Davis v. Passman
442 U.S. 228 (1979)

Annotate this Case

U.S. Supreme Court

Davis v. Passman, 442 U.S. 228 (1979)

Davis v. Passman

No. 78-5072

Argued February 27, 1979

Decided June 5, 1979

442 U.S. 228

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Syllabus

Petitioner brought suit in Federal District Court alleging that respondent, who was a United States Congressman at the time this case commenced, had discriminated against petitioner on the basis of her sex, in violation of the Fifth Amendment, by terminating her employment as a deputy administrative assistant. Petitioner sought damages in the form of backpay, and jurisdiction was founded on the provisions of 28 U.S.C. § 1331(a) that confer original jurisdiction on federal district courts of all civil actions wherein the matter in controversy exceeds the sum or value of $10,00 and arises under the Federal Constitution. The District Court ruled that petitioner had no private right of action, and the Court of Appeals ultimately held that "no right of action may be implied from the Due Process Clause of the fifth amendment."

Held: A cause of action and damages remedy can be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated. Cf. Bivens v. Six Unknown Fed. Narcotics Agents,403 U. S. 388; Butz v. Economou,438 U. S. 478. Pp. 442 U. S. 233-249.

(a) The equal protection component of the Fifth Amendment's Due Process Clause confers on petitioner a federal constitutional right to be free from gender discrimination that does not serve important governmental objectives or is not substantially related to the achievement of such objectives. Pp. 442 U. S. 234-235.

(b) The term "cause of action," as used in this case, refers to whether a plaintiff is a member of a class of litigants that may, as a matter of law, appropriately invoke the power of the court. Since petitioner rests her claim directly on the Due Process Clause of the Fifth Amendment, claiming that her rights under that Amendment have been violated and that she has no effective means other than the judiciary to vindicate these rights, she is an appropriate party to invoke the District Court's general federal question jurisdiction to seek relief, and she therefore has a cause of action under the Fifth Amendment. The Court of Appeals erred in using the criteria of Cort v. Ash,422 U. S. 66, to conclude that petitioner lacked such a cause of action, since the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right protected by the Constitution. Pp. 442 U. S. 236-244.

Page 442 U. S. 229

(c) Petitioner should be able to redress her injury in damages if she is able to prevail on the merits. A damages remedy is appropriate, since it is a "remedial mechanism normally available in the federal courts," Bivens, supra at 403 U. S. 397, since it would be judicially manageable without difficult questions of valuation or causation, and since there are no available alternative forms of relief. Moreover, if respondent's actions are not shielded by the Speech or Debate Clause, the principle that legislators ought generally to be bound by the law as are ordinary persons applies. And there is "no explicit congressional declaration that persons" in petitioner's position injured by unconstitutional federal employment discrimination "may not recover money damages from" those responsible for the injury. Ibid. To afford petitioner a damages remedy does not mean that the federal courts will be deluged with claims, as the Court of Appeals feared. Moreover, current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles. Pp. 442 U. S. 245-249.

571 F.2d 793, reversed and remanded.

BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BURGER, C.J., filed a dissenting opinion, in which POWELL and REHNQUIST, JJ., joined, post, p. 442 U. S. 249. STEWART, J., filed a dissenting opinion, in which REHNQUIST, J., joined, post, p. 442 U. S. 251. POWELL, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post, p. 442 U. S. 251.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

Bivens v. Six Unknown Fed. Narcotics Agents,403 U. S. 388 (1971), held that a "cause of action for damages" arises under

Page 442 U. S. 230

the Constitution when Fourth Amendment rights are violated. The issue presented for decision in this case is whether a cause of action and a damages remedy can also be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated. The Court of Appeals for the Fifth Circuit, en banc, concluded that "no civil action for damages" can be thus implied. 571 F.2d 793, 801 (1978). We granted certiorari, 439 U.S. 925 (1978), and we now reverse.

