Shirley DAVIS, Plaintiff-Appellant, v. Otto E. PASSMAN, Congressman of the United States, Defendant-Appellee

Before BROWN, Judge, Chief GOLDBERG, JONES and Circuit Judges. GOLDBERG, Judge: Circuit In this case a member of the United States unflinchingly asserts that the Constitution allows him openly to dis- against criminate women. He asserts fur- ther he need so suggest not much as a single basis for the discrimination. The issue is not to be trivialized. We have here conflict importance transcendental be- rights tween the of the individual and the rights representative of a qua representa- Although tive. representatives admittedly have some insulation not wrapped around mortals, ordinary conflicting interests harmonized, must dichotomized. Finding that our protects Constitution indi- rights vidual against even the mighty, we remand this ease for trial.

In the early part of 1974 Davis Shirley Deputy was Administrative Assistant Representative Otto E. Passman Congressional Louisiana Fifth District. terminated Davis’s em- ployment July effective In his letter to her explaining the termination de- wrote, the Representative cision “You are able, energetic very hard worker. . on account of the [Hjowever, un- usually heavy my Washington workload in office, job, diversity and the I con- it that the cluded that was essential under- study my administrative assistant be a full text of this rather remark- man.” The margin.1 letter is set оut in the able 1. Dear Mrs. Davis: pleasure taken all of the out of have My your completely you, Washington joins saying I must be fair with staff work. me in But, following: you very please probability, much. so note the we miss all able, inwardly they agree you energetic doing all that I was You are hard asking injustice by you responsi- Certainly you respect to assume a worker. command the bility trying work; you that was so and so hard that it those with whom justifications, ficient Reed, this action then filed Reed v. Davis claiming he had violated (1971); S.Ct. Representative, component Stanton, of the fifth equal Stanton clause. in- due She 43 L.Ed.2d 688 sex discrimina- amendment’s “arising jurisdic- under” court’s voked the tion federal violates the 1331(a), and pursuant Richardson, to 28 U.S.C. § tion fifth amendment. Frontiero v. relief, sought specific and de- she 36 L.Ed.2d 583 claratory Wiesenfeld, relief. Weinberger v. Representative moved to dismiss the must therefore questions: address two grounds: that his con- complaint on three alleged whether the conduct constituted sex unconstitutional, that the law duct discrimination, and if so whether sufficient action, private right of afforded Davis no governmental interests validate the dis- sovereign and that the doctrines of crimination. immunity barred the action. The official rejected immunity argu- district court the A. Discrimination ment but dismissed the action on first reverse, that Da- points. finding two In the case at bar the question first allegations, proved, if will establish a vis’s easily Davis’s allegations, answered. violation for which she has a must of course be taken as true in which agree right of action. We with the private evaluating Representative’s motion to dismiss, see, court that doctrines g., district e. Radovich v. National League, not bar the suit. do Football (1956); City Reeves Jackson, (5th Constitutionality Mississippi, 532 F.2d I. 1976), clearly Cir. make out a case of sex amend Although the fourteenth The Representative’s discrimination. ter applies only clause equal protection ment’s mination letter single offered but a reason states, amendment’s due the fifth to the woman; for Davis’s dismissal: she awas equal contains an clause job called for a man. govern component applicable to the federal See, Bolling Sharpe, g., Representative argues, e. The ment. that 98 L.Ed. 884 sex unconstitutional discrimination occurs Corp., 535 Sumpter Plywood only B. v. when the sex-based N. L. R. classification is 1976). only n.22 More in a statute and embodied F.2d estab over, Supreme Court decisions actor is someone other than a recent member of that, dispute just respect as sex dis to the beyond Congress. With first point lish protection lations equal violated the clause. who those entitled to be treated [were] alike, passage enhanced, equal of time has is not a denial of not di minished, present unless there is shown to be position a in it pillar of Yick Wo as purposeful an element intentional or jurisprudence. of our more Numerous discrimination. decisions have struck recent down nonstatu discriminations, tory usually without even 8, Hughes, supra, Snowden v. 321 U.S. pausing explicitly to note equal protec at 401. S.Ct. principles are

