ia controver-

sy arising under the Constitution of laws

of the United States. Most of the cir-

cuit court causes dealings 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 viola-

tions to be sufficiently substantial to

‘ground federal jurisdiction under 28

U.S.C.A § 1331. This is altogether dif-

ferent: from inferring a Bivens -type

damage remedy from the constitutional

provisions asserted. See, eg, Weir v.

Muller, 527 F.2d S872 (Sth 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 dis-

sent as extending Bivens beyond the

fourth amendment to the due process

rights of discharged employees were not

Bivens remedy cases. In Gentile v. Wal-

len, 562 F.2d 193 (2d Cir. 1977) the

Second Circuit held that a claimed denial

of due process by a discharged clementa-

ry school teacher stated a cause of action

arising directly under the fourteenth

amendment. On the question of reme-

dies, however, the court stated: “Wheth-

er moncy damages are available under

this cause of action or only equitable

relief . . . is a question of reme-

dies that we need not reach Dy i

Id. at 197 n4 (citation omitted). Since

the power of federal courts to grant eq-

uitable relief for violations of constitu-

tional rights was recognized prior to Bi-

vens, the Gentile court did not really

advance the march of Bivens into the

area of fifth amendment rights. See Bi-

vens ve Six; Unknown Fed. Narcotics

Agents, 103 U.S. 388, 100, 91 S.Ct. 1999,

29 L.kal.2d 619 (1971) (Harlan, J., coneur-

ring); Beli v. Hood, 8327 U.S. 678, 684, 66

S.Ct. 773, 90 L.Ed. 939 (1946).

Likewise, in Owen v. City ef Inde-

pendence, 560 F.2d 925 (Sth Cir. 1977)

the Fighth Circuit held that a discharged

city employee was entitled to monetary

relief in the nature of backpay for viola-

tion of fourteenth amendment due proe-

ess, but was careful to emphasize that it

was discussing “only an equitable reme-

dy... ." Id. at 933 n.9 and 940.

Cases in which cireuit courts have in-

ferred 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 hav-

ingg preeonstitutional origins. For exam-

ple, the first amendment did not. “ere-

ate” the right to express one's views free

from unlawful governmental intrusion;

it merely protected an already present

right from governmental interference.

l4a

DAVIS v. PASSMAN

Dellums vy. Powell, 566 F.2d 167 (D.C.

Cir.1977) (speakers and demonstrators

unlawfully arrested by District of Co-

lumbia police during 1971 “May Day”

demonstration have cause of action for

damages arising direetfy under first

amendment);

Paton v. LaPrade, 524 F.2d 863 [862]

(3rd Cir. 1975) (Bivens-type damagre

remedy for violation of first’ amend-

ment rights «available to 16-year-old

school student who was iny sstigrated

by FBI after sending off for literature

from Socialist’ Workers Party in con-

nection with her social studies class);

Yiamouyiannis v. Chemical Abstracts

Service, 521 F.2d 1392 (6th Cir. 1975)

(complaint alleging that because of an-

tifluoridation speeches made by plain-

tiff, Department of Health, Education

and Welfare coerced plaintiff's em-

ployer 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 “ercate” 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 fol-

lowed the criteria therein provided,

Jacobson v. Tahoe Regional Planning

Agency, 558 F.2d 928 (9th Cir. 1977)

(allegation that) certain zonings ordi-

nances enacted by agency operating:

under federal law effectuated a “tak-

ing” of plainviff's land states a Bivens

type damage claim arising direetly

under the fifth amendment); ,

States] Marine Lines, Ine. v. Schultz,

[Shultz] 498 F.3d 1146 (4th Cir, 1974)

(unlawful seizure of plaintiff's proper-

ty by Customs agents gives rise to it

Bivens -Lype damage action arising: di-

rectly under fifth amendment);

United States ex rel. Moore Koelzer,

457 F.2d 892 (3rd Cir. 1972) (allegra-

tions that FBI agents falsified docu-

ments and testified falsely in order to

convict plaintiff state cause of action

for damayres 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, cither

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 viola-

tion, rather than a fourth, but should be

considered on the asis of the personal

interest: asserted. ‘The remedy sought

for the personal interest asserted by Ms.

Davis cannot be infused into the Consti-

tution without unduly burdening the

reasoning with the hope, faith, and per-

sonal preference of the reasoner. There-

fore, | would affirm the district court.

GOLDBERG, — Circuit Judge, with

whom JOHN R. BROWN, Chief Judge,

Joins, dissenting:

A majority of the en. bane court today

holds that no private cause of action for

damages may be implied from the due

process cliuse of the fifth amendment to

the United States Constitution. 1 be-

lieve that this conclusion, certainly as it

applies to the facts of this case, is unten-

tble so long as Bivens v. Six Unknown

Named Apents of Federal Bureau of

Narcoties, 403 U.S. 888, 91 S.Ct. 1999, 29

1... 2d 619 (197)), is ood law. Findings

nothing in’ subsequent opinions of the

Supreme Court which undercuts the vi-

tality of the reasoning in Bivens, 1 would

hold that Shirley Davis has a private

DAVIS vy.

right of action for damages to vindicate

her constitutional rights. While recopr-

nizing that constitutional attrition mity

be the benchmark of the 1970's, | would

leave it for the Supreme Court to place

the mark of Cain on Bivens’ heretofore

unblemished brow. It is a source of

deep regret that it is the Fifth Cireuit, a

court so often exemplary in its affirma-

tion of constitutional rights, which has

chosen to start Bivens dowr the slippery

slope into desuetude and demise. 1 re-

spectfully dissent.

In the carly part of 1974 Shirley Davis

Was Deputy Administrative Assistant to

Congressman Otto BE. Passman of Louisi-

ana’s Fifth Congressional District. The

Representative terminated Ms. Davis's

employment, effective July 21, 1974. In

his letter to her explaining: the termina-

ion decision the Representative wrote,

‘ou are able, energetic and a very hard

worker, ae es [HJjowever, — on

1. Dear Mrs. Davis

My Washington staff JOINS Me dn saving

that we miss vou very much But, in all

Probability, inwardly they all agree that |

Was douy: vou an imypustice by asking vou to

assume a responsibility that was so trying

and so hard that it would have taken all of

the pleasure out of your work. Lb must be

Completely tur with vou, so please note the

following

You are able, energetic and a very hard

worker, Certainly vou command the respect

of those with whom vou work: however, on

aceount of the unusually heave work load in

my Washington Office, and the diversity, of

the job, TP concluded that it) was essential

that the understudy to omy Admunistrative

Assistant be aman TL beheve vou will agree

With this Conclusion

I would be unfair to vou for me to ask

you to waste sour talent and eNpericnee in

my Monroe © tice beeause of the low salary

that is availible because of a junior position

Therefore, and so that your expenence and

talent miay be used to advantape im some

15a

PASSMAN

account of the unusually heavy workload

in my Washington Office, and the diver-

sity of the job, I concluded that it was

essential that the understudy to my ad-

ministrative assistant be a man.” The

full text of this rather remarkable letter

is set out below.!

