Shirley DAVIS, Plaintiff-Appellant, v. Otto E. PASSMAN, Congressman of the United States, Defendant-AppelleeShirley DAVIS, Plaintiff-Appellant, v. Otto E. PASSMAN, Congressman of the United States, Defendant-Appellee
Lead Opinion
In this case a member of the United States Congress unflinchingly asserts that the Constitution allows him openly to discriminate against women. He asserts further that he need not so much as suggest a single basis for the discrimination. The issue is not to be trivialized. We have here a conflict of transcendental importance between the rights of the individual and the rights of a representative qua representative. Although representatives admittedly have some insulation not wrapped around ordinary mortals, the conflicting interests must be harmonized, not dichotomized. Finding that our Constitution protects individual rights even against the mighty, we remand this ease for trial.
In the early part of 1974 Shirley Davis was Deputy Administrative Assistant to Representative Otto E. Passman of the Louisiana Fifth Congressional District. The Representative terminated Davis’s employment effective July 31, 1974. In his letter to her explaining the termination decision the Representative wrote, “You are able, energetic and a very hard worker. . [Hjowever, on account of the unusually heavy workload in my Washington office, and the diversity of the job, I concluded that it wаs essential that the understudy to my administrative assistant be a man.” The full text of this rather remarkable letter is set out in the margin.
The Representative moved to dismiss the complaint on three grounds: that his conduct was not unconstitutional, that the law afforded Davis no private right of action, and that the doctrines of sovereign and official immunity barred the action. The district court rejected the immunity argument but dismissed the action on the first two points. We reverse, finding that Davis’s allegations, if proved, will establish a constitutional violation for which she has a private right of action. We agree with the district court that the immunity doctrines do not bar the suit.
I. Constitutionality
Although the fourteenth amendment’s equal protection clause applies only to the states, the fifth amendment’s due process clause contains an equal protection component applicable to the federal government. See, e. g., Bolling v. Sharpe,
A. Discrimination
In the case at bar the first question is easily answered. Davis’s allegations, which must of course be taken as true in evaluating the Representative’s motion to dismiss, see, e. g., Radovich v. National Football League,
The Representative argues, however, that unconstitutional sex discrimination occurs only when the sex-based classification is embodied in a statute and only when the actor is someone other than a member of Congress. With respect to the first point he correctly notes that the statute upon which his dismissal of Davis was predicated,
The Representative’s argument that equal protection principles apply only to statutory discrimination, however, contravenes a long and unbroken chain of decisions. The Supreme Court clearly rejected the argument as long ago as 1886. In Yick Wo v. Hopkins,
Equal protection scrutiny of inconsistencies in the application of facially nondiscriminatory statutes is not, of course, without limits. In Snowden v. Hughes,
The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who [were] entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination.
Snowden v. Hughes, supra,
Davis’s complaint clearly meets the Snowden requirements. The only digressions from neutral statutory provisions that Snowden exempts from equal protection scrutiny are those isolated incidents not based on a classification.
Therefore, Representative Passman will be free at trial to demonstrate that the firing was not in fact based upon Davis’s gender, but he can derive no support from the nonstatutory nature of the discrimination. The constitutional guarantee of freedom from invidious discrimination would ring hollow indeed if it could be bypassed by the simple expedient of implementing the discrimination under a facially neutral statute. That the alleged discrimination was not embodied in a statute is of no moment.
Representative Passman’s contention that the constitutional ban on unjustified sex discrimination does not restrict the actions of members of Congress is equally untenable. He argues, in effect, that his congressional status endows him with an open-ended right to discriminate irrespective of the time, place and condition of the discrimination.
The next issue is whether the alleged discrimination is constitutional because supported by sufficient governmental interests. Whether the interests supporting a sex discrimination must be “compelling” is unsettled. In Frontiero four justices said sex was a “suspect classification” calling for strict judicial scrutiny. See
In the case at bar we can follow the Supreme Court’s lead and refrain from specifying the applicable standard. Indeed, we need not even apply the substantial scrutiny that has characterized the Court’s decisions. For here Representative Pass-man offers no governmental interest at all in support of the sex-based classification, and we can imagine none.
II. Availability of Relief
Having determined that Davis has alleged a constitutional violation, we must now determine whether the claim is one upon which relief can be granted. In substance, Davis seeks three forms of relief: specific relief, damages, and a declaration. We deal with each in turn.