I

At the time this case commenced, respondent Otto E. Passman was a United States Congressman from the Fifth Congressional District of Louisiana. [Footnote 1] On February 1, 1974, Passman hired petitioner Shirley Davis as a deputy administrative assistant. [Footnote 2] Passman subsequently terminated her employment, effective July 31, 1974, writing Davis that, although she was "able, energetic and a very hard worker," he had concluded "that it was essential that the understudy to my Administrative Assistant be a man." [Footnote 3] App. 6.

Page 442 U. S. 231

Davis brought suit in the United States District Court for the Western District of Louisiana, alleging that Passman's conduct discriminated against her "on the basis of sex in violation of the United States Constitution and the Fifth Amendment thereto." Id. at 4. Davis sought damages in the form of backpay. Id. at 5. [Footnote 4] Jurisdiction for her suit was founded on 28 U.S.C. § 1331(a), which provides in pertinent part that federal

"district courts shall have original jurisdiction of all civil actions wherein the matter in controversy exceeds the sum or value of $10,000 . . . and arises under the Constitution . . . of the United States. . . . "

Page 442 U. S. 232

Passman moved to dismiss Davis' action for failure to state a claim upon which relief can be granted, Fed.Rule Civ.Proc. 12(b)(6), arguing, inter alia, that "the law affords no private right of action" for her claim. [Footnote 5] App. 8. The District Court accepted this argument, ruling that Davis had "no private right of action." Id. at 9. [Footnote 6] A panel of the Court of Appeals for the Fifth Circuit reversed. 544 F.2d 865 (1977). The panel concluded that a cause of action for damages arose directly under the Fifth Amendment; that, taking as true the allegations in Davis' complaint, Passman's conduct violated the Fifth Amendment; and that Passman's conduct was not shielded by the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1. [Footnote 7]

The Court of Appeals for the Fifth Circuit, sitting en banc, reversed the decision of the panel. The en banc court did not reach the merits, nor did it discuss the application of the Speech or Debate Clause. The court instead held that "no right of action may be implied from the Due Process Clause of the fifth amendment." 571 F.2d at 801. The court reached this conclusion on the basis of the criteria that had been set out in Cort v. Ash,422 U. S. 66 (1975), for determining whether a private cause of action should be implied from a federal statute. [Footnote 8] Noting that Congress had failed to create a

Page 442 U. S. 233

damages remedy for those in Davis' position, the court also concluded that "the proposed damage remedy is not constitutionally compelled," so that it was not necessary to "countermand the clearly discernible will of Congress" and create such a remedy. 571 F.2d at 800.

II

In Bivens v. Six Unknown Fed. Narcotics Agents, federal agents had allegedly arrested and searched Bivens without

Page 442 U. S. 234

probable cause, thereby subjecting him to great humiliation, embarrassment, and mental suffering. Bivens held that the Fourth Amendment guarantee against "unreasonable searches and seizures" was a constitutional right which Bivens could enforce through a private cause of action, and that a damages remedy was an appropriate form of redress. Last Term, Butz v. Economou,438 U. S. 478 (1978), reaffirmed this holding, stating that

"the decision in Bivens established that a citizen suffering a compensable injury to a constitutionally protected interest could invoke the general federal question jurisdiction of the district courts to obtain an award of monetary damages against the responsible federal official."

Id. at 438 U. S. 504.

Today we hold that Bivens and Butz require reversal of the holding of the en banc Court of Appeals. Our inquiry proceeds in three stages. We hold first that, pretermitting the question whether respondent's conduct is shielded by the Speech or Debate Clause, petitioner asserts a constitutionally protected right; second, that petitioner has stated a cause of action which asserts this right; and third, that relief in damages constitutes an appropriate form of remedy.

A

The Fifth Amendment provides that "[n]o person shall be . . . deprived of life, liberty, or property, without due process of law. . . ." In numerous decisions, this Court

"has held that the Due Process Clause of the Fifth Amendment forbids the Federal Government to deny equal protection of the laws. E.g., Hampton v. Mow Sun Wong,426 U. S. 88, 426 U. S. 100 (1976); Buckley v. Valeo,424 U. S. 1, 424 U. S. 93 (1976); Weinberger v. Wiesenfeld,420 U. S. 636, 420 U. S. 638 n. 2 (1975); Bolling v. Sharpe,347 U. S. 497, 347 U. S. 500 (1954)."

