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

pro if voluntarily intelligently ex- self se he and litigation, without the costs reduce be Faretta, which would so. empha effort elects to do But time and pending hearing the evidence sized the element of coercion in forcing consumed that way implied no defendant, Alderman length. upon unwanted counsel con- were to be proceedings adversary 820-21, 833-34, U.S. at 95 S.Ct. does different special manner in a ducted speak question joint represen not to the we no abuse see litigation, and other tation, federal courts have uniform to man- properly court’s discretion district ly there is no correlative held to trial. age the E. g., serve as cocounsel. United States v. Hill, (10 1975), 526 F.2d 1019 cert. de presses his earnestly Defendant nied, been 425 U.S. 48 L.Ed.2d issue should have the taint claim that custody, (1976). was to We have stated that a district returned reopened after he his authority support to permit ap he cites no court need not a defendant to authority is not The absence argument. pear showing as cocounsel unless there think of it is difficult to because surprising special Lang, need. United v. States De example of waiver. striking a more (4 F.2d adversary escaped just when fendant need special Defendant claims that a ex- point to the progressed had proceedings familiarity isted his greater here because bears completed. He they where could facts enabled him would have accelerated end. their responsibility effectively his cross-examine more than at- 365, 90 Jersey, 396 v. U.S. Molinaro New torney. We not think that this amounts do (1970), the Su 498, 24 L.Ed.2d 586 type special to the need envisioned in who that a defendant held preme Lang, however, for could have defendant was pending was appeal escaped while his sufficiently counsel informed his about resources “to call not entitled perform adequately. facts to allow him to of his claims.” for determination the Court 499. We think 90 S.Ct. IV. the dis supports amply principle motion as of the taint We dismissal see merit other trict court’s proceed reopen his refusal well as brief claims raised defendant’s Shelton, 508 v. United States ings. See they substance to war- are of sufficient denied, (5 Cir.), cert. F.2d 797 rant discussion. 46 L.Ed.2d AFFIRMED. III. the dis objects also

Defendant him serve as to allow refusal

trict court’s

cocounsel, this violated claiming California, 422 Faretta

spirit of (1975). At the L.Ed.2d 562 DAVIS, Shirley Plaintiff-Appellant, shows that outset, that the record we note effectively permitted de district court in most cocounsel to function fendant PASSMAN, Congressman of the Otto E. trial, notwithstanding aspects States, Defendant-Appellee. United approval. He withholding of formal No. 75-1691. motions, par argue to file permitted conferences, even to in bench ticipate Appeals, United States Court argument. He closing jury address Fifth Circuit. right to cross-examine only the was denied April therefore, speak, We witnesses. cross-examination. defendant criminal

Faretta held represent him-

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

Harold Washington Law- yers’ Committee for Civil Rights Under Law, Washington, C.,D. Udall, Morris et al. Jesse McDonald, D. Gear, Albert R. Mon-

roe, La., Barbara L. Herwig, Atty., Wash- ington, C.,D. for defendant-appellee. Kopp, Robert E. Appellate See., Div., Civ. Dept, Justice, Washington, C.,D. amicus curiae for the United States. BROWN,

Before Chief Judge, JONES, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, MORGAN, CLARK, RONEY, GEE, TJOFLAT, HILL FAY, Circuit Judges. growth began its with the actions CLARK, Judge: Circuit CHARLES Court’s seminal decision Bivens v. Six re- en banc the court today’s decision In Named Agents Unknown Federal implied a opinion which panel verses Narcotics, Bureau money damages from of action cause 29 L.Ed.2d 619 fifth amend- Clause Due Process historically damages have Court noted that the Constitution.1 ment of “ordinary remedy for regarded been as the al- Shirley Davis Ms. complaint, her liberty,” personal an invasion of interests Congressman Louisiana leged that former money for implied and a cause of action Deputy her as his dismissed Passman Otto plaintiff’s for invasion of the damages the she solely because Assistant Administrative his fourth amend- liberty abridged which a man and he wanted woman was a 395, 91 rights. ment actions claimed Passman’s Davis position. 2004, 29 L.Ed.2d at 626. component of equal protection violated Due Process Clause. Although Supreme Court has neither the fifth under 28 jurisdiction court’s Invoking explained its extended nor further initial re- 1381(a), specific sought she position, many U.S.C.A. inferior federal courts have Be- declaratory relief. lief, damages, authorizing implied cited Bivens as actions Congress ended service in Passman’s cause money damages based on constitutional brought, the claim has after the suit rights other than the fourth amendment.2 money recovery of one for -narrowed Generally, recognized have these decisions its dis- court based district damages. The yet implicitly that Bivens has some un- alternative complaint on missal Only isolated district court reached limits. law Davis no (1) that the affords grounds: have asserted Bivens created decisions (2) of action private right for violation of constitu- damage actions did not complained which she conduct of broadly as if it had decreed rights tional Addressing only the Constitution. violate applied 1983 to the fed- that 42 U.S.C.A. § damages, we money claim for surviving appeal requires ei- This government.3 eral on the circuits, court’s dismissal the district affirm join projec- we other ther that ground. first Due Process ting of Bivens scope of the fourteenth and fifth amend- Clauses roster of ments,4 their prece- or decline to follow implied support held have been constitutionally (5th any protected interest.”); panel, Gar opinion 544 F.2d 865 1. The turn, 1389, (N.D. had, Murphy, F.Supp. 1977), the district v. 377 1398 reversed dels Cir. complaint Ill.1974) (.“Bivens recognizes filed dis- action of a a cause of dismissal court’s charged employee. female for violation of constitutional ly interest.”) protected Clauses, lower Apart Due Process from the 2. favorably upon Bi looked courts have plaintiffs circuits have allowed Several first, sixth, eighth, upon the actions based vens solely implied actions base See, g., ninth, e. amendments. and thirteenth Circuit, process: concept of the Second Stanton, 1975) (4th F.2d 47 Cir. v. 529 Cox Wallen, (2d F.2d 196 Gentile v. 562 Cir. amendments); (thirteenth Pa and fourteenth 1977) (fourteenth amendment); the Third Cir- Prade, (3d F.2d 870 v. La 524 Cir. ton Koelzer, cuit, rel. v. United States ex Moore Carlson, amendment); 1975) (first Jihaad v. (3d (fifth 1972) 894 amend- 457 F.2d Cir. (E.D.Mich.1976) (first F.Supp. 1132 410 Waddle, ment); v. F.2d but see Mahone amendments); eighth Berlin Democratic Club 1977) (declining (3d allow cause of Cir. (D.D.C. Rumsfeld, F.Supp. 160-62 v. alone); on fourteenth amendment amendments); 1976) (first Patmore v. and sixth Lines, Circuit, Inc. v. Marine Fourth States (fifth Carlson, (E.D.M.1975) F.Supp. 737 (4th 1974) Shultz, Cir. 498 F.2d 1156-57 amendments). eighth M. Leh See also and mann, Circuit, amendment); (fifth Fitz- Seventh Hastings Progeny, 4 Its Bivens and Hospital, gerald F.2d v. Porter Memorial 566-72 Const. L.Q. 1975) (denying (7th n.7 Cir. 718-19 & relief, brought holding sole- Wilson, action could g., 53 n.1 v. F.R.D. Saffron 3. E. amendment); Eighth ly holding (“This fourteenth has been (D.D.C.1975) [Bivens] Circuit, City Independence, unanimously recognizing Owen interpreted almost (8th 1977) (fourteenth F.2d Cir. for violation of action for a cause of In more Clause, foreclosed. amendment Due dents. A choice Process we must specif- than one decision the examine Bivens itself. While Bivens is not re- out that this issue pointed ically ambiguity, without the analysis employed open.5 mains by the Court shows that the cause of action equivocal on appear own decisions Our wholly created is not of constitutional di- We ruled district courts point. have mensions. The opinion of the Court ex- jurisdiction to finding consider erred pressly states: upon implied causes of damage claims based we accept cannot respondents’ formula- the Due Process Clauses of action under question tion as whether the avail- amendment, Muller, Weir both fifth ability money damages is necessary to 1976), (5th the four 527 F.2d 872 enforce the Fourth Amendment. For we amendment, City Reeves v. of Jack teenth have no explicit congressional here decla- (5th son, See persons injured ration that by a federal Callisburg Independent Roane v. also District, 633, (5th officer’s violation of 511 F.2d 635 n.1 the Fourth School Amend- 1975); United Farmworkers of Florida Cir. ment may not recover money Project, Housing City Delray Inc. v. of agents, from the but must instead be Beach, 799, (5th 493 F.2d 801-02 & n.2 Cir. remitted remedy, to another equally ef- Amarillo, City 1974); Traylor v. of 492 F.2d fective in the Congress. view of However, 1156, (5th 1974). 1157 n.2 Cir. 397, 2005, 403 U.S. at 91 S.Ct. at 29 L.Ed.2d Ritchey, 1185, v. Rodriguez 556 F.2d 1192 at upon 627. The cases guidance relied for (5th 1977) (en banc), we de expressly Cir. by the Court in Bivens dealt implying an speak clined to en banc court on the a cause of action from federal statutes that extending beyond Bivens appropriateness of provided created Now no federal the fourth amendment. we find our rem- Moreover, necessity edy.6 selves face-to-face with the Ash, in Cort 66, v. 422 U.S. position. take a firm 2080, 95 (1975), S.Ct. 45 L.Ed.2d 26 Supreme Court’s comprehensive most treat- a imply To decide whether cause of implied ment of money damages statutory action, for causes of action fifth (1977); seeking pay); Aldinger Howard, 1, amendment in suit back n.3, v. 427 U.S. 3 Circuit, Regional 2413, v. Ninth Jacobson Tahoe n.3, 276, 96 S.Ct. 2415-16 49 L.Ed.2d 280 928, 936-37, Planning Agency, 558 F.2d 941-43 (1976); City 660, n.3 of Charlotte v. Local Int’l 1977) (9th (one Cir. cause of action available on Firefighters, 283, n.1, of Ass’n 426 U.S. 284 96 just compensation fifth amendment clause 2036, n.1, 636, S.Ct. 2038 48 L.Ed.2d 639 n.1 process another clause). on fifth amendment (1976); Carter, District of Columbia v. 409 U.S. 418, 432-33, 602, 610, 613, 93 S.Ct. 34 L.Ed.2d favorably Other circuits have commented (1973). City Bruno, 624 See also v. Kenosha upon implied extension of Bivens to actions 507, 514, 2222, 2227, 412 U.S. 93 S.Ct. 37 concept process: from the of due the Tenth 109, (1973). L.Ed.2d 116 Circuit, Dry g., Lodge, e. Creek Inc. v. United States, 926, (10th 1975) 515 F.2d 932 n.5& 396-97, 2005, 6. See 403 U.S. at 91 S.Ct. 29 (apparently referring amendment); to the fifth 626-27, citing L.Ed.2d at J. I. Case Co. v. Bo Circuit, g., Dep't the D.C. v. D.C. e. Lewis rak, 426, 433, 1555, 1560, 377 U.S. 12 Corrections, 483, 484, U.S.App.D.C. 174 533 423, (1964) (federal L.Ed.2d 428 securities 710, F.2d 711 Wheeler, laws); 647, Wheeldin v. 373 U.S. imply The First Circuit has a declined 1441, (1963) (action S.Ct. 10 L.Ed.2d 605 for against municipalities cause of action from the through abuse misuse of statute fourteenth Due Process Clause to amendment governing Congress’ subpoena power); United grant damages wrongful death. Kostka v. Gilman, 507, v. States 74 1977). Hogg, (1st 560 F.2d (1954) (indemnity by govern L.Ed. 898 action In several cases since Act); ment under Federal Tort Claims United expressly open question Court has left Co., 301, 311, v. States Standard Oil damages might whether action for im be 1604, 1609-10, 91 L.Ed. plied from the Due Mt. Process Clauses. (1947) (government remedy, sought implied Healthy Doyle, School Dist. v. upon action). based established common law 97 S.Ct. 568. 50 L.Ed.2d support purpose two be consistent with Bivens Court relied asserted, (4) whether the cause of ac- analysis.7 statutory four-part its points implied be appropriate tion one a had mandated If the fourth Ash, 422 U.S. at federal law. Cort monetary damages, Bi- action for cause of course, L.Ed.2d at 36. Of to consult had no occasion have vens would in questions the factors examined of im- or inaction Con- discuss action action, plied statutory causes as set forth explicitly reasoned gress. Since cases, preceding ap- in Cort and cannot be we take ground, the latter precedent on its plied way the same where im- precisely a implied one Bivens be -type a plying issue. law8 common and there- of federal matter However, this circuit has held that the Cort law, power all such subject, like fore rigid set forth pattern factors do not There- or withdraw. alter analysis precisely. follow court must First, fore, analysis. two-step employ we Rather, simply “the Court said that several statutory jurisprudence to the we look worthy were relevant and of consid- factors imply whether to to determine implication Co., eration.” Olsen Shell Oil dimen- non-constitutional damage action of (5th Cir. Second, inquiry does if this initial sions. Where federal courts have inferred a fed- such an action should suggest private expressly cause of action not eral whether we must determine implied, provided, generally clearly been a there compels the exist- nevertheless right plaintiff. federal in the articulated damages in to vindicate remedy ence of a Ash, 66, 82, 2080, v. 422 95 U.S. S.Ct. Cort v. Hogg, Kostka asserted. See the 2090, 26, (1975), citing 45 38 L.Ed.2d 37, (1st 1977). Applying F.2d 42 Cir. 560 Agents, Named 403 v. Six Unknown U.S. claim, find that Davis’ we analysis to this 1999, 2003-04, 388, 394-95, 91 29 S.Ct. concluded that no properly district court 619, (1971). L.Ed.2d 625-26 While fifth action existed. cause of right process certainly to due several fac have considered Courts Davis, injury right upon confers a al- a determining imply whether to in tors infringe right leged here does not (1) statutory right: action from a cause of directly inflicted in the injury unrea- provision asserted creates an whether the of Webster Bivens offended sonable search (2) plaintiff, whether especial of due concept the fourth amendment. The the field indicates Congress encompasses virtually all the civil the action or at least remedy to allow such a derived from the Constitution. an intent liberties remedy, (3) fifth amendment Due Process deny not to While the an intent surely “especial for bene- remedy would exists implication of the Clause whether 465-75, 676, 683-88, 956, 966, support proposi- S.Ct. 62 86 L.Ed. in Cort to 7. Bivens is cited J., (Jackson, (1942) concurring): damages for should 971 tion causes of action “traditionally implied govern matters not be implements law Federal common the federal law, basically relegated an area state statutes, conditioned States,” 78, U.S. 95 422 at S.Ct. concern limits, Within these federal courts them. 36, 2088, proposition at 45 L.Ed.2d at apply are free to common-law traditional implied, have such actions been where technique of decision and to draw all clearly generally has been articulated “there the sources of the common law 82, plaintiff,” id. 95 federal at S.Ct. 472, 686, 969; 315 U.S. at 62 S.Ct. at 86 L.Ed. at 2090, 45 at 39. at L.Ed.2d Monaghan, Foreword: Constitutional Common Law, 1, 10-13, (1975). 89 Harv.L.Rev. 22-26 37, Hogg, 44 n.7 560 F.2d & remedy 8. See Kostka v. Where a is of constitutional dimen- Rodriguez Ritchey, (1st See also particular subject Cir. sions and elements are not 1185, (5th 1977) (en F.2d 1193-94 by Congressional legislation, 556 revisions generally banc). Tahoe Re- See, Jacobson v. g., See clearly so e. Ja- Court has indicated. 928, Agency, gional Planning 13, & States, 26, 937 290 S.Ct. cobs United U.S. 54 1977); Wright, (9th C. Federal Courts (1933); Ry. n.14 Air Seaboard Line Co. 78 L.Ed. D’Oench, 1976), (3d citing States, 354, Duhme & 299, ed. § 261 U.S. v. United 447, Corp., Deposit Ins. v. Federal Co. L.Ed. 664 Davis, required, positions, fit” of as Cort it does tive Congress whom did not in- certainty equal protect her exist tend protect, a remedy far more exten- non-competitive personal aide tenure sive than Congress adopted for federal em- Congress excluded the for one in Davis’ ing a Title VII of the Civil discrimination sional remedial or to Constitution. 403 U.S. at must position statutorily at will. U.S.C.A. Cort looked to 2004-05, imply implicit, deny the general guide a 45 L.Ed.2d at 36. Bivens cause one.” 422 U.S. remedy either of action for money court L.Ed.2d has legislation “legislative position. definition of “employer,” intent to create a to create such a carefully in determining denominated as service from § Rights federal 626-27. Congres- provisions at 396-97, for employment In Section intent, avoided creat- Act of government recognized whether remedy remedy explicit grant federal employees in the competitive judicial scheme for the redress of federal service an action employment discrimination” for those fed- superiors in their eral ever, in amending Title VII to make it the “exclusive, pre-emptive administrative and Cong. 820, 826-28, L.Ed.2d ployees ployees acted Section effective remedy existed for federal em- Brown v. General did intend to protect. employees 92d Cong. 2d & in the competitive Admin.News, treated 407-08 covered,9 Services it believed that no other (1976); discriminatorily. individual Sess., When 2137, 2160. How- Admin., Congress did not service, U.S.Code ^[1972] H.R.Rep.No.92- against Congress 1965-66, capacities.10 whom it their See en- The Supreme Court upheld denying thus exclu- employees statutory federal sivity of Title VII as a remedy for damage action under Title VII. employment discrimination 2000e(b). against employ- C.A. In amend- ees the competitive service ed Title VII to whom add Section it cov- pro- Brown, ers. separate vided a administrative held that Con- gress require could employees discrimination in federal employment, alleg- ing discrimination to did not extend the seek employees solely with- in the competitive VII, not in the confines of Title service. limitation 717, plaintiffs Under Section other federal could not employees surmount by the simple may expedient have review putting of federal courts la- different by final action bel on employing their agencies pleadings. 425 832, or at U.S. 96 Review, 1968, the Civil at Board of S.Ct. 42 48 at L.Ed.2d Service U.S. 411. Congress 2000e-16(a) C.A. (1974). § cannot Congressional have intended to deal more gener- designing action in ously Title VII with remedies those in position, Davis’ shows Congress legislative adhered to the whom it deliberately protection. withheld judgment expressed in the statute under Cort calls for an examination of the con- which Davis was hired: Members a con- sistency a statutory cause of action with gressman’s personal staff are by removable the statutory scheme by enacted Congress. “at any him time . . . with or with- 78, 422 84, 2088, U.S. at 95 S.Ct. at 2090-91, out cause.” 2 U.S.C.A. § 45 L.Ed.2d at 39. The Court in Bivens Implying the cause of action asserted made an analogous inquiry in considering Davis would have anomalous result particular presented difficulties in en- granting employees federal in non-competi- forcing guarantees the fourth 828, 1966, 9. 425 department, U.S. at 96 S.Ct. at agency, 48 L.Ed.2d or unit . . shall be at 408. However, section, defendant.” under this federal defendants be sued in their 717, 2000e-16(c) 10. Section 42 U.S.C.A. capacities, official individuals. See (1974), employee applicant ag- allows Hills, 386, F.Supp. (N.D.Ga. Keeler v. 408 387 grieved by final or a failure take final 1975); Brennan, see also v. F.Supp. Jones 401 complaint action on his administrative to file a 622, (N.D.Ga.1975). 627 civil action under Section 42 U.S.C.A. (1974), § 2000e-5 in which “the head of the