Davis then filed this action against the

Representative, claiming he had violated

the equal protection component of the

fifth amendment’s due process clause.

She invoked the court's “arising under”

jurisdiction pursuant to 28 US:C.

§ 1831(a) and sought relief including, in-

ter alia, damages from Passman in his

individual capacity. The district court

assumed jurisdiction of the case and pro-

ceeded to dismiss the complaint for fail-

ure to state a claim upon which relief

cain be granted, Fed Civ. 12(b)(6),

holding that “the discharge of plaintiff

on alleged grounds of sex discrimination

by defendant is not violative of the Fifth

Amendment to the Constitution” and

Organization in need of an extremely capable

secretary, | desire that you be continued on

the payroll at your present Salary through

July 31, 1974. This arrangement gives vou

sour full year’s vacation of one month, plus

one additional month, May 1 further say

that the work load in the Monroe office is

very bmited, and since vou would come in

as a junior member of the staff at such a

low salary, it would actually be an offense to

you

I know that secretaries with your ability

are Very much in demand in Monroe If an

additional letter of recommendation from me

would be advantageous to vou, do not hest-

tate to let me know. Again, assuring you

that my Washington staff and your humble

Conessman feel that the contribution vou

made to our Washington office has helped

all of us

With best wishes,

Sincerely,

/s/ Otto E. Passman

Member of Conyress

l6a

DAVIS v. PASSMAN

that “the law affords no private right of

action to plaintiff therefor.” A panel of

this court reversed the decision of the

district court and remanded the case for

trial, 544 F.2d 865 (Sth Cir. 1977). The

panel concluded that takings the com-

plaint’s allegations as true, Representa-

tive Passmian’'s dismissal of a staff mem-

ber on the basis of gender violated the

equal protection component of the fifth

amendment due process clause; that un-

der Bivens the Constitution itself affords

the Cismissed staff member a damages

remedy; that sovereign immunity does

not bar a damages award against the

Representative individually; that the

speech or debate clause does not extend

to staff dismissals because they are not

“legislative tasks” within the Supreme

Court's holdings; and that the existence

of qualified immunity cannot support the

district. court's dismissal of the com-

plaint. See id. at 882.

Circuit Judge Jones dissented from the

judgment of the pancl on the basis of

the doctrine of separation of powers. Id.

Representative Passman, by then defeat-

ed in hisybid for reelection and retired

from the Congress, filed a petition for

rehearing en banc, alloying: that congres-

sional hiringg and firings were insulated

from judicial review under the politica!

question doctrine and the speech or de-

bate chiuse. The court ranted rehear-

2. Also worthy of mention is Jacobs 1 United

States, 290 US. 13, 54 S.Ct 26, 78 Lied 142

(1933) (founding: rpht to recover Just compen

sation directly on the fitth amendment: statu.

tory reception not necessary) Ot course, it

is Clear “that there is un imphed myunetive

remedy for threatened or continmny constitu.

onal vickitvions” Bivens vo Sin Unknown

Named Agents of Ledeval Bureau of Narcotic s,

409 F.2d TIS, 723 Qnud Cir 1969), rev'd on

other grounds, WX US. 488, O1 SCL 1909, 29

L.bab2d GIO CL97D), cing: Bell vy Hood, 327

U.S. 675, GS4 and no 4. 66 SCL. 775, 90 Lod

939 (1940), Larson vw Domesue and Foreym

ing en bane. Today, not reaching the

thorny constitutional issues posed by the

scope of congressional immunity under

the specch or debate clause, the en bane

majority determines that no right of ac-

tion for damages may be implicd from

the fifth amendment due process clause.

As I dissent from this holding, I neces-

sarily must reach the other issues, in-

cluding the applicability of the speech or

debate clause, considered in the pancl

opinion. On those issues, | would adhere

to the analysis explicated in the panel

opinion; I confine my remarks here to

the Bivens question. On Bivens, the

thrusts of Judge Clark's opinion for the

en bane majority merit defensive parrics

in response,

Il.

Only in one case has the Supreme

Court directly confronted and decided

the question whether a federal cause of

action for damages may be implied di-

reclly from the United States Constitu-

tion: Bivens vo Six Unknown Named

Agents of Federal Burenu of Narcotics,

403 U.S. 388, 91 S.Ct. 1999, 29 L.d.2d

619 (1971)? Having created in that case

“a policy of access," 4 the Court has since

chosen to retyain from possibly prema-

ture rigidification of the contours of the

Bivens action® in effect licensing the

Commerce Corp, 337 US. 682, 696 97, GO

SCt. 1457, 93 Lid 1628 (1949): Fw Parte

Young, 209 U.S. 123, 28 S.Ct. 441, 52 Lb

74 (E908), Unit-d States vo Lee, L0G US. 196

1 S.Ct. 240, 27 L&d. 171 (1882). See alse

Bivens, supra, 403 US. at 400, 404, 91 S-Ch at

2006, 2008, 29 L.Ed.2d at 628 (Harlan, Jo con-

curry)

3. Lehmann, “Bivens and its Progeny.” 4 Has

tings Const. L.Q. 531, 539 (1977).

4. See cases cited in majority Opinion, supra, at

n.5

. 17a

DAVIS v. PASSMAN

lower federal courts to develop their own

rules setting the parameters consistent

with the mandate of Bivens itself, within

Which constitutional rights may be vindi-

5. See Lelinann, supra n. 3, at 540, G04

6. See majority opinion, supra, at p . slip

op. at p 3508 Apart from decisions in sever-

al circuits dec lining: to imply causes of action

against municipalities directly under the four-

teenth amendment, in view of the exemption

of Mumeipalitics from habihty under 42 US.C

§ 1983, Nostha vo Hoge, 560 F.2d 37 (ist Cir

1977), McDonald vo State of Hiimors, 557 F.2d

596, 604 05 (7th Cir), cert. denied, U.S.