Vance v. Bradley,440 U. S. 93, 440 U. S. 95 n. 1 (1979).

"To withstand scrutiny under the equal protection component of the Fifth Amendment's Due Process Clause, 'classifications by gender must serve important governmental objectives and must be

Page 442 U. S. 235

substantially related to achievement of those objectives.' Craig v. Boren,429 U. S. 190, 429 U. S. 197 (1976). [Footnote 9]"

Califano v. Webster,430 U. S. 313, 430 U. S. 316-317 (1977). The equal protection component of the Due Process Clause thus confers on petitioner a federal constitutional right [Footnote 10] to be free from gender discrimination which cannot meet these requirements. [Footnote 11]

Page 442 U. S. 236

We inquire next whether petitioner has a cause of action to assert this right.

B

It is clear that the District Court had jurisdiction under 28 U.S.C. § 1331(a) to consider petitioner's claim. Bell v. Hood,327 U. S. 678 (1946). It is equally clear, and the en banc Court of Appeals so held, that the Fifth Amendment confers on petitioner a constitutional right to be free from illegal discrimination. [Footnote 12] Yet the Court of Appeals concluded

Page 442 U. S. 237

that petitioner could not enforce this right because she lacked a cause of action. The meaning of this missing "cause of action," however, is far from apparent.

Almost half a century ago, Mr. Justice Cardozo recognized that a "cause of action' may mean one thing for one purpose and something different for another." United States v. Memphis Cotton Oil Co.,288 U. S. 62, 288 U. S. 67-68 (1933). [Footnote 13] The phrase apparently became a legal term of art when the New York Code of Procedure of 1848 abolished the distinction between actions at law and suits in equity and simply required a plaintiff to include in his complaint "[a] statement of the facts constituting the cause of action" [Footnote 14] 1848 N.Y. Laws, ch. 379, § 120(2). By the first third of the 20th century, however, the phrase had become so encrusted with doctrinal complexity that the authors of the Federal Rules of Civil Procedure eschewed it altogether, requiring only that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.Rule Civ.Proc. 8(a). See Original Ballet Russe, Ltd. v. Ballet Theatre, Inc., 133 F.2d 187, 189 (CA2 1943). Nevertheless, courts and commentators have continued to use the phrase "cause of action" in the traditional sense established by the Codes to refer roughly to the alleged invasion of "recognized legal rights" upon which a litigant bases his claim for relief. [Footnote 15]

Page 442 U. S. 238

Larson v. Domestic & Foreign Commerce Corp.,337 U. S. 682, 337 U. S. 693 (1949).

This is not the meaning of the "cause of action" which the Court of Appeals below refused to imply from the Fifth Amendment, however, for the court acknowledged that petitioner had alleged an invasion of her constitutional right to be free from illegal discrimination. [Footnote 16] Instead, the Court of Appeals appropriated the meaning of the phrase "cause of action" used in the many cases in which this Court has parsed congressional enactments to determine whether the rights and obligations so created could be judicially enforced by a particular "class of litigants." Cannon v. University of Chicago,441 U. S. 677, 441 U. S. 688 (1979). Securities Investor Protection Corp. v. Barbour,421 U. S. 412 (1975), for example, held that, although "Congress' primary purpose in . . . creating the SIPC was . . . the protection of investors," and although investors were thus "the intended beneficiaries of the [Securities Investor Protection] Act [of 1970]," 84 Stat. 1636,

Page 442 U. S. 239

15 U.S.C. § 78aaa et seq., investors nevertheless had no private cause of action judicially to compel SIPC "to commit its funds or otherwise to act for the protection" of investors. 421 U.S. at 421 U. S. 418, 421 U. S. 421. We held that, under the Act, only the Securities and Exchange Commission had a cause of action enabling it to invoke judicial authority to require SIPC to perform its statutory obligations. On the other hand, Texas & N. O. R. Co. v. Railway & Steamship Clerks,281 U. S. 548 (1930), held that § 2 of the Railway Labor Act of 1926, 44 Stat. 577, 45 U.S.C. § 152, which provides that railroad employees be able to designate representatives "without interference, influence, or coercion," did not confer "merely an abstract right," but was judicially enforceable through a private cause of action. [Footnote 17] 281 U.S. at 281 U. S. 558, 281 U. S. 567-568.