799 The final factor amendment has considered The fourth Cort amendment. of remedi- Court with a series whether “the cause of action is one tradi presented dilemmas, in other con- not encountered tionally law, relegated al to state in an area has wrestled texts, which the Court States, basically the concern of the so century. The over half a actively for it inappropriate would be infer cause of is such that subject matter amendment’s solely action based on federal law.” 422 officials, necessarily who law enforcement 78, 84-85, 2088, 2091, at 95 at 45 U.S. S.Ct. governs, and seizures the searches make 36, citing at L.Ed.2d v. Six Un likely most to be group are themselves Agents, 394-95, known Named 403 at U.S. hostility of law This to its hostile barriers. 2003-04, 91 S.Ct. L.Ed.2d 625-26. restraint of the officials to the enforcement we this factor Under consider effect initially to amendment led the Court fourth implying upon would have exclusionary federal rule for adopt law and the judiciary. both state federal States, cases, v. United 232 U.S. Weeks Industries, Green, v. Fe Inc. Santa 430 U.S. (1914), 58 L.Ed. 652 and then 34 S.Ct. 1292, 1303, 462, 477, S.Ct. L.Ed.2d Ohio, Mapp v. apply it to the states (1977); Chip Stamps Blue v. Manor L.Ed.2d U.S. S.Ct. Stores, 723, 739-741, Drug law (1961), when criminal actions and state 1917, 1927-28, 44 L.Ed.2d 551-52 proffered a substitute reme- tort actions (1975). particular While the circumstances Colorado, 25, 69 dy v. in Wolf questions the case at bar raise federal (1949), them- 93 L.Ed. 1782 showed rights employment, adoption in federal However, the exclusion- selves ineffective. principle granting broad which the to secure the ary rule —the chosen hinges expand of relief to Davis fed proved less than satisfacto- —also jurisdiction into eral broad fields of law Unknown Named ry. See Bivens Six presently occupied systems. state court Agents, 403 U.S. at Therefore, we properly consider factor. J., (1971) (Burger, C. dissent- L.Ed.2d 635 ing). struggle the Court continues to Adoption interpretation Thus of Davis’ of Bi- enforcing the fourth just for a means for project penumbra vens would Powell, 428 See amendment. Stone process jurisdiction court 3037, 49 465, 96 L.Ed.2d every legally cognizable injury over tortious persons acting inflicted under color of Violations of fourth because, nature, every its law setting familiar to in a well-defined occur deprives tort the victim of due relationship always one courts. The through liberty unlawful appropriation and citi- law enforcement officials between Indeed, property logically, or both. or suspected possessing evidence of zens expansive holding of such effect in which these viola- crime. The context there. It also would extend federal not end may sufficiently limited to arise is tions jurisdiction cover all state action tort that an action allow the court to determine claims, pendent jurisdiction, either under cf. damages would be consistent with the for Lavine, Hagans v. U.S. the fourth amendment future purpose of (1974), or 39 L.Ed.2d 577 under might in which such an action be instances implied of action from the fourteenth cause amendment Due Proc- invoked. fifth latter of these state ac- amendment. The similarly no focused re- presents ess Clause cognizable tion claims would be without contrary, To issue. breadth medial diversity citizenship, regard to amount process indicates that concept due controversy present statutory or other limi- sought will judi- not be damage proc- of the breadth of due is tation. Because cially manageable simply and that there ess, for implying money an action decision way judge a court can whether this amendment Due damages from the fifth securing for appropriate will be ac- plain- would extend an where some Process Clause alone right in future situations any constitutional it. tion for might assert tiff Thus, the guarantee. danger deluging damages. Even with express an statutory re- federal courts claims otherwise provide mandate to a federal damage ac- “ tion, in state courts or dressable administrative noted that ‘the range of ominously looms far more than proceedings protected by procedural interests proc- due ” n.4, at 391 in Bivens. & ess is not infinite.’ 424 U.S. at n.4, 29 & 2002 & L.Ed.2d n.4. S.Ct. at (1976), L.Ed.2d citing Regents Roth, Board Not does this case fail to present 564, 570, 33 L.Ed.2d special analogous remedial difficulties (1972). Here, consider, we do not as the dealing those faced the Court in with the Paul, Court did in process what due may amendment, Congress also fourth given encompass express statutory man- creating money avoided an action for dam- date to extend a cause of action for money ages Congressional non-compet- aides in damages to the full reach of right. Moreover, positions. implying itive Rather, we consider the extent to which the necessarily would draw into Constitution requires we countermand judicial system range the federal a wide clearly discernible will of Congress to cases whose resolution has not create a cause of action where Congress judiciary committed to the federal provide declined to one. Paul thus teaches whose resolution better suited to courts that we should restrain our reach far more general jurisdiction. special These con- than the Court did there. siderations, present not eliminate any question creating of our a remedial Denying an implied cause of action for our pow- federal common law money damages does not render meaning ers. conclusion This does not end our in- less any constitutional rights of congres however, quiry, we still must determine sional employees. A plaintiff might still whether the Constitution nevertheless com- seek equitable relief where the employer pels money damages implied an action for office, remained in although congressional fifth from the amendment Due Process employees in non-competitive service Clause. whose allegedly discriminating employers are not in office left without a Therefore, we next consider wheth- remedy for sex discrimination in employ er, case, in this a damage action is indis- ment unless Congress present reverses its to the pensible effectuation the fifth d.11 statutory process stan Other due amendment Due Process Clause and thus wrongs would either continue to be reme beyond power of Congress preclude. died in ways traditional through tort ac Cf. v. Hogg, Kostka 560 F.2d at 44. We tions in courts of appropriate general juris conclude that the proposed damage remedy diction through special statutory reme constitutionally compelled. Not ev- dies provided by legislatures state or Con ery right conceivably wedged could be gress. Admittedly, some not now covered within the literal breadth of would remain inactionable. demands protection through a cause provision Another of the Constitution monetary damages. of action for In Paul v. must be Davis, rejection also considered. Our of the principle broad (1976), L.Ed.2d the asserted Court Davis is considered the premised reach just of federal much more than Congress, remedies where anoth- in 42 er “floodgates” argument. expressly U.S.C.A. The provided prospect § that crushing violation of constitutional here is of so rights by already precarious- one acting under color ly of state law judicial overloaded system as to give rise to a of cause action for monetary render meaningless the power the Constitu- challenged 11. has positions Davis the in non-competitive po- distinction itive and those in employees compet- Title VII between federal purposes in sitions for the of Title VII remedies. JONES, III, Judge, specially Article Circuit Congress under concur- tion vests ring: the establish of Constitution Section the inferior jurisdictional ambits