A. Specific Relief
The specific relief Davis seeks includes reinstatement, promotion and an injunction against unlawful discrimination directed toward her. The injunction claim might raise a sovereign immunity issue under our decisions in Blaze v. Moon,
Intervening events, however, have blunted the importance of these issues. We take notice that Representative Passman was defeated in the 1976 primary election. His tenure in Congress will therefore apparently come to an end on January 3,1977. That the term is not yet completely over saves the specific-relief claims from technical mootness, but they have certainly lost their significance. We assume Davis will not press her reinstatement or injunction prayers, and we pass on to other remedies.
B. Damages
Davis’s damages claim takes us through a five-stage analysis. First, damages are available under the Supreme Court’s decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,
1. Bivens
Davis’s claim for damages is predicated upon Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, supra. There the Supreme Court held that a damages remedy for an unconstitutional search and seizure could be implied directly from the Constitution itself. The Court rejected the government’s argument that the complainant should have been relegated to a state law tort action and that the Constitution’s sole function was to limit the scope of the officers’ privilege defense, holding that the constitutional damages action was independent of state tort law. The Court explicitly rejected the government’s argument that damages should be available only if “necessary to enforce the Fourth Amendment.”
Indeed, here the case for implying a damages remedy is even stronger than in Bivens. In the Bivens situation state tort law is available to remedy some constitutional violations, and the exclusionary rule also sometimes provides a remedy. The case for implying a constitutional damages remedy becomes more compelling when, as here, there is no meaningful alternative remedy. Mr. Chief Justice Marshall’s time-honored call for justice provides a guiding principle not lightly to be ignored: “The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.” Marbury v. Madison,
Our conclusion that Bivens is not limited to fourth amendment claims draws support from various court of appeals decisions. We have ourselves upheld an arrested person’s complaint seeking damages directly under the Constitution for the denial of proper medical care. We said that the conduct might have violated the fourteenth amendment’s due process clause or the eighth amendment, and that the complaint stated a damages claim. See Reeves v. City of Jackson, Mississippi,
The necessity and appropriateness of judicial relief is no less compelling in this case than it was in Bivens. As in Bivens: A common law or state tort remedy may or may not afford a means of redressing this wrong, but in any case, will not be tailored spеcifically to cases of lawlessness pursuant to federal authority; the claim presented is obviously appropriate for money damages; and other remedies such as injunctive or relief in the nature*874 of mandamus are no longer viable alternatives.
Finally, we note that measuring damages presents no insuperable problem. Representative Passman was free, within constitutional limits, to dismiss Davis at any time. But if the actual dismissal is found at trial to have been unconstitutional, then lost salary should be taken into account in assessing damages. The situation is analogous to a substantively justified dismissal accomplished in a procedurally unconstitutional way. That a defendant could have dismissed an employee without violating the Constitution has never been thought to preclude the award of damages for a dismissal that was in actuality unconstitutional. Cf. Silver v. New York Stock Exchange
2. Brown
Our conclusion, then, is that Bivens gives Davis a damages remedy for Representative Passman’s deprivation of her due process rights. We pause briefly, however, to reject the notion that sweeping language in a recent Supreme Court decision dictates a contrary result. In Brown v. General Services Administration,
The inapplicability of the Brown holding does not, however, answer the contention that some of its language seems on casual examination to preclude Davis’s constitutionally based claim. The issue arises from Mr. Justice Stewart’s framing of the Brown issue:
The principal question presented by this case is whether § 717 of the Civil Rights Act of 1964 provides the exclusive judicial remedy for claims of discrimination in federal employment.
We refuse to accord the language such broad scope. In the first place, a moment’s reflection indicates the incongruity of importing Mr. Justice Stewart’s language into our case. It simply makes no sense to speak of an “exclusive judicial remedy” when there is no rеmedy at all. Brown establishes that Title VII is the exclusive judicial remedy for federal employment discrimination to which Title VII extends, but in areas not touched by Title VII other remedies are not affected.
This is conclusively established by Hampton v. Mow Sun Wong,
We need not, however, rely solely on Mow Sun Wong. The whole structure of the Court’s argument in Brown has no relevance to discriminations not within Title VII’s domain. The Court first argued that when Congress extended Title VII to federal employment in 1972 it believed, rightly or wrongly, that no other remedy existed. From this the Court deduced that Congress fashioned a remedy believed adequate standing alone to cure the discriminatory ills being brought within the ambit of Title VII. But Congress’s belief that no remedy existed, coupled with its failure to enact any remedy, scarcely demonstrates a belief that no remedy was needed for discrimination left outside Title VII. For, as is well established, Congress need not address all facets of a problem in a single piece of legislation; it is free to enact remedial legislation element by element at a pace most acceptable to the legislative mind. See, e. g., Railway Express Agency v. New York,
The Brown Court’s second line of argument is equally inapplicable to discriminations outside Title VII. It reasoned that
[t]he balance, completeness and structural integrity of § 717 are inconsistent with the petitioner’s contention that the judicial remedy afforded by § 717(c) was designed merely to supplement other putative judicial relief.
