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,
see n 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]
See n 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,
see
n 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.
21 infra. 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 � 8.13, pp. 1704-1705 (2d
ed.1975) ("Perhaps it is not entirely accurate to say, as one court
has said, that
it is only necessary to state a claim in the
pleadings . . . and not a cause of action.' While the Rules have
substituted `claim' or `claim for relief' in lieu of the older and
troublesome term `cause of action,' the pleading still must state a
`cause of action' in the sense that it must show `that the pleader
is entitled to relief.' It is not enough to indicate merely that
the plaintiff has a grievance, but sufficient detail must be given
so that the defendant, and the court, can obtain a fair idea of
what the plaintiff is complaining, and can see that there is some
legal basis for recovery") (footnotes omitted).
There was, of course, great controversy concerning the exact
meaning of the phrase "cause of action" in the Codes.
See
2 J. Moore, Federal Practice � 2.06, p. 359 n. 26 (2d ed.1978); J.
Pomeroy, Code Remedies 459-466 (4th ed.1904); Wheaton, The Code
"Cause of Action": Its Definition, 22 Cornell L.Q. 1 (1936); Clark,
supra, n 14, at
837.
[
Footnote 16]
The Court of Appeals apparently found that petitioner lacked a
"cause of action" in the sense that a cause of action would have
been supplied by 42 U.S.C. § 1983.
Chapman v. Houston Welfare
Rights Org., 441 U. S. 600
(1979), holds this Term that, although § 1983 serves "to ensure
that an individual [has] a cause of action for violations of the
Constitution," the statute itself "does not provide any substantive
rights at all."
Id. at
441 U. S. 617,
441 U. S. 618.
Section 1983, of course, provides a cause of action only for
deprivations of constitutional rights that occur "under color of
any statute, ordinance, regulation, custom, or usage, of any State
or Territory," and thus has no application to this case.
[
Footnote 17]
Texas & N. O. R. Co. v. Railway & Steamship
Clerks is now understood as having implied a "cause of action"
although the opinion itself did not use the phrase.
See Cannon
v. University of Chicago, 441 U.S. at
441 U. S.
690-693, n. 13.
[
Footnote 18]
Thus, it may be said that jurisdiction is a question of whether
a federal court has the power, under the Constitution or laws of
the United States, to hear a case,
see Mansfield, C. & L.
M. R. Co. v. Swan, 111 U. S. 379,
111 U. S. 384
(1884);
Montana-Dakota Utilities Co. v. Northwestern Public
Serv. Co., 341 U. S. 246,
341 U. S. 249
(1951); standing is a question of whether a plaintiff is
sufficiently adversary to a defendant to create an Art. III case or
controversy, or at least to overcome prudential limitations on
federal court jurisdiction,
see Warth v. Seldin,
422 U. S. 490,
422 U. S. 498
(1975); cause of action is a question of whether a particular
plaintiff is a member of the class of litigants that may, as a
matter of law, appropriately invoke the power of the court; and
relief is a question of the various remedies a federal court may
make available. A plaintiff may have a cause of action even though
he be entitled to no relief at all, as, for example, when a
plaintiff sues for declaratory or injunctive relief although his
case does not fulfill the "preconditions" for such equitable
remedies.
See Trainor v. Hernandez, 431 U.
S. 434,
431 U. S.
440-443 (1977).
The Court of Appeals appeared to confuse the question of whether
petitioner had standing with the question of whether she had
asserted a proper cause of action.
See National Railroad
Passenger Corp. v. National Assn. of Railroad Passengers,
414 U. S. 453,
414 U. S. 465
n. 13 (1974). Although the court acknowledged the existence of
petitioner's constitutional right, 571 F.2d at 797-798, it
concluded that she had no cause of action in part because
"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 amendment."
Id. at 797. The nature of petitioner's injury, however,
is relevant to the determination of whether she has
"alleged such a personal stake in the outcome of the controversy
as to assure that concrete adverseness which sharpens the
presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions."
Baker v. Carr, 369 U.S. at
369 U. S. 204.
See Duke Power Co. v. Carolina Environmental Study Group,
Inc., 438 U. S. 59,
438 U. S. 72
(1978). And under the criteria we have set out, petitioner clearly
has standing to bring this suit. If the allegations of her
complaint are taken to be true, she has shown that she "personally
has suffered some actual or threatened injury as a result of the
putatively illegal conduct G the defendant."