» 98 S.Ct 508, 54 L.Ed 2d 453 (1977); ef

Mahone v. Waddle, 564 F.2d 1018, 1022.25

(3rd Cw. 1977) (dechining to imply a constitu.

tional cause of action but finding: an effective

federal statutory remedy under § 19S1), there

appear to be no other decisions at the Court of

Appeals level rejecting the availability of Bi

Vens causes of actions under other constitu.

onal amendments. Circuits founding: causes

of action dines tly on constitutional provisions

other than the fourth amendment, or finding

claims sufficiently substantial to Kround jurs-

diction on 28 USC § 1331, melude the

D.C Creuit’ Dellums vo Powell, 566 F.2d

167, 194 95 (DC.Cw.1977) (first: amendment,

cause of action), Parne v. Government of Dis

trict of Columbia, 559 V 2d 809, STR 19 (DC,

Cir. 1977) (hitth amendment, jurisdiction, = fa-

vorable dicta on cause of action); Lewis v

District of Columbia Department of Corree-

tons, 174 US App D.C. 483, 533 F 2g 710

(1976) (fifth anendment, Jurisdiction): accord,

Greensa v. George Washington University, 167

US. App.D.C. 379, 385, 512 F.2d 556, 562 n. 13.

cert, demed, 423 US. 995, 96 S Ct 422, 46

Ltd 2d 360 (1975), Apton vo Wilson, 165 US

App.D.C 22.45, 506 F 2d 83, 96 (4974), Card

nile vo Washington Techical Institute, 163

US.App.DC. 123, 128, 500 F.2d 791, 796 n. 5

(1974), Sullivan vo Murphy, 156 US App. D.C

28, 55, 478 F.2d 938, 964 and n 47, cert. de-

nied, AIA US.) SSO, 84 S.Ct. 162, 38 Ld Qe

125 (1974) (fouwith and titth amendments, juris-

diction, fiverable dicta on remedy)

Second Cheuit. Gentile 4 Wilson, 562 1.20

193, 196 97 (2nd Cw. 1977) (fourteenth amend.

ment due process, cause of action) accord

Brault vy. Town ef Milton, 527 2d TAO, 7384 35

(2nd Cw), rew'd en bane on other erounds, 527

F.2d 736 (2nd Cn 1975).

sated by private damage actions. As

noted by the en bane majority, few

courts have held that Bivens actions are

limited to fourth amendment claims.

Third Circuit: Paton vo La Prade, 524 F.2d

§62, 869 70 (3rd Cir. 1975) (first amendment,

cause of action); United States ex rel. Moore

\. Koelzer, 457 F.2d 892, 894 (3rd Cir. 1972)

(fifth amendment, cause of action): Gaghardi

v. Flint, SG4 F.2d 112, 114-16 (3rd Cir. 1977)

(fourteenth amendment, jurisdiction; resery ing

question of cause of action), id at 117 (Gib-

bons, J. concurring) (cause of action) But see

Mahone v. Waddle, supra

Fourth Circuit. States Marine Line, luc v.

Shultz, 498 F.2d 1146, 1156-57 (4th Cir, 1974)

(fifth amendment, cause of action); cf Cov v

Stanton, 529 F.2d 47 (4th Cir. 1975) (thirteenth

and fourteenth amendments, Suppesting juris.

diction)

Fifth Circun. Reeves v. City of Jackson, 532

F.2d 491 (Sth Cir. 1976) (suggesting avaiabili-

ty of cause of action under eighth amendment

and/or fourteenth amendment due process,

jurisdiction), Weir v. Muller, 527 F.2d 872 (5th

Cir, 1976) (fifth amendment, jurisdiction): see

also Roane v. Callisbure Independent School

District, 511 F.2d 683, 635 no 1 (Sth Cir 1975),

Umted Farmworkers of Florida Housing

Project, Inc. v. City of Delray Beach, 493 F 2d

799, 801 02 and n. 2 (Sth Cir. 1974): Travior

\. City of Amarillo, 492 F 2d 1156, 1157 n. 2

(Sth Civ, 1974). But see Rodriguez v Ritchey,

556 F.2d 1185, 1192 (Sth Cir, 1977) (en banc)

(decline to speak on Bivens issue)

Sixth Circuit: Yiamousiannis v Chemical

Abstracts Service, 521 F.2d 1392, 1393 (6th

Cir, 1975) (first amendment, cause of action.

reasoning, based on fifth amendment cases)

Seventh Circuit) Fitzgerald v Porter Memo

rial Hospital, 523 &.2d 7YG, 718 719 n. 7 (7th

Cu. 1975), cert. denied, 425 US 916, 96 SCt

1518, 47 Lbd2d 768 (1976) (fourteenth

amendment, suppgesting availability of cause of

action but denying reheD; Hostrop vo Board of

Juno College District No. 515, 523 1 20 GY,

577 (7th Cu 1975), cert. demed, 425 US 63,

MW SCL WARK, 48 Lid 2d 208 (1976) (four.

teenth amendment procedural due process,

Jurisdiction, favorable deta), ef Cannon 1

University, of Clicaze, 559 F 2d 1064, 1082

(7th Cir, 1977) (dheta on availability of rehef

for violations of fundamental constitutional

rights), But see McDonald v. State of ilinois,

supra

18a

DAVIS v. PASSMAN

With respect to the due process clauses

of the fifth and fourteenth amendments,

the overwhelming weight of authority,

particularly at the Court of Appeals lev-

el, holds that constitutional rights may

be vindicated through implied causes of

action for money damages.? And as the

en bane majority is also aware, numer-

ous panels of this circuit have adhered to

Bivens’ policy of access, finding: jurisdic-

Eighth Circus Owen vo City of Independ-

ence, 560 F.2d 925 (Sth Cir. 1977) (fourteenth

amendment due process, cause of action for

monetary relief in the nature of backpay

against a municipality), McNally vo Pulitzer

Pub. Co., 532 F.2d 69, 76 (Sth Cir). cert. de-

nied, 429 U.S. 855, 97 S.Ct. 150, 50 L.Ed.2d

131 (1976) (finding no infringement of fair tri-

al, privacy rights: assuming without deciding

availabilitw of Bivens cause of action),

Wounded Knee Leyal DetensesOttense Com-

mittce v. F.B.L, 507 F.2d 1281, 1284 (Sth Cir.

1974) (sixth amendment right to efiective as-

sistance of counsel, jurisdiction)

Ninth Cirreuit) Jacobson v. Tahoe Repional

Planning Agency, 558 F 2d 928, 936, 941-42

(9th Cir, 1977) (separate causes of acuon

available under ffth amendment due process

clause and fifth amendment just compensation

clause), Bennett v Campbell, 564 &.2d 329,

331 32 (9th Cir, 1977) (reversing demal of mo-

tion to amend comphunt im order to permit

assertion of Pivens chums under fourth and

fitth amendments; sugeesting the availabilty

of damage actions for deprvations “of const-

tutional rghts’) Mark vo Groff, 521) F.2d

1376, 1378 and no) (Sth Cor, 1975) (fifth, sixth

and cighth amendments, jurisdiction, reserv-

ing question of remedy), ch Grav ve Umon

County Intermediate Education District, 52

F.2d 803, 805 (9th Cir, 1975) (tinding no dental

of nights; apparently assuming availabilty of

cause of action for backpay and damages for

violation of first amendment and due process

rights)

Tenth Cweut. Dr Creek Lodge, Inc’ v

United States, 515 12d 926 (Oth Cir 1975)

(equal protection and due process, jurisdiction,

favorable dicta on cause of action), Aite v

Kelley, 546 F.2d 334, 337 (10th Cir. 1976)

(first, fourth, fifth, and ninth amendments,

findbog pursdietion but denying rehef on vica-

rious lability chum)

tion under 28 U.S.C. § 1331 for district

courts to entertain implied causes of ac-

tion for damajyres under the due process

clauses of the fifth and fourteenth

amendments.2 Nevertheless, taking Ms.

