DAVIS v. PASSMAN

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Argument of Sana F. Shtasel

Chief Justice Warren E. Burger: We'll hear arguments first this morning in Davis -- Shirley Davis against Passman.

Ms. Shtasel, you may proceed whenever you're ready.

Mr. Shtasel: Thank you Mr. Chief Justice and may it please the Court.

My name is Sana Shtasel appearing for the petitioner in the case this morning.

The case before you today arises on writ of certiorari from the United States Court of Appeals for the Fifth Circuit.

The basic question is whether a cause of action from money damages may be implied under the Fifth Amendment to redress sex discrimination in federal employment.

If that question is answered in the affirmative, this Court then must determine whether respondent is nonetheless absolutely immune from suit by virtue of the Speech or Debate Clause of the Constitution.

The facts of this case are simple and stark.

Petitioner was employed by respondent then a United States Congressman for a six-month period in 1974.

Despite the fact that petitioner was an able, energetic, and extremely capable secretary as attested to by the respondent in his letter of dismissal, which appears in the appendix in this case at pages 6 and 7, respondent dismissed petitioner solely, explicitly, and expressly because he wanted a man rather than a woman to fill that position.

Justice Harry A. Blackmun: Do you mean as secretary that's the way he described her?

Mr. Shtasel: The title of the petition -- of the position Mr. Justice Blackmun was deputy administrative assistant but it is the functions of the job that are in question here and no one has ever contended that the petitioner did anything other than secretarial functions.

That is exactly how her job was described in the letter terminating her employment which is the only thing we have on the record in this case.

Petitioner therefore brought suit allegedly --

Justice Harry A. Blackmun: Do you think it would make a difference if her task were secretarial exclusively or administrative assistant at least impart?

Mr. Shtasel: It might make a difference Mr. Justice when we get to the question of the operation of the Speech or Debate Clause.

It should not make a difference as to whether the petitioner has a cause of action under the Fifth Amendment.

Whether however, her job functions would be so integral to the congressmen's legislative functions that the employment relationship should nonetheless be covered with absolute immunity is a question which must be addressed there.

Our position however is that there is no way that the Speech or Debate Clause can apply to the -- to a low level non-policymaking clerical employee.

I might say that this case arises on a 12 (b) (6) motion to dismiss so that our contentions here for the -- in the procedural posture of this case must be taken to be the ones applicable.

Justice Byron R. White: What was her salary is that in the review?

Mr. Shtasel: That is in the record Mr. Justice White.

Her salary was $18,000.00 a year.

Justice Byron R. White: That sounds like a little some other than a low level clerical employee, doesn't it?

Mr. Shtasel: It sounds like it Your Honor but one when consults the report of the clerk of the house for that period in time, it's quite clear that some 75 other representatives had secretaries, personal secretaries, executive secretaries, all making that kind of salary and indeed there are other cases where members employed persons called secretaries who made more than the administrative assistant that they also employ.

Justice Byron R. White: When was this, 1970?

Mr. Shtasel: 4.

Justice Byron R. White: 4.

Mr. Shtasel: She was employed from February through July in 1974.

Chief Justice Warren E. Burger: The salary may be fixed by each individual member of the House in Senate without any standards, is that not so?

Mr. Shtasel: That is true Mr. Chief Justice.

Chief Justice Warren E. Burger: In some cases they level it off and divide the work among several people and another cases they have a very high salary of secretary, is that --

Mr. Shtasel: My understanding is that they are allotted a maximum of 18 slots which can be filled at their discretion and with salaries at their discretion.

Chief Justice Warren E. Burger: Well, they're not allotted 18 positions and X thousands of dollars and they may spread the salaries as they wish, is that not?

Mr. Shtasel: That is correct.

Petitioner, following her termination, brought suit a legend that she had been a victim of sex discrimination in violation of the Fifth Amendment premising jurisdiction upon 28 U.S.C. Section 1331 (a).

The District Court dismissed this case holding that plaintiff had no private cause of action.

A panel of the Fifth Circuit of Appeals reversed on that issue and then proceeded to canvass all the related constitutional issues.

It held as had the District Court that no immunity doctrine would bar the suit.

