# Petition — Davis v. Passman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0419%3A01 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1979 - **Citation:** 442 U.S. 228 ## 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 I. 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 20 23 la 1b le ld le > 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 17 11 11 Passim 8 13 18,19, 21 8 12 §,6,13,14 21,23 21,22 12 - 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 12 9 18 11,13,19 19 11 17 12,19 is 12 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 13 21 12 12 13 12 15 8 1l 12 17,21,22 12 9,11,15 12 21,22,23 21,22 ll 13 13 12 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) U U 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 12 18 2,4,20,21 12,13,17,19 Passim Passim 12,33 Passim 16,17 18 14 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 la 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 COPYRIGHT © 1978, by WEST PUBLISHING co The Synepoes, Syllate and Key Number Classife cation constitute no part of the opinion of the court 2a 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) 3a 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). 4a 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), 5a 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- 6a 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. Ja 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 8a 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 9a 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. 1. 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0419%3A01. Public record. Not legal advice.