Davis’ ailegations as true, the en bane

court today chooses to deny a right of

action to the victim of as blatant a case

of gender-based discrimination as is

within my experience on this court.’

District court cases are collected m= Leh

mann, supra n. 3, at 566 G8 and nn 226 229

Thus, seven circuits have imphed causes of

action directly from constitutional amend

ments other than the fourth. Of these, five

circuits have impled causes of action from the

due process clauses of the fifth and fourteenth

amendments. In addition to these five, at

least three circus have found Bivens claims

under the due process clauses sufficiently sub

stantial to ground federal jyumsdiction under 28

U.S.C. § 1331 and have commented fax orat!s

upon implicauion of damage actions from these

clauses. Still another circuit, in implying a

cause of action under the first amendment, has

relied on cases implying causes of action from

the fifth amendment. Today the Fifth Circunt

becomes the first circuit to reyect definitively

the availubihty of a Bivens cause of action in

any context other than a fourteenth amend.

Ment action against a municipality.

7. See cases cited in majority opinion, supra, at

n. 4, and note 6 supra

8. See majority Opimon, supra, at p . Shp

op at p. 3509, and cases cited therem

9. Gender-based discriminatiqn may violate the

due process clause of the fifth amendment

“[W)hile the Fitth Amendment contains no

equal protection claw se, i does forbid discri

nation that as ‘so unjustifiable as to be viola

tive of due process." Weinberger vo Wiesen

feld, 420 U.S 636, 638, 95 S.Ct. 1225, 1228 n

2, 43 L.Fd.2d 514 (1975), quotim: Schneider v

Rusk, 377 U.S. 163, 168, 84 S.Ct. DIRT, 1G

12 LEd2d 218 (1964) See also Bolling \

Sharpe, 347 US. 497, 499, 74 S.Ct GOS. G4

98 L.Ed. 884 (1954). “This Court's approach

to Fifth Amendment equal protection clauns

has always been precisely the same as to

equal protection claims under the bourteenth

Amendment.” Wiesenfeld, supra (citations

omitted)

19a

DAVIS v. PASSMAN

Would that the Fifth Cireuit had instead

chosen to add one more jewel to its liber-

ating diadem oof pioneering: jurispru-

dence. Still, the en bane court is correct

in notingr that despite the overwhelming

weight of authority, choice is not fore-

closed. The Supreme Court: bas invited

judicial creativity, and Judge Clark, with

his customary care and acuity, has au-

thored as persuasive a rebuttal of this

authority as might be imagined. Yet 1

remain unpersuaded. The test is Bivens

] offer here w reading of that case which

I believe to be more consistent with its

holding and more harmonious with its

spirit than the reading offered by. the

majority

HI.

If 1 understand the majority's treat-

ment of Bivens, the crux of its reasoning

is that the Supreme Court was able to

imply a damages remedy for violation of

the fourth amendment by federal offi-

cers only because Congress had not spo-

ken. The Supreme Court's indication of

a possible willingness to accord some

deference to an “explicit: congressional

declaration” of

native remedy “equally effeetive in the

view of Congress,” Bivens, 408 US. at

397, 91 S.Ct. at 2005, is apparently taken

to mean that a cause of action for dam-

ages is not “part and parcel of the un-

preference for an alter-

derlying constitutional right.” therefore

‘is not wholly of constitutional dimen-

sions,” and thus is “subjeet to the will of

the Congress for the substitution of oth-

er remedies, so dong as the minimum de-

mands of the Constitution are met.”

(Emphasis added). Majerity opinion, su-

pra, ato pp J slip op. at pp

3510 3851)

What follows from this perspeetive is

that the implication of a cause of action

from the Constitution is initially to be

governed, or at least guided, by the stan-

dards applicable to implication of reme-

dies from statutory enactments, as cluci-

dated by the Supreme Court in Cort v.

Ash, 122 U.S. 66, 95 S.Ct. 2080, 45

L.bed.2d 26 (1975). Only if a cause of

action for damayres satisfies Uhese statu-

tory sGindards, or if “a damage action is

indispensible to the effeetuation of the

fifth amendment,” (emphasis added),

puyority opinion, supra at p. —--, slip

op. at p. 3514, may a damage remedy be

implied

I believe that proper application of the

Cort analysis to a constitutional claim

would justify implication of a damages

remedy directly from the fifth amend-

ment on the facts of this case. But my

disagreement with the majority is a

more fundamental one: I believe the

premises underlying: the analytic strue-

ture proposed by the majority are irree-

oncilable with the Supreme Court's opin-

ion in Bivens.

In my view Bivens is a decision of

constitutional magnitude. The funda-

“mental inquiry in’ Bivens was whether

the Constitution mandates soemne remedy

for a petitioner whose constitutional

rights have been violated. Only after

finding: that some remedy is constitution-

ally compelled did the Supreme Court go

on to consider which remedy is appropri-

ate --not necessary in itself in the cir-

cumstances of a given case to redress the

constitutional violation:

{The Fourth Amendment operates as

a limitation upon the exercise of fed-

eral power regardless of whether the

State in whose jurisdiction that power

is exercised would prohibit or penalize

the identical act if engaged in by a

private citizen. Tt guarantees to citi-

zens of the United States the absolute

right to be free from) unreasonable

searches and seizures carricd out by

DAVIS y.

virtue of federal authority. And

“where federally protected rights have

been invaded, it has been the rule

from the beginning: that courts will be

alert to adjust their remedies so as to

grant the necessary relief.”

403 U.S. at 392, 91 S.Ct. at 2002, ciling,

inter alia, Bell v. Hood, 327 US. G78,

684, 66 S.Ct. 773, 777, 90 L.Ed. 939

(1946). The Constitution creates a right

in the plaintiff; the courts are to adjust

their remedies to accord relief.

That the fourth amendment might be

enforced by other plaintiffs, in other

contexts, through mechanisms other than

a damage action, was passed over by the

Bivens majority as of little moment.

What was significant to the Court was

the remedial plight of the petitioner in

the case before it. As stated by Justice

Harlan, concurring:

(I]t is apparent that some form of

damages is the only possible remedy

for someone in Bivens’ alleyed posi-

tion. [A]ssuminge Bivens’ in-

nocence of the crime charged, the “ex-

clusionary rule" is simply irrelevant.

For people in Bivens’ shoes, it is dam-

ages or nothing.

Id. at 409-10, 91 S.Ct. at 2011-12. On

the need to provide an effective remedy,

the Court was unequivocal:

{I}t is . Well settled that

where legal rights have been invaded,

and a federal statute provides for a

general right to sue for any such inva-

sion, federal courts may use any avail-

able remedy to make good the wrong

done ‘

10. This assumption is speculative on the basis

of Bivens itsclf. See Harlan, J. concurrmsp

TP express no view on the Government's Supe.

