The opinion of the court was delivered by: SMITH
John Lewis Smith, Jr., United States District Judge.
Plaintiff, Anne Walker, was dismissed as General Manager of the House of Representatives' Restaurant System on June 22, 1982 amidst rumors of unprofessional conduct and dishonesty. She subsequently instituted this action alleging, inter alia, that she was unconstitutionally discharged on the basis of her gender. In prior proceedings, this Court initially dismissed plaintiff's claims finding that the actions taken by the congressional defendants and staff in connection with Walker's termination were immunized from judicial inquiry by the Speech or Debate Clause of the Constitution. Walker v. Jones, 557 F. Supp. 366, 368 (D.D.C. 1983). On appeal, the United States Court of Appeals for the District of Columbia Circuit reversed and remanded the case to this Court for further proceedings, holding that personnel actions taken against congressional food service employees were not protected from court consideration by the Speech or Debate Clause. Walker v. Jones, 236 U.S. App. D.C. 92, 733 F.2d 923, 925 (D.C. Cir. 1984), cert. denied, 469 U.S. 1036, 105 S. Ct. 512, 83 L. Ed. 2d 402 (1984).
The Court concluded that, "[plaintiff's] claim for damages based on a sex discriminatory congressional employment decision [could] be presented directly under the Fifth Amendment." Id. 733 F.2d 923, 933. On remand, this Court referred the case to Magistrate Patrick Attridge who presided over extensive discovery proceedings. On the basis of the undisputed facts developed in those proceedings, this Court granted defendants' motion for partial summary judgment against plaintiff on the conspiracy, contract and due process claims in her complaint and referred the case back to Magistrate Attridge for final pretrial proceedings on her sex discrimination claim. Civ. No. 82-2723, Mem. Op. (D.D.C. June 12, 1986).
Presently before the Court is the defendants' "Motion for Summary Judgment" which alleges that the Court should now relinquish jurisdiction over plaintiff's sex discrimination claim. More specifically, defendants contend that since Congress has provided its own internal sanctions for ethical violations committed by its members, this Court has no jurisdiction to "imply a cause of action under the Constitution." "Dfts' Mot. Sum. Jdgmt." at 1; "House Dfts' Opp. Pltf's Mot. Strike" p. 2 n.2. For the reasons set forth in the following discussion, the Court concludes that the defendants' motion must be denied.
It should be noted at the outset that in the absence of a "textually demonstrable constitutional commitment of [an] issue to a coordinate political department, Baker v. Carr, 369 U.S. 186, 217, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), it is presumed that the federal courts have the power to enforce justiciable constitutional rights. Davis v. Passman, 442 U.S. 228, 242, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979). The federal district courts have original jurisdiction over "all civil cases arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331(a).
It is well settled that "where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any remedy to make good the wrong done." Bivens v. Six Unknown Named Federal Narcotics Agents, 403 U.S. 388, 396, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971) (quoting Bell v. Hood, 327 U.S. 678, 684, 66 S. Ct. 773, 90 L. Ed. 939 (1946)). So too where non-statutory constitutional rights have been violated, victims are entitled to redress their injuries through "particular remedial mechanism[s] normally available in the federal courts. " Bivens, supra, 403 U.S. at 397.
The jurisdictional grant provided by 28 U.S.C. § 1331 authorizes the courts to not only decide whether a cause of action is stated by a plaintiff's claim that he or she has been injured by a violation of the Constitution, "but also the authority to choose among available judicial remedies in order to vindicate constitutional rights." Bush v. Lucas, 462 U.S. 367, 374, 103 S. Ct. 2404, 76 L. Ed. 2d 648 (1983).
The plaintiff in this action originally sought an award of damages and injunctive relief in the form of reinstatement on the basis of her claim that the congressional defendants wrongfully discharged her from her position on the basis of her gender in violation of her equal protection rights under the Fifth Amendment. As such, the plaintiff has clearly stated a justiciable constitutional cause of action. Davis, supra, 442 U.S. 228, 235. Walker, supra, 733 F.2d 923 at 933. The Court accordingly concludes that it has jurisdiction over her claim and the power to provide her with an appropriate remedy upon proof of her claim unless either the defendants are immune from liability or Congress has preempted the Court from granting plaintiff any judicial relief.
As a general rule, legislators are liable for tortious violations of the Constitution to the same extent as all other citizens. Gravel v. United States, 408 U.S. 606, 615, 92 S. Ct. 2614, 33 L. Ed. 2d 583 (1972). "Judicial review of congressional employment decisions is constitutionally limited only by the reach of the Speech or Debate Clause. . . ." Davis, supra, 442 U.S. 228, 235 n.11. In those instances in which congressional employment decisions are not shielded by the Clause however, the question of whether an employment action was violative of the Fifth Amendment would:
require no more than an interpretation of the Constitution. Such a determination falls within the traditional role accorded courts to interpret the law and does not involve a 'lack of respect due [a] coordinate branch of government,' nor does it involve an 'initial policy determination of a kind clearly for non judicial discretion.' . . . .
Powell v. McCormack, 395 U.S. 486, 548-549, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969) ...