Rehearing en banc was held to assess whether the doctrines of legislative immunity and political question which I might add had been raised for the first time by the panel were applicable to this case.

The en banc court however did not decide that question, rather it decided an issue that had not been briefed before the panel had been conceded by respondent at the panel and had neither been raised by the respondent on rehearing nor briefed by him in that proceeding.

The Court held that an implied cause of action does not arise under the Fifth Amendment to the United States Constitution, and accordingly that petitioner should have no remedy whatever to vindicate her fundamental constitutional rights.

The validity of that decision is the first question for this Court's determination today.

For the reason stated in our briefs to this Court, this case is controlled by Bivens against Six Unknown named agents of the Federal Bureau of Narcotics.

In Bivens, this Court held first that the petitioner had a private cause of action for damages arising directly under the Fourth Amendment.

Second, that the federal right was independent from any state right that might be implicated, and third that money damages were remedial mechanism normally available in the federal courts.

In the seven-and-half years since Bivens was decided, nine courts of appeals and countless district courts have applied Bivens to constitutional amendments other than the Fourth and to federal officials other than narcotics agents.

Justice Harry A. Blackmun: Counsel, some of us were in dissent in Bivens and do you think that blocks us in and makes us necessarily unsympathetic to your posture here?

Mr. Shtasel: Mr. Justice Blackmun, I'd be delighted if the dissents Bivens were persuaded by the cause of action should be applied under the facts of this case.

I think that the rational of the Bivens' majority and the rational of the courts that have applied Bivens in the succeeding years is sufficient to suggest that we can apply a cause of action under Bivens here.

Indeed as well, there are other factors in this case which make it perhaps a stronger case than Bivens for the implication of a cause of action from money damages under the Constitution.

Justice Harry A. Blackmun: You know, we do try to be individually consistent and what I'm asking is, is there any escape for those of us who were in dissent in Bivens?

Mr. Shtasel: I would suggest one Mr. Justice Blackmun.

One of the concerns was that Congress had not expressly spoken on the question in the Fourth Amendment case.

In this case, Congress has a formatively declared in 5 U.S.C. 7151 that employees of members of Congress are not to be discriminated against.

Accordingly to the extent that this Court needs to look or wants to look the congressional declaration in the area is a path.

As a second possibility, Mr. Justice, there were some concern in by the Bivens' dissenters that the federal courts would be subjected to an avalanche of cases.

Indeed, there have been almost eight years of federal litigation in this area and known for it other than the en banc for prolong has suggested that there's a problem of judicial and manageability in this area.

Justice Harry A. Blackmun: Yes, but you just made reference to a number of cases in this area whether the courts had gone in your favor.

So, there is some litigation.

Mr. Shtasel: There's extensive litigation in the area.

Justice William H. Rehnquist: Doesn't some of your answer to Mr. Justice Blackmun cut the other way in the sense that although the statute is on the books the general kind of hortatory statute, Congress is quite carefully considered whether it wanted to make its members subject to say Title VI, the way the Executive Branch members are or whether it wanted to subject its members to any particular strictures in their hiring and firing and they simply have not done it.

They've considered it and rejected it.

Mr. Shtasel: Our argument Mr. Chief Justice -- Mr. Justice Rehnquist, pardon me, is that Congress cannot mandate no remedy for violations of constitutional rights and indeed in this case it is never suggested that there should be no juridical remedy for this kind of violation.

Indeed, it has not brought congressional employees under the ambit of Title VII and it could certainly enact legislation which would so provide and indeed even protect its own members from the possibility of personal liability which has been done in other context.

Justice William H. Rehnquist: Well, that proposition may be entirely some but it doesn't seem to me that it's really makes your case a stronger one than Bivens as you suggested to Mr. Justice Blackmun.

Mr. Shtasel: In Bivens, there was no congressional policy stated in the area.

In this one, in this case, at most we have a congressional hortatory statute which declares what the policy of the United States is to be.

Moving along, I would suggest that the court below does stand alone in the face of this authority and in doing so in refusing to imply a constitutional cause of action the en banc court did erroneously look to the criteria enumerated in Cort against Ash for implication of remedies from federal statutes.

The respondent reaches the same result by different root.