Reston that congressional authority to sim-

ply discard the remedy the Court today au-

20a

PASSMAN

Id. at 396, 91 S.Ct. at 2004, citing Bell v.

Hood, 327 U.S. at 684, 66 S.Ct. at 777.

In this respect, provision of a damage

remedy “should hardly seem a surprising

proposition. Historically, damages have

been regarded as the ordinary remedy

for an invasion of personal interests in

liberty.” Id. at 395, 91 S.Ct. at 2004

(citations omitted).

The question is merely whether peti-

tioner, if he can demonstrate an injury

consequent upon the violation by fed-

eral agents of his [constitutional]

rights, is entitled to redress his injury

through a particular remedial mecha-

nism normally available in the federal

courts.

Id. at 397, $1 S.Ct. at 2005 (citations

omitted). Responding to the suggestion

that a more stringent test should govern

the grant of damages in constitutiona!

cases, Justice Harlan stated:

These arguments . . . seem to

be adequately answered by the point

that the judiciary has a particular re-

sponsibility to assure the vindication of

constitutional interests such as those

embraced by the Fourth Amendment.

Id. at 407, 91 S.Ct. at 2010 (concurring

opinion) (footnote omitted).

The en bane majority’s-apparent con-

clusion that the Bivens damage action is

of non-constitutional Uimensions seems

to be tied to its assumption that a

cause of action not “part and parcel of

the underlying constitutional right” is

merely federal common law of less than

constitutional dimensions. But to state

that the Court may accord some defer-

ence to a congressional choice of remedy

“equally effective im the view of Con-

thonzes mizht be im doubt: nor do Pander:

stund the Courts opinion today to eNpress

any View on that particular question

Md at 407 n. 7, 91 S.Ct at 2010

2la

DAVIS v. PASSMAN

gress” is only to admit the possibility of

substitutes for the damage remedy, not

to say that Congress may climinate all

means of vindication of a federal consti-

tutional right." Had Congress chosen to

provide a remedy alternative to money

damages to those “in Davis’ shoes,” this

court would be correct in according that

choice deference, though even in those

circumstances,

{he ultimate determination of wheth-

er a remedial scheme appropriately ef-

fectuates the mandate of the Constitu-

tion is, of course, to be made by the

Court as an exereise of constitutional

judicial review."

Perhaps the clearest: statement by the

Supreme Court itself on this subject: is

found in Mirenda vo Arizona, 384 U.S.

436, 86 S.Ct. 1602, 16 L.Bd.2d 694 (1966):

Congress and the States are free to

develop their own safeguards for the

privilege, so long as they are fully as

effective as those described above in

informing accused persons of their

right of silence and in affordings a con-

tinuous opportunity to exercise it. In

any event, however, the issucs present-

ed are of constitutional dimensions and

must be determined by the courts

Bh. Pretessor Delhager suggests that the pas-

supe in Brveas findug: na “explicit conures

sional declaration” and reyecting, “formulation

of the question as whether the avainability of

moneys cdamiapes i necessary to enforce the

Fourth Amendment.” 403 US. at 397, 91 S.Ct

at 2005, mayht be read

“atliomativels to descrnbe the con

ditiens under which the Court should defer

to congressional pudyrment even though a

remedy may be substantively bound to con-

stititional provisrons.”

Delhoger, “Ot Rights and Remedies: The Con

Stitution as a Sword.” 85S Harv b Rew P52,

54s n SG (1972) Thus, where these cond-

tions have not been met--where Congress has

not provided an effective alteenative: remedyv—

there 1s no occasion for deference to conpres-

Where rights secured by the

Constitution are involved, there can be

no rule making or legislation which

would abrogate them.

Id. at 490-91, 86 S.Ct. at 1636.

The opinion of the en bane majority

totally fails to address the core inquiry

commanded by Bivens. Apart from a

passing reference not applicable to the

plight of Ms. Davis that “[a) pluintiff

might still seek equitable relicf where

the employer remained in office,” major-

ity opinion, supra, at p. -—--—, slip op. at

p. 8514, the en bane court nowhere con-

siders whether some remedy must. be

available to vindicate fifth amendment

rights. Where is the sensitivity that

moved Justice Harlan to observe “For

people in Bivens’ shoes, it is damajyres or

nothing”? 403 U.S. at 410, 91 S.Ct. at

2012. The majority essentially ignores

the constitutional predicate for the Bi-

vens decision, i. e., that there be a reme-

dy, and reformulates the inquiry in a far

more stringent fashion: a cause of ac-

tion for damages will be implied only if

damages, specifically, are in some abso-

lute sense necessary to effectuate the

constitutional mandate. The court then

procecds to find a damage remedy un-

sional pudyment. The courts must therefore

“adjust Cher remedies so as to prant the nec

essary rehef." 403 ULS. at 392, 91 SCt at

2002, quoting: Bell v. Hood

12. Dellinger, supracn VE find: nothing: in

Professor Monaphan’s provocative article, cit

ed by the majority, meonsistent with this con

clusion. Monaghan, “Poreward: Constitution:

al Common Law,” S89 Harv. lb Rev 1 (1975) 1

think that Bivens is an expheit recoynition

that the constitutional guarantee embraces a

ryht of action which is enforceable

by any appropriate remedy imcluding damages

Id at 24. 125.) See penerally Con,

“The Role of Congress in Constitutional Deter-

nunations,” 40 Cincinnati L-Rev. 199, 247 261

(1971), Burt, “Ala anda and Tithe He A Morya

nauic Marriage,” 1969 Sup CtRev. 81

22a

DAVIS v. PASSMAN

necessary While simultaneously acknowl-

edging: that constitutional deprivations

of the sort suffered by Ms. Davis “would

remain inactionable,” and that Ms, Davis

“may be left without a remedy for sex

discrimination in’ employment" unless

Congrress chooses to create one. Majori-

ty opinion, supra, at p. . slip op. at

p. 3514.

In short, the majority opinion errs be-

cause it answers the wrong question. If

Congress had provided an alternative

remedy and explicitly excluded a remedy

in damages, the appropriate inquiry

would indeed be whether a damage rem-

edy as such is necessary, nevertheless, to

effectuate the constitutional guarantee,

and therefore constitutionally required.

But where, as here, no alternative reme-

dy has been made available, that inquiry

is simply irrelevant. In leaving Ms. Da-

vis without any remedy, the majority's

approach seems to me an utter negation

of Bivens in both letter and spirit.