In cases such as these, the question is which class of litigants may enforce in court legislatively created rights or obligations. If a litigant is an appropriate party to invoke the power of the courts, it is said that he has a "cause of action" under the statute, and that this cause of action is a necessary element of his "claim." So understood, the question whether a litigant has a "cause of action" is analytically distinct and prior to the question of what relief, if any, a litigant may be entitled to receive. The concept of a "cause of action" is employed specifically to determine who may judicially enforce the statutory rights or obligations. [Footnote 18]

Page 442 U. S. 240

It is in this sense that the Court of Appeals concluded that petitioner lacked a cause of action. The Court of Appeals reached this conclusion through the application of the criteria set out in Cort v. Ash,422 U. S. 66 (1975), for ascertaining whether a private cause of action may be implied from "a

Page 442 U. S. 241

statute not expressly providing one." Id. at 422 U. S. 78. [Footnote 19] The Court of Appeals used these criteria to determine that those in petitioner's position should not be able to enforce the Fifth Amendment's Due Process Clause, and that petitioner therefore had no cause of action under the Amendment. This was error, for the question of who may enforce a statutory right is fundamentally different from the question of who may enforce a right that is protected by the Constitution.

Statutory rights and obligations are established by Congress, and it is entirely appropriate for Congress, in creating these rights and obligations, to determine in addition who may enforce them and in what manner. For example, statutory rights and obligations are often embedded in complex regulatory schemes, so that, if they are not enforced through private causes of action, they may nevertheless be enforced through alternative mechanisms, such as criminal prosecutions, see Cort v. Ash, supra, or other public causes of actions. See Securities Investor Protection Corp. v. Barbour, supra; National Railroad Passenger Corp. v. National Assn. of Railroad Passengers,414 U. S. 453, 414 U. S. 457 (1974). In each case, however, the question is the nature of the legislative intent informing a specific statute, and Cort set out the criteria through which this intent could be discerned.

The Constitution, on the other hand, does not "partake of the prolixity of a legal code." McCulloch v. Maryland, 4 Wheat. 316, 17 U. S. 407 (1819). It speaks instead with a majestic simplicity. One of "its important objects," ibid., is the designation of rights. And in "its great outlines," ibid., the judiciary is clearly discernible as the primary means through which these rights may be enforced. As James Madison stated when he presented the Bill of Rights to the Congress:

"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

Page 442 U. S. 242

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."

1 Annals of Cong. 439 (1789).

At least in the absence of "a textually demonstrable constitutional commitment of [an] issue to a coordinate political department," Baker v. Carr,369 U. S. 186, 369 U. S. 217 (1962), we presume that justiciable constitutional rights are to be enforced through the courts. And, unless such rights are to become merely precatory, the class of those litigants who allege that their own constitutional rights have been violated, and who at the same time have no effective means other than the judiciary to enforce these rights, must be able to invoke the existing jurisdiction of the courts for the protection of their justiciable constitutional rights. "The very essence of civil liberty," wrote Mr. Chief Justice Marshall in Marbury v. Madison, 1 Cranch 137, 5 U. S. 163 (1803),

"certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection."

Traditionally, therefore,

"it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State to do."