He uses the proviso of Bivens that special factors might counsel hesitation in the absence of affirmative action by Congress and argues that some seven special factors counsel hesitation here.

Each of the Court criteria and each of the special factors relied upon by the respondent are dressed in our brief.

None of them either alone or in combination justifies dismissal of petitioner's complaint in this case.

We would suggest that the respondent is correct to the extent that he acknowledges that it is Bivens that controls this case.

As I just mentioned in response to Mr. Justice Rehnquist, we think the court below erred in relying on Cort against Ash because those criteria are irrelevant when a constitutional right rather than a right created by a federal statute is an issue.

For the reasons, we have outlined however at pages 26 to 36 of our opening brief application of the court criteria would require recognition of a private cause of action nonetheless on the facts of this case.

Justice Byron R. White: Your reliance is on the equal protection component of the Fifth Amendment?

Mr. Shtasel: That's correct, Mr. Justice White.

Justice Byron R. White: Exclusively?

Mr. Shtasel: Yes, sir.

Justice Byron R. White: Is it your view that the Equal Protection Clause even of the Fourteenth Amendment confers personal rights?

Doesn't it just have to do with classifications?

Mr. Shtasel: I don't think that the analysis would be different under the Fourth Amendment as under the Fifth Amendment in the implication --

Justice Byron R. White: Well, there are really provisions of the Constitution.

The First, Fourth and the Sixth Amendments among others that specifically and explicitly confer personal protections freedoms and sometimes rights, free press, free speech, free exercise or religion; the Equal Protection Clause of the Fourteenth Amendment however just has to do with classifications, doesn't it?

Mr. Shtasel: That is true Mr. Justice White but many classifications or at least several have been deemed to this Court to rise to the level of being constitutionally safeguarded and thus subject to the equal protections scrutiny.

Justice Potter Stewart: Invidiously discriminatory classifications but they -- there's nothing in Equal Protection Clause that confers personal rights by contrast to those provisions of the Constitution, examples to which I gave you.

Mr. Shtasel: What the courts have held however and indeed this is the constitutional jurisprudence which has come down from Marbury against Madison is that when constitutional rights are invaded as opposed to other kinds of rights to federal courts --

Justice Potter Stewart: Well, whose constitutional rights -- the Equal Protection Clause just requires a state in the Fourteenth Amendment or insofar as it's component of the Fifth Amendment requires the federal government to grant everybody equal protection of the laws.

It doesn't confront individual's personal rights, does it?

Mr. Shtasel: I believe the very purpose of the Bill of Rights --

Justice Potter Stewart: We have a personal right of the exercise of free speech against governmental interference or the one has a personal right if brought to trial in a criminal court to the assistance of counsel and so on.

Everybody has that each individual has a personal right but what is there in the Equal Protection Clause that confers any such comparable personal rights?

Mr. Shtasel: Indeed, you're going to the heart of the case Mr. Justice Stewart in suggesting --

Justice Potter Stewart: I do.

Mr. Shtasel: -- that constitutional rights, must be implied or remedies for them from the Constitution because without that implication of the cause of action those rights would be reduced to meaningless rhetoric.

There would be no enforcement mechanism for insuring those guarantees.

Justice Lewis F. Powell: May I ask you a question?

Would your Bivens' analysis be applicable to key staff personnel at the White House?

Mr. Shtasel: Again, I think the answer Mr. Justice Powell is yes as regards the cause of action aspect of the case before you this morning.

If there were to be any bar to trial on the merits it would have to come under any official immunity which might be invoked under the rules governing immunity in that area which are somewhat different from those at this point in time governing the operation of the Speech or Debate Clause in the legislative context.

Justice Lewis F. Powell: Do you think if Georgette Powell were relieved do you have a cause of action against the President?

Mr. Shtasel: I'm frank to say that if he were relieved for reasons which were invidiously discriminatory then the answer would have to be yes.

Justice Lewis F. Powell: If the President had written to him that he preferred to have a talented woman in his position and complimented him only as Congressman Passman did that would be fairly analogous, wouldn't it?

Mr. Shtasel: Yes sir.

And I think the cause of action that we're asking for this morning would be the same.

Justice William H. Rehnquist: How about Pacific Tel. & Tel.

