Davis v. Passman
442 U.S. 228 (1979)
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Rule of Law:
A cause of action and a damages remedy can be implied directly from the Constitution when a federal official's conduct violates the equal protection component of the Fifth Amendment's Due Process Clause. This extends the principle of Bivens v. Six Unknown Fed. Narcotics Agents to Fifth Amendment violations.
Facts:
- Otto E. Passman was a United States Congressman from Louisiana.
- On February 1, 1974, Passman hired Shirley Davis to serve as his deputy administrative assistant.
- Passman terminated Davis's employment effective July 31, 1974.
- In the termination letter, Passman wrote to Davis that although she was an able and hard worker, he had concluded 'that it was essential that the understudy to my Administrative Assistant be a man.'
Procedural Posture:
- Shirley Davis sued Congressman Otto Passman in the U.S. District Court for the Western District of Louisiana, alleging unconstitutional sex discrimination.
- Passman filed a motion to dismiss for failure to state a claim, arguing that the law provided no private right of action for Davis's claim.
- The District Court granted Passman's motion, ruling that Davis had no private right of action.
- Davis (as appellant) appealed to the U.S. Court of Appeals for the Fifth Circuit.
- A three-judge panel of the Fifth Circuit reversed the District Court's decision.
- The Fifth Circuit then reheard the case en banc, where the full court reversed the panel's decision and held that no right of action for damages may be implied from the Fifth Amendment.
- The U.S. Supreme Court granted certiorari to review the decision of the en banc Fifth Circuit.
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Issue:
Does a cause of action for damages arise directly under the U.S. Constitution when a federal official violates the Due Process Clause of the Fifth Amendment?
Opinions:
Majority - Mr. Justice Brennan
Yes. A cause of action for damages may be implied directly under the Constitution when the Due Process Clause of the Fifth Amendment is violated. The Court's reasoning proceeds in three stages. First, the equal protection component of the Fifth Amendment's Due Process Clause confers upon individuals a constitutional right to be free from gender discrimination by the federal government. Second, an individual who has had their constitutional rights violated, and has no other effective means to vindicate those rights, has a cause of action to enforce them through the judiciary. The Court distinguished this situation from implying a cause of action from a statute, holding that the judiciary is the primary means of enforcing constitutional rights. Third, following the precedent set in Bivens v. Six Unknown Fed. Narcotics Agents, a damages remedy is appropriate because there are 'no special factors counselling hesitation.' Here, damages are the only viable remedy, as equitable relief like reinstatement is unavailable, and Congress has not explicitly provided an alternative remedy or forbidden a damages action.
Dissenting - Mr. Chief Justice Burger
No. The case presents grave separation of powers questions that preclude a judicially created remedy. Members of Congress require absolute loyalty and political compatibility from their personal staff, which is integral to the policymaking process. Historically, Congress has treated its own staff differently from other government employees and has exempted them from statutory employment protections. Until Congress legislates employment standards for its own staff, the judiciary should not encroach upon the legislative branch's authority to manage its internal affairs.
Dissenting - Mr. Justice Stewart
The Court should not have reached the issue. The threshold question that should have been decided first is whether Congressman Passman's conduct was protected by the Speech or Debate Clause of the Constitution. This clause provides absolute immunity from the burdens of litigation itself, not just from a final judgment. If the Congressman's actions were shielded by the clause, that would be the end of the case, making the question of a cause of action moot. Therefore, the case should be remanded for the Court of Appeals to decide the Speech or Debate Clause issue first.
Dissenting - Mr. Justice Powell
No. The Court's creation of a cause of action in this context is an unprincipled intrusion upon the powers of a coordinate branch of government. While Bivens permits inferring a cause of action from the Constitution in appropriate circumstances, this requires a discretionary weighing of policy concerns, including comity and separation of powers. A Congressman's employment decisions are intimately tied to his constitutional duties and require staff in whom he has total confidence. By exempting itself from Title VII, Congress has unmistakably indicated its intent to bar judicial interference in its employment decisions, a choice the judiciary should respect.
Analysis:
This decision significantly expanded the Bivens doctrine, extending the availability of implied constitutional damage actions from the Fourth Amendment to the Fifth Amendment's guarantee of equal protection. It affirmed the judiciary's power to create remedies for constitutional violations by federal officials, even in the absence of a specific authorizing statute from Congress. This reinforced the principle that constitutional rights are not merely abstract guarantees but can be vindicated through direct lawsuits, solidifying the courts' role as a check on the other branches of government. However, subsequent Supreme Court decisions have significantly narrowed the availability of new Bivens remedies, making this case a high-water mark for the doctrine.
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