tion not limited to statutes. complaint Davis’s clearly meets See, e. g., Keyes v. 1, School District No. requirements. The only digres- Snowden 2686, S.Ct. 37 L.Ed.2d statutory provisions from neutral sions Sparks, Foster v. exempts equal protection from Snowden 1975); Collier, Gates v. 501 F.2d scrutiny are those isolated incidents not 1974); United Farmworkers on a classification.3 Represent- based Here Davis, statutory Washington 2. Frontiero confronted a v. scheme deal- 426 ing (1976) supports with afforded uni- benefits members of the this anal- “dependent” spouses. Supreme ysis. upheld formed services for their There the the Dis- depend- Metropolitan Depart- A serviceman could claim his wife as a trict of Columbia Police regard dependency, applicants. ent without to actual of Test 21 ment’s use to screen allegedly disproportionate a whereas servicewoman could hus- a claim her test excluded num- only dependent applicants if he band was shown to be of black and would ber therefore support. upon Griggs over of his her for one-half have been invalid Title VII under Co., Similarly, court invalidated the scheme. Wies- Power Duke provision struck down a enfeld Social L.Ed.2d 158 But action had been widow, Security granted brought applicable Act that but not a before Title VII was made widower, government benefits based on the deceased to the federal in and the spouse’s earnings. provided governing itself Constitution stan- dard. See 426 U.S. at n. invalidating Court decisions state sex discriminations have also involved statutes. Reed, Snowden, Unlike the situation in Reed the chal- (1971) lenged Washington an actiоn in held unconstitutional did reflect a clas- sification; applicants separated male candidates to were under which Idaho statute into one passed preferred equal- group over administer an estate were the test and another that did ly-qualified Equal protection scrutiny Stanton female candidates. not. was therefore Stanton, appropriate. 43 L.Ed.2d Because the Court found no ra- cially (1975) discriminating purpose, down statute that struck a Utah an issue as to majority greater age racially impact disproportionate for males established which was rel- dispositive, than for females. evant but not it did not invoke the classification; enact legislation. Passman established a representative ative A is not potential deputy administrative imperator he divided and is never above and be- group law; into one of men and anoth- yond assistants any other view could not be letter, at of women. The termination er squared with the predicate whole upon face, open on its is an declaration of least which our constitutional life depends. The “purposeful” “intentional” and sеx discrimi- need for wide discretion in staff employ- nation. ment decisions cannot ignored, be but the proscription of blatant sex Therefore, Representative Passman will discrimination does impair Representa- demonstrate free at trial legitimate tive Passman’s control over his firing was not in fact based Davis’s staff to extent at all. The Constitution gender, support but he can derive no does not force rule, him to hire the slide nonstatutory nature of the discrimina- but at the same permit time it does not him tion. The constitutional guarantee of free- to slide into unbridled discrimination. The dom from invidious discrimination would geometry congressional discretion in hir- ring bypassed hollow indeed it could be if ing firing is neither apogean peri- nor simple expedient implementing gean. equilibrate. We must Representa- facially the discrimination under a neutral tive Passman can certainly capa- assemble a alleged statute. That discrimination competent ble and staff without engaging was not embodied in a statute is of no in the sex alleged discrimination here. The moment.4 applicable constitutional standards may give representative greаter Representative leeway conten Passman’s em- ployment decisions than unjusti tion that the constitutional ban on possess, entities and at sex discrimination does not restrict the trial fied Passman be able equally actions of members of to show that he has effect, transgressed argues, He untenable. that his constitutional require- congressional status endows him with an ments. All we need decide for purposes of right however, open-ended irrespec appeal, to discriminate this is that at point some time, place tive of the condition of the invidious discrimination a representative representative, discrimination.5 A in his or her employment decisions is uncon- subject is as to constitutional standards stitutional. allegations Davis’s are certain- hiring employees acting ly as when in sufficient to entitle her to trial in go concert with other members of an effort to show that this is a case.6 such stringent equal protection scrutiny that attends only five Passman asserts not that he is im- upheld racial classifications. The Court the suit, apart mune from but also that even classification, challenged finding sufficiently it possibility redress, the of the Constitution does legitimate goal modestly up- related to the of prohibit discriminating him from on the grading govern- the communicative abilities of gender. of basis employees. 245-246, 426 U.S. at 96 S.Ct. 2050, 48 L.Ed.2d at 610. any ap- 6. To eliminate confusion we note that Although Yick Wo and the other cited deci- pellant any the denial need not demonstrate sions were decided under fourteenth Although process “property” the due interest. amendment, equal protection component only deprivations “life, extends clause process fifth amendment due contains the same liberty, property”, a or violation of the clause’s principle. exempt There ‍​‌​​​‌‌‌​‌​‌​​‌‌‌​‌​‌‌‌​‌​​​‌​​​​‌​​‌​‌‌​‌​​​​​‌‍is no reason to component protection necessarily equal a principle federal from that dis- Therefore, “liberty”. deprivation decisions criminatory applications nondiscriminatory process equal protection due clause’s under equal protection guidelines, statutes must meet component, like substantive due deci- Davis, Washington v. 96 S.Ct. sions, “life, liberty, no reference to the make (1976) implicitly recog- 48 L.Ed.2d 597 See, requirement. g., property” e. Frontiero v. supra. nized. Sеe note 3 Richardson, 411 U.S. (1973); Weinberger Wiesenfeld, L.Ed.2d 583 v. representa- can 5. Whether the courts redress a transgressions 95 S.Ct. of the L.Ed.2d 514 tive’s constitutional stan- presents separate Representa- dards issue. decisions. Representative For here B. Justification Pass- no governmental man offers interest at all alleged issue is The next whether support of the sex-based classification, sup is constitutional because discrimination imagine and we can qualifica- none.9 The governmental ported sufficient interests. post tions for the deputy administrative supporting interests a sex dis Whether the simply assistant have nothing to do with “compelling” must be is unset crimination gender. Representative’s suggestion in justices In Frontiero four said sex tled. job requires his letter that a man be- “suspect calling was a classification” cause of the “unusually heavy work load” judicial scrutiny. strict See 411 U.S. at “diversity job” is patently 682-88, (plurality opinion by ridiculous. Understandably, the Represent- Brennan, J.). approach Under ative has abandoned that rationale on this government must a compelling show inter appeal. will be free at justices, however, est. Three reserved the pursue trial his contention that gender scrutiny” saying “strict issue the classifica was not the basis dismissal, of Davis’s but if there was tion unconstitutional he is unsuccessful firing cannot escape 691-92, 411 U.S. at event. S.Ct. 1764 constitutional condemnation. J., concurring). The (Powell, earlier case of Reed, Reed Availability II. of Relief (1971), subsequent and the

L.Ed.2d 225 Having determined that Davis has al- Wiesenfeld, Weinberger cases of leged violation, we must 1225, 43 (1975) now determine whether the claim is one Stanton, Stanton can granted. which relief In sub- invalidated sex stance, Davis seeks three forms of relief: addressing discriminations without relief, specific damages, and a declaration. scrutiny In these strict issue.7 decisions We deal with each in turn. clearly applied more the mini than rationality equal mal test that characterizes Specific A. Relief areas, decisions in some other specific relief Davis seeks includes however, and must sex-based classifications reinstatement, promotion injunction and an pro withstand equal at least middle-level against unlawful discrimination to- directed scrutiny.8 tection injunction her. The ward might claim raise In the at bar case we can follow the sоvereign immunity issue under our deci- lead and Court’s refrain from Moon, in Blaze v. sions Indeed, specifying applicable standard. 1971) Blount, and Beale v. 461 F.2d apply we not even the 1973), need substantial 1133 even though the Su- scrutiny that has characterized the preme Court’s Court has in said Larson v. Domestic Reed, holdings 7. The Wiesenfeld and Stan- Rodriquez, 1, School District v. 411 U.S. 98- supra. are outlined in 2 also ton note See 110, 1278, (1973) (Mar 93 36 L.Ed.2d S.Ct. 16 Shevin, 351, 1734, v. 416 Kahn U.S. 94 S.Ct. 40 shall, J., Kline, dissenting); Vlandis v. 412 U.S. (Florida (1974) giving L.Ed.2d 189 statute wid- 441, 458-59, 2230, (1973) 93 37 S.Ct. L.Ed.2d 63 property $500 but ows not widowers a tax J., (White, concurring); Gunther, Supreme exemption upheld substantially related to Court, 1971 Term —Forword: In Search of legitimate object cushioning dispro- the the Evolving Changing Doctrine on a Court: A portionate confronting financial difficulties a Equal Protection, for a Newer Model 86 Harv. woman); Ballard, Schlesinger lone v. (1972). L.Rev. 1 498, 572, (1975) (differ- 95 42 provisions military ent tenure men and 9. We therefore need not decide whether we because, unchallenged women under sustained justifications occurring would consider to us women, restricting military the scheme role Representative. not asserted the but similarly service men and women are not situ- equal protection to which extent courts ated). will supporting put consider interests not forward vary equal protec- the unsettled 8. For discussion of intermediate and standards, Independent equal protection governing see San Antonio tion with the standard. 872 682, Supreme available under the Court’s deci- Corp., 337 U.S. Foreign Commerce

