Caseflicks

Supreme Court of the United States • 1979

Davis v. Passman

442 U.S. 228 | 99 S. Ct. 2264 | 60 L. Ed. 2d 846 | 1979 U.S. LEXIS 127

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Takeaway

In short, Davis v. Passman extended Bivens by recognizing a direct Fifth Amendment damages action for a congressional employee alleging sex discrimination, absent an equally effective alternative remedy or a controlling immunity such as the Speech or Debate Clause.

Background

Shirley Davis served as deputy administrative assistant to Representative Otto Passman. Passman terminated her employment after writing that, although she was capable and hardworking, he believed the person positioned to become his administrative assistant had to be a man. Davis alleged that this sex-based dismissal violated the equal-protection component of the Fifth Amendment’s Due Process Clause. She sought backpay and initially also sought reinstatement and promotion.

Davis sued Passman in federal district court under the general federal-question statute, 28 U.S.C. § 1331. The district court dismissed for failure to state a claim, holding that she had no private right of action and that the alleged sex discrimination did not violate the Fifth Amendment. A Fifth Circuit panel reversed, but the en banc Fifth Circuit reinstated dismissal. Applying the statutory implied-right-of-action factors from Cort v. Ash, the en banc court held that no damages action could be implied directly from the Fifth Amendment. The Supreme Court granted certiorari and reversed.

Issues

Issue #1

Whether the Fifth Amendment protects a congressional employee against unconstitutional sex discrimination by a Member of Congress.

Holding

Yes. The equal-protection component of the Fifth Amendment’s Due Process Clause gives Davis a personal constitutional right to be free from federal sex discrimination that lacks an important governmental objective and a substantial relation to that objective.

Reasoning

The Fifth Amendment’s Due Process Clause applies equal-protection principles to the federal government. Under the Court’s sex-discrimination precedents, a gender classification must serve important governmental objectives and be substantially related to achieving those objectives.

Passman’s employment decision was federal action even if it was allegedly unlawful. A federal official does not cease acting under federal authority merely because he misuses that authority. The Court did not decide whether Passman’s asserted justification could satisfy the applicable constitutional standard.

Issue #2

Whether Davis may bring a cause of action directly under the Fifth Amendment to enforce that constitutional right.

Holding

Yes. A person alleging violation of her own justiciable Fifth Amendment right, with no effective alternative means of enforcement, may invoke federal-question jurisdiction and seek judicial protection directly under the Constitution.

Reasoning

The Fifth Circuit erred by importing the Cort v. Ash framework, which asks whether Congress intended to create a private remedy for a statutory right. That inquiry fits statutory schemes because Congress creates statutory rights and may prescribe who can enforce them, by what means, and through what administrative or public mechanisms.

Constitutional rights stand differently. The Constitution identifies rights in broad terms, and the federal judiciary is ordinarily the institution charged with enforcing justiciable constitutional rights. Unless a constitutional issue is textually committed to another branch, courts presume that a person whose own constitutional right has been invaded may seek judicial protection.

Davis alleged a direct, personal injury from sex discrimination and lacked another effective avenue for enforcing her Fifth Amendment right. The Court relied on the established practice of permitting suits directly under the Fifth Amendment, including Bolling v. Sharpe, where plaintiffs obtained equitable relief for federal racial discrimination, and Jacobs v. United States, which recognized a claim directly under the Takings Clause.

Issue #3

Whether damages are an appropriate remedy for Davis’s alleged Fifth Amendment injury.

Holding

Yes. Under Bivens, damages are available because Davis had no equally effective alternative remedy and no special factor counseled hesitation beyond the possible protection of the Speech or Debate Clause.

Reasoning

Bivens establishes that federal courts may award damages for constitutional violations when no special factors counsel hesitation in the absence of congressional action. Damages are the traditional remedy for invasions of personal liberty interests, and backpay for employment discrimination is a familiar and judicially manageable form of relief.

For Davis, damages were effectively the only available remedy. Passman was no longer a Member of Congress, so reinstatement was unavailable, and she lacked a state-law cause of action or another effective judicial remedy.

The Court treated the Speech or Debate Clause as the relevant constitutional protection for the separation-of-powers concerns created by a suit against a Member of Congress. If Passman’s actions were outside the Clause’s protection, he would generally be subject to federal law like other officials. The Court left the Clause’s application for the lower courts because the en banc Fifth Circuit had not decided it.

Congress’s failure to include congressional employees such as Davis within Title VII’s federal-employment provisions did not expressly bar other remedies. Title VII left undisturbed remedies that excluded employees might otherwise have; congressional silence was not a clear directive to deny a constitutional damages action.

Recognizing this remedy would not convert every federal official’s tort into a constitutional damages claim. A plaintiff still must establish an actual constitutional violation, and Congress could displace the need for a Bivens-type remedy by supplying an equally effective alternative.

Dissents

Chief Justice Burger

Reasoning

Chief Justice Burger dissented, arguing that the Chief Justice viewed the case principally as a separation-of-powers dispute. In his view, Congress historically has treated the personal staffs of its Members differently from the ordinary civil service because those positions demand personal loyalty, confidentiality, and political compatibility with the individual legislator.

A Member’s ability to choose and dismiss personal staff may sometimes involve considerations of race, religion, ethnicity, or sex that would be impermissible elsewhere. Because Congress had not created a Bivens-type remedy governing its own staff employment decisions, the judiciary should not impose one.

The prospect of a judicial order directing a sitting Member to reemploy a staff member, backed by contempt power, would seriously intrude on the independence of a coordinate branch. The Chief Justice would therefore leave this area to Congress unless Congress or the Constitution expressly provided otherwise.

Justice Stewart

Reasoning

Justice Stewart maintained that the Court should have addressed the Speech or Debate Clause before deciding the existence of a cause of action or damages remedy. The Clause, when applicable, gives legislators absolute immunity not only from liability but also from the burdens of defending litigation.

Because Passman’s immunity claim was substantial and could entirely dispose of the suit, Justice Stewart would have vacated and remanded with instructions for the Fifth Circuit to decide that threshold question first.

Justice Powell

Reasoning

Justice Powell agreed with the Chief Justice that the Court improperly intruded on congressional authority over personal staff. Although Bivens permits direct constitutional actions in appropriate circumstances, he believed courts must exercise principled discretion and weigh the same policy considerations that a legislature would consider before authorizing a remedy.

Comity and separation of powers required particular restraint because a legislator’s personal staff is closely connected to the legislator’s ability to perform official duties. A Member must be able to rely on staff members in whom the Member has complete confidence and whose loyalty and political compatibility are assured.

Congress had also exempted itself from Title VII’s coverage. Justice Powell read that exclusion, together with Brown v. GSA’s description of Title VII as the exclusive federal-employment discrimination remedy for covered employees, as powerful evidence that courts should not create relief for excluded congressional employees.

The majority treated the Speech or Debate Clause as the sole relevant separation-of-powers limit. Justice Powell disagreed: the Clause did not eliminate broader judicial obligations to respect the autonomy of a coordinate branch. He would have affirmed the Fifth Circuit.