A further result of the majority's ana-

Ivtic approach is that its opinion never

comes to terms with the appropriateness

of a remedy in damages as opposed to

alternative remedial devices which the

court might make available. The major-

ity’s unclaborated suggestion of “equita-

ble relief” is oblivious to those constitu-

tional values, critically implicated in this

case, underlying the speech or debate

clause and the doctrine of separation of

powers. Congress has spoken specifical-

ly to its views on the nature of the

working relationship between Conyress-

men and their personal staffs by chassi-

fying, employees like Ms. Davis as_re-

movable “at any time . with or

Without cause.” ‘The Supreme Court has

accorded congressional staffers speech or

debate clause protections in certain cir

13. See e yg. Rrown vo General Services Ad

munistiation, 425 US 820, 986 S-Ct. 1961, 1965

cumstances, recoynizing that staffers

may act as congressional alter egos in

the performance of certain legislative

tasks. Gravel v. United States, 408 U.S.

606, 92 S.Ct. 2614, 33 L.Ed.2d 583 (1972).

See Davis v. Passman, 544 F.2d at 877-

81 (pancl opinion). Apparently the ma-

jority feels these values can be better

effectuated, consistent with the require-

ments of the fifth amendment, not by

actions for damages but by injunctive

orders requiring Congressmen to employ

particular individuals. This is not the

occasion for a definitive statement on

the circumstances which might) justify

implication of a private action for equi-

table relief to vindicate fifth amendment

rights." But on the facts of the case

before us, I would have thought that

such “special factors counselling hesita-

tion in the absence of affirmative action

by Congress,” Bivens, 403 U.S. at 396, 91

S.Ct. at 2005, are more germane to the

implication of cquitable relief than to

implication of an action for damages.

Similarly, it would scem to me that

the special problems of congressional im-

munity under the speech or debate

clause and the doctrine of separation of

powers render this ease uniquely appro-

priate for adjudication in) the federal

courts under a federal cause of action

Much of the Bivens opinion concerns the

difficulties and inadequacies of | state

court or state law adjudications of feder-

al immunities in the context of constitu.

tional claims; that reasoning is, if any-

thing, even more powerful with respect

to the issues presented here.

The majority's abiding fear seems to

be “the danger of delugings federal

courts with claims otherwise redressable

in state courts or administrative procced-

and n. 7, 48 L.tkd.2d 402 (1976), and note 2

supra

23a

DAVIS vy. 'ASSMAN

ings” ¥ by “project{ing} the penumbra of

federal court constitutional due process

jurisdiction over every legally cognizable

tortious injury inflicted by persons act-

ing under color of federal law =

and “extend[ing] federal jurisdiction to

cover all slate action tort claims

Without regard to diversity of citizen-

ship, amount in controversy or other

present statutory limitation.” Majority

opinion, supra, at pp. ~—-, ship

op. at pp. 8514 8515. The majority

refuses “to take even a first step down

the slippery slope,” “[ziven these conse-

quences and our inability to construct a

plausible measure of acceptable limits on

the right of action Davis would have us

imply to remedy the wrong alleged

- oe oe” Id at p. -—, slip op. at p.

3515. A like contention was raised in

Bivens. Justice Harlan had this re-

Sponse:

[TJhe question appears to be how

Fourth Amendment interests rank on

a seale of social values compared with,

for example, the interest of stockhold-

ers defrauded by misleadinge proxies.

See J. 1 Case Coo vv. Borak, supra.

Judicial resources, To am well aware,

are increasingly scarce these days.

Nonetheless, when we automatically

close the courthouse door solely on this

basis, we implicitly express a value

Judgment on the comparative impor-

tance of classes of legally protected

interests. And current limitations

upon the effective functioning of the

courts arising from budyetary inade-

quagies should not be permitted te

stand in the way of the recopnition of

otherwise sound “constitutional princi-

ples.

403 U.S. at 410-11, 91 S.Ct. at 2012 (con-

curring opinion). Even on the majority's

own’ premises, Tam considerably more

confident in the ability of courts to dis-

cern, in a careful and focused manner

attentive to the facts of the case before

them, when the pendulum has swung too

far and how its course may be corrected.

I do not believe that the majority's ap-

proach to the facts of this case is such a

focused inquiry; nor do 1 believe the

pendulum has swung too far here. We

have before us no illusory or fabricated

procedural due process claim which rais-

es the specter of wholesale importation

of traditional state tort law actions into

the federal courts, but a discrete claim

of discrimination on the basis of gender

in violation of the equal protection guar-

antees of the federal Constitution, in a

context particularly appropriate to adju-

dication in a federal forum. This is pre-

cisely the sort of case mete for judicial

determination and susceptible to the ap-

plication of traditional judicial standards.

The majority's invocation of the twin

horsemen of the contemporary judicial

apocalypse, the floodgate and the slip-

pery slope, and its refusal to act in the

spirit, of Bivens “until the Supreme

Court answers the open question,” ma-

Jority opinion, supra, at p. —- —, slip op.

at op. So1h, seem to me not an example

of judicial restraint but of judicial abdi-

cation. T would prefer the approach tak-

en by the Bivens majority in its quota-

tion of one of the fundaments of our

constitutional jurisprudence:

The very essence of civil liberty cer-

tainly consists in the right of every

individual to claim the protection of

the laws, whenever he receives an in-

jury,

14. The majonty never indicates how Ms. Davis’ claim might be “otherwise redressable im

state courts or admumstrauive proceedings.”

24a

DAVIS .. PASSMAN

403 U.S. at 397, 91 S.CL. at 2005, quoting

Marbury v. Madison, 1 Cranch (5 U.S.)

137, 163, 2 L.Bd. 60 (1803), and by the

Fourth Circuit in extending Bivens to

fifth amendment due process claims:

The necessity and appropriateness of

judicial relief is no Jess compelling in

this case than it was in Bivens. As in

Bivens: A common law or state tort

remedy may or may not afford a

means of redressing this’ wrong, but in

any case, will not be tailored specifi-

cally to cases of lawlessness pursuant

to federal authority; the claim

presented is obviously appropriate for

money damages; and other remedies

such as injunctive or relief in the na-

ture of mandamus are no longer viable

alternatives

States Marine Lines, Ine. v. Shultz, 498

F.2d 1146, 1157 (4th Cir. 1974).

IT had not thought the fifth amend-

ment was lodged behind an iron curtain,

separating it from the rest of our consti-

tutional protections. That the windows

may open wide and the winds of free-

dom sweep through is no reason for re-

jecting the Davis claim. Are we to de-

velop a calculus of constitutional access,

granting: rights to one out of seven per-

sons deprived, one out of two, one out of

a thousand, in order to control our dock-

et?) One wonders what would have hap-

pened had such constitutional parsimony

pervaded our history. Hopefully the

courthouse door, too often closed in

recent years, will soon swings open azain,

and liberty shall ringg forth onee more

from the halls of justice.

IV.

Much of the majority's discussion is

devoted to an analysis of the Cort v.