and Named (1949) and sion in Bivens v. Unknown L.Ed. 1628 Six 93 69 S.Ct. Narcotics, Rank, Agents of the Federal Bureau of v. Dugan sovereign immuni 91 29 L.Ed.2d 619 (1963)that 403 U.S. L.Ed.2d Second, Supreme federal offi the Court’s more bar suits not ty does acted unconstitu they recent decision in Brown v. General Serv- alleging that cials Administration, Schlesinger, 490 F.2d v. ices Penn tionally. See 1973), (1976) rev’d on other does not affect (5th Cir. 700, 703-04 1974) (en under the remedy circumstances the Bivens F.2d grounds, Third, sovereign immunity does denied, S.Ct. here. banc), cert. addition, damages against Rep- (1976). In claim for bar Davis’s 49 L.Ed.2d Fourth, individually. Passman promotion prayers, resentative the reinstatement debate clause does not shield speech at sovereign to the impervious while Fifth, mandamus, although the Representative. nature of in the because tack qualified can assert official Schlesinger, supra; Representative Beale Penn see trial, that insuffi- immunity at doctrine is Blount, would raise difficult issues supra, equitable support to motion to dismiss. proper exercise of cient concerning the Thetford, sum, damages Davis’s claim must be re- In Abbott v. discretion. remedial 1976) (en banc) we for trial. (5th Cir. manded F.2d 1101 judge to reinstate his order to refused proba officer because probation

chief 1. Bivens personal criticisms of tion officer’s damages predi Davis’s claim for necessary cooperative made judge Bivens v. Named cated Six Unknown relationship impossible.10 Al confidential Narcotics, Agents of the Federal Bureau of not, so far as this Davis has record though supra. There the Court held shows, antagonize anything done damages remedy for an unconstitutional bring other than this law Representative implied directly could be and seizure search rights, constitutional vindicate her suit itself. The the Constitution to order remain hesitant we would rejected government’s argument representative’s personal of a reinstatement complainant relegated should have been DeG., Lumley Wagner, Cf. assistant. and that law tort action a state (Ch. Eng.Rep. M. & G. was limit the sole function Constitution’s events, however, Intervening have blunt- defense, scоpe of the officers’ privilege We take importance of these issues. ed holding damages that the ac Passman was de- notice law. independent of state tort tion His primary the 1976 election. feated explicitly rejected govern The Court apparent- will therefore tenure argument should ment’s 3,1977. January That to an end on ly come only “necessary if to enforce the available completely over saves yet term is not Amendment.” 403 Fourth from technical claims specific-relief Among other things, at 2005. mootness, they certainly have lost their but compendium rights, is a Constitution will We assume Davis significance. depend upon does not enforcement their injunction pray- or her reinstatement press As Bivens establish statutory enrollment. remedies. ers, pass we on to other es, inaction does not vitiate con Statutory may rights. actions stitutional Damages B. rights, but breath to constitutional give inaction cannot suffocate congressional through a damages claim takes us Davis’s First, damages are them. five-stage analysis. opinion, see panel Judge adopted dissent from Gewin’s court the en banc In Abbott (5th 1976). Cir. 701-08 F.2d

