Davis v. Passman, 75-1691

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Citation571 F.2d 793
Docket NumberNo. 75-1691,75-1691
Parties17 Fair Empl.Prac.Cas. 373, 18 Empl. Prac. Dec. P 8672 Shirley DAVIS, Plaintiff-Appellant, v. Otto E. PASSMAN, Congressman of the United States, Defendant-Appellee.
Decision Date18 April 1978

Stephen J. Katz, Monroe, La., Peter B. Hutt, Sana F. Shtasel, Washington, D. C., for plaintiff-appellant.

Harold Himmelman, Washington Lawyers' Committee for Civil Rights Under Law, Washington, D. C., for Morris Udall, et al.

Jesse D. McDonald, Albert R. Gear, Monroe, La., Barbara L. Herwig, Atty., Washington, D. C., for defendant-appellee.

Robert E. Kopp, Appellate Sec., Civ. Div., Dept. of Justice, Washington, D. C., amicus curiae for the United States.

Appeal from the United States District Court for the Western District of Louisiana.

Before BROWN, Chief Judge, JONES, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL and FAY, Circuit Judges.

CHARLES CLARK, Circuit Judge:

In today's decision the court en banc reverses a panel opinion which implied a cause of action for money damages from the Due Process Clause of the fifth amendment of the Constitution. 1

In her complaint, Ms. Shirley Davis alleged that former Louisiana Congressman Otto Passman dismissed her as his Deputy Administrative Assistant solely because she was a woman and he wanted a man in the position. Davis claimed Passman's actions violated the equal protection component of the fifth amendment Due Process Clause. Invoking the court's jurisdiction under 28 U.S.C.A. § 1331(a), she sought specific relief, damages, and declaratory relief. Because Passman's service in Congress ended after the suit was brought, the claim has narrowed to one for recovery of money damages. The district court based its dismissal of the complaint on alternative grounds: (1) that the law affords Davis no private right of action and (2) that the conduct of which she complained did not violate the Constitution. Addressing only the surviving claim for money damages, we affirm the district court's dismissal on the first ground.

The roster of constitutional rights which have been held to support implied damage actions began its growth with the Supreme Court's seminal decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In Bivens, the Court noted that historically damages have been regarded as the "ordinary remedy for an invasion of personal interests in liberty," and implied a cause of action for money damages for the invasion of the plaintiff's liberty which abridged his fourth amendment rights. 403 U.S. at 395, 91 S.Ct. at 2004, 29 L.Ed.2d at 626.

Although the Supreme Court has neither extended nor further explained its initial position, many inferior federal courts have cited Bivens as authorizing implied actions for money damages based on constitutional rights other than the fourth amendment. 2 Generally, these decisions have recognized implicitly that Bivens has some yet unreached limits. Only isolated district court decisions have asserted that Bivens created damage actions for violation of constitutional rights as broadly as if it had decreed that 42 U.S.C.A. § 1983 applied to the federal government. 3 This appeal requires either that we join other circuits in projecting the scope of Bivens to the Due Process Clauses of the fourteenth and fifth amendments, 4 or decline to follow their precedents. A choice is not foreclosed. In more than one decision the Supreme Court specifically has pointed out that this issue remains open. 5

Our own decisions appear equivocal on this point. We have ruled district courts erred in finding no jurisdiction to consider damage claims based upon implied causes of action under the Due Process Clauses of both the fifth amendment, Weir v. Muller, 527 F.2d 872 (5th Cir. 1976), and the fourteenth amendment, Reeves v. City of Jackson, 532 F.2d 491, 495 (5th Cir. 1976). See also Roane v. Callisburg Independent School District, 511 F.2d 633, 635 n.1 (5th Cir. 1975); United Farmworkers of Florida Housing Project, Inc. v. City of Delray Beach, 493 F.2d 799, 801-02 & n.2 (5th Cir. 1974); Traylor v. City of Amarillo, 492 F.2d 1156, 1157 n.2 (5th Cir. 1974). However, in Rodriguez v. Ritchey, 556 F.2d 1185, 1192 (5th Cir. 1977) (en banc), we expressly declined to speak as an en banc court on the appropriateness of extending Bivens beyond the fourth amendment. Now we find ourselves face-to-face with the necessity to take a firm position.

