442 U.S. 228 (1979)
Otto E. Passman represented Louisiana's Fifth Congressional District in the United States House of Representatives.1 On February 1, 1974, he hired Shirley Davis as a deputy administrative assistant at an annual salary of $18,000, with an expected promotion to administrative assistant at $32,000 upon the retirement of the current assistant.2
Davis was not hired through the competitive service.3 Passman was defeated in the 1976 primary election, and his tenure in office ended January 3, 1977.4 On or about July 31, 1974, Passman terminated Davis's employment by letter.5 Although he stated that she was able, energetic, and a very hard worker, he concluded that it was essential that the understudy to his administrative assistant be a man.6
The letter offered continued pay through July 31 plus an extra month of vacation and noted that secretaries of her ability were in demand in Monroe, Louisiana.7 Davis filed suit against Passman in the United States District Court for the Western District of Louisiana.8 She alleged that the termination discriminated against her on the basis of sex in violation of the United States Constitution and the Fifth Amendment.9 She sought damages in the form of backpay along with equitable relief including reinstatement, promotion, and salary increase.10
She invoked jurisdiction under 28 U.S.C. § 1331(a) on the ground that the matter in controversy exceeded $10,000 and arose under the Constitution.11 Passman moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), contending among other things that the law afforded no private right of action for the claim.12 The district court granted the motion and dismissed the complaint, ruling that Davis had no private right of action.13
A panel of the Court of Appeals for the Fifth Circuit reversed that dismissal.14 The Fifth Circuit sitting en banc then reversed the panel. It held that no right of action may be implied from the Due Process Clause of the Fifth Amendment. It also held that the proposed damage remedy was not constitutionally compelled.15 The Supreme Court granted certiorari.16
Since Passman was no longer a Member of Congress by the time the case reached the Supreme Court, equitable relief such as reinstatement was unavailable.17
Whether a cause of action for damages arises directly under the Due Process Clause of the Fifth Amendment for alleged gender discrimination by a Member of Congress against a staff employee?18
The Fifth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law.19 This includes an equal protection component that forbids the Federal Government to deny equal protection of the laws.20 Classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.21 The Constitution designates rights.22 The judiciary is clearly discernible as the primary means through which these rights may be enforced.23 At least in the absence of a textually demonstrable constitutional commitment of an issue to a coordinate political department, justiciable constitutional rights are to be enforced through the courts.24 The class of litigants who allege that their own constitutional rights have been violated must be able to invoke the existing jurisdiction of the courts when they have no effective means other than the judiciary to enforce these rights.25
Yes. Davis alleged that Passman's termination of her employment constituted gender discrimination in violation of the equal protection component of the Fifth Amendment's Due Process Clause.26 Like the plaintiffs in Bolling v. Sharpe, Davis rests her claim directly on the Due Process Clause.27 She claims that she has no effective means other than the judiciary to vindicate her rights.28
The Court of Appeals erred in applying the Cort v. Ash criteria, which are for statutory rights, to this constitutional claim.29 Davis is an appropriate party to invoke the general federal-question jurisdiction of the District Court.30
Davis has a cause of action under the Fifth Amendment.31
Related opinions on this issue
Joined by The Chief Justice And Mr. Justice Rehnquist
Justice Powell dissented to emphasize that no prior decision of this Court justifies today's intrusion upon the legitimate powers of Members of Congress.32 The Court's analysis leaps from the generalization that the judiciary is the primary means to enforce constitutional rights to the conclusion that individuals must be able to invoke the courts.33 Principles of comity and separation of powers should require a federal court to stay its hand.34
The exemption from Title VII for congressional employees should bar all judicial relief.35 A Congressman simply cannot perform his constitutional duties effectively unless he is supported by a staff in which he has total confidence.36
Whether a damages remedy is an appropriate form of relief for such a constitutional violation?37
Where legal rights have been invaded, federal courts may use any available remedy to make good the wrong done.38 In appropriate circumstances a federal district court may provide relief in damages for the violation of constitutional rights if there are no special factors counselling hesitation in the absence of affirmative action by Congress.39 Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.40 There is no explicit congressional declaration that persons injured by unconstitutional federal employment discrimination may not recover money damages from those responsible for the injury.41
Yes. A damages remedy is appropriate because the case presents a focused remedial issue without difficult questions of valuation or causation.42 Litigation under Title VII has given federal courts experience evaluating claims for backpay due to illegal sex discrimination.43 Since Passman is no longer a Congressman, equitable relief in the form of reinstatement would be unavailing.44
There are no other alternative forms of judicial relief.45 The concerns about a suit against a Congressman are coextensive with the protections of the Speech or Debate Clause.46 There is no explicit congressional declaration in section 717 of Title VII that persons in Davis's position may not recover money damages.47 The statute leaves undisturbed whatever remedies petitioner might otherwise possess.48
The potential for deluging federal courts with claims is not a sufficient reason to deny the remedy.49
A damages remedy is an appropriate form of relief.50
Related opinions on this issue
Joined by Mr. Justice Powell And Mr. Justice Rehnquist
Chief Justice Burger dissented because the case presents very grave questions of separation of powers.51 Congress could make Bivens-type remedies available to its staff employees but has not done so.52 Historically, staffs of Members have been considered so intimately a part of the policymaking and political process that they are not subject to being selected, compensated, or tenured as others who serve the Government.53
The vulnerability of employment on congressional staffs derives from the hazards of elections and the imperative need for loyalty, confidentiality, and political compatibility.54 At this level of Government, long-accepted concepts of separation of powers dictate that until Congress legislates otherwise, judicial power in this area is circumscribed.55
Whether the Speech or Debate Clause shields a Member of Congress from suit based on the termination of a staff employee?56
No. Although the Speech or Debate Clause provides absolute immunity to federal legislators from the burden of defending themselves in litigation, the Court of Appeals did not address whether Passman's termination of Davis was shielded by the Clause.59 The Supreme Court likewise declines to reach the question because it was not decided below.60 The case is remanded for further proceedings in which the lower court may consider the Clause's application to the specific facts of the employment decision.61
The Court does not reach the question whether the Speech or Debate Clause shields the conduct.62
Related opinions on this issue
Joined by Mr. Justice Rehnquist
Justice Stewart dissented, stating that few questions concerning a plaintiff's complaint are more basic than whether it states a cause of action.63 The present case involves a preliminary question that may be completely dispositive.64 If the respondent's alleged conduct was within the immunity of the Speech or Debate Clause, that is the end of this case, regardless of the abstract existence of a cause of action or a damages remedy.65
He would vacate the judgment and remand the case to the Court of Appeals with directions to decide the Speech or Debate Clause issue.66