Although proрer Davis’s claim arises under medical care. We said that the con- amendment, fourth, not the we the fifth might duct have violated the fourteenth language Bivens’ or no basis in ration find amendment’s due process clause or the according any significance ale for to this amendment, eighth and that the complaint rights protected distinction. a damages stated claim. See Reeves v. City process due clause ev fifth amendment Jackson, of Mississippi, 532 F.2d bit as fourth amend ery as fundamental (5th 1976). Cir. See also v. Roane Callis- Bivens, Here, rights. as in burg Independent District, School 511 F.2d simply particular constitute “a remedial (5th 1975) (fourteenth Cir. amendment normally mechanism available in the feder process). due Other circuits that have de- courts,” al 403 U.S. at at 2005. cided the issue are in accord. See Brault v. Milton, Cir.), Town of (2nd F.2d Indeed, here the case for implying a dam- en grounds, rev’d banc on other 527 F.2d ages remedy stronger is even in Bi- than (2nd 1975) Cir. (damages action for vens. In the Bivens situation state tort law process fourteenth amendment due viola- remedy is available to some constitutional tion “comes within Bivens’ sweeping appro- violations, and the also exсlusionary rule bation of constitutionally-based causes of provides remedy. sometimes for The case action”);11 United States ex rel. v. Moore implying remedy constitutional damages Koelzer, (3rd 457 F.2d 892 1972) (fifth Cir. when, here, compelling more becomes process);12 amendment due States ‍​‌​​​‌‌‌​‌​‌​​‌‌‌​‌​‌‌‌​‌​​​‌​​​​‌​​‌​‌‌​‌​​​​​‌‍meaningful Marine remedy. there is no alternative Lines, Shultz, v. (4th Inc. 498 F.2d 1146 Mr. Chief Justice Marshall’s time-honored Cir. (fifth 1974), amendment provides guiding process).13 due justice principle call for extending Bivens to lightly ignored: to be “The fifth not es- amendment due claims, certainly liberty of civil consists in States sence Marine used lan- right every squarely applicable of guage individual claim the in our case: laws, whenever re- he necessity and appropriateness ju- Madison, injury.” Marbury ceives dicial relief is no less compelling in this (1 Cranch) 2 L.Ed. 60 case it than was in Bivens. As in Bivens: Bivens, quoted supra, 403 U.S. A common law or state tort remedy may at 2005. S.Ct. [1999] not afford redressing a means of wrong, case, this but in will Our conclusion not be that Bivens is limited specifically tailored cases to fourth amendment claims draws support lawless- pursuant from various court of ness to federal appeals decisions. authority; upheld presented have ourselves claim per- an arrested is obviously appropriate complaint seeking damages directly money son’s damages; for and other remedies under the Constitution injunctive for the denial of such as or relief in the nature issue, complicating 11. Brault addressed the Reid, 12. Moore extended Bethea v. 445 F.2d case, present in our of whether the exclusion of (3rd 1971), Cir. cert. denied 404 U.S. “person” cities from the definition in 42 (1972) (fourth § U.S.C. 1983 affected the existence of the amendments). fifth Note, generally Bivens cause action. See Against Damage Municipalities Remedies Second, In addition to the Third and Fourth Violations, Constitutional 89 Harv.L.Rev. 922 text, holdings cited Circuit the Tenth Circuit upheld Brault the constitutional action beyond has intimated that Bivens extends despite § 1983. We reached the same result in Dry Lodge, amendment. See fourth Creek Inc. Callisburg Independent Roane School Dis- States, v. United 515 F.2d 926 Cir. trict, supra Jackson, City and Reeves v. open The issue in the D.C. Circuit. See Mississippi, Stanton, supra. See also Cox v. Dep’t. Corrections, v. D.C. Lewis 174 U.S. 1975); City 529 F.2d 47 Fine v. of New App.D.C. (1976). Although York, (2d 1975) (Smith, J., 529 F.2d split, district courts have the best reasoned concurring dissenting). Cf. Rotolo Bоr- See, opinions g., have reached our Charleroi, result. ough (3rd e. 1976); Boyle, F.Supp. (D.R.I. Dearborn, Panzarella 406 City 787 Amen F.2d 554 1975). VII action. longer are no viable alter- Title VII of mandamus excludes members of congressional staffs from protection.14 natives. its The inapplicability of the holding at 1157. Brown 498 F.2d not, however, does answer the contention that Finally, measuring we note that some of its language seems on casual insuperable problem. no damages presents preclude examination to Davis’s constitu- free, Passman was within tionally based claim. The issue arises from limits, dismiss Davis at to Mr. Justice Stewart’s framing of the Brown if the actual dismissal is found time. But issue: unconstitutional, then trial to have been at principal question presented by should be taken into account in salary lost this case is whether 717 of the § Civil assessing damages. The situation is analo Rights provides Act of 1964 the exclusive substantively justified dismissal gous to a judicial remedy for claims of discrimina- accomplished procedurally in a unconstitu tion in federal employment. way. That a defendant could have tional 425 U.S. at 96 S.Ct. at employee violating without dismissed at 405. L.Ed.2d Taken for all might it be thought has never been Constitution worth, this language deny Davis not damages award of for a dis preclude only remedy but any remedy actuality in that was unconstitution missal whatsoever. Exchange v. New York Stock al. Cf. Silver We refuse accord language such n.18, In the scope. place, broad first a moment’s L.Ed.2d indicates the reflection incongruity of im- porting Mr. Justice language Stewart’s into 2. Brown simply our case. It makes no sense to speak of an conclusion, then, judicial “exclusive remedy” is that Bivens Our remedy when there is no at all. damages remedy Repre Brown gives Davis a establishes that Title VII is the exclusive deprivation Passman’s her sentative due judicial remedy for federal employment dis- process rights. pause briefly, crimination to which extends, Title VII but reject sweeping language the notion that in areas not touched Title VII other a recent Court decision dictates remedies are not affected. contrary result. In Brown v. General Administration, Services This is conclusively by Hamp- established (1976) L.Ed.2d the Court ton v. Mow Wong, Sun that 30-day held limitation on bringing decided employment VII Title discrimination suits day same as Brown. In Mow Sun the federal against could not Wong the Court invalidated the Civil Sеrv- simple expedient avoided rule ice excluding Commission’s aliens from bringing the directly action under the Con employment.15 most federal Title VII does holding stitution. The Brown is inapplica prohibit aliens, discrimination ble here because Davis never had a Title Espinoza see v. Farah Co., Manufacturing 2000e-16(a) 14. 42 § U.S.C. makes issue, the federal resolving out the Court held that due government employment provi- discrimination required legitimate that there be a ba- inapplicable posi- sions branch presuming actually sis for the rule was competitive service, not in the tions and con- intended to serve the asserted national interest. gressional competitive staffs are adopted by Because the rule had been the Civil service. Commission, only Service whose concern was promotion service, of an efficient federal Wong plaintiffs challenged 15. The Mow Sun assuming found no basis for it the commission’s rule under the fifth amend- any overriding in fact intended to further equal protection principle. ment’s The Court Accordingly, national interests. the Court in- overriding might noted national interests rule, pending presidential validated least conceivаbly provide justification for a citizen- congressional approval policy. of its requirement ship in the federal service. With- at S.Ct. at just prohibit VII does not as Title L.Ed.2d at 411. congressional sex discrimination The Court was certainly correct that the Wong In Mow Sun staff members. “balance, completeness and structural in- thus accorded a Court non-Title tegrity” of the statute would be under- remedy for claim of judicial VII federal if its 30-day mined limitations period could employment By discrimination. its action meaningless be rendered by bringing an day same Brown decided, was on action on some other basis. The “structural made clear that the Court “exclusive integrity” statutory prerequisites to language applies only remedy” employ- invoking Title VII cannot undermined, by ment discrimination covered Title VII.16 however, by the provision of a remedy for governed by conduct not Title VII. Our not, however, We need rely solely decision leaves Title VII fully operative Mow Wong. Sun The whole structure of sphere. within its argument in Brown has no rele the Court’s addition, we note another pre- obstacle to discriminations not within Title vance venting Brown from affecting our case. arguеd domain. Court first VII’s The Bivens remedy based on the Consti- Congress extended Title VII to feder tution itself. We remain ever willing to believed, in 1972 it employment rightly al congressional views, defer but we cannot wrongly, remedy that no other existed. expense do so prin- deduced that From this ciples. Nothing in Bivens suggests Con- remedy adequate believed fashioned gress repeal could the damages remedy standing to cure the discriminatory alone enacting without a suitable alternative. being brought within the ambit of ills Title say, in rejecting The Court did defendants’ Congress’s remedy belief that no VII. But argument the issue was whether the existed, coupled with its failure to enact damages remedy “necessary” was to en- scarcely demonstrates a remedy, belief force the fourth amendment, that “we have was needed remedy that no for discrimina explicit no congressional here declaration For, VII. tion left outside Title as is well injured persons aby federal officer’s established, Congress need not address all violation of the Fourth Amendment problem of a in a single piece facets money damages recover from the legislation; it is free to leg enact remedial agents, but must instead be remitted to pace islation element element at a most remedy, equally another effective in acceptable See, to the mind. e. of Congress.” view’ 403 U.S. at York, g., Railway Express Agency v. New at 2005. The case at bar is no differ- 93 L.Ed. 533 respect ent in this than Bivens. The 1972 additions to Title VII cannot be said to argu- The Brown second line of Court’s an “explicit” constitute congressional disap- inapplicable to equally ment is discrimina- damages proval of the remedy, and more tions outside Title VII. It reasoned that fundamentally there is not “another reme- balance, completeness and structur- dy, equally [t]he effective in the view of Con- integrity al 717 are inconsistent with § gress,” to which Davis has been remitted. petitioner’s judi- contention that Moreover, even if we somehow ignored 717(c) remedy cial afforded truths, § plain these the Bivens passage designed merely supplement pu- simply mean that the relevant in- judicial relief. tative quiry would be whether a damages remedy Wong tablish, however, damages 16. Mow Sun was not case the Court’s broad lan- preclude being subject Brown from guage and does read qualificаtions, Brown Title developed to make VII the exclusive reme- for the reasons herein we see no dy employment claims of federal discrimi- language reason to strain to make Brown’s Wong conclusively applicable nation. Mow Sun does es- to our case. the fifth amend “necessary” vindicated, to enforce we cannot then use the statute clause. Under this fram ment due as the sword to demean or to eliminate the issue, at least until an alternative ing of the right. constitutional The constitutional available, made Davis would remedy were right stands on its own words without the Congress is free to enact an prevail. still necessity of Title supporting proce- VII’s remedy; to that extent adequate substitute dures. Title VII’s exemptions cannot build remedy therefore constitutes Bivens a haven for transgressors. constitutional common law. Mona constitutional See Court, 1974 Term —For ghan, One last regarding issue Brown’s Law, Constitutional Common word: on effect the Bivens cause of action remains (1975). Congress Harv.L.Rev. 23-24 has to be Congress canvassed. attempt could to so, however, done and the constitution remove the federal jurisdiction courts’ to damages ally-based remedy Bivens is avail hear such claims. predi Jurisdiction here is to Davis here. able 1331(a), cated 28 U.S.C. as it § was in Bivens. The amount in controversy exceeds deal, here, we When as we do with centri- $10,000. Any argument in expanding fugal centripetal operation, forces in Congress Title VII in 1972 excepted consti we, stasis, must come to a judges, as but in tutionally-based federal employment dis arriving there we do not draw the lifeblood crimination claims from § must be legislative process from the nor skeletonize rejected out of Congress hand. did not rights the constitutional with which every speak jurisdictional terms, nor did the is endowed even when dealing citizen with in Brown v. General Services Admin exemption Congress. Congress from istration, supra, when it employed the “ex Title VII does not have a cosmic cover. judicial remedy” clusive language. among things implements VII other Title Hampton v. Mow Wong, supra, Sun rights, but here open dec- Court exercised jurisdiction § over a non-implementation laration because constitutional challenge exemption employ to federal Congress accorded does not discrimination, ment import indicating into our case the exclusivity of Title actions. When Court did not read provisions VII the statute affords re- Title VII’s invasion, taking such lief from a constitutional the stat- claims out of 1331.17 We hold § utory methodology followed, should be jurisdiction but district court has to attempt adjudicate when the statute does not imple- to Davis’s Bivens action on its mer rights the constitutional sought to be its. The remedy is available.18 Moreover, any jurisdiction 17. denial of to hear here, however, subject the circumstances to grave Davis’s claim would itself raise constitu- Case, (13 Wall.) doubt. Cf. Tarble’s Congress tional issues. can limit the federal 20 L.Ed. 597 In the absence of jurisdiction remedy afford one courts’ Congress indication that intended the Title VII minimally adequate alternative remedies are amendments ‍​‌​​​‌‌‌​‌​‌​​‌‌‌​‌​‌‌‌​‌​​​‌​​​​‌​​‌​‌‌​‌​​​​​‌‍to cut on § back we will not available, see, States, g., e. Yakus v. United meaning attribute to them a of such doubtful (1944); 64 S.Ct. 88 L.Ed. 834 . constitutionality Robison, Cf. Johnson v. Lockerty Phillips, 366-67, 87 L.Ed. 1339 but our entire con- (1974); Weinberger Salfi, 749, 761, great stitutional structure and the esteem we rights individual dictate the accord conclusion Mathews, (5th Congress Gallo v. cannot foreclose the last avenue deprivation. of redress for a constitutional See Bator, Mishkin, generally, Shapiro P. P. D. Wechsler, H. Hart and Wechsler’s The Federal Indeed, argument Representa- at oral System (2nd and The Courts Federal 330-60 attorney apparently tive’s conceded that Bivens 1973) (the “Dialogue”). Ed. In the usual situa- controls: plenary authority tion have honor, acknowledge I Your to the court that jurisdiction remove federal courts’ because if this court should find that there is a feder- courts, having general jurisdiction, the state ally right constituted then Bivens versus the open wrongs. remain to redress constitutional imply right seven narcotics folks does authority of state courts render relief action. a United States under Sovereign Immunity strue pay” “back as limited salary rather than damages from reviewing earefully variety After- Representative Passman individually. Her immunity decisions sovereign per- we then claim contravene Penn v. concluding that the haps to be excused Schlesinger, F.2d 700 1973), has primary inject effect been to doctrine’s grounds, rev’d F.2d 970 involving into lawsuits confusion 1974) (en banc), Cir. denied, cert. agents. and its In the case at government 2646, 49 L.Ed.2d (1976) bar, however, district court was not we sovereign where held a immunity bar tо rejected properly sovereign It misled. forms of money two relief “both of which plea. impinge upon the Treasury.” point At this we address the appli F.2d at refuse, 705. We give sovereign cability immunity only to of dam complaint such a niggardly, technical When, here, ages as an actions. action position construction. Davis’s in this court impose liability government a seeks to clear that makes she seeks damages from capacity, sovereign in an individual official Representative individually, merely not immunity poses Although no bar. sover government-paid salary. Moreover, a read eign immunity sometimes shields the Unit ing of the complaint as a whole accords plaintiff’s claims, Treasury from a ed States with this view. alleged She other items of protect personal does not checkbook it damages besides lost salary, including inju any an individual official to of ry reputation,19 and in addition to “back at all. extent pay” prayer her relief sought “such other and further relief as may proper.” The