Gladstone,
Realtors v. Village of Bellwood, 441 U. S.
91,
441 U. S. 99
(1979). Whether petitioner has asserted a cause of action, however,
depends not on the quality or extent of her injury, but on whether
the class of litigants of which petitioner is a member may use the
courts to enforce the right at issue. The focus must therefore be
on the nature of the right petitioner asserts.
[
Footnote 19]
See n 8,
supra.
[
Footnote 20]
Jacobs v. United States, 290 U. S.
13 (1933), held that a plaintiff who alleged that his
property had been taken by the United States for public use without
just compensation could bring suit directly under the Fifth
Amendment.
[
Footnote 21]
Clause 9 of Rule XLIII of the House of Representatives prohibits
sex discrimination as part of the Code of Official Conduct of the
House:
"A Member, officer, or employee of the House of Representatives
shall not discharge or refuse to hire any individual, or otherwise
discriminate against any individual with respect to compensation,
terms, conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national origin."
"Clause 9 was adopted on January 14, 1975,
see 121
Cong.Rec. 22 approximately six months after petitioner's discharge.
In 1977, the House Commission on Administrative Review ('Obey
Commission') termed 'the anti-discrimination provisions of Rule
XLIII . . . all but unenforceable.' House Commission on
Administrative Review, Recommendations and Rationales Concerning
Administrative Units and Work Management, 95th Cong., 1st Sess., 53
(Comm.Print 1977). The Commission recommended the establishment of
a Fair Employment Practices Panel to provide nonbinding
conciliation in cases of alleged violations of Clause 9.
See H.Res. 766, 95th Cong., 1st Sess., § 504 (1977);
Commission on Administrative Review,
supra at 52-53. This
proposal was prevented from reaching the House floor, however, when
the House defeated the Rule which would have governed consideration
of the Obey Commission's resolution.
See 123 Cong.Rec.
33435-33444 (Oct. 12, 1977)."
On September 25, 1978, H.Res. 1380 was introduced calling for
the implementation of Clause 9 through the creation of
"a House Fair Employment Relations Board, a House Fair
Employment Relations Office, and procedures for hearing and
settling complaints alleging violations of Clause 9 of Rule XLIII.
. . ."
H.Res. 1380, 95th Cong., 2d Sess., § 2 (1978). H.Res. 1380 was
referred to the House Committees on Administration and Rules, where
it apparently languished.
See 124 Cong.Rec. 31334 (Sept.
25, 1978). The House failed to consider it before adjournment.
There presently exists a voluntary House Fair Employment
Practices Agreement. Members of the House who have signed the
Agreement elect a House Fair Employment Practices Committee, which
has authority to investigate cases of alleged discrimination among
participating Members. The Committee has no enforcement powers.
[
Footnote 22]
Five Courts of Appeals have implied causes of action directly
under the Fifth Amendment.
See Apton v. Wilson, 165
U.S.App.D.C. 22, 506 F.2d 83 (1974);
Sullivan v. Murphy,
156 U.S.App.D.C. 28, 478 F.2d 938 (1973);
United States e rel.
Moore v. Koelzer, 457 F.2d 892 (CA3 1972);
Loe v.
Armistead, 582 F.2d 1291 (CA4 1978),
cert. pending sub
nom. Moffit v. Loe, No. 78-1260;
States Marine Lines, Inc.
v. Shultz, 498 F.2d 1146 (CA4 1974);
Green v.
Carlson, 581 F.2d 669 (CA7 1978),
cert. pending, No.
78-1261;
Jacobson v. Tahoe Regional Planning Agency, 566
F.2d 1353 (CA9 1977),
reversed in part and affirmed in part on
other grounds sub nom. Lake Country Estates, Inc. v. Tahoe Regional
Planning Agency, 440 U. S. 391
(1979);
Bennett v. Campbell, 564 F.2d 329 (CA9 1977).
[
Footnote 23]
Respondent does not dispute petitioner's claim that she "has no
cause of action under Louisiana law." Brief for Petitioner 19.
See 3 CCH Employment Practices � 23,548 (Aug.1978). And it
is far from clear that a state court would have authority to effect
a damages remedy against a United States Congressman for illegal
actions in the course of his official conduct, even if a
plaintiff's claim were grounded in the United States Constitution.