Ash, 422 US. 66, 9% S.Ct. 2080, 45

L.Bd2d 26 (1975) factors governing im-

plication of eauses of action from federal

statutes. I have already indicated why

this analysis seems somewhat beside the

point given the constitutional mandate

that some remedy be available to vindi-

cate constitutional rights. Given that

the court has adopted this approach,

however, it is incumbent on me to re-

spond to the majority's application of the

Cort criteria.

I note initially that the majority

makes no attempt in its Cort analysis to

assess the relevance of the fact that Ms.

Davis is seeking to vindicate a right

granted by the Constitution itself, and

thus beyond the ability of Congress to

eliminate, rather than a statutory right

of the sort Congress giveth and may

take away. While recognizing that the

Cort statutory analysis “cannot be ap-

plied [to the Constitution} in) precisely

the same way,” the majority is content

to proceed on the basis of a prior state-

ment by this court (in a statutory case)

that the Cort “facters fare} relevant and

worthy of — consideration.” Majority

opinion, supra, al p , ship op. at

p. 8511, queting Olsen v. Shell Oil Co., 561

F.2d 1178, 1188 (5th Cir. 1977).

I think it is possible to do better. By

recognizing the constitutional context

within which it is here applied, the Cort

v. Ash style of analysis may be turned to

productive use in the sphere of constitu-

tional common law. Properly applied,

the Cort factors may serve to illuminate

the choice of an appropriate remedial

mechanism to vindicate constitutional

rights. Cort thas guides the determina-

tion, not of whether to imply any reme-

dy, but of which remedy it is appropri:te

to recognize. 1 believe that such a con-

textually sensitive application of the

Cort criteria supports the panel decision

in this case, and it is with this perspee-

25a

DAVIS v. PASSMAN

tive that I turn to the majority's Cort

analysis.

In Cort v. Ash, the relevant portion of

Which concerns whether a corporate

stockholder may secure derivative diam-

age relief from corporate directors under

18 U.S.C. § 610 for corporate violations

of the federal election campaign laws,

the Supreme Court declined to imply a

private cause of action for damages be-

cause

implication of such a federal cause of

action is not sugyested by the legisla-

tive context of § 610 or required to

accomplish Congress’ purposes in’ en-

actings the statute ;

422 US. at 69, 95 S.Ct. at 2084. The

Court articulated four factors to guide

its analysis ino reaching: this conclusion.

The first factor has been central to all

Implication cases, from the first statuto-

ry impheation decision in which it was

originally formulated, Texas & Pacific R.

Co. v. Rigsby, 211 U.S. 33, 36 S.Ct. 482,

60 L.kal. 874 (1916), through to Bivens

and more recent statutory cases: “is the

plaintiff ‘one of the class for whose espe-

cial benefit: the statute was enacted,’

; that is, does the statute create

a federal right in faver of the plaintiff?”

422 US. at 78, % S.Ct. at 2OS8, citing

Rigsby, supra, QL US. at 39, 86 S.Ct.

482. As the Supreme Court explained,

“in those situations in which we have

inferred a federal private cause of action

not expressly provided, there has pener-

ally been a clearly articulated federal

15. Precopmize that the mitiorite’s analysis pro

ceeds from. a different: perspective. Were the

filth amendment simply a statutory enactment,

there can be ne deubt: that a conpresstonal

determination to deny a private ryght of acon

for damages would be decisiwe under Cort

That conchiston, to the extent it embodies the

Myon Ss analyte approach, seems to me

quite unshakeable but thoroughly irrelevant to

this case

right in the plaintiff,” citing Bivens, “or

a pervasive legislative scheme governing

the ‘relationship between the plaintiff

class and the defendant class in a partic-

ular regard.” 422 U.S. at 82, 95 S.Ct. at

2090 (citation omitted).

The en bane opinion in the instant

case appears to acknowledge that “the

fifth amendment right to due process

certainly confers a right upon Davis.”

Majority opinion, supra, at p. ——, slip

op. at p. 8411. There can be no sugges-

tion that the fifth amendment’s protec-

tion of Davis is “at best a subsidiary

purpose” of the constitutional guarantee.

Cf. Cort, id., at 80, 95 S.Ct. at 2089.

With respect to this first, and IT think

predominant, factor, that is all that Cort

requires. Nor is more required by Biv-

ens. That decision was explicit: in the

role of the fourth amendment:

It guarantees to citizens of the United

States the absolute right to be free

from unreasonable searches and sei-

gures carmed out by virtue of federal

~ guthority.

403 U.S. at 392, 91 S.Ct. at 2002.

] cannot understand why the equal pro-

tection component of the fifth amend-

ment due process clause docs not equally

guarantee to all citizens of the United

States, including Ms. Davis, the absolute

right to be free from unconstitutional

job discrimination on the basis of sex

earricd out by virtue of federal authori-

ty."

16. tts frankiv bevend my ken to understand

first, the source of the majority's imputation of

an additonal hurdle of some degree of re

quired specificity, or second, how the equal

protection component of the fifth amendment

is in this respect less specific than the fourth

amendime at See majyonmty opimen, supra, iat

p J slp op. at p. 3511

26a

DAVIS v. PASSMAN

It is with respect to Cort’s second fac-

tor, “legislative intent, explicit or implic-

it, either to create such a remedy or to

deny one”, 422 U.S. at 78, 95 S.Ct. at

2088, that my disagreement with the ma-

jority is at its sharpest. In Cort, as in

other statutory implication cases, the un-

derlying premise is that Congress may

explicitly create or deny a private reme-

dy; what Congress gives, it may take

away. There is no underlying right

which is constitutionaliy inviolate. In a

statutory case, therefore, the implication

question is whether congressional intent

to create or deny a remedy is best effec-

tuated by judicial implication of a cause

of action. Correspondingly, the en banc

majority seems to read Bivens as “recog-

niz{ing) that congressional intent to cre-

ate a remedy must guide a court in de-

termining whether to imply a remedy

f:om provisions of the Constitution.”

(Emphasis added). Majority opinion, su-

pra, at p. , Slip op. at p. 3511. I

find no such recognition in Bivens and

believe this reading, as applied by the

majority to deny Ms. Davis any remedial

mechanism, is simply irreconcilable with

Bivens. As pointed out in Section III of

this dissent, the Bivens Court addresses

the relevance of congressional action

only after it has determined that some

means of redress is constitutionally man-

dated; the voice of Congress is relevant,

if at all, only in guiding the court in its

determination as to whether damages

provide an appropriate remedy. There is

no suggestion in Bivens that Congress

can negate the existence of every reme-

dy which might vindicate a constitution-

al right, only an indication that the

Court might accord some deference to an

“explicit congressiona} declaration that

persons injured by a federal officer's vio-

lation” of a constitutional right “may

not recover money damiyres from the

agents, but must instead be remitted to

another remedy, equally effective in the

view of Congress.” 403 U.S. at 397, 91

S.Ct. at 2005.

