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Johnson Takes Senators’ Tack in Suit

Leveraging a tactic two Senators have already employed with some success, a House Member for the first time has used powerful constitutional language in an attempt to shield herself from a lawsuit brought under the Congressional Accountability Act.

Earlier this month, Rep. Eddie Bernice Johnson (D-Texas) asserted that a U.S. District judge must dismiss a race-discrimination case filed against her office on the grounds that a clause in Article I protects Members from being questioned about “Speech or Debate in either House … in any other place.”

Former scheduler Elisabeth Howie, who describes herself as a black woman of Hispanic origin from Panama, filed suit late last year alleging Johnson fired her after outlining a specific preference to hire an Asian woman to fill the position. Johnson is also black.

In earlier court filings, Johnson did not mention the Speech or Debate Clause and instead attempted to get the case dismissed for technical reasons. But in responding to an amended complaint in which Howie addressed those technicalities, Johnson and her House attorneys maintained that Howie was sufficiently tied to the legislative process to trigger Speech or Debate immunity.

“Defendant now moves to dismiss the first amended complaint in its entirety because the Speech or Debate Clause of the U.S. Constitution bars this court’s jurisdiction over this action,” Johnson’s attorneys in the House Office of Employment Counsel wrote.

It appears to be the first time a House Member has made such a claim for a case brought under the CAA.

Johnson referred all questions to her attorneys in the House Employment Counsel’s office. The senior counsel on her case, Gloria Ferguson, said her office does not comment on pending litigation.

Rep. Christopher Shays (R-Conn.), who sponsored the landmark statute in 1995, expressed disbelief that a House Member had invoked the privilege, which heretofore has only been used in the Senate.

“You’ve got to be kidding me,” Shays said. “I don’t know why Members do it. They don’t have to do it. Just live by the law like everyone else. I am pretty shocked that it would be used by any Member of the House.”

Howie’s former attorney, Wayne Marcus Scriven, also expressed dismay. “I really think this will become a hot political issue,” he said. “It’s unfortunate that it’s happening in the House now.”

Judge James Robertson barred Scriven from representing Howie after he improperly met with Johnson’s then-chief of staff, Beverly Fields. He is now representing Fields in her complaint against Johnson, which was recently filed in the U.S. District Court for the District of Columbia. Fields alleges she was retaliated against and then terminated after she protested Howie’s firing. Scriven said he expects Johnson to claim Speech or Debate immunity in that case as well.

At least three Senators have claimed constitutional immunity in employment lawsuits. Two of those cases are pending in federal court.

In the first, Sen. Ben Nighthorse Campbell (R-Colo.) has argued that he is immune from a race-discrimination suit brought by his former state director, Rita Bastien. Her case was dismissed by a district court in Colorado in 2002 on grounds that the Constitution bars such suits. The question of whether Campbell’s decision to terminate her was a constitutionally immune legislative act or merely an administrative one — and thus not protected — is now before the U.S. Court of Appeals for the 10th Circuit.

Sen. Mark Dayton (D-Minn.) has also claimed Speech or Debate protection. That case, brought by Brian Hanson, a former state-office employee who claims he was fired after he told Dayton of his heart condition, has been awaiting a decision by a D.C. District Court judge since last October on whether Hanson can proceed with his suit.

In invoking Speech or Debate, Johnson’s lawyers cited Campbell’s case as well as two others that were dismissed on the same grounds. The first, Browning v. Clerk, U.S. House of Representatives, predates the Congressional Accountability Act by a decade. In it, the U.S. Court of Appeals for the D.C. Circuit determined that a House clerk who transcribed testimony could not pursue a race discrimination case in the courts because her duties “were directly related to the due functioning of the legislative process.”

The second case involved a former chief of staff to Sen. Max Baucus (D-Mont.), Christine Niedermeier, who alleged that Baucus had sexually harassed her. Her complaint was dismissed by the U.S. District Court for the District of Columbia in 2001 after the court deemed her termination to be a legislative act, and thus protected by Speech or Debate immunity. The judge in Niedermeier’s case noted that the D.C. Circuit “has defined legislative acts to include personnel actions of Members of Congress.”

Howie’s case against Johnson is now pending before a district court judge in that circuit.

Outside adjudication was a pivotal element in Congress’ promise in 1995 to live under the same federal labor laws that govern the private sector and the executive branch. The Congressional Accountability Act applied 11 anti-discrimination, workplace safety and civil rights laws to Congress for the first time. It allows legislative branch employees to either undergo binding arbitration at the Office of Compliance or to go to court after required counseling and mediation. It is the latter option that Campbell, Dayton and now Johnson are challenging on constitutional grounds.

Not all Members who have been presented with this defense have chosen to employ it, however. Earlier this year, a D.C. District Court judged determined that a former Ways and Means Committee staffer’s complaints that she was fired because she was a minority and a woman did not constitute discrimination. The case was allowed to proceed, and ultimately be dismissed, on its merits because Chairman Bill Thomas (R-Calif.) decided against invoking Speech or Debate.

“I think you diminish any portion of the Constitution when you use it in a far more expansive way that it was intended,” Thomas said after the case was dismissed.

Johnson has taken the opposite approach, arguing that the Congressional Accountability Act “does not contain full or unlimited waiver of sovereign immunity from all employment discrimination suits. Rather,” her lawyers wrote, “Congress expressly preserved the immunity granted by the Speech or Debate Clause.”

Under the sovereign immunity doctrine, the federal government is immune from suit except as how it consents to be sued. The CAA authorizes legislative branch employees to bring their cases to court. It also specifically states that such authorization “shall not constitute a waiver of sovereign immunity for any other purpose, or of the privileges of any Senator or Member of the House of Representatives under Article 1, Section 6, clause 1, of the Constitution,” the Speech or Debate Clause.

Reconciling those arguably competing notions is now the job of a half dozen federal judges.

If the courts ultimately determine that Speech or Debate immunity prohibits Congressional staffers from suing their employers for alleged discrimination or other wrongdoing, only custodial workers, cafeteria employees and the Capitol Police likely will be covered by Congress’ promise in 1995 to live under the same workplace laws as the rest of the country and to submit to adjudication in federal court when an employee believes one of those laws has been broken.

Even if that were to happen, the Office of Compliance, an independent agency within the legislative branch, presumably could still adjudicate claims by all Congressional employees. But allowing staffers to go to court was the centerpiece of the legislation, the first plank in House Republicans’ 1994 “Contract with America.”

Ben Pershing contributed to this report.