See Tarble's Case,
13 Wall. 397 (1872). Deference to state court adjudication in a
case such as this would, in any event, not serve the purposes of
federalism, since it involves the application of the Fifth
Amendment to a federal officer in the course of his federal duties.
It is therefore particularly appropriate that a federal court be
the forum in which a damages remedy be awarded.
[
Footnote 24]
The reasoning and holding of
Bivens is pertinent to the
determination whether a federal court may provide a damages remedy.
The question of the appropriateness of equitable relief in the form
of reinstatement is not in this case, and we consequently intimate
no view on that question.
[
Footnote 25]
The decision of the panel of the Court of Appeals for the Fifth
Circuit found that respondent was not foreclosed
"from asserting the same qualified immunity available to other
government officials.
See generally Wood v. Strickland,
420 U. S.
308 . . . (1975);
Scheuer v. Rhodes,
416 U. S.
232 . . . (1974)."
544 F.2d 865, 881 (1977). The en banc Court of Appeals did not
reach this issue, and accordingly we express no view concerning its
disposition by the panel.
[
Footnote 26]
Since petitioner was not in the competitive service,
see n 2,
supra, the remedial provisions of § 717 of Title VII are
not available to her. In
Brown v. GSA, 425 U.
S. 820 (1976), we held that the remedies provided by §
717 are exclusive when those federal employees covered by the
statute seek to redress the violation of rights guaranteed by the
statute.
[
Footnote 27]
Section 717 prohibits discrimination on the basis of "race,
color, religion, sex, or national origin." 42 U.S.C. §
2000e-16(a).
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE POWELL and MR.
JUSTICE REHNQUIST join, dissenting.
I dissent because, for me, the case presents very grave
questions of separation of powers, rather than Speech or Debate
Clause issues, although the two have certain common roots. Congress
could, of course, make
Bivens-type remedies available to
its staff employees -- and to other congressional employees -- but
it has not done so. On the contrary, Congress has historically
treated its employees differently from the arrangements for other
Government employees. Historically, staffs of Members have been
considered so intimately a part of the policymaking and political
process that they are not subject to being selected, compensated,
or tenured as others who serve the Government. The vulnerability of
employment on congressional staffs derives not only from the
hazards of elections but also from the imperative need for loyalty,
confidentiality, and political compatibility -- not simply to a
political party, an institution, or an administration, but to the
individual Member.
A Member of Congress has a right to expect that every person on
his or her staff will give total loyalty to the political positions
of the Member, total confidentiality, and total support. This may,
on occasion, lead a Member to employ a
Page 442 U. S. 250
particular person on a racial, ethnic, religious, or gender
basis thought to be acceptable to the constituency represented,
even though. in other branches of Government -- or in the private
sector -- such selection factors might be prohibited. This might
lead a Member to decide that a particular staff position should be
filled by a Catholic or a Presbyterian or a Mormon, a
Mexican-American or an Oriental-American -- or a woman rather than
a man. Presidents consciously select -- and dispense with -- their
appointees on this basis, and have done so since the beginning of
the Republic. The very commission of a Presidential appointee
defines the tenure as "during the pleasure of the President."
Although Congress altered the ancient "spoils system" as to the
Executive Branch and prescribed standards for some limited segments
of the Judicial Branch, it has allowed its own Members, Presidents,
and Judges to select their personal staffs without limit or
restraint -- in practical effect, their tenure is "during the
pleasure" of the Member.
At this level of Government -- staff assistants of Members --
long-accepted concepts of separation of powers dictate, for me,
that, until Congress legislates otherwise as to employment
standards for its own staffs, judicial power in this area is
circumscribed. The Court today encroaches on that barrier.
Cf.
Sinking-Fund Cases, 99 U. S. 700,
99 U. S. 718
(1879).
In relation to his or her constituents, and in the performance
of constitutionally defined functions, each Member of the House or
Senate occupies a position in the Legislative Branch comparable to
that of the President in the Executive Branch; and for the limited
purposes of selecting personal staffs, their authority should be
uninhibited except as Congress itself, or the Constitution,
expressly provides otherwise.
The intimation that, if Passman were still a Member of the
House, a federal court could command him, on pain of contempt, to
reemploy Davis represents an astonishing break with concepts of
separate, coequal branches; I would categorically
Page 442 U. S. 251
reject the notion that courts have any such power in relation to
the Congress.