Representative Passman does not contest was, course, named defendant Represent light he principles, these nor could in of the Passman, ative not the United myriad any States of cases inconsistent with To complaint America. read Davis’s immunity. sovereign example, For not view seeking damages against have Representative Bivens itself would been if barred individually against government officials Passman would require actions indi- a re vidually sovereign came within turn to the immuni- technicalities of the common doctrine. ty system. writ law The Federal Rules of Civil Procedure countenance no such result. Representative contention Sovereign immunity does not bar Davis’s does make is is Passman this action claim.20 against really attempt an recover Treasury. Admittedly, United States Da Speech 4. or Debate complaint ambiguity. vis’s is free of phrase pay” did use the “back in We She her turn now to whether prayer, we could conceivably legislative relief con immunity, doctrine of which in salary can Muzquiz City Antonio, Davis of course recover lost See of San available. damages; addition these other items of we (en 1976) banc), F.2d 500 n. advert to the other items to illustrate that Da- filed, petition (U.S. cert. 44 U.S.L.W. 3727 any pay” vis did not use “back restricted 27, 1976). May Although the issue of who is a meaning government-paid salary only. sense “person” obviously within § is not the scope as the issue of the same federal sover A somewhat related line of cases in this immunity, eign Muzquiz distinction be city employee circuit deals with whether a can money against governments awards tween money unconstitutionally recover charged. dis- against those individual officers has the same city “person” a Because not a in both situations. effect Whatever relief Da within 42 § U.S.C. that statute does complaint seeking would be vis’s construed as pay” authorize a “back award that would run involving city, § if this were 1983 action city, even if the nominal defendants however, we construe it under the circumstanc Dekle, city officials. Thurston v. 531 F.2d seeking damages against Represent here as es recovery of But a individually. ative Passman money city from individuals rather than the While the federal context assumes none of these cases involved the clause,21 speech under the or debate dismissal of a member, stature staff we think their Representative language Passman absolutely shields rationale compel rejection challenging a decision to suit dis- Passman’s immunity de- begin employee.22 fense. with a miss statement of the purpose: defense’s has decided a Supreme Court series purpose afforded cases but has speech or debate not con legislators is not to judicial forestall re- precise fronted the situation before us. view action but to insure The Court has held that members of Con legislators are not distracted from or judicial gress are immune from inquiry into performance hindered in the leg- of their votes, Thompson, their Kilbourn v. tasks being islative called into court to 26 L.Ed. 377 McMillan, Doe v. defend their actions. L.Ed.2d (1973), speeches McCormick, 486, 505, their on the floor Powell v. 395 of Con U.S. 89 Johnson, 23 gress, (1969). United States v. 383 S.Ct. L.Ed.2d 491 U.S. 169, 749, 86 15 (1966), S.Ct. L.Ed.2d 681 argue One could on Representative Pass- decisions to circulate their information to that calling man’s behalf him into court to Congress, other members of Doe v. McMil action, any defend whether related to con- lan, participation supra, their in committee gressional business or to personal his con- investigations proceedings, and Doe v. torts, tracts or distracting risks him from McMillan, supra; States, Gravel v. United “legislative tasks.” Court deci- 606, 2614, 33 583 408 U.S. S.Ct. L.Ed.2d sions, make clear speech the Eastland, (1972); Dombrowski 387 U.S. prohibit or debate clause does not all such 82, 1425, 18 87 S Ct. cf. Calling distractions. Senator Gravel into Brandhove, 367, Tenney v. 71 S.Ct. testify court concerning his arrange- (1951), 95 L.Ed. 1019 and their issuance publish ments with Beacon Press to the legitimate to a subpoenas pursuant com “Pentagon Papers,” which he had earlier investigation, Eastland v. United mittee the Congressional read into Record, might Fund, Servicemen’s U.S. States have distracted him legislative from busi- (1975). Members S.Ct. ness, but the Court said Gravel was none- immune, Congress are not the other exempt from theless the inquiry. Grav- hand, judicial inquiry into public from their States, supra, el v. United 408 U.S. at gathered by distribution materials com Gravel and opinions other mittees, McMillan, supra; Doe v. Gravel v. finding legislative immunity cloak States, supra, acceptance United or their of wanting in particular settings, see United pending bribes in return for votes on legis Brewster, supra; McMillan, Doe States business, Brewster, lative United States v. 314-15, supra, 412 U.S. at L.Ed.2d 507 conclusively establish that subjecting Rep- resentative Passman to a damages action provides: 21. The Constitution “legislative immunity,” 22. We view sometimes “congressional immunity,” Representatives to as referred The Senators and . . . Cases, Treason, exceрt speech Felony shall in all in the coextensive federal context with and Peace, privileged protection. Breach from Ar- The terms all refer to or debate during rest their Attendance immunity at the Session of Congress absolute that members of respective Houses, going and in to and (and functionaries) possess sometimes their for same; returning any Speech from the and for legislative phrase acts. We use the certain House, they or Debate in either shall not be immunity” generally to describe more “official questioned place. faith,” varying “good “privilege” levels of art. I § U.S.Const. “immunity” govern- defenses that or numerous prohibit The freedom from arrest does not officials can assert. process, States, service see Gravel v. United 606, 614-15, 33 L.Ed.2d inapplicable here. more, not, without at contravene does 92 S.Ct. at 2622 (emphasis added).24 or debate clause. speech The Court said the pur- clause’s pose “freeing legislator from exec- blanket Rather than judicial utive oversight that realistical- litigation, pro burdensome clause ly threatens to control his conduct aas protection only against into inquiries vides legislator,” at 92 S.Ct. at 2623 policy-formulation processes. legislative (emphasis added), adding that the three province Enacting legislation is the of Con cases, speech Kilboum, earlier or debate Congress speech alone. The gress or Powell, Dombrowski and clause assures members debate a decidedly jaundiced reflect view to- their formulating actions in and enact extending wards privi- Clause so as to legislation, ing stage from the committee lege illegal or unconstitutional conduct through voting, subjected will not be beyond that essential to foreclose execu- (or executive) inquiry. judicial But im legislative tive control of speech or de- intimately cognate act must be munized bate and associated matters such as vot- legislative process. The reason ing and reports committee and proceed- qualified immunity rather than absolute ings. prospect of an unsuccessful but might legisla lawsuit affect a burdensome U.S. at 2625. The Court performance legislative of his her tor’s reiterated “the Clause has not been duties, distorting proc thus the democratic beyond extended sphere”, Because of our devotion to an and, ess. unfet particular here, of relevance the Court representative government, we tered fore that emphasized the fact that “Senators even challeng close well-founded lawsuits generally perform certain acts their offi ing performance the by of members Con as capacity cial Senators does not necessari legislative of their roles. gress legislative ly make all such acts in nature.” 408 at 92 U.S. S.Ct. at 2627. The 624 - language The of the Court’s continued: Gravel Court or debate speech supports decisions this Tenney Brandhove, supra, Legislative view. acts are not all-encompass- an- ‍​‌​​​‌‌‌​‌​‌​​‌‌‌​‌​‌‌‌​‌​​​‌​​​​‌​​‌​‌‌​‌​​​​​‌‍legislators ing. that are heart the protected nounced when of is speech Clause or “acting sphere legitimate legisla- in the of in either debate House. Insofar as the at activity.” tive 341 71 at Clause construed to reach other mat- (emphasis added).23 More ters, 788 recent cases they must be an integral part of the Tenney’s have elaborated on oft-cited for- deliberative and processes communicative States, In supra, mula. Gravel v. United by partiсipate which Members in commit- the Court said: tee and House proceedings with respect to Speech passage or the consideration and rejec- Debate or Clause was de- legislation