Where their provision in constitution guaranteeing to each state are republican form of government was held to be not judicially enforceable?

That certainly is an example of a constitutional provision which this Court has said, it's in the Constitution but there just doesn't any private right of action Pacific Tel. & Tel. against Fuller, you know long time ago.

Mr. Shtasel: Mr. Justice Rehnquist, I apologize.

I missed the first sentence of your question.

Justice William H. Rehnquist: You were saying that you know you can't have a right without a remedy in that sort of thing, how about the case of Pacific Telephone and Telegraph versus, I think it was, Fuller decided about 1910 where this Court said that although the constitution does say every state shall be guaranteed to republican form of government nonetheless, the people on Oregon who were challenging the referendum provision were told that cause of action -- that provision simply isn't judicially enforceable.

Mr. Shtasel: Mr. Justice Rehnquist, I confess it's not a case that I'm familiar with and can't speculate upon it on those facts but I would suggest that in the context of the Bill of Rights guarantee that Bivens would be the law of the case at this moment in time.

Justice William H. Rehnquist: Certainly, Bivens is a lot later than that one.

Chief Justice Warren E. Burger: Ms. Shtasel let me add some variation, hypothetical; it's a variation of Mr. Justice Powell's question.

I don't know how many legislative assistants the president has but let's assume he has five of them and they are all men, and he calls one of the five in and says now you're doing splendid work, I have no complaints at all but in this modern day we've got to have a woman at least one woman and the legislative relations with Congress and therefore I'm sorry but I have to replace you with a woman.

Cause of action?

Mr. Shtasel: I think in that context Mr. Chief Justice other kinds of balancing factors come into play.

What you were talking about there are political concerns which might govern action in this area because indeed elective representatives having historical and constitutional function to represent sort of constituencies and to represent certain positions.

In that context, we are not talking about a case of invidious discrimination nor are we talking about a case where performance or job relatedness is the issue.

That is quite different from a case were based on nothing more and member of Congress explicitly stated that only a man could fill a position that without question has there typically been held by women.

Justice Byron R. White: Well, counsel if it -- I suppose if to say that -- that I suppose you could say that there would be a Fifth Amendment cause of action and still say that a cause of action hasn't been stated.

And even if one is been stated, you might lose the case; you don't need to answer the Chief Justice that it is because -- just because the president might win the case that there wouldn't be a cause of action available under the Fifth Amendment.

Mr. Shtasel: To be sure Mr. Justice White, what we are talking about at that point is trial issues and proof issues rather than as statement of a cause of action in the federal court system.

Chief Justice Warren E. Burger: If my question was explicitly, what if there is a cause of action, would there it not to whether he might win or lose it?

Mr. Shtasel: In that context Mr. Chief Justice I have to answer yes.

Justice Lewis F. Powell: May I ask another question, what does Title VII provide with respect to staff personnel in the White House?

Mr. Shtasel: Under Title VII members of the Executive Branch staff are covered.

It is the judicial and legislative staffs which are not in the competitive service which are exempted from the operation of Title VII.

Justice Lewis F. Powell: No exceptions with respect to White House personnel?

Mr. Shtasel: None on its face Mr. Justice Powell.

Justice Lewis F. Powell: No separation of powers problem?

Mr. Shtasel: The Congress in its wisdom did not exempt those particular staff people.

Justice Lewis F. Powell: Yes.

Justice William H. Rehnquist: Well, in the president presumably signed the Bill, is there -- is Title VII applied the Executive Branch applicable only that their competitive service or is it applied to anyone who will -- gets a pay check from the federal government?

Mr. Shtasel: Title VII in the Executive Branch context applies to members of the civil service which have been defined under the appropriate statute to mean appointees of the executive, legislative and judicial branches.

It is then when one looks the definition of the competitive service that one finds the restriction which applies to the legislative branch.

Justice William H. Rehnquist: Well, then but the competitive service I would assume is probably doesn't cover top White House employees or the Secretary of the Treasury or people like that.

Mr. Shtasel: They are not expressly exempted from the operation of the competitive (Voice Overlap).

Justice Byron R. White: Well, but certainly many employees of the Executive Branch are expressly exempted aren't they, is the military exempted?

Mr. Shtasel: The military is not exempted.