MR. JUSTICE STEWART, with whom MR. JUSTICE REHNQUIST joins,
dissenting.
Few questions concerning a plaintiff's complaint are more basic
than whether it states a cause of action. The present case,
however, involves a preliminary question that may be completely
dispositive, for, as the Court recognizes,
"the [Speech or Debate] 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)."
Ante at
442 U. S. 236
n. 11.
See also Eastland v. United States Sericemen's
Fund, 421 U. S. 491,
421 U. S.
503.
If, therefore, the respondent's alleged conduct was within the
immunity of the Speech or Debate Clause, that is the end of this
case, regardless of the abstract existence of a cause of action or
a damages remedy. Accordingly, it seems clear to me that the first
question to be addressed in this litigation is the Speech or Debate
Clause claim -- a claim that is far from frivolous.
I would vacate the judgment and remand the case to the Court of
Appeals with directions to decide the Speech or Debate Clause
issue.
*
* This issue was fully briefed and argued before the en banc
Court of Appeals. The court's opinion gives no indication of why
the court did not decide it.
MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE
REHNQUIST join, dissenting.
Although I join the opinion of THE CHIEF JUSTICE, I write
separately to emphasize that no prior decision of this Court
justifies today's intrusion upon the legitimate powers of Members
of Congress.
Page 442 U. S. 252
The Court's analysis starts with the general proposition that
"the judiciary is clearly discernible as the primary means through
which [constitutional] rights may be enforced,"
ante at
442 U. S. 241.
It leaps from this generalization, unexceptionable itself, to the
conclusion that individuals who have suffered an injury to a
constitutionally protected interest, and who lack an "effective"
alternative, "
must be able to invoke the existing
jurisdiction of the courts for the protection of their justiciable
constitutional rights."
Ante at
442 U. S. 242
(emphasis supplied). Apart from the dubious logic of this
reasoning, I know of no precedent of this Court that supports such
an absolute statement of the federal judiciary's obligation to
entertain private suits that Congress has not authorized. On the
contrary, I have thought it clear that federal courts must exercise
a principled discretion when called upon to infer a private cause
of action directly from the language of the Constitution. In the
present case, for reasons well summarized by THE CHIEF JUSTICE,
principles of comity and separation of powers should require a
federal court to stay its hand.
To be sure, it has been clear -- at least since
Bivens v.
Six Unknown Fed. Narcotics Agents, 403 U.
S. 388 (1971) -- that, in appropriate circumstances,
private causes of action may be inferred from provisions of the
Constitution. [
Footnote 2/1] But
the exercise of this responsibility involves discretion, and a
weighing of relevant concerns. As Mr. Justice Harlan observed in
addressing this very point, a court should
"take into account [a range of policy considerations] at least
as broad as the range of those a legislature would consider with
respect to an express statutory authorization of a traditional
remedy."
Id. at
403 U. S.
407.
Page 442 U. S. 253
Among those policies that a court certainly should consider in
deciding whether to imply a constitutional right of action is that
of comity toward an equal and coordinate branch of government.
[
Footnote 2/2] As Mr. Chief Justice
Waite observed over a century ago:
"One branch of government cannot encroach on the domain of
another without danger. The safety of our institutions depends in
no small degree on a strict observance of this salutary rule."
Sinking-Fund Cases, 99 U. S. 700,
99 U. S. 718
(1879). Even where the authority of one branch over a matter is not
exclusive, so that a federal court properly may accept jurisdiction
over the dispute, we have recognized that the principle of
separation of powers continues to have force as a matter of policy.
For example, in
United States v. Nixon, 418 U.
S. 683 (1974), we held, on the one hand, that the
question whether the President had a claim of privilege as to
conversations with his advisers was an issue to be resolved by the
judiciary, and, on the other hand, that separation of powers
considerations required the recognition of a qualified
privilege.
Page 442 U. S. 254
Whether or not the employment decisions of a Member of Congress
fall within the scope of the Speech or Debate Clause of the
Constitution, a question the Court does net reach today, [
Footnote 2/3] it is clear that these
decisions are bound up with the conduct of his duties. As THE CHIEF
JUSTICE observes,
ante at
442 U. S. 249,
a Congressman necessarily relies heavily on his personal staff in
discharging the duties of his office. Because of the nature of his
office, he must rely to an extraordinary extent on the loyalty and
compatibility of everyone who works for him.
Cf. Elrod v.