signed co-equal proposed to assure a tion of or branch of with re- spect wide freedom of speech, de- to matters which Consti- bate, deliberation places jurisdiction without intimida- tution within the of tion or threats from the House. Appeals Executive either As Court of protects it, Branch. It thus put the courts have privi- Members extended the against prosecutions directly im- lege beyond pure speech matters or pinge upon legislative House, or threaten the “only in either but debate when process. necessary prevent impairment indirect Tenney adopted City 23. formula in legitimate part nas as of a investiga- committee Birchfield, Safety Harbor F.2d 1251 integral part found be an tion was of the process participate which members proceedings respect with House to the formula- emphasized passage This from Gravel was legislation; tion and consideration of accord- again in v. United States Eastland Servicemen's ingly, speech protection or debate attached. Fund, supra, at 1821- U.S. at subpoe- at 44 L.Ed.2d 336. The issuance mune United when they States are of such deliberations.” legislating. But Cir., they F.2d 753 at when act Doe, 1st outside the ‘sphere of le- gitimate legislative activity,’ Tenney v. at 2627. The Court atU.S. Brandhove, U.S., at holding: its stated then they enjoy special no immunity from local “Here, private publication Senator . laws through cooperation of Beacon Gravel at S.Ct. at 2030. way essential in no to the was Press These compel statements Senate; conclusion nor does deliberations representatives are not immune from private publication questioning inquiry into their decisions to dismiss staff integrity independence or threaten members. Such dismissal decisions certain- by impermissibly exposing its the Senate ly integral are not “an part of the delibera- deliberations to executive influence. tive and processes communicative by which at 92 S.Ct. at 2627. participate Members in committee and McMillan, Doe v. year supra, later in A House proceedings with respect to the con- Supreme Court reitеrated the limited sideration and passage or rejection pro- rejecting of the clause. scope argu- posed legislation or with respect to other publication distribution of a matters which the Constitution places with- report was legis- essential to the committee jurisdiction in the of either House.” Gravel and therefore within the lative States, supra, v. United U.S. at clause, said, or debate Court speech Peripheral at 2627. tangential or ac- perfectly apparent make cases . “Our tivities of a representative must not be everything Congress a Member of with legislative confused core. A repre- do not act within regularly transgressions sentative’s given ab- the Speech Debate solute absolution. The Constitution estab- S.Ct. at 2025. Clause.” lishes an for aberrations in a “ added, ‘[tjhis Court has representative’s legislative activities, but rights private to sustain hesitated Congress members of become mere mortals when it found act- individuals they operate in more mundane fields. ” its role.’ ing outside 412 U.S. Congress When members of dismiss employ- at quoting Tenney at S.Ct. they ees are neither legislating nor formu- Brandhove, supra, 341 at lating legislatiоn. The fear judicial of in- original). in (brackets Finally, quiry into dismissal decisions possi- cannot said, bly legislator’s affect a decisions on matters Congress legislate; business of is The to pending before Congress. The democratic absolutely and aids are im- Congressmen process remains unfettered.25 liability only Representative egregious argue in the most could cases. 25. One Pass- The that, very high-ranking recovery low likelihood of because staff in behalf unfounded man’s legislator’s filings cases will make the sometimes affect a number of members low. Moreover, role, summary judgment procedures, performance of his or her deliberative if protected by judiciously, applied any be should will decisions minimize dismissal burden. justification legislator’s speech clause. The for The chance that a or debate dismissal decision immunity by prospect establishing absolute would be that will be affected of a burdensome but burdensome law- meritless suit is pros- an unfounded but therefore fear of remote. The pect might that a dismissal decision whether to fire decision will in influence a turn affect suit assistant, thereby affecting legislative process impermissibly extremely is also remote. layered gaps legislative process. argu- These causation defeat immunity. By limiting repre- for absolute however, argument find, that such an qualified immunity to sentatives we achieve the help Representative Passman. de- Our cannot immunity goals needlessly doctrine’s without Congress of free to dis- leaves members cision sacrificing availability of redress for clear reason or for no staff members miss reason, violations. constitutional by long limits established as broad so Represent- not exceeded. are Constitution Moreover, good faith de- way a broad on this record afforded we will be have no atives fense, of 881, infra, page subject knowing and will position see be gave to whether Davis’s her a today nity does no more than decision only Our extends to certain key govern- the Supreme to Court’s mandate effect give officials, mental and then only they when “Legislators ought not Gravel: to stand are governing. It prosecutors extends to ought they gener- create but law above when they are prosecuting, Imbler v. Pacht- by ordinary per- to as are ally be bound it man, supra, to judges they judg- are 615, 92 at If аt S.Ct. sons.” ing, see Ray, Pierson v. they are bound the law cre- legislators 1213, 18 and to ate, clearly even they are more bound legislators when they legislating, g., e. United Constitution. States Thompson, Kilburn v. supra. As indicated, which the Constitution upon stands premise however, legislators are not legislating of all equality persons before the law. is the when they dismiss staff members. For the limited, Exceptions premise must be to same reasons that the speech or debate is sparingly employed. Davis guarded, clause not does extend to dismissals, staff have her claim heard on the entitled Representative Passman cannot invoke ab- merits. immunity. solute Qualified immunity available “in vary Qualified Immunity scope,” “the ing being variation dependent scope of discretion responsibil inapplicability speech or debate ities the office and all the circumstances does foreclose protection they reasonably appeared at the time of asserting the qualified Passman from same the action on which liability is sought to be available to other of- Rhodes, based.” Scheuer v. supra, 416 U.S. Strickland, generally Wood v. ficials. See at 94 S.Ct. at 1692. The legitimate 247 - interest in assuring members Rhodes, Scheuer v. broad discretion in their staffing decisions (1974).26 Al- L.Ed.2d the importance of staffing decisions though Wood and 1983 ac- Scheuer were § legislator’s performance dictate tions, reasoning equally applicable their scope Representative’s qualified im this founded on the directly action consti- munity is broad. In limiting the immunity Cf. Bivens v. Six Unknown Named tution. faith, “good action,” non-malicious how Narcotics, of the Federal Bureau Agents ever, the Court Wood v. Strickland made (2d 1972) (on re- 456 F.2d violation of clear J., mand) (Lumbard, concurring). justified by could rights “ignorance settled, disregard indisputable or speech inapplicability law”. does, U.S. at 999-1000, debate foreclose light L.Ed.2d at 225.27 In Representative Passman of the asserting settled, indisputable principle immunity official as rec that govern absolute such that federal Pachtman, ment sex in Imbler v. 424 discriminations not ognized supported by (or perhaps compelling) 96 47 128 rational legitimate S.Ct. L.Ed.2d protection justifications unconstitutional, Speech see, or debate is coextensive g., e. Richardson, the to afford members with need of Con Frontiero v. immunity.