The Court was certainly correct that the “balance, completeness and structural integrity” of the statute would be undermined if its 30-day limitations period could be rendered meaningless by bringing an action on some other basis. The “structural integrity” of the statutory prerequisites to invoking Title VII cannot be undermined, however, by the provision of a remedy for conduct not governed by Title VII. Our decision leaves Title VII fully operаtive within its sphere.
In addition, we note another obstacle preventing Brown from affecting our case. The Bivens remedy is based on the Constitution itself. We remain ever willing to defer to congressional views, but we cannot do so at the expense of constitutional principles. Nothing in Bivens suggests Congress could repeal the damages remedy without enacting a suitable alternative. The Court did say, in rejecting defendants’ argument that the issue was whether the damages remedy was “necessary” to enforce the fourth amendment, that “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.”
When we deal, as we do here, with centrifugal and centripetal forces in operation, we, as judges, must come to a stasis, but in arriving there we do not draw the lifeblood from the legislative process nor skeletonize the constitutional rights with which every citizen is endowed even when dealing with Congress. The exemption of Congress from Title VII does not have a cosmic cover. Title VII among other things implements constitutional rights, but here an open declaration of non-implementation because of the exemption accorded Congress does not import into our case the exclusivity of Title VII actions. When the statute affords relief frоm a constitutional invasion, the statutory methodology should be followed, but when the statute does not attempt to implement the constitutional rights sought to be vindicated, we cannot then use the statute as the sword to demean or to eliminate the constitutional right. The constitutional right stands on its own words without the necessity of Title VII’s supporting procedures. Title VII’s exemptions cannot build a haven for constitutional transgressors.
One last issue regarding Brown’s effect on the Bivens cause of action remains to be canvassed. Congress could attempt to remove the federal courts’ jurisdiction to hear such claims. Jurisdiction here is predicated upon 28 U.S.C. § 1331(a), as it was in Bivens. The amount in controversy exceeds $10,000. Any argument that in expanding Title VII in 1972 Congress excepted constitutionally-based federal employment discrimination claims from § 1331 must be rejected out of hand. Congress did not speak in jurisdictional terms, nor did the Court in Brown v. General Services Administration, supra, when it employed the “exclusive judicial remedy” language. In Hampton v. Mow Sun Wong, supra, the Court exercised § 1331 jurisdiction over a constitutional challenge to federal employment discrimination, indicating that the Court did not read Title VII’s provisions as taking suсh claims out of § 1331.
After- earefully reviewing a variety of sovereign immunity decisions we are perhaps to be excused for concluding that the doctrine’s primary effect has been to inject confusion into lawsuits involving the government and its agents. In the case at bar, however, the district court was not misled. It properly rejected the sovereign immunity plea.
At this point we address the applicability of sovereign immunity only to damages actions. When, as here, an action seeks to impose liability upon a government official in an individual capacity, sovereign immunity poses no bar. Although sovereign immunity sometimes shields the United States Treasury from a plaintiff’s claims, it does not protect the personal checkbook of an individual government official to any extent at all.
Representative Passman does not contest these principles, nor could he in light of the myriad cases inconsistent with any other view of sovereign immunity. For example, Bivens itself would have been barred if actions against government officiаls individually came within the sovereign immunity doctrine.
The contention Representative Passman does make is that this action is really an attempt to recover against the United States Treasury. Admittedly, Davis’s complaint is not free of ambiguity. She did use the phrase “back pay” in her relief prayer, and we could conceivably construe “back pay” as limited to salary from the government rather than damages from Representative Passman individually. Her claim would then contravene Penn v. Schlesinger,
4. Speech or Debate
We turn now to whether the doctrine of legislative immunity, which in
The Supreme Court has decided a series of speech or debate cases but has not confronted the precise situation before us. The Court has held that members of Congress are immune from judicial inquiry into their votes, Kilbourn v. Thompson,
While none of these cases involved the dismissal of a staff member, we think their language and rationale compel a rejection of Representative Passman’s immunity defense. We begin with a statement of the defense’s purpose:
The purpose of the protection afforded legislators is not to forestall judicial review of legislative action but to insure that legislators are not distracted from or hindered in the performance of their legislative tasks by being called into court to defend their actions.