Justice Thurgood Marshall: Is the cabinet officer an employee?

He is certainly not.

He's an officer.

He's not an employee.

Mr. Shtasel: He is appointed however.

Justice Thurgood Marshall: Well, he's not an employee.

He's the officer of the employee.

He can be removed to my mind if they don't want that is happening.

Chief Justice Warren E. Burger: He's permission recites that he serves at the pleasure of the president -- I think with all presidential appointees.

Mr. Shtasel: In that case Mr. Chief Justice, the question might be resolved by operation of separation of powers doctrine which would confer a textual commitment to another branch of the federal government.

That is not the case here where there is no such textual commitment to another branch of the government nor other any other of the political questions separation of powers kinds of formulations which can be brought to bear in the instant situation.

I think it appropriate to turn to the question of Speech or Debate immunity at this point in time.

Petitioner argues that the absolute immunity conferred by that clause does not protect the respondent here.

Justice Harry A. Blackmun: This wasn't decided by the en banc court, was it?

Mr. Shtasel: No, sir.

It was not.

It was only decided by the panel.

This Court has interpreted the parameters of the clause on nine separate occasions.

All of these are discussed in our brief.

I think it appropriate to suggest that the Court has with undeviating consistency articulated principles which have not waived almost over 100 years.

These are several.

First, that the clause has finite limits, second, that its scope is to be confined to activities which are within of legitimate, legislative sphere; and third, that the Speech or Debate Clause is not a grant of personal prerogative.

Instead, its purpose is to insure the independence of the legislative branch and as, as discussed a moment ago.

It is indeed the ultimate guarantor of separation of powers.

The Court has made clear that there are many cases, many activities regularly performed by a congressmen or somehow tangentially related to his performance which are nonetheless outside the scope of the clause.

It is our contention that firing a secretary who no one has ever contended had policymaking or legislative responsibilities is outside the scope of the protection conferred by that clause.

To hold otherwise, would be to violate the governing principles that I enunciated above.

Justice William H. Rehnquist: Well, why would it be any worst to fire a secretary on a basis of sex discrimination than an administrative assistant who have policymaking responsibilities?

Mr. Shtasel: Mr. Justice Rehnquist, our position is that the Court need not go so far in this particular case.

We -- it's our position that under no circumstance can a Speech or Debate Clause protect the low level employee.

There are two --

Justice Byron R. White: (Voice Overlap)

Mr. Shtasel: There are two ways or two means of analysis that I suggest would be appropriate in devising limiting principles for the operation of the clause.

One of them would be on the basis of the kind of job functions at issue and this Court has often times made distinction based on the nature of job responsibilities.

A second analytical framework, indeed broader one, which the Court doesn't mean to reach today is to suggest that this kind of invidious discrimination is so egregious that under no circumstance could any employee of a congressman and thus the congressman himself be protected by virtue of the Speech or Debate Clause to that effect.

Justice Potter Stewart: Is it employee of the federal government?

Is it an employee of the congressman?

It's employee of the federal government working in congressman's office, correct?

Mr. Shtasel: The checks are issued from the House of Representatives Treasury but the statute is clear that that members of Congress has ultimate hiring and firing responsibilities (Voice Overlap).

Justice Potter Stewart: As an agent of the federal government, correct?

Mr. Shtasel: That's correct.

Justice Potter Stewart: Which is the employer?

Mr. Shtasel: That's right, which is exactly why this runs us to Fifth Amendment violation.

Justice Potter Stewart: Right.

Otherwise, you wouldn't have a Fifth Amendment case?

Mr. Shtasel: That's correct.

Justice William H. Rehnquist: Well, under your second line of analysis I presume that if in my annual search for law works if I were to interview women and find women or woman who felt that some of my votes in cases involving women weren't all that satisfactory to earn and felt she would have some difficulty working from me for that reason and she could prove that I didn't hire her for that reason, she would have an action against me.

Mr. Shtasel: I think not Mr. Justice Rehnquist.

I think that what you were suggesting falls in the nature of selection criteria for the job.

It does not fall into the category of discrimination based upon sex.

That's a distinction we have to make for this purposes.

I notice my time has expired Mr. Chief Justice.

Apparently, I submit this case.