the against there If is constitutional barrier We to hold it created. decline has courts judicial power the exercise of the to decide by implication the fifth amendment that controversy the between Mrs. Davis and then, believe, Passman that an anomalous result. Mr. so bar requires such denying should be raised than rather consequences our and Given these because the has failed enact plausible measure inability construct a legislation providing remedy. the right on acceptable limits I do not believe that the constitutional imply the have us Davis would are provisions pertinent here to be confined take wrong alleged, we refuse to even the Debate Speech and clause.1 The slippery slope until the down the step

first provision legislative which all broader open question Congress2 answers are vested in the is powers rele- might cause. said vant It be that any should exist. whether such doctrine of inclusio est (cid:127)the unius exclusio be may implied of action Because no permits requires alterious a construction Clause of the fifth the Due Process judicially a Congressman may ques- that be amendment, correctly court district Congress- for any tioned and all else that a damages may no civil action for ruled that might legisla- man do in the exercise of the a right Absent such maintained here. be power except speech tive or debate. Ob- action, the district court cannot exer civil viously such the Constitution mean- jurisdiction 28 U.S.C.A. cise We ing. may remind ourselves Chief jurisdiction 1331(a), which confers § Justice Marshall’s reminder as to constitu- actions wherein the matter for “civil tional construction.3 . controversy . arises under genius In no small measure ... the United Founding that framing Fathers in most Weir that is incon- To extent States.” wonderful work struck man4 is ever off position, with this overruled. sistent separation powers among three jurisdictional ground affirmance on Our Although government. the' branches not reach Davis’ con- means we do second requires need for balances that checks and Therefore, we vacate the tention. district departments wholly no one of the shall be ground on the that Pass- court’s decision unrelated to each of others essen- firing her not violate man’s conduct did are, by tial functions of each the terms of the Constitution. instrument, separate from those judgment The district court others.6 PART, AND IN AFFIRMED IN PART Notwithstanding the Gravel7 and Brew- Ervin’s VACATED. ster cases Senator critical Representatives appropriate . . . 6. It take note of a 1. Senators any Attorney speech or debate in either House . . recent General comment questioned place. although provide other and statutes shall not be the Constitution I, 6(1). Art. the President shall nominate and U.S.Const. with the of the Senate advice consent shall attorneys appoint I, judges and Art. 1.§ 2. U.S.Const. reality is "the Senate nominates and the persons President confirms to fill those of- forget “We must never it is constitu 3. Bell, Post, Washington B. expounding.” Mary fices.” Griffin Feb- tion we are McCulloch ruary land, (17 U.S.) (1819) 1978. 4 Wheat. 4 L.Ed. 579 Gravel, Gladstone, United States E. North American 4. William (Sept. 33 L.Ed.2d 583 Review 179 —Cot. Brewster, Federalist, Madison, (1852 United v. The No. XLV11I 8. States

5. J. (1972). ed.). 33 L.Ed.2d 507 S.Ct. sepa- the ateness of upon money damages them doctrine of may well vary comments with powers personal survives. the nature of of ration interest asserted.” Bivens v. Six Unknown Fed. say that all necessary is not It n.9, Agents, Narcotics Congress- a the members of activities 1999, 2011, 29 L.Ed.2d (1971) It will not be legislative. are staff man’s J., (Harlan, concurring). The distinction I large they are not so in measure. that said find Rodriguez between and the instant and varied many are as activities Their personal case lies the nature of the inter- by them. the members served those of est process” asserted in the “due day-to-day that “the violations well stated It has been alleged. Rodriguez plaintiff In is so critical such aides was in- work of dicted, arrested, they that must be and held in performance bail for many Members’ ” egos . . . latter’s alter months for crime she knew nothing as the treated about States, supra, altogether of which innocent, United she Gravel 616-17, at 2623. because the allegedly unconstitutional acts and conduct a federal agent. judi- court held to me the It seems dissent, Judges both Coleman and Goldberg, relief is denied because cial concurred, whom I plaintiff held that judicial remedy. provide has failed had a -type damage claim if the say should that the I think the court Rather agent’s acts so were reckless as to consti- ego” his “alter is a hiring firing tute a willful violation of plaintiff’s activity part of the exer- legislative “right to remain free of unconstitutional power. question The legislative cise of by governmental intrusions agents.” judicial is a not of whether there one F.2d at 1195. it, as I is wheth- remedy. question, The see controversy involving one or er not the me, To there is little distinction between legislative power exercise the personal liberty invasion arrest and Congress. jurisdiction of within the in Rodriguez personal indictment and the there abso- it whether should be Let decide liberty invasion the private apartment immunity. Let it determine whether lute search, seizure, and arrest Bivens. Both right and if so fashion a there is a cases involved the citizen’s to be let designate a tribunal to declare remedy and alone Government agents, unless the it. have been I think should and enforce agents act within governmental powers does not state a complaint held ordained the Constitution. The Consti- granted. which can be claim tution gave power limited to the Govern- ment it created. Without constitutional RONEY, Judge, concurring: Circuit base, no legal individual has the authority by the concur in the result reached I against to act another individual in- the I am constrained to majority opinion, but name of governmental Government. Some the difference I see between articulate powers specifically are given, but to make case, agree plaintiff has no absolutely powers sure that certain not giv- on an based en be read into the Constitution violation, alleged and the fifth amendment officers, by overzealous Government either Rodriguez Ritchey, 556 F.2d 1185 case executive, congressional, judicial, there is 1977) banc), (en joined in which I (5th Cir. a list of “shall Bill Rights. nots” plaintiff there ground on the a dissent Many rights individual enumerated against offi- claim could “given” there were neither “created” nor alleged cers for an violation. Constitution, by the but rather were recog- opinion being Jus- nized as concurring In his inherent of individuals that “the appropri- long tice Harlan intimated before the summer 1787. The fram- Independ- Jr., Congressional Ervin, cases: Assault on and Brewster An Sam Gravel J. ence, 59 Va.L.Rev. 175

803 right so recently tion this discovered in rights in the written those to approach ers’ try they assure to to of the fifth was recesses amendment? governmental free of remain forever would dissenting opinion Judge The Goldberg intrusion. oft-quoted invokes the repeatedly dictum rights at the fundamental were Such rights invaded, legal that “where have been Even be- Rodriguez. and in Bivens stake provides and a statute for a general Rights, Bill of drafting of our fore invasion, any to right sue for such had an in- Rodriguez and Bivens plaintiffs remedy courts use available type right be free from herent good wrong Hood, make Bell done.” v. The constitution- they suffered. intrusions 684, 773, 777, 327 66 U.S. S.Ct. 90 L.Ed. fourth, Bivens, and amendments —in al (1946), quoted in Bivens 944 v. Six merely protected Rodriguez, fifth — Agents, Unknown Fed. Narcotics against prohibition rights by specific those 388, 396, S.Ct. L.Ed.2d 619 being Rodriguez I saw encroachment. note, (1971). however, interesting It is have there Bivens controlled statement, of that the author Justice plaintiff provided law the case held Black, on the ground dissented damage remedy, a dam- a Rodriguez with that “neither nor the State of preconstitutional no- remedy age rooted legislation creating New York enacted [had] of tort law. tions right damages].” . a action [for however, right is case, no similar this In (Black, J., 403 U.S. at at 2020. not has intruded The defendant at stake. dissenting). preconstitution- with liberty a interest upon people, by The both Constitution and Historically, had an employers origins. al statute, can and rights often do create for whom they hire fire right inherent which they provide either no or a reason, arbitrarily, whatever for pleased, remedy for the violation restricted thereof. anyone account to their no need to with rights, such the courts analyzing are not actions, perhaps to their conscience except entirely to afford remedies free which have God, em- governmental and for their not creator provided by been This under- their voters. ployers, me, Thus, rights. Judge Clark a makes employer-employee rela- standing analysis to necessary determine whether a when the Constitution tionship prevailed damage remedy is rooted document indeed, and, formed basis drafted right. which the violated Here we created of the United States decisions analysis provided the relevance find century. See Adair United in this Ash, in Cort v. U.S. States, 52 L.Ed. also, this (1975). To me is where L.Ed.2d 26 Kansas, (1908); Coppage I part Judge Goldberg, whom L.Ed. 441 Under Rodriguez. joined in right Ms. had no early theory, Davis hired, place, and if held hired the first majority opinion The does not “cut back” the individu- job subject to the whim of her underlying The facts and con- on Bivens. to hire fire. power who had the al themselves, Bivens, by simply cept of do given allegedly But the Constitution in this asserted case. cover on the basis of right a not to be fired her then, ap- is not whether Bivens question, however, not, pro- a right her sex. This will infer from plies, but whether the courts right, right but a “created” tected inherent damage remedy for itself a the Constitution Constitution, fact right due process of the kind of the violation historically what was encroaches here, claimed. For here her employ- inherent viewed be rooted in document— must er. created the violat- the Constitution —which statute, since right, subsequent is, ed Where does one find the question Now it. source for preconstitutional damage remedy for viola- there is roots for a gets merely to the real difference allegations This down found of constitutional dissent, majority in my between the violations to sufficiently be substantial easily grounded ground can be on the view. Bivens jurisdiction may remedy the unlaw- premise that courts U.S.C.A 1331. altogether This is differ “protected” constitutionally ful violation ent from inferring -type a Bivens damage satisfy But it will better rights. individual from the provisions constitutional concept “by of Government See, the revered asserted. e. Weir g., Muller, rights people” (5th if “created” Constitu- 1976); F.2d 872 Cir. Lewis v. District only are remedied in those tion or statute Dept. Corrections, Columbia 174 U.S. safely from ways App.D.C. that can inferred (1976). 533 F.2d 710 creating documents. Indeed, only cases cited the dissent