Bell v. Hood, 327 U.S. at 327 U. S. 684. See Bivens, 403 U.S. at 403 U. S. 400 (Harlan, J., concurring in judgment). Indeed, this Court has already settled that a cause of action may be implied directly under the equal protection component of the Due Process Clause of the Fifth Amendment in favor of those who seek to enforce this constitutional right. [Footnote 20] The plaintiffs in Bolling v. Sharpe,347 U. S. 497

Page 442 U. S. 243

(1954), for example, claimed that they had been refused admission into certain public schools in the District of Columbia solely on account of their race. They rested their suit directly on the Fifth Amendment and on the general federal question jurisdiction of the district courts, 28 U.S.C. § 1331. The District Court dismissed their complaint for failure "to state a claim upon which relief can be granted." Fed.Rule Civ.Proc. 12(b)(6). This Court reversed. Plaintiffs were clearly the appropriate parties to bring such a suit, and this Court held that equitable relief should be made available. 349 U. S. 294 (1955).

Like the plaintiffs in Bolling v. Sharpe, supra, petitioner rests her claim directly on the Due Process Clause of the Fifth Amendment. She claims that her rights under the Amendment have been violated, and that she has no effective means other than the judiciary to vindicate these rights. [Footnote 21]

Page 442 U. S. 244

We conclude, therefore, that she is an appropriate party to invoke the general federal question jurisdiction of the District Court to seek relief. She has a cause of action under the Fifth Amendment. [Footnote 22]

Although petitioner has a cause of action, her complaint might nevertheless be dismissed under Rule 12(b)(6) unless it can be determined that judicial relief is available. We therefore proceed to consider whether a damages remedy is an appropriate form of relief.

Page 442 U. S. 245

C

We approach this inquiry on the basis of established law.

"[I]t is . . . well settled that, where legal rights have been invaded and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done."

Bell v. Hood, 327 U.S. at 327 U. S. 684. Bivens, 403 U.S. at 403 U. S. 396, holds that, in appropriate circumstances, a federal district court may provide relief in damages for the violation of constitutional rights if there are "no special factors counseling hesitation in the absence of affirmative action by Congress." See Butz v. Economou, 438 U.S. at 438 U. S. 504.

First, a damages remedy is surely appropriate in this case. "Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty." Bivens, supra at 403 U. S. 395. Relief in damages would be judicially manageable, for the case presents a focused remedial issue without difficult questions of valuation or causation. See 403 U.S. at 403 U. S. 409 (Harlan, J., concurring in judgment). Litigation under Title VII of the Civil Rights Act of 1964 has given federal courts great experience evaluating claims for backpay due to illegal sex discrimination. See 42 U.S.C. 2000e-5(g). Moreover, since respondent is no longer a Congressman, seen 1, supra, equitable relief in the form of reinstatement would be unavailing. And there are available no other alternative forms of judicial relief. For Davis, as for Bivens, "it is damages or nothing." [Footnote 23] Bivens, supra at 403 U. S. 410 (Harlan, J., concurring in judgment).

Page 442 U. S. 246

Second, although a suit against a Congressman for putatively unconstitutional actions taken in the course of his official conduct does raise special concerns counseling hesitation, we hold that these concerns are coextensive with the protections afforded by the Speech or Debate Clause. [Footnote 24] Seen 11, supra. If respondent's actions are not shielded by the Clause, we apply the principle that "legislators ought . . . generally to be bound by [the law] as are ordinary persons." Gravel v. United States,408 U. S. 606, 408 U. S. 615 (1972). Cf. Doe v. McMillan,412 U. S. 306, 412 U. S. 320 (1973). As Butz v. Economou stated only last Term:

"Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law:"

"'No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.' United States v. Lee, 106 U.S. [196,] 106 U. S. 220 [(1882)]."

