Davis v. Passman No. 78-5072 (U.S. Supreme Court) Mrs. Shirley Davis served as deputy administrative assistant on the staff of U.S. Řepresentative Otto Ê. Passman of Louisiana from February 1, 1974 through July 31, 1974, on which date her employment was terminated. She filed a complaint, naming Rep. Passman as defendant, in the U.S. District Court for the Western District of Louisiana on August 7, 1974. Her complaint alleged that she had been dismissed from the defendant's Congressional staff because of her sex, in violation of the Fifth Amendment to the Constitution. The plaintiff supplemented her complaint with a letter from the defendant, in which Rep. Passman had indicated, in dismissing her, that "it was essential that the understudy to my Administrative Assistant be a man." Rep. Passman filed a motion to dismiss the complaint, stating that: (1) his alleged conduct was not violative of the Fifth Amendment; (2) the law afforded Mrs. Davis no private right of action; and (3) the doctrines of official and sovereign immunity barred the action against him. On February 24, 1975, U.S. District Judge Tom Stagg dismissed the plaintiff's complaint on the ground that it failed to state a claim against Rep. Passman upon which relief could be granted. The court held that the alleged sex discrimination by Rep. Passman did not violate the Fifth Amendment and that the law afforded no private right of action to the plaintiff. The court further held, however, that Rep. Passman's defense of sovereign and official immunity was not wellfounded. Mrs. Davis filed an appeal to the U.S. Court of Appeals for the Fifth Circuit on March 20, 1975. In papers filed with the court of appeals on June 9, 1976, Rep. Passman urged affirmance of the district court's decision to grant his motion to dismiss and reasserted his contention that the doctrines of sovereign and official immunity barred Mrs. Davis' claim. In a decision of January 3, 1977. the court of appeals rejected Ren. Passman's claims of sovereign, official, and Speech or Debate Clause 1 immunity. [Davis v. Passman, 554 F.2d 865 (5th Cir. 1977)] After determining that the allegations asserted by Mrs. Davis would, if proven, constitute a violation of her constitutional rights, the court addressed the question of whether the claim was one upon which relief could be granted. The court noted that Mrs. Davis was seeking three types of relief: specific relief. damages, and a declaratory judgment. Turning first to the question of specific relief, the court noted that there were three remedies requested: reinstatement, promotion, and an injunction against unlawful discrimination. Of those three remedies only the claim for an injunction "might raise a sovereign immunity issue. . ." [554 F.2d at 871] The court further noted that Rep. Passman's defeat in his bid for re-election caused Mrs. Davis' requests for reinstatement and a promotion to lose their significance. 1 The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl. 1] "That the term is not yet completely over saves the specific-relief claims from technica! mootness," said the court. [Id. at 872] As for Mrs. Davis' claim for damages, the court found that damages would be an appropriate remedy for the allegation of constitutional violation and that Rep. Passman's assertions of immunity were groundless. As to whether sovereign immunity would bar recovery, the court concluded that the damages sought were against Rep. Passman individually, not against the United States. The court declared: "When, as here, an action seeks to impose liability upon a Government official in an individual capacity, sovereign immunity poses no bar. Although sovereign immunity sometimes shields the U.S. Treasury from a plaintiff's claims, it does not protect the personal checkbook of an individual Government official to any extent at all.” [Id. at 877] Turning next to the question of whether the Speech or Debate. Clause was an absolute shield against the action, the court stated that such immunity was available only for actions taken in the legislative process. The court concluded that "representatives are not immune from inquiry into their decisions to dismiss staff members. Such dismissal decisions certainly are not 'an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House'. . ." [Id. at 880] The court then rejected Rep. Passman's argument that he was protected by the doctrine of official immunity. The court noted that its rejection of Speech or Debate Clause immunity precluded Rep. Passman from asserting an absolute immunity. As for a qualified immunity, the court noted that such immunity was generally limited to good faith, nonmalicious action. The court concluded that "[i]n light of the settled, indisputable principle that Federal Government sex discriminations not supported by rational (or perhaps compelling) legitimate justifications are unconstitutional..., the likelihood that Representativo Passman will be able successfully to maintain a good faith defense even under the liberal standard governing Congressional staffing decisions appears very remote." [Id. at 881-882 (footnote omitted)] The court declined to rule on the propriety of the declaratory relief requested by Mrs. Davis, noting that "the absence of any forwardlooking scope of operation for any declaration of Davis' rights as against Representative Passman, whose Congressional tenure is virtually at its end, would make the propriety of such a declaration questionable." [Id. at 882] The dissent concluded that the doctrine of separation of powers required the dismissal of the action. On February 16, 1977, Rep. Passman filed a motion for rehearing en banc. op On March 15, 1977, the Department of Justice filed a brief amicus curiae with the court of appeals supporting the motion for rehearing. On March 31, 1977, a motion for leave to file an amicus brief in position to the motion for rehearing was filed by members of the Fair Employment Practices Committee of the U.S. House of Representatives. According to the motion: The House Fair Employment Practices Committee was formed pursuant to the House Fair Employment Practices Agreement. This committee is a voluntary organization; it is not a Standing or Select Committee formed by resolution of the House of Representatives. It consists of six elected members. Three of these members are the U.S. Representatives filing this motion who were elected by the Representatives signing the agreement. The other three members aro the congressional employees who are joining in the filing of the motion and who were elected by the employees of those Representatives signing the agreement. [Motion by the Honorable Morris Udall, et al., for Leave to File Brief Amicus Curiae, March 31, 1977, at 2] The three Members of the House of Representatives on the committee, Representatives Morris Udall, Patricia Schroeder, and Charles Rose, and the three Congressional employees on the committee asserted that the case was "competently and fully argued and decided," [Id. at 3] and that the petition for rehearing should be denied. On April 18, 1977, Representative Don Edwards filed a letter with the court in which he said that the Justice Department had intervened in the matter without Congressional request or approval and that in his view the court's decision was sound