The en banc majority does not—and

cannot—state that Congress has provid-

ed such an alternative remedy. Instead,

the court tries to draw support for its

position from the fact that “Congression-

al remedial legislation for employment

discrimination has carefully avoided cre-

ating a cause of action for money dam-

ages for one in Davis’ position.” Majori-

ty opinion, supra, at p. , Slip op. at

p. 3511. Here the confusion between

constitutional and statutory implication

is most evident. Given the constitutional

mandate for some effective remedy, the

second Cort factor, legislative intent to

deny any remedy, is simply irrelevant to

this case. See Dellinger, supra n. 11, at

154849.

Much the same criticism can be lIe-

velled against the en bane majority’s ap-

plication of the third Cort criterion, con-

sistency with the underlying purposes of

the legislative scheme. The majority

correctly notes that Corgress, in provid-

ing statutory relief fr»m employment

discrimination under Title VII for em-

ployces in the private sector and in other

spheres of government service, see ma-

jority opinion, supra, at pp. “,

slip op. at pp. 3511-3512, has carefully

avoided furnishing relief of any sort to

many of its own employees. By provid-

ing an administrative—judicial mecha-

nism for ensuring: the rights of covered

employees, Tithe VII may well constitute

“an explicit congressional declaration”

that covered employees “must be remit-

ted to another remedy, equally effective

in the view of Conyress.” Indeed, the

Supreme Court has held that for federal

employces covered by the complex and

systematic remedial scheme of Tithe VI,

that statute provides the exclusive judi-

27a

DAVIS v. PASSMAN

cial remedy. Brown v. General Services

Administration, 425 U.S. 820, 96 S.Ct.

1961, 48 L.Ed.2d 402 (1976)." Nothing

similar can be said about congressional

employees in the position of Ms. Davis,

who are statutorily excluded from the

coverage of Title VII. Congress has pro-

vided no remedial mechanism for them.

Such employees are in no sense bound up

in the statutory system of protections

created by Congress, and I cannot per-

ceive how according Davis a vehicle to

enforce her constitutional rights would

detract from or be inconsistent with the

operation of the statutory scheme within

the sphere of its application. I am also

hard put to understand the en bane ma-

jority’s suggestion that a constitutional

cause of action would “deal more gener-

ously with those in Davis’ position,” ma-

jority opinion, supra, at p. , Slip op. at

p. 3512, than covered federal employces

are dealt with under Title VII. It is true

that if accorded a Bivens action, Davis

could sue Representative Passman for

damages in his individual capacity, while

17. In Brown, the Court did not reach the con-

stitutional issue of whether, absent the appli-

cability of Title VII or an alternative statutory

remedy, federal employees would be without

any means to redress discriminatory treatment

“that backpay or other compensatory relief,”

id. at 826, 96 S.Ct. at 1965; it merely noted,

based on legislative history, that Congress de-

sired a remedy to be available and reasonably

perceived an absence of effective remedies

then (in 1972) in existence. The two cases

cited by the Court as substantiating the rea-

sonablencss of Congress’ perception, Gnotta v.

United States, 415 F.2d 3271 (8th Cir. 1969),

cert. denied, 397 U.S. 934, 90 S.Ct. 94), 25

L.Ed.2d 115 (1970), and Blaze v. Moon, 440

F.2d 1348 (Sth Cir. 1971), both denying the

availability of damayes, were decided prior to

the Supreme Couit's seminal decision in Bi-

vens. Obviously, nothing in Brown determines

that Congress may negate the existence of a

cause of action to vindicate a constitutional

right: without providing an alternative and

equally effective remedy. See Davis v. Pass-

a Title VII plaintiff could not. But Title

VII, for those to whom it applies, lowers

the bar of sovereign f@munity to permit a

back pay uward, together with possible

equitable relief, directly against the United

States. It also affords the possibility of

relatively quick and inexpensive relief at

the administrative level. This seems to

me no less favorable than a possible re-

covery against a former congressman.

It is unnecessary to speculate here on

whether extension of Title VII to cur-

rently non-covered congressional employ-

ees would be the most appropriate mech-

anism for protection of constitutional

rights or whether a remedial mechanism

more carcfully tailored to the particular-

ities of congressional employment rela-

tionships would be preferable; I note

only that Congress has done neither."*

In these circumstances, the problem con-

fronting us is precisely analogous to that

before the Bivens court, and the re-

sponse should be tie same, to make

available “a particular remedial mecha-

man, 544 F.2d at 874-76 (panel opinion). Con-

gress did provide an acceptable alternative for

those employees ccvered by Title VII. lM pro-

vided nothing for Ms. Davis or those in her

position.

18. The choice properly before this court is one

between alternative remedies. No party be-

fore us has suggested that we undertake to

fashion a remedy precisely analogous to that

provided by Title VII, if indeed such a remedy

is within our judicial power. While this court

may, and should, consider congressional poli-

cies in choosing the appropriate remedy, we

should not refrain from adopting such judicial

remedies as are available and meaningful to

the plaintiff mercly because Congress has

adopted a constitutionally sufficient but differ-

ent remedial scheme for other employees. It

is no answer that the only available judicial

remedy might be more favorable than the rem-

edy fashioned by Conpress if the only alterna-

live to a more favorable remedy is no remedy

at all.

28a

DAVIS v. PASSMAN

nism normally available in the federal

courts,” .

403 U.S. at 397, 91 S.Ct. at 2005, recall-

ing that

where federally protected rights have

been invaded, it has been the rule

from the beginning that courts will be

alert to adjust their remedies so as to

grant the necessary relief.

403 US. at 392, 91 S.Ct. at 2002, quoting

Bell v. Hood, 327 U.S. at 684, 66 S.Ct.

773. For ours is the “particular respon-

sibility to assure the vindication of con-

stitutional interests . . .." 403

USS. at 407, 91 S.Ct. at 2010 (Harlan, J.,

concurring).

I am also unpersuaded by the majori-

ty’s suggestion that while fourth amend-

ment violations “occur in a well-defined

setting familiar to the courts,” '8* dam-

age remedies for due process violations

in general, and equal protection claims in

perticular, are somehow not “judicially

manageable.” See majority opinion, su-

pra, at p. , Slip op. at pp. 3512-

3513. As the Court observed in Bivens,

“[hjistorically, damages have been re-

18a. The majority apparently also finds, in Bi-

vers’ responsiveness io “the particular diffi-

culties presented in enforcing the guarantees

of the fourth amendment,” in particular, the

“hostility of law enforcement officials to the

restraints of the fourth amendment,” majority

opinion, supra, at p. --—-, slip op. at pp. 3512-

3513, something akin to this third Cort factor.

The inference the majority draws from this dis-

covery, apparently that the Bivens action is

uniquely necessary in the fourth amendment

context, is one | am unable to follow. For

what seems to me decisive in Bivens is the

fact that whatever remedies were available to

others whose fourth amendment rights had

been violated, such remedies were meaningless

to Bivens himself, thus, the existence of those

other remedies was irrele

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.