Powell v. McCormick,
One could argue on Representative Pass-man’s behalf that calling him into court to defend any action, whether related to congressional business or to his personal contracts or torts, risks distracting him from “legislative tasks.” Supreme Court decisions, however, make clear that the speech or debate clause does not prohibit all such distractions. Calling Senator Gravel into court to testify concerning his arrangements with Beacon Press to publish the “Pentagon Papers,” which he had earlier read into the Congressional Record, might have distracted him from legislative business, but the Court said Gravel was nonetheless not exempt from the inquiry. Gravel v. United States, supra,
Rather than blanket immunity from burdensome litigation, the clause provides protection only against inquiries into legislative policy-formulation processes. Enacting legislation is the province of Congress and Congress alone. The speech or debate clause assures members of Congress that their actions in formulating and enacting legislation, from the committee stage through voting, will not be subjected to judicial (or executive) inquiry. But the immunized act must be intimately cognate to the legislative process. The reason for an absolute rather than qualified immunity is that the prospect of an unsuccessful but burdensome lawsuit might affect a legislator’s performance of his or her legislative duties, thus distorting the democratic process. Because of our devotion to an unfettered representative government, we foreclose even well-founded lawsuits challenging the performance by members of Congress of their legislative roles.
The language of the Supreme Court’s speech or debate decisions supports this view. Tenney v. Brandhove, supra, announced that legislators are protected when “acting in the sphere of legitimate legislative activity.”
The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process.
reflect a decidedly jaundiced view towards extending the Clause so as to privilege illegal or unconstitutional conduct beyond that essential to foreclose executive control of legislative speech or debate and associated matters such as voting and committee reports and proceedings.
Legislative acts are not all-encompassing. The heart of the Clause is speech or debate in either House. Insofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicativе processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but “only when necessary to prevent indirect impairment*880 of such deliberations.” United States v. Doe, 1st Cir.,455 F.2d 753 at 760.
“Here, private publication by Senator Gravel through the cooperation of Beacon Press was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence.
A year later in Doe v. McMillan, supra, the Supreme Court reiterated the limited scope of the clause. In rejecting the argument that publication and distribution of a committee report was essential to the legislative process and therefore within the speech or debate clause, the Court said, “Our cases make perfectly apparent . that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause.”
The business of Congress is to legislate; Congressmen and aids are absolutely immune when they are legislating. But when they act outside the ‘sphere of legitimate legislative activity,’ Tenney v. Brandhove,341 U.S., at 376 ,71 S.Ct. 783 , they enjoy no special immunity from local laws .
These statements compel the conclusion that representatives are not immune from inquiry into their decisions to dismiss staff members. Such dismissal decisions certainly are not “an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Gravel v. United States, supra,
5. Qualified Immunity
The inapplicability of speech or debate protection does not foreclose Representative Passman from asserting the same qualified immunity available to other government officials. See generally Wood v. Strickland,
The inapplicability of speech or debate protection does, however, foreclose Representative Passman from asserting an absolute official immunity such as that recognized in Imbler v. Pachtman,
Qualified immunity is available “in varying scope,” “the variation being dependent upon the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based.” Scheuer v. Rhodes, supra,
C. Declaratory Relief
The final form of relief that Davis seeks is declaratory. Although a claim for declaratory relief could be pursued independently of any right to other types of relief, see Powell v. McCormack,
III. Conclusion
In summary, taking the complaint’s allegations as true, Representative Passman’s dismissal of a staff member on the basis of gender violated the equal protection component of the fifth amendment due process clause. Under Bivens the Constitution itself affords the dismissed staff member a damages remedy. Sovereign immunity does not bar a damages award against the Representative individually. The speech or debate clause does not extend to staff dismissals because they are not “legislative tasks” within the Supreme Court’s holdings. Finally, the existence of qualified immunity cannot support the district court’s dismissal of the complaint.
REVERSED AND REMANDED.
Notes
. Dear Mrs. Davis:
My Washington staff joins me in saying that we miss you very much. But, in all probability, inwardly they all agree that I was doing you an injustice by asking you to assume a responsibility that was so trying and so hard that it would have taken all of the pleasure out of your work. I must be completely fair with you, so please note the following:
You are able, energetic and a very hard worker. Certainly you command the respect of those with whom you work; however, on*868 account of the unusually heavy work load in my Washington Office, and the diversity of the job, I concluded that it was essential that the understudy to my Administrative Assistant be a man. I believe you will agree with this conclusion.