and reconsideration or rehearing was not necessary. He also asserted that the Justice Department's brief did not accurately describe the burdens this decision would place upon Members of Congress. On May 17, 1977, the court granted the petition for a rehearing en banc. On April 18, 1978, the Court of Appeals for the Fifth Circuit en banc rendered its decision reversing the earlier panel decision [Davis v. Passman, 571 F.2d 793 (5th Cir. 1978) en banc] In so doing, the judgment of the district court dismissing Mrs. Davis' claim was affirmed on the grounds that the law afforded her no private right of action in the Federal courts for money damages. The en banc opinion vacated the decision of the district court in regard to that court's holding that the conduct of which Mrs. Davis complained did not. violate the Constitution. To determine whether a cause of action for money damages would lie for a violation of Fifth Amendment due process rights the court first noted that the Supreme Court had found that such a remedy was available to parties asserting a violation of their Fourth Amendment rights. [Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971)] Concluding that the award of money damages in Bivens was implied as a matter of Federal common law, and as such subject to the power of Congress to alter or withdraw, the court set forth a two-step analysis to determine whether the money damages sought by Mrs. Davis could be implied in the Federal common law for a violation of Fifth Amendment due process rights: First, we look to the jurisprudence of statutory implication to determine whether to imply a damage action of nonconstitutional dimensions. Second, if this initial inquiry does not suggest that such an action should be implied, we The majority noted four factors utilized in the past to determine whether to imply a cause of action from a right created by statute: (1) whether the provision asserted creates an especial right in the plaintiff; (2) whether the action of Congress in the field indicates an intent to allow such a remedy or at least an intent not to deny the remedy; (3) whether implication of the remedy would be consistent with the purpose of the right asserted; and (4) whether the cause of action implied would be one appropriate for Federal law. The court concluded that each of these factors militated against Mrs. Davis' claim. As to the question of an especial right, the opinion stated: While the fifth amendment Due Process Clause surely exists for the "especial benefit" of Davis, as Cort [v. Ash, 422 U.S. 66 (1975)] required, it does not exist with equal certainty to protect her tenure in a non-competitive personal aide position statutorily denominated as service at will, 2 U.S.C. § 92. [Id. at 797-798] The court found that the action of the Congress in excluding congressional employees from the protection of Title VII of the 1964 Civil Rights Act and the 1972 amendments thereto coupled with 2 U.S.C.A. § 92 (which provides that members of a Congressman's personal staff are removable by him "at any time. . . with or without cause") was instructive as to congressional intent. The court further noted that: Implying the cause of action asserted by Davis would have the anomalous result of granting federal employees in noncompetitive positions, whom Congress did not intend to protect, a remedy far more extensive than Congress adopted for federal employees in the competitive services, whom it did intend to protect. [Id. at 798] Regarding the appropriateness of money damages, the court noted that substantial difficulties existed in providing money damages for violation of Fifth Amendment, as opposed to Fourth Amendment, rights. On this point the court stated:" Violations of fourth amendment rights occur in a welldefined setting familiar to the courts. The relationship is always one between law enforcement officials and citizens suspected of possessing evidence of crime. The context in which these violations may arise is sufficiently limited to allow the court to determine that an action for damages would be consistent with the purpose of the fourth amendment in future instances in which such an action might be invoked. The fifth amendment Due Process Clause presents no similarly focused remedial issue. To the contrary, the breadth of the concept of due process indicates that the damage remedy sought will not be judicially manageable and that there is simply no way a court can judge whether this remedy will be appropriate for securing the right in future situations where some plaintiff might assert it. [Id. at 799] Summarizing the holding of the court on whether to imply a cause of action for money damages, the opinion stated: Not only does this case fail to present special remedial difficulties analogous to those faced by the court in dealing with the fourth amendment, but also Congress avoided creating an action for money damages for Congressional aides in non-competitive positions. Moreover, implying this damage action necessarily would draw into the Federal judicial system a wide range of cases whose resolution Congress has not committed to the Federal judiciary and whose resolution is better suited to courts of general jurisdiction. These special considerations . . . eliminate any question of our creating a remedial right under our federal common law power. [Id. at 800] Turning to the question of whether the remedy of damages might yet be constitutionally compelled as indispensable to the effectuation of the Fifth Amendment Due Process Clause, and thus not subject to congressional preclusion, the court noted: Denying an implied cause of action for money damages does not render meaningless any constitutional rights of Congressional employees. A plaintiff might still seek equitable relief where the employer remained in office, although Congressional employees in the non-competitive service whose allegedly discriminating employers are not in office may be left without a remedy for sex discrimination in employment unless Congress reverses its present statutory stand. Other due process wrongs would either continue to be remedied in traditional ways through tort actions in courts of appropriate general jurisdiction or through special statutory remedies provided by state legislatures or Congress. Admittedly, some not now covered would remain inactionable. [Id.] The opinion also noted that Federal district and circuit courts of appeals could be rendered ineffective by the increased number of cases which might be brought in those courts, "crushing an already precariously overloaded federal judicial system" were an implied cause of action for damages for violation of Fifth Amendment due process rights made available. In a special concurring opinion, Circuit Judge Jones declared: I do not believe that the constitutional provisions here pertinent are to be confined to the Speech and [sic] Debate clause. The broader provisions by which all legislative powers are vested in the Congress is relevant to the cause. [T]he court should say that the hiring and firing of his "alter ego" is a legislative activity and a part of the exercise of the legislative power. The question is not one of whether there is a judicial remedy. The question, as I see it, is whether the controversy is one involving the exercise |