Argument of A. Richard Gear

Chief Justice Warren E. Burger: Mr. Gear.

Mr. Gear: Mr. Chief Justice and may it please the Court.

We submit that a Bivens cause of action should not be implied from the Fifth Amendment but that it should be limited to a Fourth Amendment search and seizure situation or physical intrusion situations.

This arrest and detention of search and seizure situations are situations were at the power of Government and its police power is clearly an abuse upon the private citizen.

In employment situation such as we have here, it's much more like an act between two private citizens rather than an act that has a greater effect upon the citizen because it is a power of Government.

We submit that further that in this case there are special factors which counsel hesitation in creating cause of action.

The first of those special factors is that we believe it a flood of new cases will overly burden the judiciary because the Fifth Amendment Due Process Clause is broad and apparently is getting broader.

The Court is familiar that civil rights filings have risen from around 296 in 1961 to over 13,000 in 1977.

They dropped couple percent in 1978 but --

Justice Potter Stewart: How are those -- how is that phrase to find in those statistics?

Mr. Gear: It's --

Justice Potter Stewart: Civil Right's filings?

Mr. Gear: It apparently covers our employment cases.

It did not cover prisoner cases as I understand but it does cover employment cases.

Justice Potter Stewart: I. e. under statutes like the Civil Rights Act of 1964?

Mr. Gear: Yes, sir.

Justice Potter Stewart: That is not surprising that there are more such occasions after the passage of that act than they were before us.

Mr. Gear: I agree with you sir.

That's correct.

Justice Thurgood Marshall: And it's true where we are talking mostly, they can file a lawsuit.

Mr. Gear: That's right.

Justice Thurgood Marshall: The important being is the women?

Mr. Gear: That's true sir but we feel that if cause of action is -- excuse me sir?

Justice Lewis F. Powell: Even this precisely one of the arguments that Mr. Justice Black and Mr. Justice Blackmun made in dissent in Bivens.

Mr. Gear: That's correct Your Honor.

We feel that the flood of new lawsuits upon federal issues will inhibit federal action and also inhibit federal employment.

Justice Thurgood Marshall: Well, outside of this one, how many others do you have in this flood?

Mr. Gear: I beg your pardon sir?

Justice Thurgood Marshall: Outside of this case, how many others do you have in this flood you're talking about?

Mr. Gear: Well, sir, every Circuit Court has considered the Bivens type cases and they're moving up to you sir.

Justice Thurgood Marshall: How many 11 Circuit Courts?

It says 11, now how many more?

Mr. Gear: Well, I don't know the exact number sir.

Justice Thurgood Marshall: I thought that you did.

Mr. Gear: Alright.

We're concerned that federal employment and federal decision for being here, which is about a series of personal judgments because the ordinary federal official or federal employ we can't handle the personal judgment.

You'll be going bankrupt.

It will have officers of the court going satisfying judgments out of the -- let's say of the home of other of a federal official who's been victim of some Fifth Amendment cause of action.

Justice Lewis F. Powell: Mr. Gear, will the same argument apply to enforcing Section 1983 against state officials?

Mr. Gear: I think so sir, yes.

Yes.

Of course, in this case Congress we believe has clearly not intended to create an act a cause of action in the federal court system against itself.

Congress did exempt itself and the judiciary for the personal staff employees of congressmen and of the judiciary when it passed Civil Rights Act amendments in 1972.

Justice Byron R. White: Well, the petitioner in this case is not an employee of former Congressman Passman.

She was an employee of the federal government.

Mr. Gear: Well, that of course is the Fifth Amendment connection of the case (Voice Overlap).

Justice Byron R. White: That's exactly right.

Why wasn't a suit properly brought against the United States?

Mr. Gear: But Congressman or I don't know you have to ask the plaintiff on that sir.

I really don't know but this is one reason what we feel that the exemption to the Civil Rights Act is very important because the -- under the Civil Rights Act federal employees have cause of action aren't permitted to sue the particular individual involved by suing the Government.

There's no question about personal liability as I understand it, for federal employees who are covered by the Civil Rights Act.

The House of Representatives had no policy against any kind of discrimination until it passed the Clause 9 of its House Rule 43 in January of 1975, six months after the discharge of Miss Davis and either man have passed just an internal resolution prohibiting sex discrimination.