To decide whether to imply a cause of action for money damages from the fifth amendment Due Process Clause, we must examine Bivens itself. While Bivens is not without ambiguity, the analysis employed by the Court shows that the cause of action created is not wholly of constitutional dimensions. The opinion of the Court expressly states:

we cannot accept respondents' formulation of the question as whether the availability of money damages is necessary to enforce the Fourth Amendment. For we have here no explicit congressional declaration that persons injured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must instead be remitted to another remedy, equally effective in the view of Congress.

403 U.S. at 397, 91 S.Ct. at 2005, 29 L.Ed.2d at 627. The cases relied upon for guidance by the Court in Bivens dealt with implying a cause of action from federal statutes that created rights but provided no federal remedy. 6 Moreover, in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court's most comprehensive treatment of implied statutory causes of action the Court relied upon Bivens to support two points of its four-part statutory analysis. 7

If the fourth amendment had mandated a cause of action for monetary damages, Bivens would have had no occasion to consult or discuss the action or inaction of Congress. Since the Court explicitly reasoned its precedent on the latter ground, we take the Bivens remedy to be one implied as a matter of federal common law 8 and therefore subject, like all such law, to the power of Congress to alter or withdraw. Therefore, we employ a two-step analysis. First, we look to the jurisprudence of statutory implication to determine whether to imply a damage action of non-constitutional dimensions. Second, if this initial inquiry does not suggest that such an action should be implied, we must determine whether the Constitution nevertheless compels the existence of a remedy in damages to vindicate the rights asserted. See Kostka v. Hogg, 560 F.2d 37, 42 (1st Cir. 1977). Applying this analysis to Davis' claim, we find that the district court properly concluded that no cause of action existed.

Courts have considered several factors in determining whether to imply a cause of action from a statutory right: (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. Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088, 45 L.Ed.2d at 36. Of course, the factors examined in questions of implied statutory causes of action, as set forth in Cort and preceding cases, cannot be applied in precisely the same way where implying a Bivens -type action is at issue. However, this circuit has held that the Cort factors do not set forth a rigid pattern of analysis that a court must follow precisely. Rather, "the Court simply said that several factors were relevant and worthy of consideration." Olsen v. Shell Oil Co., 561 F.2d 1178, 1188 (5th Cir. 1977).

Where federal courts have inferred a federal private cause of action not expressly provided, there generally has been a clearly articulated federal right in the plaintiff. Cort v. Ash, 422 U.S. 66, 82, 95 S.Ct. 2080, 2090, 45 L.Ed.2d 26, 38 (1975), citing Bivens v. Six Unknown Named Agents, 403 U.S. 388, 394-95, 91 S.Ct. 1999, 2003-04, 29 L.Ed.2d 619, 625-26 (1971). While 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 injury inflicted in the unreasonable search of Webster Bivens offended the fourth amendment. The concept of due process encompasses virtually all of the civil liberties derived from the Constitution. While the fifth amendment Due Process Clause surely exists for the "especial benefit" of Davis, as Cort 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.A. § 92.

Cort looked to "legislative intent, explicit or implicit, either to create such a remedy or to deny one." 422 U.S. at 78, 95 S.Ct. at 2088, 45 L.Ed.2d at 36. Bivens recognized that congressional intent to create a remedy must guide a court in determining whether to imply a remedy from provisions of the Constitution. 403 U.S. at 396-97, 91 S.Ct. at 2004-05, 29 L.Ed.2d at 626-27. Congressional remedial legislation for employment discrimination has carefully avoided creating a cause of action for money damages for one in Davis' position. In Section 701, Title VII of the Civil Rights Act of 1964, Congress excluded the federal government from the general definition of "employer," thus denying federal employees a statutory damage action under Title VII. 42 U.S.C.A. § 2000e(b). In 1972, Congress amended Title VII to add Section 717, which provided a separate administrative remedy for discrimination in federal employment, but did not extend the remedy to employees of Congress not in the competitive service. Under Section 717, other federal employees may have review in the federal...

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