Bivens, produced separate five extending beyond Bivens the fourth opinions, easy not an decision. Lower was process the due rights of disserve the law probably carry- discharged courts employees were not Bivens rem- difficult, narrow, ing obviously limited deci- edy cases. Wallen, Gentile beyond (2d Supreme sions of the Court far their 1977) Cir. the Second Circuit held judicial activity reach. Such sub- intended that a claimed denial by a objective of law an major organ- verts a in discharged elementary school teacher stated certainty society: provide ized for hu- a cause of arising directly under the man action. of this Court fourteenth question amendment. On the precisely required. remedies, shown the restraint If however, court stated: through officials, people, their elected “Whether money damages are available un- here, provide remedy sought choose to der this cause of only action or equitable it; courts, through so be but until then the . . . question relief is a of remedies appointed judges, require their should not that we need not . reach . . .” Id. (citation it. 197 n.4 omitted). power Since the of federal equitable courts to grant relief It is impossible completely align for violations of in way cases such a as to support dis- recognized prior the Gentile tinction made here between and Rod- Bivens court did really advance march of riguez, impossi- and this case. But so it Bivens into the area of fifth amendment ble to up line the cases to support other rights. See Bivens v. Six Unknown Fed. logical premise. There is bit of Agents, 388, 400, Narcotics however, symmetry, if only we look at the (1971) (Harlan, 29 L.Ed.2d J., con- cases, results, facts of the and the curring); Hood, Bell v. disregard the principles verbalization of L.Ed. 939 the written opinions. sense, In the purest precedent facts and the result Likewise, are the v. City Owen of Independ- from which stare decisis any- ence, (8th should flow 1977), F.2d 925 way. Eighth Circuit held that a discharged city employee was to monetary entitled As in Bell v. held backpay the nature of for violation of four- Hood, 678, 681-82, process, teenth amendment due but was (1946) L.Ed. 939 question jurisdic- it emphasize discussing careful that was tion, opposed to a federally recognized “only equitable remedy an . . . Id. relief, right created the mere alle- n.9 at 933 and 940. gation of in controversy arising matters under the laws of the Unit- Cases which circuit in- courts have ed States. Most circuit court cases a Bivens -type ferred from dealing Bivens-type in consti- claims constitutional amendments other than the tutional areas other than the fourth amend- widely facts, fourth have varied in their jurisdic- ment have decided the federal generally have involved intrusion into aside, question. liberty tion Dicta cases have preconstitutional these interest having ori- Koelzer, the first amendment States ex rel. Moore v. example, gins. For United (3rd 1972) 457 F.2d 892 express (allegations one’s not “create” the did that FBI agents falsified documents and governmental in- unlawful from views free testified falsely plain order to convict trusion; already protected an merely tiff state cause of action for interfer- governmental present arising directly amendment). under fifth ence. These fundamental unlike the rights, lib- Powell, 167 (D.C.Cir. F.2d Dellums v. erty Davis, interest by asserted Ms. are not unlaw 1977) and demonstrators (speakers by “created” the Constitution but are inher- of fully by District Columbia arrested individual, ent in the absolutely “pro- either “May Day” demonstra police during by tected” the framers from encroachment for damages action cause of tion have Government, by “protected” to the amendment); first directly under arising provided extent in the Constitution. LaPrade, (3rd F.2d 862 Cir. Paton sum, a claim for should not 1975) damage remedy for (Bivens-type merely be foreclosed it because arises out of amendment avail violation of first violation, a fifth amendment rather than a school who 16-year-old able student fourth, but should be considered on the sending FBI investigated by was after personal basis of the interest asserted. The Workers from Socialist off for literature remedy sought interest personal as- with her Party in connection social stud serted Ms. Davis cannot be infused into class); ies unduly Constitution without burdening v. Chemical Abstracts Yiamouyiannis faith, reasoning hope, per- with the (6th 1975) Service, Cir. sonal preference of the reasoner. There- that because anti- alleging of (complaint fore, I would affirm the district court. made plaintiff, speeches fluoridation Health, Department GOLDBERG, of Education Judge, Circuit with whom BROWN, joins, JOHN R. plaintiff’s employer Judge, coerced Chief Welfare dis- senting: Bivens-type damages fire him stated first violation of

action for A of the en banc court today rights). holds that no private cause of action for damages may implied proc- from the due process Nor the due clause of the did ess clause of the fifth amendment right “create” fifth amendment United States Constitution. I believe that deprivation free from individual to be conclusion, this it certainly applies as to the interests; liberty property merely it case, facts this long is untenable so government encroachment provided that Agents Six Named Unknown it only if would be constitutional followed Narcotics, Federal Bureau of provided. therein the criteria (1971), good 29 L.Ed.2d 619 Regional Planning v. Tahoe Jacobson Finding opin- nothing subsequent law. (9th 1977) (alle- F.2d 928 Cir. Agency, 558 Supreme ions Court undercuts zoning en- gation certain ordinances vitality reasoning I by agency operating acted Shirley private would hold Davis has a “taking” of plaintiff’s law effectuated of action to vindicate her -type claim land a Bivens states rights. recognizing While directly under fifth amend- arising may be that constitutional attrition ment); 1970’s, leave benchmark of the I would it Lines, Shultz, Inc. v. Marine States place for the the mark 1974) (unlawful sei- (4th F.2d Cain on heretofore unblemished Bivens’ property zure Customs plaintiff’s regret deep brow. It is source of Bivens-type Circuit, rise to a dam- agents gives is the Fifth a court so often exem- directly age arising plary under fifth in its of constitutional affirmation rights, which has chosen to start Bivens amendment); 12(b)(6), into desuetude and slippery slope holding discharge “the down the dissent. respectfully plaintiff grounds on alleged demise. sex discrimi- nation defendant is not violative of the I. Fifth Amendment the Constitution” and that “the early part Shirley private Davis law affords no In the Assistant Deputy plaintiff panel Administrative action to therefor.” A Louisi- Otto E. Passman of Congressman court reversed decision of the dis- Congressional District. ana’s Fifth court trict the case for remanded trial. terminated Ms. Davis’s em- Representative (5th 544 F.2d 865 The panel July In his effective ployment, taking complaint’s concluded that alle- de- explaining termination letter to her gations true, Representative Passman’s wrote, Representative “You are cision the dismissal of a staff member on the basis of able, energetic very worker. and a hard gender equal protection compo- violated the un- [Hjowever, on account of the . nent of the fifth amendment due Washington in heavy my workload usually clause; that under Bivens the Constitution Office, diversity job, I con- the itself affords the dismissed member staff it that the under- cluded that was essential damages remedy; that sovereign immunity my administrative assistant be a study to not against does bar a award the text this rather man.” full remark- The Representative individually; that the is set out below.1 able letter speech or debate clause does not extend to action against filed this the Davis then staff they “legis- dismissals because are not claiming he Representative, had violated lative tasks” within the Court’s component protection of the fifth equal the holdings; the and that existence of quali- in- amendment’s due clause. She fied immunity support cannot the district “arising jurisdic- voked court’s under” the court’s complaint. dismissal of the See id. pursuant 1331(a) tion to 28 U.S.C. at 882. alia, inter sought including, relief Judge Circuit Jones dissented from the capacity. from individual Passman his panel judgment of the on the basis of jurisdiction the court district assumed doctrine of separation powers. proceeded to Id. Rep- the case and dismiss the com- Passman, plaint failure to state a resentative for claim then defeated in can granted, be Fed.R.Civ.P. for his bid reelection and retired from the advantage Dear Mrs. Davis: talent used be in some organization extremely capable in need of an My Washington joins saying staff me in secretary, you I desire that be continued on But, you very that we miss much. all payroll your present salary the through probability, inwardly they agree all that I July 31, arrangement gives you 1974. This you doing you injustice by asking your year’s month, plus full vacation of one responsibility trying that was assume so May say one additional month. I further that hard all of and so that would have taken very work the limited, load in the Monroe office is your pleasure the out of work. I must be you and since would come in as a please completely you, fair so with note the junior member of the staff at such a low following: salary, actually you. it would be an able, very offense to energetic You are and a hard your ability I know that secretaries with Certainly you respect command worker. very however, are much in work; demand in Monroe. you If an with whom on those additional letter of unusually heavy recommendation from me load in account work advantageous you, Office, would my Washington diversity be do not hesi- and the Again, you assuring tate to let know. job, me I concluded that it that was essential my Washington your understudy my staff and humble Administrative Assist- Congressman you you agree feel that a man. I the contribution ant be believe will Washington helped made to our this conclusion. office has all you you of us. It be unfair for me to ask wishes, your experience my With to waste talent and best salary Sincerely, Monroe office of the low because junior position. of a /s/ available because Otto E. Passman Therefore, your experience and so Member of rehearing en petition for II. filed Congress, congressional hiring banc, alleging Only in one case has the Supreme Court judicial review insulated from were firing directly confronted and ques- decided the doctrine and question political under tion whether a federal cause of action for The court or debate clause. speech damages may implied directly from the Today, rehearing en banc. granted United States Constitution: Bivens Six thorny issues constitutional reaching Unknown Agents Named of Federal Bu- immuni- scope posed by reau of Narcotics, clause, the en speech or debate ty (1971).2 29 L.Ed.2d 619 Having creat- that no determines banc ed in policy access,”3 that case “a implied damages may be Court has since chosen pos- to refrain from process clause. the fifth sibly premature rigidification of the con- holding, necessarily I As from this I dissent tours of the Bivens action,4 licens- effect issues, including the the other must reach ing the lower federal courts to develop their clause, debate speech applicability own rules setting parameters,5 consist- On panel opinion. those considered ent with the mandate of Bivens itself, with- issues, analysis expli- would adhere to I in which may be vindi- my confine panel opinion; cated in cated private damage actions. As to the question. noted On here remarks by the majority, en banc opinion few courts have Judge Clark’s the thrusts held that Bivens actions majority merit defensive en banc are limited to fourth parries response. amendment claims.6 With respect to (7th Cir.), worthy denied, - U.S. -, Jacobs v. 2. Also of mention is United cert. 98 S.Ct. 508, 13, 26, (1977); States, 54 L.Ed.2d 453 U.S. 78 L.Ed. 142 290 54 S.Ct. cf. Mahone v. Wad dle, 1018, just (1933) (founding right compen- (3rd 1977) 564 F.2d to recover 1022-25 Cir. amendment; (declining imply directly on statu- constitutional cause of the fifth sation course, finding statutory recognition necessary). tory Of effective federal 1981), appear implied injunctive under § there to be no “that there is an is clear remedy Appeals other at continuing decisions the Court of level constitu- for threatened or rejecting availability of Bivens causes of v. Six violations.” Bivens Unknown tional actions Narcotics, under other constitutional amend Agents of Bureau of Federal Named founding ments. rectly 718, 1969), Circuits causes of action di (2nd 723 rev’d on F.2d Cir. 409 provisions on constitutional 388, 1999, other than grounds, S.Ct. 403 U.S. 91 29 other amendment, finding the fourth Hood, claims suffi (1971), citing Bell v. 619 327 L.Ed.2d ciently ground jurisdiction substantial to 773, on 28 678, 4, 90 and n. 66 S.Ct. L.Ed. U.S. 684 1331, U.S.C. include the § Foreign (1946); Larson v. Domestic 939 682, Powell, 696-97, Corp., D.C. Dellums v. Circuit: 566 F.2d U.S. 69 337 Commerce 167, (D.C.Cir.1977) amendment, (first 1457, (1949); 194-95 Ex Parte 93 L.Ed. 1628 S.Ct. action); Payne 123, 441, cause of v. Government of Dis Young, 52 714 209 U.S. 28 S.Ct. L.Ed. Columbia, 809, (D.C. Lee, 196, of trict 559 F.2d (1908); 818-19 106 U.S. 1 United States v. 1977) amendment, (fifth jurisdiction; 240, Cir. (1882). also favor 27 L.Ed. 171 See action); 404, 2006, 400, able dicta on cause of Lewis v. District supra, at 403 U.S. at 91 S.Ct. Department Corrections, of 2008, (Harlan, concurring). Columbia of 174 L.Ed.2d at J. 29 628 U.S.App.D.C. 483, (1976) (fifth 533 F.2d 710 Lehmann, Progeny,” 3. "Bivens its 4 Has- amendment, accord, jurisdiction); Greenya v. 531, tings 539 Const.L.Q. George Washington University, U.S.App. 167 379, 385, 556, 13, D.C. 512 F.2d 562 n. cert. supra, opinion, majority 4. cases cited See denied, 995, 422, 96 46 L.Ed.2d n. 5. Wilson, (1975); Apton U.S.App.D.C. 369 v. 165 22, 35, 83, (1974); 506 F.2d 96 Cardinale v. Lehmann, 3, 540, supra 604. n. See Institute, Washington U.S.App. Technical 163 123, 128, 791, (1974); majority opinion, supra, Apart D.C. 500 F.2d 6. See at 795. 796 n. 5 28, 55, Murphy, declining U.S.App.D.C. circuits Sullivan v. 156 from decisions several 938, 47, denied, imply against 478 F.2d causes of action munic- 965 and n. cert. 414 880, 162, directly (1973) ipalities 38 under the fourteenth amend- L.Ed.2d 125 ment, (fourth amendments, exemption municipali- jurisdiction; fifth fa in view of of 1983, liability remedy). vorable under 42 U.S.C. Kost- dicta on ties Wilson, (1st 1977); Hogg, v. v. 560 F.2d 37 Cir. Mc- Second Circuit: Gentile 562 F.2d ka 596, 193, Illinois, (2d 1977) (fourteenth of F.2d 196-97 Cir. amend- Donald v. State 557 604-05 808 process rights may clauses fifth and tional due vindicated through im- amendments, overwhelming plied