438 U.S. at 438 U. S. 506. [Footnote 25]

Third, there is in this case "no explicit congressional declaration

Page 442 U. S. 247

that persons" in petitioner's position injured by unconstitutional federal employment discrimination "may not recover money damages from" those responsible for the injury. Bivens, supra at 403 U. S. 397. (Emphasis supplied.) The Court of Appeals apparently interpreted § 717 of Title VII of the Civil Rights Act of 1964, 86 Stat. 111, 42 U.S.C. § 2000e-16, as an explicit congressional prohibition against judicial remedies for those in petitioner's position. When § 717 was added to Title VII to protect federal employees from discrimination, it failed to extend this protection to congressional employees such as petitioner who are not in the competitive service. [Footnote 26] See 42 U.S.C. § 2000e-16(a). There is no evidence, however, that Congress meant § 717 to foreclose alternative remedies available to those not covered by the statute. Such silence is far from "the clearly discernible will of Congress" perceived by the Court of Appeals. 571 F.2d at 800. Indeed, the Court of Appeals' conclusion that § 717 permits judicial relief to be made available only to those who are protected by the statute is patently inconsistent with Hampton v. Mow Sun Wong,426 U. S. 88 (1976), which held that equitable relief was available in a challenge to the constitutionality of Civil Service Commission regulations excluding aliens from federal employment. That § 717 does not prohibit discrimination on the basis of alienage [Footnote 27] did not prevent Hampton from authorizing relief. In a similar manner, we do not now interpret § 717 to foreclose the judicial remedies of those expressly unprotected by the statute. On the contrary, § 717 leaves undisturbed whatever remedies petitioner might otherwise possess.

Page 442 U. S. 248

Finally, the Court of Appeals appeared concerned that, if a damages remedy were made available to petitioner, the danger existed "of deluging federal courts with claims. . . ." 571 F.2d at 800. We do not perceive the potential for such a deluge. By virtue of 42 U.S.C. § 1983, a damages remedy is already available to redress injuries such as petitioner's when they occur under color of state law. Moreover, a plaintiff seeking a damages remedy under the Constitution must first demonstrate that his constitutional rights have been violated. We do not hold that every tort by a federal official may be redressed in damages. See Wheeldin v. Wheeler,373 U. S. 647 (1963). And, of course, were Congress to create equally effective alternative remedies, the need for damages relief might be obviated. See Bivens, 403 U.S. at 403 U. S. 397. But perhaps the most fundamental answer to the concerns expressed by the Court of Appeals is that provided by Mr. Justice Harlan concurring in Bivens:

"Judicial resources, I am well aware, are increasingly scarce these days. Nonetheless, when we automatically close the courthouse door solely on this basis, we implicitly express a value judgment on the comparative importance of classes of legally protected interests. And current limitations upon the effective functioning of the courts arising from budgetary inadequacies should not be permitted to stand in the way of the recognition of otherwise sound constitutional principles."

Id. at 403 U. S. 411.

We conclude, therefore, that in this case, as in Bivens, if petitioner is able to prevail on the merits, she should be able to redress her injury in damages, a "remedial mechanism normally available in the federal courts." Id. at 403 U. S. 397.

III

We hold today that the Court of Appeals for the Fifth Circuit, en banc, must be reversed because petitioner has a

Page 442 U. S. 249

cause of action under the Fifth Amendment, and because her injury may be redressed by a damages remedy. The Court of Appeals did not consider, however, whether respondent's conduct was shielded by the Speech or Debate Clause of the Constitution. Accordingly, we do not reach this question. And, of course, we express no opinion as to the merits of petitioner's complaint.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

[Footnote 1]

Passman was defeated in the 1076 primary election, and his tenure in office ended January 3, 1977.

[Footnote 2]

In her complaint, Davis avers that her

"salary was $18,000.00 per year with the expectation of a promotion to defendant's administrative assistant at a salary of $32,000.00 per year upon the imminent retirement of defendant's current administrative assistant."

App. 4.

Davis was not hired through the competitive service. See 2 U.S.C. § 92.

[Footnote 3]

The full text of Passman's letter is as follows:

"Dear Mrs. Davis:"

"My Washington staff joins me in saying that we miss you very much. But, in all probability, inwardly they all agree that I was doing you an injustice by asking you to assume a responsibility that was so trying and so hard that it would have taken all of the pleasure out of your work. I must be completely fair with you, so please note the following:"

"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 Washington Office, and the diversity of the job, I concluded that it was essential that the understudy to my Administrative Assistant be a man. I believe you will agree with this conclusion."