At no time, as I view it, has either House or Congress put before the judiciary a cause of action in the statute permitting the judiciary to consider cases against it on the basis of sex discrimination or Fifth Amendment problems.

We have both the House and the Senate --

Justice Byron R. White: Are you suggesting that there never should be a cause of action under the Fifth Amendment until or unless Congress indicates that there should be some kind of cause of action?

Mr. Gear: I'm suggesting there should be no cause of action against Congress until Congress suggest that sir because we have separation of power principles involved here which is in another of the special factor we believe should counsel hesitation in this case.

It's that, we feel that if Congress were going to appear a cause of action against itself it certainly would've done more than there's been apparent here in the legislative history.

Justice Thurgood Marshall: You don't think the Fourth Amendment apply to Congress?

Mr. Gear: I don't think so, sir.

Justice Thurgood Marshall: You don't?

Mr. Gear: I don't think so, sir.

Justice Thurgood Marshall: Does any part of the Constitution apply to the Congress?

Mr. Gear: May I say this, sir.

The Fifth Amendment would apply to Congress insofar as the House can discipline its own members.

I submit that separation of powers principles would prohibit the judiciary from applying the Fifth Amendment against members of Congress in these employment situations.

Congress is not immune from its own House discipline and of course the members of Congress are not immune from voters deciding that given individual should be replaced and given individual should be elected.

Well, the --

Justice Byron R. White: Why shouldn't Speech or Debate Clause take care of all of your concerns in this regard?

Mr. Gear: Well, Your Honor we believe it does.

We believe that --

Justice Byron R. White: Well, I know but suppose we disagreed with you on that of course there is an area to which this Speech or Debate Clause applies and that why would -- whatever area that is why wouldn't that be inadequate answer to your separation powers or --

Mr. Gear: Or Speech or Debate Clause in separation of powers principle of the same (Voice Overlap) --

Justice Byron R. White: No, it certainly wouldn't protect Speech or Debate Clause certainly protects Congress against invasions why either --

Mr. Gear: Exactly right Your Honor and this again is another special factor in this case which is the most unusual case I believe.

I mean in this case which puts counsel's hesitation in the implication of a Fifth Amendment cause of action.

Justice Byron R. White: Suppose counsel that there is a federal statute that I thought was preventing me from engaging in some activities and the federal government was threatening to enforce it against me, at least there was a case of controversy and I went into a federal court and filed the complaint saying that asking for declaratory adjustment to the statute was unconstitutional under the Fifth Amendment either Due Process Clause or the equal protection component.

Now, where would I get my cause of action to do that or would I have one?

Mr. Gear: I think you'd have a cause of action to do that.

Justice Byron R. White: Under the Fifth Amendment?

Mr. Gear: Yes, to declare such a statute.

Justice Byron R. White: Well, where would I get my cause of action?

Isn't that a direct action in the Fifth Amendment?

Mr. Gear: Well, I believe it would be sir.

Justice Byron R. White: And you think that would lie all right.

Mr. Gear: I think that would lie all right but I think that you get into separation of power situations here that even if the Court were to expand Bivens to other Fifth Amendment actions what I'm saying that in this case separation of power considerations prohibit the (Voice Overlap) --

Justice Byron R. White: Oh, yes but in my example there would be no federal statute that extended the cause of action to me to sue the Executive Branch and yet you say I can go into the Court and have that Court enjoin the Executive Branch?

Mr. Gear: Well, I may have misunderstood your question, Your Honor.

But if the classification principle enunciated here is the correct principle involved in the case.

Justice Byron R. White: (Voice Overlap) well, that's a different point.

Mr. Gear: Well, --

Justice Potter Stewart: And who would be the defendant be in my brother White's hypothetical case?

Mr. Gear: The Executive (Voice Overlap) --

Justice Byron R. White: The people enforcing the statute?

Mr. Gear: Your Honor, I do want to get into the Speech or Debate Clause considerations here, if I may.

We consider that the legislative personal assistance, the personal staff employees of members of Congress are, and the relationships between Congress and these personal employees are within the legitimate sphere of legislative activity.