It would be unfair to you for me to ask you to waste your talent and experience in my Monroe office because of the low salary that is available because of a junior position. Therefore, and so that your experience and talent may be used to advantage in some organization in need of an extremely capable secretary, I desire that you be continued on the payroll at your present salary through July 31, 1974. This arrangement gives you your full year’s vacation of one month, plus one additional month. May I further say that the work load in the Monroe office is very limited, and since you would come in as a junior member of the staff at such a low salary, it would actually be an offense to you.
I know that secretaries with your аbility are very much in demand in Monroe. If an additional letter of recommendation from me would be advantageous to you, do not hesitate to let me know. Again, assuring you that my Washington staff and your humble Congressman feel that the contribution you made to our Washington office has helped all of us.
With best wishes,
Sincerely,
/s/ Otto E. Passman Member of Congress
. Frontiero confronted a statutory scheme dealing with benefits afforded members of the uniformed services for their “dependent” spouses. A serviceman could claim his wife as a dependent without regard to actual dependency, whereas a servicewoman could claim her husband only if he was shown to be dependent upon her for over one-half of his support. The court invalidated the scheme. Similarly, Wiesenfeld struck down a provision of the Social Security Act that granted a widow, but not a widower, benefits based on the deceased spouse’s earnings.
Supreme Court decisions invalidating state sex discriminations have also involved statutes. Reed v. Reed,
. Washington v. Davis,
Unlike the situation in Snowden, the challenged action in Washington did reflect a classification; applicants were separated into one group that passed the test and another that did not. Equal protection scrutiny was therefore appropriate. Because the Court found no racially discriminating purpose, an issue as to which racially disproportionate impact was relevant but not dispositive, it did not invoke the
. Although Yick Wo and the other cited decisions were decided under the fourteenth amendment, the equal protection component of fifth amendment due process contains the same principle. There is no reason to exempt the federal government from the principle that discriminatory applications of nondiscriminatory statutes must meet equal protection guidelines, as Washington v. Davis,
. Whether the courts can redress a representative’s transgressions of the constitutional standards presents a separate issue. Representafive Passman asserts not only that he is immune from suit, but also that even apart from the possibility of redress, the Constitution does not prohibit him from discriminating on the basis of gender.
. To eliminate any confusion we note that appellant need not demonstrate the denial of any “property” interest. Although the due process clause extends only to deprivations of “life, liberty, or property”, а violation of the clause’s equal protection component is necessarily a deprivation of “liberty”. Therefore, decisions under the due process clause’s equal protection component, like substantive due process decisions, make no reference to the “life, liberty, or property” requirement. See, e. g., Frontiero v. Richardson,
. The holdings of Reed, Wiesenfeld and Stanton are outlined in note 2 supra. See also Kahn v. Shevin,
. For discussion of intermediate equal protection standards, see San Antonio Independent School District v. Rodriquez,
. We therefore need not decide whether we would consider justifications occurring to us but not asserted by the Representative. The extent to which equal protection courts will consider supporting interests not put forward by the government is unsettled and may vary with the governing equal protection standard.
. In Abbott the en banc court adopted Judge Gewin’s dissent from the panel opinion, see
. Brault addressed the complicating issue, not present in our case, of whether the exclusion of cities from the definition of “person” in 42 U.S.C. § 1983 affected the existence of the Bivens cause of action. See generally Note, Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922 (1976). Brault upheld the constitutional action despite § 1983. We reached the same result in Roane v. Callisburg Independent School District, supra and Reeves v. City of Jackson, Mississippi, supra. See also Cox v. Stanton,
. Moore extended Bethea v. Reid,
. In addition to the Second, Third and Fourth Circuit holdings cited in text, the Tenth Circuit has intimated that Bivens extends beyond the fourth amendment. See Dry Creek Lodge, Inc. v. United States,
. 42 U.S.C. § 2000e-16(a) makes the federal government employment discrimination provisions inapplicable to legislative branch positions not in the competitive service, and congressional staffs are not in the competitive service.