fourteenth causes of action money damages.7 authority, particularly weight of And as the aware, en banc is also level, of holds that constitu- Appeals numerous of panels this circuit have ad- accord, nied, action); 855, process, 150, of due cause ment 50 L.Ed.2d 131 Milton, 730, (1976) (finding of 527 F.2d 734-35 trial, Brault v. Town infringement of fair grounds, Cir.), other 527 en banc on (2d privacy rights; assuming rev'd deciding without (2d availability action); 736 Cir. F.2d of Bivens cause of Wound- Prade, Third Paton v. La 524 F.2d Circuit: Legal ed Knee F.B.I., Defense/Offense Committee v. 862, (first amendment, (3rd 1975) Cir. 869-70 (8th 1974) (sixth 507 F.2d 1284 Cir. action); ex v. United States rel. Moore cause Koelzer, amendment to effective assistance of (3rd 1972) (fifth 457 F.2d Cir. counsel, jurisdiction). action); amendment, Gagliardi cause of v. Regional Ninth Circuit: v. Jacobson Tahoe Flint, (3rd 1977) 564 F.2d 114-16 Cir. Planning Agency, 928, 936, 558 F.2d 941-42 amendment, (fourteenth jurisdiction; reserving (9th 1977) (separate Cir. causes of action avail- action); (Gib question id. of cause at 117 process able under fifth amendment due clause bons, concurring) (cause action). J. But see just and fifth compensation amendment Waddle, supra. v. Mahone clause); Campbell, Bennett v. 564 F.2d Line, Marine Inc. Fourth Circuit: States v. (9th 1977) (reversing 331-32 Cir. denial mo- Shultz, (4th 1974) 498 F.2d 1156-57 Cir. complaint tion to permit amend in order to amendment, (fifth action); cause cf. Cox v. assertion of Bivens claims under fourth and Stanton, (4th 1975) (thirteenth 529 F.2d Cir. amendments; suggesting fifth availability amendments, juris- suggesting and fourteenth diction). deprivations actions for “of consti- rights”); Groff, tutional Mark v. 521 F.2d Jackson, City Fifth Circuit: Reeves v. (9th 1975) (fifth, 1378 and n. 1 Cir. sixth and 1976) (5th (suggesting availability F.2d Cir. eighth amendments, jurisdiction; reserving eighth of cause of action remedy); question Gray County cf. v. Union process, jur- and/or fourteenth amendment District, Intermediate Education 520 F.2d isdiction); Muller, (5th v. Weir F.2d 872 (9th 1975) (finding rights; Cir. no denial of amendment, 1976) (fifth jurisdiction); see Cir. apparently assuming availability of cause of Independent Callisburg also Roane v. School backpay action for for violation District, (5th 1975); 511 F.2d 635 n. Cir. of first rights). amendment and due Housing Farmworkers of Florida United Dry Tenth Lodge, Circuit: Creek v. Inc. Unit- City Delray Beach, Project, Inc. 493 F.2d States, (10th ed 1975) (equal F.2d (5th 1974); Traylor n. 2 801-02 and protection process, jurisdiction; and due favor- Amarillo, City (5th 1157 n. action); able dicta Kelley, on cause of Kite v. Rodriguez Ritchey, But see v. Cir. 556 334, (10th 1976) (first, fourth, 546 F.2d fifth, 337 Cir. 1185, (5th 1977) banc) (en (de- F.2d clining 1192 Cir. amendments; finding jurisdic- and ninth speak issue). to on Bivens denying tion but claim). liability relief on vicarious Yiamouyiannis Sixth Circuit: v. Chemical Service, 1392, (6th 521 Abstracts F.2d 1393 Cir. District court cases are collected in Leh- 1975) (first amendment, action; of cause rea- mann, supra 3,n. at 566-68 and nn. 226-229. soning cases). based on fifth amendment Thus, implied seven circuits have causes of Fitzgerald Seventh Circuit: Porter Memo directly from constitutional amendments 716, Hospital, (7th rial 523 F.2d 7 718-719 n. these, other than the fourth. Of five circuits denied, 916, 1975), cert. U.S. Cir. 425 implied have causes of action from the due (fourteenth (1976) 47 768 L.Ed.2d amend process of clauses the fifth and fourteenth ment, suggesting availability of cause of action five, In amendments. addition to these at least relief); denying Hostrop v. Board of Junior three circuits have found Bivens claims under College (7th District No. F.2d 577 process sufficiently the due clauses substantial 1975), denied, cert. Cir. ground jurisdiction under 28 U.S.C. (fourteenth (1976) L.Ed.2d amend favorably upon § and have commented procedural jurisdiction; process, ment fa implication damage of actions from these dicta); University cf. vorable Cannon v. of Chi circuit, implying clauses. Still another a (dicta cago, (7th 1977) 559 F.2d amendment, cause of action under the first availability on of relief for violations of funda implying on relied cases causes of action from rights). mental constitutional But see Mc Today fifth the amendment. the Fifth Circuit Illinois, supra. Donald v. of State reject definitively becomes the first circuit to Eighth City Independ Circuit: Owen v. of availability the of a Bivens cause of action in ence, (8th 1977) (fourteenth 560 F.2d 925 any context other than a fourteenth amend- process, amendment due cause of action for against municipality. ment action a monetary backpay the nature of against municipality); McNally a majority opinion, supra, v. Pulitzer 7. See cases cited Co., (8th Cir.), supra. Pub. cert. de- n. note dimensions,” access, finding of constitutional policy and thus is to Bivens’ hered dis- 1331 for the “subject under 28 U.S.C. will of the jurisdiction Congress for the implied entertain causes remedies, trict courts long substitution other so as damages under the due action for the minimum demands of fourteenth amend- fifth clauses added). (Emphasis Majority are met.” Nevertheless, al- taking Ms. Davis’ ments.8 opinion, supra, at 796-798. true, today en banc court as legations What follows this perspective from is to the deny a of action chooses implication of a cause of action gender-based case of as blatant a victim of initially gov- from the Constitution is to be my experience as within discrimination erned, or at guided, least the standards Cir- Would Fifth on this court.9 applicable implication from remedies to add one more cuit instead chosen had enactments, statutory as elucidated pioneering liberating its diadem jewel to Ash, Court Supreme in Cort Still, en banc court is jurisprudence. 2080,45 26 (1975). Only L.Ed.2d if noting despite the over- correct a damages cause of action for satisfies authority, is not whelming weight of choice statutory standards, or these damage if “a Court has invited Supreme The foreclosed. indispensibie action is to the effectuation of Clark, creativity, Judge with judicial amendment,” fifth (emphasis added), customary acuity, has authored his care - majority opinion, supra may a authority rebuttal persuasive remedy implied. imagined. unper- Yet I remain might be Bivens. I offer here a The test is suaded. proper application I believe that which believe to be of that case reading analysis Cort constitutional claim holding with its and more consistent more justify implication than spirit reading harmonious its remedy directly fifth amendment majority. offered the facts of But my disagree- on this case. with the majority ment is a more funda- III. mental one: I premises underly- believe the majority’s I understand the treatment If analytic ing proposed by structure reasoning the crux of its majority are irreconcilable with the Su- imply was able to Supreme preme opinion in Court’s Bivens. for violation the fourth my view Bivens is a decision of consti- officers because magnitude. tutional The fundamental in- spoken. had not whether quiry in the Constitu- possible willingness of a Court’s indication petitioner tion mandates some for a “explicit to an some accord deference whose constitutional have been vio- preference declaration” of Only finding remedy after lated. some “equally effective in remedy an alternative compelled constitutionally is did the Su- Congress,” 403 at the view of U.S. preme go Court on to consider which reme- 397, 2005, apparently at is taken 91 S.Ct. appropriate necessary is —not dy itself— a cause of action is mean that given in the circumstances of case to parcel underlying con- “part right,” wholly “is not redress the constitutional violation: stitutional therefore 796-797, Rusk, majority opinion, supra, (1975), quoting at L.Ed.2d 514 8. See Schneider v. 163, 168, 1190, 1187, cited therein. cases 377 U.S. 84 S.Ct. 12 (1964). Bolling Sharpe, L.Ed.2d 218 See also may 497, 499, 693, 694, violate the Gender-based discrimination 347 U.S. 98 L.Ed. fifth amendment. (1954). approach clause of “This to Fifth 884 Court’s “[Wjhile Amendment contains no the Fifth protection equal has al- Amendment claims clause, equal protection it does forbid discrimi- ways pro- precisely equal been the same as to unjustifiable as that is ‘so to be violative nation tection claims under the Fourteenth Amend- ” Wiesenfeld, Weinberger process.’ of due Wiesenfeld, (citations omitted). supra ment.” 1225, 636, 2, n. 43 U.S. 1228 420 operates Amendment Fourth as a let at at S.Ct. citing Bell v. [T]he the exercise of limitation federal Hood, at 66 S.Ct. at 777. In regardless of whether the power State respect, provision of a damage remedy jurisdiction power is exercised whose hardly “should seem a surprising proposi- penalize or the identical prohibit tion. Historically, damages have been re- engaged by private citizen. It act if garded as the ordinary remedy for an inva- guarantees to citizens of the United personal sion of liberty.” interests in Id. at right to be the absolute free from States (citations at S.Ct. omitted). searches unreasonable seizures The question merely petition- is whether by virtue of federal authority. carried out er, if he can demonstrate an injury conse- federally protected “where And quent upon the by violation invaded, it has been the rule have been agents of rights, his is beginning from the that courts will [constitutional] be injury entitled redress his adjust through alert their remedies so as to grant necessary relief.” particular remedial mechanism normally available in the federal courts. 2002, citing, at S.Ct. Hood, alia, inter Bell v. Id. at (citations S.Ct. omit- 773, 777, 90 L.Ed. 939 ted). Responding to the suggestion that a plaintiff; creates a stringent more govern test should grant adjust their the courts are to remedies to of damages in cases, Justice accord relief. Harlan stated: That amendment might fourth arguments These . . . seem to be by plaintiffs, enforced other in other con- adequately point answered texts, through mechanisms other than a the judiciary particular has a responsibili- action, damage passed was over the Bi- ty to assure the vindication of constitu- little vens as of moment. What tional interests such as those embraced significant to the was the Court reme- the Fourth Amendment. plight petitioner dial the case Harlan, it. before As stated Justice Id. at 91 S.Ct. at 2010 (concurring concurring: opinion) (footnote omitted). apparent is that some form of dam- [I]t The en banc majority’s apparent conclu- ages only possible remedy is the for some- sion that action is of alleged position. one Bivens’ . non-constitutional dimensions seems to be [Assuming Bivens’ innocence of tied to its assumption10 that a cause of charged, “exclusionary crime rule” is action not “part parcel of the underly- simply people irrelevant. For in Bivens’ ing constitutional right” is merely federal shoes, it is nothing. common law of less than constitutional di- 409-10, Id. at 2011-12. On the mensions. But to state that the may provide need to remedy, an effective accord some deference to a congressional unequivocal: Court was choice “equally effective in the . well settled that where [I]t view Congress” to admit legal rights invaded, have been and a possibility of substitutes for the damage provides federal statute for a general remedy, say not to that Congress may any invasion, elimi- sue for such nate all courts use means of available vindication of a federal good wrong make done. constitutional right.11 Had Congress cho- assumption speculative 10. This opinion today is on express the basis stand the Court’s to Harlan, J., any concurring: particular of Bivens itself. question. See view on that Id. at 407 n. 91 S.Ct. at 2010. express sug- no view on the Government’s gestion congressional authority that to Dellinger sim- suggests 11. pas- Professor that the ply remedy today discard sage the the finding “explicit congression- au- in Bivens no doubt; might rejecting thorizes be in nor do I under- al declaration” and “formulation of question availability the as whether the able to vindicate fifth rights. to mon- remedy alternative provide to a sen shoes,” “in Davis’ this is damages sensitivity to those Where the that moved Justice ey according in that correct would be people court Harlan to observe “For in Bivens’ deference, though even in those cir- shoes, choice damages nothing”? it or is cumstances, at The majority at 2012. of whether a ultimate determination the essentially ignores predi- constitutional [t]he appropriately effectu- scheme remedial decision, e., Bivens i. cate for the that there is, the the mandate of ates the remedy, inquiry a and reformulates be course, as by an be made the Court to a stringent in a far fashion: more cause judicial constitutional re- exercise of implied damages action for will be if view.12 damages, are in some specifically, absolute by the the statement Su- Perhaps clearest the necessary sense to effectuate constitu- subject is found preme Court itself on proceeds The then tional mandate. court to Arizona, in Miranda unnecessary damage remedy find a while (1966): 16 L.Ed.2d simultaneously acknowledging consti- to Congress and the States are free devel- deprivations tutional of the sort suffered safeguards privilege, their own for the op inactionable,” Ms. “would remain Davis fully long they as are as effective as so “may Ms. Davis be left without a rem- informing above in ac- those described edy employment” for sex discrimination silence persons of their cused create Congress unless chooses to one. Ma- opportunity affording a continuous jority opinion, supra, at 800. however, event, it. In exercise short, majority opinion In errs be- presented are of constitutional di- issues wrong question. If cause answers must be determined mensions and Congress alternative reme- provided had an . . . Where secured courts. remedy in dam- dy explicitly excluded involved, are by the Constitution there inquiry would indeed ages, appropriate legislation making can be rule as remedy such is be whether abrogate which would them. nevertheless, necessary, effectuate 490-91, at 1636. Id. guarantee, and therefore con- constitutional en total- opinion The banc where, here, stitutionally required. But inquiry com- ly fails address core remedy no alternative has been made avail- Apart passing Bivens. manded able, is irrelevant. inquiry simply plight not of Ms. applicable reference leaving any remedy, the Ms. Davis without plaintiff might Davis that still seek “[a] me majority’s approach seems to an utter employer where re- equitable relief negation spirit. both letter and office,” supra, majority opinion, mained majority’s analyt- A result of the further en banc court nowhere con- approach that its never comes opinion whether some must be avail- ic siders sary money necessary to enforce relief.” 403 U.S. at 91 S.Ct. at Amendment,” quoting Bell v. Hood. U.S. at Fourth 2005, might be read supra nothing Dellinger, n. I find 11. 12. “affirmatively ... to describe the con- article, Monaghan’s provocative cited Professor defer under which the Court should ditions majority, with this conclu- inconsistent judgment though a even reme- Monaghan, Constitutional sion. “Foreward: substantively dy Law,” (1975): bound to constitu- “I 89 Harv.L.Rev. Common provisions.” recognition explicit tional think that Bivens is Dellinger, Rights “Of and Remedies: Con- guarantee embraces Sword,” by any as a 85 Harv.L.Rev. stitution . is enforceable of action . . Thus, appropriate including n. 89 where these condi- . . .” Cox, Congress generally have met —where Role tions not been Id. at 24 n. 125. See “The Determinations,” remedy— provided an effective alternative in Constitutional Burt, congres- (1971); is no for deference L.Rev. 247-261 there occasion Cincinnati Morganatic judgment. Mar- The courts must Title II: A sional therefore “Miranda riage,” Sup.Ct.Rev. “adjust grant their remedies so neces- of a appropriateness with the rem- state court or state adjudications law to terms opposed to alternative edy in federal immunities in the context of consti- the court might which devices claims; remedial is, tutional that reasoning any- if majority’s The unelaborat- available. make thing, powerful even more with respect to relief” “equitable is oblivi- suggestion ed the issues presented here. values, critically ous to those The majority’s abiding fear seems to be case, underlying in this implicated danger “the deluging federal courts with debate clause and doctrine of speech or claims otherwise redressable state courts powers. spoken has separation proceedings”14 administrative the nature to its views on specifically penumbra “projecting] of federal court relationship Congressmen between working process jurisdiction constitutional due over personal by classifying and their staffs em- every legally cognizable injury tortious in- Ms. Davis removable ployees like “at flicted by persons acting under color of without time . with or cause.” . law . .” congres- “extending] accorded The jurisdiction speech pro- sional staffers or debate clause to cover all state action circumstances, certain recogniz- tections in tort . claims . . regard without ing that staffers act as diversity of citizenship, amount contro- in the egos performance alter of certain versy statutory present or other limitation.” States, legislative tasks. Gravel United Majority opinion, supra, at 799-800. The L.Ed.2d 583 majority refuses “to take even a first Passman, Davis v. See F.2d at step the slippery down slope,” “[g]iven (panel opinion). Apparently 877-81 these consequences inability and our to con- majority feels these values can be better plausible struct a of acceptable measure effectuated, consistent with the require- limits on the of action Davis would amendment, the fifth ments of not by ac- have us imply wrong alleged injunctive tions for orders . .” likeA conten- Id. at 801. Congressmen requiring employ particular tion was raised in Bivens. Justice Harlan individuals. This is not the for occasion had this response: definitive statement on the circumstances question appears how to be Fourth [T]he might justify implication private of a Amendment on a interests rank scale of equitable action for vindicate fifth with, social compared values for example, rights.13 But on the facts of the interest of stockholders defrauded us, the case before I would have thought proxies. misleading J. I. Case See Co. v. “special that such counselling factors hesi- Borak, resources, supra. Judicial I am tation in absence of affirmative action aware, well are increasingly scarce these Congress,” 403 U.S. at Nonetheless, days. we when germane are automati- more to the implication of equitable cally close the solely relief than courthouse door impli- on basis, cation of damages. implicitly we express value judgment the comparative importance on Similarly, it would seem to me that legally protected classes of interests. special problems of congressional immunity And current limitations effec- speech under the or debate clause and the tive functioning of the arising courts separation doctrine of powers render this from budgetary inadequacies should uniquely appropriate adjudication case permitted to stand in way federal courts federal cause of action. Much of opinion recognition the Bivens con- otherwise sound constitu- cerns the inadequacies difficulties and principles. tional See, g., e. Brown v. 13. General Services Admin- never indicates how Ms. Davis’ istration, might claim 1965 and be “otherwise redressable in state (1976), supra. L.Ed.2d proceedings.” n. and note 2 courts or administrative 410-11, (concur- pursuant to at 2012 lawlessness federal authori- majority’s own obviously Even on the is opinion). ty; presented ap- the ring claim considerably more confident damages; I am premises, propriate money and other discern, to in a of ability courts the injunctive in remedies such or relief in the attentive to focused manner and careful no longer the nature of mandamus are them, when the case before facts viable alternatives. how its too far and swung has pendulum Lines, Shultz, Inc. States Marine I not believe do may be corrected. course (4th to the facts of majority’s approach the thought the fifth amendment I had not I nor do inquiry; a focused case is such this curtain, separat- lodged an iron behind swung has too far pendulum the believe our it from the rest of constitutional ing or illusory us no have before We here. may open windows protections. That the claim process procedural fabricated sweep and the winds of freedom wide impor- specter of wholesale the which raises rejecting the through is no reason for Davis law actions state tort of traditional tation develop of Are we to a calculus claim. courts, but a discrete claim the into access, granting rights to one constitutional in gender basis of on the discrimination of deprived, one of persons of out out seven equal protection guarantees the violation of thousand, two, in to one of order out Constitution, in a context the federal One wonders what control our docket? adjudication in a appropriate to particularly happened had such constitution- would have the precisely This is sort forum. history. pervaded Hope- our parsimony al judicial determination and mete for case door, fully the courthouse too often closed the of traditional susceptible application years, open will swing again, in recent soon judicial standards. liberty ring forth once more from shall of the twin majority’s The invocation justice. halls the judicial contemporary the horsemen of the floodgate slippery the apocalypse, spirit act the its refusal to slope, and IV. answers “until Bivens discussion is de- majority’s Much of the majority open question,” opinion, supra, Ash, analysis the Cort v. voted to an example seem to me not an (1975) 45 L.Ed.2d judicial but of abdication.