The aides of Congressmen and Congresswoman assist them in speech writing, they assist them in preparing for and discussing how to vote, they counsel them on how to vote.

They help them introduced material to committee hearings, they review transcripts of committee hearings, and they are really truly are involved in various stages of legislative decision making.

In the Gravel case, the importance of legislative personal staff was recognized that the Court said that that it was impossible for modern day legislator to perform legislative tasks without aids and assistance.

It went so far as to say that the day-to-day work of the legislative staff was so critical to the legislative performance that the staff members are alter egos of the members of Congress.

In Gravel, it was found that the aide even share the immunity of Senator Gravel.

We submit that the personal staffs of Congressmen very like the personal staff of the judges are selected for the purpose of assisting a legislator in performing the legislative tasks that when a legislator interviews an individual or considers whether to retain an individual from employment, what he's really asking is how can this person help me perform my legislative roles?

It's a careful decision because the person that is selected to be on the legislative staff may share that legislator's speech and debate immunity, that person may be immune as to third person.

Justice Thurgood Marshall: Mr. Gear.

Mr. Gear: Yes, sir.

Justice Thurgood Marshall: I know its water over the dam, but it's all what it worried me, and just frankly when the Speech and Debate Clause was adopted, how many people do you think have found and filed those intended that to apply to?

To numerically?

Mr. Gear: Numerically, I -- well, numerically at that time that the legislator did not have the immense staffs that they had today.

Justice Thurgood Marshall: Immense staff, did they?

Mr. Gear: I would assume that's correct.

I think they rode on the horse to Congress now but the Constitution does develop --

Justice Thurgood Marshall: In that day up until now it require a lot of work.

Mr. Gear: That's right.

You know but of course the aides and the personal assistance of the legislators have themselves been found to share this immunity and so the employees of the Congressman must be considered in Speech and Debate Clause situation regardless of what the original make-up and function in Congress was at that time anyway.

But again the basic question that legislator asked when he hires one of these individuals is, how can this person help perform my legislative function?

And therefore, we submit that the personal staffs of Congressmen are assembled, they are brought together in a very broad legislative context which context should be immune.

It should be immune exclusive by the Court, it's not immune from scrutiny by the House's themselves and it's not immune from the voters.

I want to examine with you the effects of not conferring speech and debate immunity in this case and the effects of not considering the separation of powers.

We will have time consuming by burdens of lawsuits that will be inflicted on Congressmen.

They will be involved in extensive discovery procedures that case alone is four-and-half years old.

We feel that if Congressmen are made to answer before the judiciary, before the -- for the personnel decisions that is going to have a chilling effect on their personal decisions, that Congressmen will be forced to retain in competent aides when they would wish they can get rid of them but they're scared to for fear of lawsuits.

Justice Byron R. White: Well, there are some Congressmen here who think otherwise, which they filed a new amicus brief on the other side.

Mr. Gear: That's true, Your Honor but we feel that their interests really are concern more on the fair employment practices aspects of the society problems today than they are on the true separation of powers problem which I think accord this, if you understand me on that.

If this cause of action is permitted and Speech and Debate Clause immunity doesn't apply we're going to have lawsuits of Congressmen for fees of a higher, the discharge of employees the failure to promote, failure to grant wage increases.

There may be hundreds of applicants.

We're not talking about a few discharges.

They were talking about hundreds of applicants who desire to work on the staffs of Congressman.

The employment decisions that will be potentially judiciable and which -- which cause of action would be created would be an immense number because this had might the Pentagon Papers episode or the criminal situation the (Inaudible) the everyday employment decisions that occur in Congress, and for this reason we feel that there would be a very improper injection of this Court into the judicial process.

It would mean that members of Congress would have to get familiar with statistical experts, industrial psychologists.

They'll have to worry about class actions every Congressman is going to need personnel expert and labor lawyer to operate.

We feel that this would impair the integrity of the legislative process and would be both unwarranted invasion of the principle separation of powers and they restrict the view of the Speech and Debate immunity.

That's all I have Your Honor unless there are questions.

Thank you very much.

Chief Justice Warren E. Burger: Very well Mr. Gear.

I think your time has entirely expired Ms. Shtasel.

Thank you, counsel.

The case is submitted.