. The Mow Sun Wong рlaintiffs challenged the commission’s rule under the fifth amendment’s equal protection principle. The Court noted that overriding national interests might conceivably provide a justification for a citizenship requirement in the federal service. Without resolving that issue, the Court held that due process required that there be a legitimate basis for presuming that the rule was actually intended to serve the asserted national interest. Because the rule had been adopted by the Civil Service Commission, whose only concern was the promotion of an efficient federal service, the Court found no basis for assuming that it was in fact intended to further any overriding national interests. Accordingly, the Court invalidated the rule, at least pending presidential or congressional approval of its policy.
. Mow Sun Wong was not a damages case and does not preclude Brown from being read to make Title VII the exclusive damages remedy for claims of federal employment discrimination. Mow Sun Wong does conclusively establish, however, that the Court’s broad language in Brown is subject to qualifications, and for the reasons developed herein we see no reason to strain to make Brown’s language applicable to our case.
. Moreover, any denial of jurisdiction to hear Davis’s claim would itself raise grave constitutional issues. Congress can limit the federal courts’ jurisdiction to afford one remedy when minimally adequate alternative remedies are available, see, e. g., Yakus v. United States,
. Indeed, at oral argument the Representative’s attorney apparently conceded that Bivens controls:
Your honor, I acknowledge to the court that if this court should find that there is a federally constituted right then Bivens versus the seven narcotics folks does imply a right of action.
. Davis can of course recover lost salary in addition to these other items of damages; we advert to the other items to illustrate that Davis did not use “back pay” in any restricted sense meaning government-paid salary only.
. A somewhat related line of cases in this circuit deals with whether a city employee can recover money when unconstitutionally discharged. Because a city is not a “person” within 42 U.S.C. § 1983, that statute does not authorize a “back pay” award that would run against the city, even if the nominal defendants are city officials. Thurston v. Dekle,
. The Constitution provides:
The Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of the respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other place.
U.S.Const. art. I § 6.
The freedom from arrest does not prohibit service of process, see Gravel v. United States,
. We view “legislative immunity,” sometimes referred to as “congressional immunity,” as coextensive in the federal context with speech or debate protection. The terms all refer to the absolute immunity that members of Congress (and sometimes their functionaries) possess for certain legislative acts. We use the phrase “official immunity” to describe more generally the varying levels of “good faith,” “privilege” or “immunity” defenses that numerous government officials can assert.
. We adopted the Tenney formula in City of Safety Harbor v. Birchfield,
. This passage from Gravel was emphasized again in Eastland v. United States Servicemen's Fund, supra,
. One could argue on Representative Pass-man’s behalf that, because high-ranking staff members may sometimes affect a legislator’s performance of his or her deliberative role, dismissal decisions should be protected by the speech or debate clause. The justification for establishing absolute immunity would be that the fear of an unfounded but burdensome lawsuit might influence a decision whether to fire an assistant, thereby impermissibly affecting the legislative process.
We find, however, that such an argument cannot help Representative Passman. Our decision leaves members of Congress free to dismiss staff members for any reason or for no reason, so long as broad limits established by the Constitution are not exceeded. Representatives will be afforded a broad good faith defense, see page 881, infra, and will be subject to liability in only the most egregious cases. The very low likelihood of recovery in unfounded cases will make the number of filings low. Moreover, summary judgment procedures, if applied judiciously, will minimize any burden. The chance that a legislator’s dismissal decision will be affected by the prospect of a burdensome but meritless suit is therefore remote. The prospect that a dismissal decision will in turn affect the legislative process is also extremely remote. These layered causation gaps defeat the argument for absolute immunity. By limiting representatives to qualified immunity we achieve the immunity doctrine’s goals without needlessly sacrificing the availability of redress for clear constitutional violations.
Moreover, on this record we have no way of knowing whether Davis’s position gave her a
. We use “qualified immunity” as synonymous with “good faith defense.” See note 22 supra.
. Wood involved school officials, but we have applied its principles more broadly. See Wade v. Mississippi Cooperative Extension Service,
. The good faith defense must of course be distinguished from a defense denying that the firing was discriminatory. The former asserts that the firing was unconstitutional but that the Representative acted in good faith and therefore should not be held liable. The latter asserts that gender was not the basis of the dismissal and that the dismissal therefore was not unconstitutional. Wood makes a successful assertion of the former defense unlikely; Wood does not affect the latter defense.
. Davis has not alleged a desire to work for other representatives whose employment decisions might be affected by the resolution of her constitutional claims.
Dissenting Opinion
(dissenting):
It seems to me that the judges should refrain from wearing their robes in the halls of the Congress. The doctrine of separation of powers should, I believe, require the affirmance of the dismissal of the action.