"It would be unfair to you for me to ask you to waste your talent and experience in my Monroe office because of the low salary that is available because of a junior position. Therefore, and so that your experience and talent may be used to advantage in some organization in need of an extremely capable secretary, I desire that you be continued on the payroll at your present salary through July 31, 1974. This arrangement gives you your full year's vacation of one month, plus one additional month. May I further say that the work load in the Monroe office is very limited, and since you 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 you, do not hesitate to let me know. Again, assuring you that my Washington staff and your humble Congressman feel that the contribution you made to our Washington office has helped all of us."

"With best wishes,"

Sincerely,

/s/ Otto E. Passman

OTTO E. PASSMAN

Member of Congress

App. 6-7.

[Footnote 4]

Davis also sought equitable relief in the form of reinstatement, as well as a promotion and salary increase. Id. at 4-5. Since Passman is no longer a Congressman, however, seen 1, supra, these forms of relief are no longer available.

[Footnote 5]

Passman also argued that his alleged conduct was "not violative of the Fifth Amendment to the Constitution," and that relief was barred "by reason of the sovereign immunity doctrine and the official immunity doctrine." App. 8.

[Footnote 6]

The District Court also ruled that, although "the doctrines of sovereign and official immunity" did not justify dismissal of Davis' complaint, "the discharge of plaintiff on alleged grounds of sex discrimination by defendant is not violative of the Fifth Amendment to the Constitution." Id. at 9.

[Footnote 7]

The panel also held that, although sovereign immunity did not bar a damages award against Passman individually, he was entitled at trial to a defense of qualified immunity.

[Footnote 8]

The criteria set out in Cort v. Ash are:

"First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted,' Texas & Pacific R. Co. v. Rigsby,241 U. S. 33, 241 U. S. 39 (1916) (emphasis supplied) -- that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? See, e.g., National Railroad Passenger Corp. v. National Assn. of Railroad Passengers,414 U. S. 453, 414 U. S. 458, 414 U. S. 460 (1974) (Amtrak). Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? See, e.g., Amtrak, supra; Securities Investor Protection Corp. v. Barbour,421 U. S. 412, 421 U. S. 423 (1975); Calhoon v. Harvey,379 U. S. 134 (1964). And finally, is the cause of action one traditionally 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? See Wheeldin v. Wheeler,373 U. S. 647, 373 U. S. 652 (1963); cf. J. I. Case Co. v. Borak,377 U. S. 426, 377 U. S. 434 (1964); Bivens v. Six Unknown Federal Narcotics Agents,403 U. S. 388, 403 U. S. 394-395 (1971); id. at 403 U. S. 400 (Harlan, J., concurring in judgment)."

422 U.S. at 422 U. S. 78.

The Court of Appeals had some difficulty applying these criteria to determine whether a cause of action should be implied under the Constitution. It eventually concluded, however, (1) that although "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 violation of the Fourth Amendment rights alleged in Bivens, 571 F.2d at 797; (2) that "[c]ongressional remedial legislation for employment discrimination has carefully avoided creating a cause of action for money damages for one in Davis' position," id. at 798; (3) that, unlike violations of the Fourth Amendment, "the breadth of the concept of due process indicates that the damage remedy sought will not be judicially manageable," id. at 799; and (4) that implying a cause of action under the Due Process Clause would create "the danger of deluging federal courts with claims otherwise redressable in state courts or administrative proceedings. . . ." Id. at 800.

[Footnote 9]

Before it can be determined whether petitioner's Fifth Amendment right has been violated, therefore, inquiry must be undertaken into what "important governmental objectives," if any, are served by the gender-based employment of congressional staff. See n. 21infra. We express no views as to the outcome of this inquiry.

[Footnote 10]

This right is personal; it is petitioner, after all, who must suffer the effects of such discrimination. See Cannon v. University of Chicago,441 U. S. 677, 441 U. S. 690-693, n. 13 (1979); cf. Monongahela Navigation Co. v. United States,148 U. S. 312, 148 U. S. 326 (1893).

