Supreme Court of the United States · 1979 · Constitutional Law
Constitutional LawFifth AmendmentEqual Protection Component of Due ProcessImplied Constitutional RemediesBivens ActionsFifth Amendmentdue processequal protection
Facts
Otto Passman, then a United States Congressman, hired Shirley Davis as a deputy administrative assistant and later terminated her employment. In a letter, he stated that although she was able and hardworking, he had concluded that it was essential that the understudy to his administrative assistant be a man. Davis sued alleging sex discrimination in violation of the Fifth Amendment and sought damages in the form of backpay. Because Passman was no longer a Congressman, equitable relief such as reinstatement was no longer available.
Issue
Whether a person alleging sex discrimination by a federal official in violation of the equal protection component of the Fifth Amendment's Due Process Clause may sue directly under the Constitution and obtain damages. More specifically, the Court considered whether a cause of action and damages remedy could be implied directly under the Fifth Amendment.
Rule
At least absent a textually demonstrable constitutional commitment of the issue to a coordinate political department, justiciable constitutional rights are presumed enforceable through the courts. A plaintiff whose own Fifth Amendment rights have allegedly been violated and who has no effective alternative means of vindicating those rights has a cause of action under the Fifth Amendment, and damages may be awarded in appropriate circumstances where there are no special factors counseling hesitation in the absence of affirmative congressional action and no explicit congressional declaration foreclosing such relief.
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10 practice questions + 4 AI-graded essays on this case
One of 10 multiple-choice questions for this case. Pick an answer to see why.
In Washington, D.C., Naomi Reed worked as a personal scheduler for a federal officeholder employed outside the competitive service. After being told the position needed "a man clients will listen to," she was dismissed and replaced by a male employee. No federal employment statute gives her a remedy, so she files in federal district court under 28 U.S.C. § 1331 seeking backpay directly under the Fifth Amendment.
Which is the strongest argument that Naomi may proceed?
Explanation. The majority held that a plaintiff alleging violation of her own justiciable Fifth Amendment right may invoke federal-question jurisdiction to seek relief directly under the Constitution when she has no effective alternative means of enforcement. It further held damages may be available in appropriate circumstances if no special factors counsel hesitation and Congress has not explicitly foreclosed relief. The Court rejected the idea that an express statutory cause of action is always necessary.