Burns, 427 U. S. 347,
427 U. S.
377-388 (1976) (POWELL, J., dissenting). A Congressman
simply cannot perform his constitutional duties effectively, or
serve his constituents properly, unless he is supported by a staff
in which he has total confidence.
The foregoing would seem self-evident even if Congress had not
indicated an intention to reserve to its Members the right to
select, employ, promote, and discharge staff personnel without
judicial interference. But Congress unmistakably has made clear its
view on this subject. It took pains to exempt itself from the
coverage of Title VII. Unless the Court is abandoning or modifying
sub silentio our holding in
Brown v. GSA,
425 U. S. 820
(1976), that Title VII, as amended, "provides the exclusive
judicial remedy for claims of discrimination in federal
employment,"
id. at
425 U. S. 835,
the exemption from this statute for congressional employees should
bar all judicial relief.
In sum, the decision of the Court today is not an exercise of
principled discretion. It avoids our obligation to take into
Page 442 U. S. 255
account the range of policy and constitutional considerations
that we would expect a legislature to ponder in determining whether
a particular remedy should be enacted. It fails to weigh the
legitimate interests of Members of Congress. Indeed, the decision
simply ignores the constitutional doctrine of separation of powers.
In my view, the serious intrusion upon the authority of Members of
Congress to choose and control their own personal staffs cannot be
justified. [
Footnote 2/4]
I would affirm the judgment of the Court of Appeals.
[
Footnote 2/1]
A court necessarily has wider latitude in interpreting the
Constitution than it does in construing a statute,
McCulloch
v. Maryland, 4 Wheat. 316,
17 U. S. 407
(1819). Moreover, the federal courts have a far greater
responsibility under the Constitution for the protection of those
rights derived directly from it, than for the definition and
enforcement of rights created solely by Congress.
Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. at
403 U. S. 407
(Harlan, J., concurring in judgment).
[
Footnote 2/2]
It is settled that, where discretion exists, a variety of
factors rooted in the Constitution may lead a federal court to
refuse to entertain an otherwise properly presented constitutional
claim.
See, e.g., Trainor v. Hernandez, 431 U.
S. 434 (1977);
Juidice v. Vail, 430 U.
S. 327 (1977);
Huffman v. Pursue, Ltd.,
420 U. S. 592
(1975);
Younger v. Harris, 401 U. S.
37 (1971);
Alabama Public Service Comm'n v. Southern
R. Co., 341 U. S. 341
(1951);
Douglas v. City of Jeannette, 319 U.
S. 157 (1943);
Burford v. Sun Oil Co.,
319 U. S. 315
(1943);
Railroad Comm'n v. Pullman Co., 312 U.
S. 496 (1941);
Hawks v. Hamill, 288 U. S.
52 (1933). Traditionally, the issue has arisen in the
context of a federal court's exercise of its equity powers with
respect to the States. Concerns of comity similar to those that
govern our dealings with the States also come into play when we are
asked to interfere with the functioning of Congress.
The Court suggests that, because the Speech or Debate Clause of
the Constitution embodies a separation of powers principle, the
Constitution affords no further protection to the prerogatives of
Members of Congress.
Ante at
442 U. S. 246.
This assertion not only marks a striking departure from precedent,
but also constitutes a
non sequitur. Our constitutional
structure of government rests on a variety of checks and balances;
the existence of one such check does not negate all others.
[
Footnote 2/3]
It is quite doubtful whether the Court should not consider
respondent's Speech or Debate Clause claim as a threshold issue.
The purpose of that Clause, when it applies, includes the
protection of Members of Congress from the harassment of
litigation. Since the Court chooses not to consider this claim, and
addresses only the cause of action issue, I limit my dissent
accordingly. In doing so, I imply no view as to the merits of the
Speech or Debate Clause issue or to the propriety of not addressing
the claim before all other issues.
[
Footnote 2/4]
The justification the Court relies upon is the duty of federal
courts to vindicate constitutional rights -- a duty no one
disputes. But it never has been thought that this duty required a
blind exercise of judicial power without regard to other interests
or constitutional principles. Indeed, it would not be surprising
for Congress to consider today's action unwarranted and to exercise
its authority to reassert the proper balance between the
legislative and judicial branches. If the reaction took the form of
limiting the jurisdiction of federal courts, the effect conceivably
could be to frustrate the vindication of rights properly protected
by the Court.