judicial restraint governing implication of causes of factors approach taken prefer I al- federal statutes. have action from majority quotation of in its one analysis this seems ready why indicated juris- of our constitutional the fundaments given the consti- point beside the somewhat prudence: some tutional mandate that liberty certainly essence of civil very The rights. available to vindicate every individual to consists in adopted ap- the court Given laws, protection of the whenev- claim the however, it on proach, is incumbent me injury, he receives an er application majority’s respond 2005, quoting 403 U.S. at Cort criteria. Madison, (5 U.S.) Marbury v. Cranch majority initially I note makes (1803), the Fourth 2 L.Ed. 60 analysis to attempt no in its Cort assess Bivens to fifth amend- extending Circuit that Ms. Davis relevance of fact ment due claims: granted by seeking vindicate ju- necessity appropriateness of itself, beyond and thus compelling less in this dicial eliminate, rather ability than As in Bi- case than it was Bivens. Congress giv- right of the sort statutory tort : common law state reme- vens A recognizing away. take While eth and may not afford means of dy may or case, analysis “cannot be statutory that the Cort wrong, redressing this precisely specifically applied cases will not be tailored Constitution] [to pro way,” is content Bivens and more recent statutory cases: same “is prior the basis of a statement plaintiff on ‘one of the ceed class for whose that the (in statutory case) Cort a especial enacted,’ this court benefit the statute was worthy of con is, . “factors does the statute create a [are] .relevant supra, at Majority opinion, sideration.” right federal in favor plaintiff?” 422 Co., 561 Oil F.2d quoting Olsen Shell at 95 at citing Rigsby, U.S. S.Ct. 1178, 1188(5th supra, at 241 U.S. 36 482. As the S.Ct. Supreme explained, Court “in those situa- By better. possible it is to do I think tions in which we a have inferred federal with- the constitutional context recognizing private cause of expressly pro- action not Cort v. Ash applied, it is here in which vided, generally there has a clearly been produc- to analysis may be turned style federal right plaintiff,” articulated com- sphere of constitutional tive use Bivens, “or a citing pervasive legislative Properly applied, the Cort fac- law. mon governing scheme the relationship between may choice of serve to illuminate the tors plaintiff class and the defendant class to remedial mechanism vin- appropriate regard.” in particular a at U.S. rights. Cort thus dicate (citation omitted). S.Ct. at 2090 determination, not of whether to guides any remedy, but of which it imply banc opinion The en in the instant case recognize. I believe that appropriate is to appears acknowledge to that “the fifth contextually application of such a sensitive amendment to process certainly supports panel criteria decision the Cort right upon Majority confers a Davis.” case, perspective and it is with this in this opinion, supra, at 797. There can be no majority’s analysis.15 turn to the that I Cort suggestion the fifth pro- amendment’s Davis tection of is “at subsidiary best a Ash, portion In the relevant Cort purpose” of the constitutional guarantee. corporate concerns whether a stock- Cort, id., Cf. U.S. at at 2089. secure derivative holder first, With to this respect I pre- and think corporate directors under 18 from U.S.C. dominant, factor, that is all that Cort re- corporate for violations the federal § quires. required by Nor more Bivens. laws, campaign election Court That was explicit decision in the role of the imply private to a declined cause action fourth amendment: for because guarantees It to citizens of the United a cause implication such federal States absolute to be free from suggested by legislative is not unreasonable searches seizures required accomplish context of 610 or out carried virtue of authority. purposes enacting Congress’ the stat- ute. at S.Ct. at 2002. 422 U.S. S.Ct. at 2084. I understand why protec- cannot the equal analysis four factors its guide articulated tion component fifth amendment due reaching this first conclusion. The factor does equally guarantee clause cases, central to all implication States, has been all citizens of the United including Davis, statutory first implication from the decision Ms. the absolute right free formulated, it originally job in which was Tex- from unconstitutional discrimination on R. Co. v. Rigsby, as & Pacific 36 the of sex basis carried out by virtue of 482, (1916), through L.Ed. 874 authority.16 recognize majority’s analysis pro- quite thoroughly 15. unshakeable but irrelevant perspective. from a ceeds different Were the case. enactment, simply statutory fifth frankly beyond my there can be no doubt that a It is ken to understand first, deny private right majority’s imputation determination to of action the source of the degree required for would be decisive under Cort. hurdle of an additional some conclusion, second, specificity, equal protection That embodies the to the extent or how the majority’s analytic approach, component seems me of the fifth amendment is in this factor, The en banc does not —and can- second to Cort’s respect It is implicit, ei- intent, explicit provided not —state that such “legislative deny remedy or to such create Instead, ther to remedy. an alternative court 2088, that one”, position its support tries to draw at its majority is with the disagreement my remedial “Congressional legis- the fact that statutory Cort, other sharpest. employment discrimination has lation for cases, underlying premise implication creating a cause of action carefully avoided deny create or explicitly Congress may money damages posi- for one Davis’ Congress gives, it remedy; what private Majority opinion, supra, at 798. tion.” underlying is no away. There may take Here the confusion constitutional between In constitutionally inviolate. which is statutory implication is most evident. therefore, case, implication statutory mandate for some Given congressional intent is whether question factor,- remedy, effective the second Cort deny remedy is best effectuated create or legislative deny any remedy, intent a cause of action. judicial implication of majority the en banc case. Correspondingly, simply Delling- irrelevant to this See that “recognizing] Bivens as to read er, seems supra n. at 1548-49. create a intent congressional Much the criticism can be same levelled determining whether a court in guide must against majority’s application the en banc provisions of the remedy from imply a criterion, consistency of third Cort with added). Majori- (Emphasis Constitution.” underlying purposes legislative at 798. find no supra, opinion, ty majority correctly scheme. The notes that this Bivens and believe recognition such Congress, providing statutory relief from deny applied by the reading, as employment discrimination under Title VII mechanism, is sim- remedial any Davis Ms. employees private in the sector and in pointed As with Bivens. irreconcilable ply dissent, service, the Bivens spheres government of III of other see out Section congres- the relevance addresses 797-798, majority opinion, supra, at has after it has determined only sional action carefully furnishing-relief any avoided is constitution- of redress some means that many employees. By sort of its own mandated; Congress the voice ally judicial providing an mech- administrative — relevant, all, guiding the court only at if rights of covered ensuring anism as to whether in its determination employees, Title VII well constitute There is remedy. appropriate an provide explicit “an that congressional declaration” Congress can in Bivens that suggestion no employees covered “must be remitted to remedy which every the existence negate remedy, equally another effective right, only a constitutional might vindicate Indeed, Congress.” view of might accord the Court indication that employees Court has held that for federal “explicit to an some deference complex systematic re- covered a feder- injured by persons that declaration VII, that medial scheme of Title statute a constitutional violation” of officer’s al judicial remedy. provides the exclusive money damages recover “may not Administration, Brown v. General Services instead be remit- agents, but must from the 1961, 48 L.Ed.2d 402 equally effective in remedy, to another ted be said about (1976).17 Nothing similar can at Congress.” the view position of congressional employees in the 2005. at S.Ct. relief,” backpay compensatory specific respect amend- “that or other than the fourth less noted, 1965; merely supra, id. at 96 S.Ct. at majority opinion, at 797-798. ment. See Congress legislative history, de- based on reasonably sired to be available Brown, reach the con- the Court did not 17. perceived remedies then an absence of effective whether, applica- absent stitutional issue 1972) (in two cases cited existence. The statutory bility Title VII or an alternative substantiating the reasonableness the Court remedy, employees would be without federal Congress’ perception, v. United Gnotta discriminatory treatment means to redress nei- Congress I note has done Davis, statutorily excluded who are Ms. circumstances, problem ther.18 In these Title VII. coverage of mechanism for precisely remedial to that provided confronting analogous us is are in no sense employees court, response Such them. before the Bivens and the statutory system protec- up in the same, bound to make available “a should be the Congress, and I cannot created tions normally particular remedial mechanism according Davis a vehicle to how perceive courts,” available in the rights would de- her constitutional enforce at 91 S.Ct. at recalling U.S. oper- with the from or be inconsistent tract within statutory scheme ation federally protected have where I am also hard application. of its sphere invaded, it has been the rule from been majority’s en banc to understand put beginning courts will be alert cause that a constitutional suggestion adjust grant remedies so as to their generously with would “deal more necessary relief. opinion, position,” majority in Davis’ those 2002, quoting 798-799, than covered supra, Hood, Bell v. 327 U.S. at employees are dealt under Title “particular responsibility For ours is the to It is true that if accorded a Bivens VII. assure the vindication of in- action, Representative sue Davis could .” terests . . . U.S. at in his individual ca- Passman for J., (Harlan, at 2010 concurring). plaintiff while a Title VII could not. pacity, VII, Title to whom it applies, But for those by majority’s I am unpersuaded also the sovereign immunity the bar of to lowers while fourth suggestion that award, pay together a back with permit in a setting violations “occur well-defined relief, equitable directly against possible courts,” familiar to the remedies also pos- United It affords the States. process for due general, violations in and sibility relatively inexpensive quick of equal protection claims particular, are level. This administrative somehow “judicially not manageable.” See possi- to me no less favorable than a seems majority opinion, supra, at 798-799. As the recovery against congressman. a former ble Bivens, observed “[historically, unnecessary speculate It here on damages regarded have been as the ordi- VII to currently whether extension of Title nary remedy for an personal invasion of congressional employees non-covered liberty.” interests in 403 U.S. at appropriate pro- the most mechanism for (citations omitted). S.Ct. at 2004 I have tection of constitutional or whether a little experience doubt that the judges carefully more tailored remedial mechanism dealing employment discrimination congressional the particularities “supports em- claims the conclusion that courts of law are preferable; capable making would be relationships types ployment States, (8th 1969), suggested 415 F.2d 1271 cert. us de has that we undertake to fashion nied, remedy precisely analogous provided L.Ed.2d 115 a to that Moon, (1970), VII, (5th by and Blaze v. remedy F.2d 1348 Title if indeed such a is within 1971), denying availability judicial power. may, both of dam our should, While this court ages, prior were decided policies consider Obviously, choosing appropriate Court’s seminal decision in remedy, Bivens. we should nothing Congress adopting in Brown judicial determines not refrain from such reme- may negate the existence of a meaningful cause of dies as are available and to the plaintiff merely pro Congress adopted to vindicate a constitutional without because viding equally constitutionally an alternative and effective rem sufficient but different reme- edy. Passman, See Davis v. employees. F.2d at 874-76 dial scheme for other It is no an- (panel opinion). Congress provide only did judicial an ac remedy swer that available ceptable employees alternative for those might cover remedy be more favorable than the fash- provided nothing ed Title VII. It for Ms. by Congress only ioned if the alternative position. Davis or those in her more favorable is no at all. properly 18. The choice before this court is one party between alternative remedies. No before relegated law, traditionally to state in an concerning magni causation and