gress (1973), absolute Absolute immu- L.Ed.2d the likeli- input meaningful Representative’s leg- officials, into 27. Wood involved school but we have decisionmaking. speech applied principles broadly. Even if de- islative its more See Wade Mississippi Cooperative Service, extended to decisions to dis- bate v. Extension assistants, high-ranking (5th 1976). miss the clause would F.2d 508 Cir. See also Morris Travisono, Representative’s 12(b)(6) (1st 1976); sustain mo- not v. Cir. Dep’t. here. tion Mukmuk v. Commissioner of of Correc Services, (2d 1976); F.2d 272 tional Cir. “qualified immunity” synony- as We use Breier, Hanneman 528 F.2d 750 “good See with faith defense.” note mous 1976). supra. III. will be Conclusion Passman Representative that hood successfully good a faith to maintain able summary, taking complaint’s alle- under the liberal standard even defense gations true, as Representative Passman’s staffing decisions congressional governing of a dismissal staff member on the basis of this Because case remote.28 appears gender violated equal protection compo- a trial at which remanded for be must the fifth nent of amendment due will be free to Passman Representative Under clause. Bivens the Constitution it- was that the dismissal not his claim press affords self dismissed staff a member however, gender, we need on Davis’s based damages remedy. Sovereign immunity stage point than out this more at no do bar does not award plea immunity gov- will be qualified any Representative individually. The speech or principles which we have by the erned debate clause does extend to staff dis- Repre- The determination that adverted. they because missals are not “legislative Passman cannot claim absolute sentative tasks” within the holdings. Court’s require immunity is sufficient to reversal of Finally, qualified existence of See, given g., in his favor. e. the dismissal support cannot the district court’s dismissal Rhodes, 232, 239, complaint. Scheuer of the 90 (1974); L.Ed.2d Sims v. REVERSED AND REMANDED. Adams, F.2d JONES, Judge Circuit (dissenting): Declaratory Relief C. judges It seems to me that should of relief that Davis seeks final form from wearing refrain their robes declaratory. Although claim for declar- is the Congress. halls of sep- doctrine of atory pursued independently relief could should, powers believe, of aration I require types relief, any right other see affirmance dismissal of the ac- McCormack, Powell tion. the ab- forward-looking any scope oper- sence rights declaration of for Davis’s