[Footnote 11]

Respondent argues that the subject matter of petitioner's suit is nonjusticiable because judicial review of congressional employment decisions would necessarily involve a "lack of the respect due coordinate branches of government." Baker v. Carr,369 U. S. 186, 369 U. S. 217 (1962). We disagree. While we acknowledge the gravity of respondent's concerns, we hold that judicial review of congressional employment decisions is constitutionally limited only by the reach of the Speech or Debate Clause of the Constitution, Art. I, § 6, cl. 1. The Clause provides that Senators and Representatives, "for any Speech or Debate in either House, . . . shall not be questioned in any other Place." It protects Congressmen for conduct necessary to perform their duties "within the sphere of legitimate legislative activity.'" Eastland v. United States Servicemen's Fund,421 U. S. 491, 421 U. S. 501 (1975). The purpose of the Clause is "to protect the integrity of the legislative process by insuring the independence of individual legislators." United States v. Brewster,408 U. S. 501, 408 U. S. 507 (1972). Thus,

"[i]n the American governmental structure, the clause serves the . . . function of reinforcing the separation of powers so deliberately established by the Founders."

United States v. Johnson,383 U. S. 169, 383 U. S. 178 (1966). The Clause is therefore a paradigm example of "a textually demonstrable constitutional commitment of [an] issue to a coordinate political department." Baker v. Carr, supra at 369 U. S. 217. Since the Speech or Debate Clause speaks so directly to the separation of powers concerns raised by respondent, we conclude that, if respondent is not shielded by the Clause, the question whether his dismissal of petitioner violated her Fifth Amendment rights would, as we stated in Powell v. McCormack,395 U. S. 486, 395 U. S. 548-549 (1969),

"require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law, and does not involve a 'lack of respect due [a] coordinate branch of government,' nor does it involve an 'initial policy determination of a kind clearly for nonjudicial discretion.' Baker v. Carr,369 U. S. 186, at 369 U. S. 217."

The en banc Court of Appeals did not decide whether the conduct of respondent was shielded by the Speech or Debate Clause. In the absence of such a decision, we also intimate no view on this question. We note, however, that the Clause shields federal legislators with absolute immunity "not only from the consequences of litigation's results, but also from the burden of defending themselves." Dombrowski v. Eastland,387 U. S. 82, 387 U. S. 85 (1967). Defenses based upon the Clause should thus ordinarily be given priority, since federal legislators should be exempted from litigation if their conduct is in fact protected by the Clause. We nevertheless decline to remand this case to the en banc Court of Appeals before we have decided whether petitioner's complaint states a cause of action, and whether a damages remedy is an appropriate form of relief. These questions are otherwise properly before us, and may be resolved without imposing on respondent additional litigative burdens. Refusal to decide them at this time may actually increase these burdens.

[Footnote 12]

The restraints of the Fifth Amendment reach far enough to embrace the official actions of a Congressman in hiring and dismissing his employees. That respondent's conduct may have been illegal does not suffice to transform it into merely private action. "[P]ower, once granted, does not disappear like a magic gift when it is wrongfully used." Bivens, 403 U.S. at 403 U. S. 392. See Home Tel. & Tel. Co. v. Los Angeles,227 U. S. 278, 227 U. S. 287-289 (1913).

[Footnote 13]

See United States v. Dickinson,331 U. S. 745, 331 U. S. 748 (1947); Arnold, The Code "Cause of Action" Clarified by United States Supreme Court, 19 A.B.A.J. 215 (1933).

[Footnote 14]

See Clark, The Code Cause of Action, 33 Yale L.J. 817, 820 (1924); Blume, The Scope of a Civil Action, 42 Mich.L.Rev. 257 (1943).

[Footnote 15]

See, e.g., United States v. Employing Plasterers Assn.,347 U. S. 186 (1954); 2A J. Moore, Federal Practice

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