judgment States, basically area concern of the so meaning necessary to accord injury tude of inappropriate it would be to infer a equal pro for invasion” compensation ful solely based on federal law.” cause of action here. Cf. the sort asserted rights of tection at 2088. The en at 2011 majority’s apparent banc conclusion that concurring). en court’s (Harlan, The banc J. apt characterization of a claim this an factor, to extent it is not analysis of congressional employee working in a con- argument, floodgates to another reducible gressional sex building alleging office dis- argument against me an seems violative the fifth crimination amend- any means equal vindication validity of ment to the United States Constitution against protection rights, simply member of seems to me a novel appropriate as an remedi choice of operation view of the of “Our Federalism.” respect With to this factor al mechanism. majority, avoiding intent on the hor- one,18a well the en banc preceding as the rors, imagined, proce- real or of a flood of application of the Cort majority’s mechanical carrying along claims tra- dural due as somehow “relevant statutory criteria actions, tort here as elsewhere ditional state fails to consider worthy of consideration” never comes to consider the facts of the implication features the distinctive it.19 case before rights directly from Nor is this case in attempt sense to that com contrary comes to a result possible statutory end-run limitations of by Bivens. manded Ap- unlike the two Court of peals cases cited en banc in the court’s true regrettably This is also Bivens actions from the final Cort declining imply fourth and application of clauses. See majority opinion, one process action is due “the cause of factor, whether finds, absolutely apparently of sex. Amici “see no harm majority sis also in Bi- 18a. The process legislative Congress particular the if responsiveness difficul- Members of to “the vens’ required guarantees to conform presented enforcing are to constitutional stan- in the ties amendment,” dealing employees.” particular, dards when with in the “hos- their the fourth tility p. at 3. Amicus Brief See to the re- also 5 U.S.C. 7151. § of law enforcement officials amendment,” majority of the fourth straints opinion Davis, quotes 19. The en banc Paul v. 798-799, supra, something at akin to 693, 1155, 47 L.Ed.2d 405 major- factor. The inference the this third Cort (1976), range to the effect that “the of interests ity discovery, apparently that draws from by procedural protected is not infi- due necessary uniquely in the Bivens action the 709, 1164, quoting at nite.” Id. at S.Ct. context, is one I am unable fourth amendment 564, 570, Roth, Regents v. Board of in For what seems to me decisive follow. 2705, Paul, 2701, (1972). 33 L.Ed.2d 548 S.Ct. fact that whatever remedies were Bivens is the course, rejected proposition repu- “the that others whose fourth amendment available to alone, tangible apart from some more tation violated, rights remedies were had been such ‘liberty’ employment, such as is either interests himself; thus, meaningless the exist- to Bivens ‘property’ the itself sufficient to invoke or procedural other remedies was irrelevant to ence of those protection the Due Process the Court in its decision to create a cause of 424 U.S. at at 1161 Clause.” rights plaintiff the action to vindicate added). engaging (emphasis Without Accordingly, case before it. there is no the implica- polemical discussion the wider about speculate comparative hostility on the need to Paul, first, note Ms. Davis’ tions of we that of law enforcement officials to the restraints of employment; damages a include loss of Congressmen fourth amendment and of second, equal her claim on that is bottomed being possibility answerable process; procedural protection not on employees’ equal protec- their for violation of third, fifth Davis’ Ms. that vindication of rights. tion way inconsistent is in no amendment claim respect, noting In this it is worth that an Paul that observation in with the Court’s amicus brief was submitted in this case basic alter the amendment “did not fourteenth signatories Employment House Fair the national between States relation Agreement, including Practices both Members at at government.” Id. Congress employees. States, quoting v. United Screws Agreement provides, alia, That inter that the 108-09, 89 L.Ed. signatories against will not discriminate an em- ployee applicant employment on the ba- Hogg, injunctive under limited circumstances and Kostka 4. In supra, at n. there has been a sufficient First Circuit refused relief whenever 1977), the (1st Cir. adequately threat of harm —does not prior action for vicarious imply guarantees, the constitutional at implement municipality under liability against in which there has been no least in cases in the teeth of Su- fourteenth municipal wrongdoing.” involvement foreclosing municipal decisions preme Id. at 44. distinguishing liability § the Kostka court noted Bivens the result Kostka is in no sense inconsistent have it “here before plaintiffs that re- urged the result this dissent and is which is of action to them available markably analysis ap- similar in its to the standards: constitutional measured here. The Kostka court proach advocated attempt Id. at 1983,” and resisted § Court’s direction to observed liability municipal aon impose vicarious remedies,” id. “carefully existing assess the id. defendant”, given pocket “deep precise remedy on the and to “focus Congression- explicit to an “something akin Id. at 44. wish us to create.” plaintiffs political that subdivisions al determination Congress The First Circuit found that had damages” when liable in held are not to be statutory remedy created in 1983 a “de- violate individuals’ employees “municipal constitutional signed implement id. at 43. The court rights.” against constitutional those individuals direct- guarantee” statutory “the existence of suggested alleged ly responsible for violations implement designed to rights20 which is and rested Kostka’s constitutional may itself render guarantee adequacy decision on of that reme- its .the id. the analysis inappropriate,” provided had dy.21 precise inquiry wrongdoing which the the constitutional here. redress and made Kostka majority, to make here: “We cannot The en banc unlike majority refuses fact; court, respond enacted must to this it has not the remedial scheme say that recoveries done so Congress permitting — immunity plaintiffs prove racially qualified motivated “[i]f 20. The court noted individuals, might deprivations they allege, to those id. at be available of their availability 40; also claims the will defendant here section 1981 afford them the redress in immunity. qualified they absolute or The Kostka federal court which seek” and affirmed immunity recognized properly is an- court alytically court’s the district dismissal of fourteenth implication of a con- distinct from amendment claims the basis of on Bivens’ ad- teaching cause of action and should be stitutional “that the existence of an effective and respect underlying poli- to its own statutory remedy dressed substantial federal for the bar, imply In the case at to the extent plaintiffs cies. immunity obviates a constitu- the need is relevant to the choice of an plaintiffs’ issue behalf.” Id. at tional on the mechanism, underly- appropriate (citations omitted). Garth, remedial Judge dis- 1024-25 ing policies weigh in favor of the part, senting part concurring argued in in text, supra, sought here. See at 812. amendment cause of action that no fourteenth against city. Judge be asserted could ever determination that 21. The Kostka court’s reasoning part logic was based on Garth’s explicitly adequate was was § courts, part akin to the Kostka on to “cases in which there has been no limited municipal observation wrongdoing.” id. involvement in the that the framers of the Fourteenth Amend 44. “Were we faced with a case in which upon Congress ment intended to confer —not municipality had the violation, ordered the constitutional primary responsibility the courts-—the for de application of the constitutional veloping appropriate measures to enforce the be different.” Id. at 45. Here there test could Amendment. Section five of the Fourteenth done, wrongdoing if can be no doubt that provides ‘Congress shall Amendment responsible do- the defendant Passman was enforce, by power appropriate legis have lation, ing it. provisions of this article.’ None of eight Waddle, (3rd the first Amendments contains a simi F.2d 1018 22. In Mahone provision. Compare 1977), Appeals lar Bivens case the second Court of Cir. (implied majority, cause of action under Fourth the en banc the Third Circuit cited LaPrade, Amendment); Paton v. 524 F.2d to that ad- faced a claim somewhat similar 1975) (First Amendment); (3rd Unit- found Cir. vanced in Kostka. The Third Circuit V. implied directly from the due process clause of the fifth amendment. But expresses a fear court also The en banc I would be less than candid in suggesting damage action necessar- “implying this philosophical that broader and jurispruden judicial draw into ily would tial concerns are implicated not also range of cases whose resolu- a wide system decision of this case. Other courts have not committed to the Congress has tion spoken of “Bivens’ sweeping approbation of meaningless judiciary” and “render constitutionally-based causes of action.” vests Con- power Constitution Milton, Brault v. Town of 527 F.2d III, 1 of the Article Section gress under (2nd Cir.), rev’d en banc on grounds, other jurisdictional to establish the see also Gar (2nd 1975); 527 F.2d 736 Cir. the inferior courts it has created.” ambits of Murphy, dels v. (N.D.Ill. F.Supp. majority opinion, supra, See 801. some, may To be an abhor again, Once the mechanism of this transfor- jurisprudence, rent aberrance our but to mation is more clear to the majority than it itsme benevolent embrace of constitutional me; is to I would have thought the wording judicial rights is a treasure in our trove. history of 28 1331(a), U.S.C. § commit- syllable would not desecrate one of that ting to the federal jurisdiction courts of ac- opinion by deviating high from its purpose. Constitution, “under arising tions laws, interpretation While constitutional may or treaties of the United States” exemplify subject flow, be to ebb and I have never a rather unambivalent exercise by Congress understood the task of the federal judiciary of its Article III powers.23 damming to be the damning —or —of VI. spring from that noble document. hope illustrates, the foregoing As I would engineers, Courts are not floodgating con- need not abandon or demean technical one rights. stitutional The Court has legal analysis uphold of action spoken, definitively, on the existence of an Koelzer, Hogg, (1st ed States ex rel Moore v. also Kostka v. 560 F.2d 37 (3rd 1972).(Fifth Amendment). 1977): Perhaps say, Id. at 1059. nothing needless to we find question subject jurisdiction is, matter Judge Garth’s observation or in the course, plain- distinct from that whether opinion the Mahone inconsistent in this dissent tiffs have stated a claim which relief analysis proposed with for core granted. long So as a claim for Ms. Davis’ fifth amendment claim. frivolous, federal relief is not the action majority, referring The en banc while at one purposes arises under federal law for point jurisdictional to its on the “affirmance jurisdiction 1331 and the federal court has majority opinion, supra, ground,” plicitly ex- adjudicate the claim that a federal states elsewhere its affirmance is recovery exists. Since no . decision ground “that on the the law affords Da- based inferring remedy forecloses us from under private right vis no of action.” Id. at 795. the Fourteenth Amendment and since Bivens finding I read the court’s decision as in fact proper gives plaintiff’s claim at least surface jurisdiction over this case under 28 plausibility, jurisdiction we have 1331(a) proceeding to a decision U.S.C. on § 1331. merits, 12(b)(6), under Fed.R.Civ.P. (citations omitted); Id. at 41 n. 5 Mahone v. process the due clause of the fifth amendment Waddle, (3rd implied support does not damages. cause of action Thus, today the court’s decision does not Accordingly, jurisdiction will no jurisdiction remove from the district courts to longer lie in the courts of this circuit to enter- style brought entertain claims Bivens— “arising fifth tain actions under” the provisions constitutional process other than the process amendment’s due clause. It is case, long clauses. In each so as the Muller, sense that Weir v. 527 F.2d 872 this federal claim is not frivolous or barred 1976), (5th is overruled. I not do under- Court, Supreme decision of this Circuit or the today denying the court’s action stand analytic jurisdiction particularized inquiry, will lie for soundness of Weir’s statement jurisdictional entirely sepa- of the sort accorded the due clause in “The is issue here case, [question] complaint as to from the whether cause of action has rate whether the granted,” a claim on states which relief can be been stated. 873, citing id. at Bell v. Hood and Bivens. See flowing directly from the fifth amendment stands an inferior