ation Passman, against Representative whose end, tenure

congressional virtually at its propriety of such a make the declara- questionable.29 sig- This issue loses its

tion

nificance, in view of holding our damages remedy available. We pass propriety

therefore decline

declaratory relief. good

28. The faith must defense of course be not unconstitutional. Wood makes a success- distinguished denying from a unlikely; defense ful assertion the former defense discriminatory. firing former asserts does not affect the ‍​‌​​​‌‌‌​‌​‌​​‌‌‌​‌​‌‌‌​‌​​​‌​​​​‌​​‌​‌‌​‌​​​​​‌‍latter Wood defense. firing was that the unconstitutional but good alleged acted in faith and has there- Davis a desire to work representatives employment liable. The latter should not be held as- fore whose deci- might gender was not the basis of serts be affected sions the resolution of her dismissal and dismissal therefore was claims. violates the four notes correctly states he that statute crimination supported by unless suf- his dismissal of Davis predicated, amendment which teenth unusually heavy say work ther that the work of the load in load in account the Monroe Office, limited, diversity very Washington you my and the office is and since junior job, that in as a I concluded that it was essential come member of the staff at such salary, my actually understudy Assistant be it would Administrative low be an offense to you agree you. will with this con- I believe a man. your ability I know that secretaries with clusion. you you unfair to for me to ask much demand in Monroe. If an It would be addi- my experience your in Monroe tional letter of talent recommendation from me would waste salary you, advantageous that is availa- the low do not because of be hesitate to let office Therefore, junior position. Again, assuring you my me know. of a Wash- ble because your your experience ington Congressman and talent staff humble and so that feel organization you advantage in need in some the contribution made to our Wash- used secretary, extremely ington helped capable I desire that office has all of us. of an wishes, payroll your present you With on the best be continued July 31, arrange- through Sincerely, salary This year’s you your gives vacation of one full /s/ E. Passman Otto month, May plus additional month. I fur- one Member Housing of Florida Project, nondiscriminatory on its City 2 U.S.C. Inc. v. § Delray Beach, face; of both male and it allows dismissal or without staff members with female Equal рrotection scrutiny of inconsisten- correctly also cause. application cies facially nondis- Frontiero Wiesenfeld notes that neither nor not, course, criminatory statutes is with- compel rejection position; of his both of limits. Hughes, out Snowden v. statutory cased invalidated those classifica- (1944) a state tions.2 official elections refused to follow a state requiring law that a successful primary Representative’s argument candidate be certified for inclusion on the equal protection principles apply only to general rejected election ballot. The Court discrimination, statutory however, contra argument candidate’s this isolated long venes and unbroken chain of deci to apply the failure state law to everyone clearly rejected sions. The equally constituted a “equal pro- denial of argument long ago as 1886. In Yick laws.” tection Court laid down Hopkins, Wo governing standard: (1886) 30 L.Ed. 220 the Court held that the The unlawful administration state discriminatory application against Chinese face, of a state officers statute fair on its facially Americans of building regu neutral resulting in its unequal application to

Case Details

Case Name: Shirley DAVIS, Plaintiff-Appellant, v. Otto E. PASSMAN, Congressman of the United States, Defendant-Appellee

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Jan 3, 1977

Citation: 544 F.2d 865

Docket Number: 75-1691

Court Abbreviation: 5th Cir.