Davis v. Passman

• Court: United States Supreme Court
• Citation: 99 S.Ct. 2264,60 L.Ed.2d 846,442 U.S. 228
• Docket Number: No. 78-5072,78-5072
• Parties: Shirley DAVIS, Petitioner, v. Otto E. PASSMAN
• Decision Date: 05 June 1979

442 U.S. 228 99 S.Ct. 2264 60 L.Ed.2d 846 Shirley DAVIS, Petitioner,

v.

Otto E. PASSMAN.

No. 78-5072. Argued Feb. 27, 1979. Decided June 5, 1979. Syllabus

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 $10,000 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, 91 S.Ct. 1999, 29 L.Ed.2d 619; Butz v. Economou, 438 U.S. 478. Pp. 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. P. 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, 95 S.Ct. 2080, 45 L.Ed.2d 26, 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. 236-244.

Page 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, 403 U.S., at 397, 91 S.Ct., at 2005, 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. 2276-2278.

571 F.2d 793, reversed and remanded.

Sana F. Shtasel, Washington, D. C., pro hac vice by special leave of the Court, for petitioner.

A. Richard Gear, Monroe, La., for respondent.

Mr. Justice BRENNAN delivered the opinion of the Court.

Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), held that a "cause of action for damages" arises under

Page 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, 99 S.Ct. 308, 58 L.Ed.2d 318 (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.¹ On February 1, 1974, Passman hired petitioner Shirley Davis as a deputy administrative assistant.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." ³ App. 6.

Page 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 5.⁴ 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 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.⁵ App. 8. The District Court accepted this argument, ruling that Davis had "no private right of action." Id., at 9.⁶ 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. 1.⁷

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, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), for determining whether a private cause of action should be implied from a federal statute.⁸ Noting that Congress had failed to create a

Page 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

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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, 98 S.Ct. 2894, 57 L.Ed.2d 895 (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 504, 98 S.Ct., at 2910.

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, 100, 96 S.Ct. 1895, 1903, 48 L.Ed.2d 495 (1976); Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n. 2, 95 S.Ct. 1225, 1228, 43 L.Ed.2d 514 (1975); Bolling v. Sharpe, 347 U.S. 497, 500, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954)." Vance v. Bradley, 440 U.S. 93, 95 n. 1, 99 S.Ct. 939, 942, 59 L.Ed.2d 171 (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

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substantially related to achievement of those objectives.' Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 456, 50 L.Ed.2d 397 (1976)...