action for judicially While position amendment. to the fourth. The fifth the fourth amend- may be rights ment self-executing constitutionally prime constitutional and in consti- history, or nothing logic, I find tutional mathematics shares a exiguous, common de- building of a that directs nominator with the fourth: precedent obligation the fourth amendment floodgate between of the federal judiciary “to assure the vindi- examining the On constitu- the fifth. cation of constitutional interests.” Bi- If I, majority, like the find a blueprints tional jurisprudential vens be a thorn sport, let amendment; I in the fifth embodied right Supreme pluck it out. Those of majority, would allow that unlike judicial us who sit in a lower caste need not vindication is to be If be vindicated. attempt this extirpation. denied, Bivens landmark washed and the I have given myself charge. the Allen downpour, a new constitutional I away in me, Distasteful as is to I cannot find it that the cloudburst come not prefer possible yield my pre- conscience to the us, from the Court on but ponderant majority, respectful as I am of Noah, forty days who waited high. Like intellect, my brothers’ their integrity, their nights, I have faith that the rain- forty loyalty dedication and their to constitution- finally emerge.24 will bow privileges. al In I their sorrow mourn er- may provide a Congress in its wisdom ror. enforcement of a constitu- mechanism for mechanism, if effec- right,

tional

tive, judicial to some measure of is entitled congressional disinclination

deference. But of enforcement does provide a means constitutional

not-—cannot—mean Statutory actions obliterated. rights, constitutional

give breath cannot suffocate inaction PLOCHER, Jerry Plaintiff, R. hand, Congress the case them. therefore, remedy; the words provided no SERVICES, INC., & H et S guiding must be our the Constitution al., Defendants. must be misdirected fear star. We celestial darkness losing way our some SERVICES, INC., S & H Defendant expanse limitless of constitutional Third-Party Plaintiff-Appellant, legal legal astrology science but space. Not applicability Bivens’ to the fourth limits amendment, severing cusp between the COMMERCIAL UNION INSURANCE solely and the fifth in accordance

fourth al., Third-Party COMPANY et the motions of our docket. Were Defendants-Appellees. gyroscopes, crowded dockets to .be our No. 76-1571. might routinely strip litigants of courts out of fear that United- Appeals, their States Court of might juridical their Fifth Circuit. path. others follow slippery slope my is the brethren fear that April upon today. embark the Court founded a cause of In Bivens damages directly on the fourth

action for There reason to believe

amendment. my two-by-two I am reinforced in faith the undeniable fact that the ascent into the ark conformity equal protection norms.

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: Apr 18, 1978

Citation: 571 F.2d 793

Docket Number: 75-1691

Court Abbreviation: 5th Cir.