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Judge Rejects ‘Speech or Debate’ CAA Defense

In an apparent first for a case brought under the Congressional Accountability Act, a federal district judge ruled last week that the Constitution doesn’t automatically afford lawmakers immunity from employment discrimination suits brought by senior legislative aides.

U.S. District Judge James Robertson denied a motion by Rep. Eddie Bernice Johnson (D-Texas) to dismiss a discrimination and wrongful-termination case brought by her former chief of staff, Beverly Fields. The one-sentence ruling directed the U.S. District Court for the District of Columbia to set a scheduling conference, and thus proceed with the case.

Johnson’s attorneys filed an immediate appeal with the U.S. Court of Appeals for the D.C. Circuit.

Although it is not the first time a CAA case has been allowed to proceed — a lawsuit brought by a former Ways and Means Committee staffer was dismissed on its merits earlier this year after Chairman Bill Thomas (R-Calif.) refused to employ a similar constitutional defense — the decision was groundbreaking because it marked the first time a judge has ruled against a Member who cited the Speech or Debate Clause of the Constitution as a defense in such a case.

Three Senators and Johnson have invoked the clause in Article I that protects Members from being questioned about “Speech or Debate in either House … in any other place” as a defense against suits brought under the CAA, the landmark 1995 law that applied 11 federal labor and workplace laws to the legislative branch.

Noting that it was the first decision in favor of an employee after a Member had claimed Speech and Debate immunity, Fields’ attorney, Wayne Marcus Scriven, said he anticipated Johnson’s appeal to the D.C. Circuit. If the circuit court refuses to hear Johnson’s appeal, the district court judge’s ruling will stand and the case will proceed to trial.

Johnson’s lawyers in the House Employment Counsel’s office declined to comment on the ruling, as it is their policy not to comment on pending litigation.

Three other CAA cases brought by former Congressional aides are awaiting rulings as to whether the Speech or Debate Clause prevents federal courts from hearing the merits of their complaints. Two of those cases are in D.C. District Court, one of which was brought against Johnson by another staffer. The third is a case against Sen. Ben Nighthorse Campbell (R-Colo.) awaiting a decision by a three-judge panel for the 10th U.S. Circuit Court of Appeals.

Fields’ case was actually filed after the two others in D.C. District Court still awaiting rulings, a sign that the judges in those two cases might be waiting for the 10th Circuit to issue its decision.

Johnson’s lawyers have used the same argument in a case brought by Johnson’s former scheduler, Elisabeth Howie. In addition to that lawsuit, also for race discrimination, former staffer Brad Hanson brought suit against Sen. Mark Dayton (D-Minn.) claiming he was fired after Hanson disclosed a heart condition. That case has been awaiting a ruling for almost a year.

The 10th Circuit is set to rule any day on whether a district court judge was correct to dismiss an age discrimination case brought against Campbell by his former state director, Rita Bastien. The Colorado District Court ruled in 2002 that Bastien was sufficiently tied to the legislative process to trigger the immunity.

Johnson’s lawyers wrote in their motion to dismiss Fields’ complaint that “Even more so than in Bastien, plaintiff’s job duties as chief of staff/administrative assistant for Rep. Johnson were ‘at the very heart’ of the legislative process.”

They further asserted that dismissing Fields’ complaint would be consistent with two other staffers’ suits that were dismissed in the D.C. Circuit on Speech or Debate grounds. One of those cases, brought by a House clerk who transcribed testimony, precedes the CAA by a decade. The other involved a former chief of staff to Sen. Max Baucus (D-Mont.).

Johnson’s lawyers told the judges the lawmaker’s “personnel actions taken with respect to the plaintiff are ‘legislative acts’ of which this court has no jurisdiction to question Rep. Johnson or her aides, to accept evidence, or to hold defendant accountable.” Quoting the Colorado District Court’s decision in the Bastien case, they further stated that adjudicating Field’s claims “would impermissibly force the court to inquire about ‘matters at the heart of the heart of the legislative process.’”

Fields’ lawyer pointed out in reply that Johnson voted for the CAA, which passed in the House unanimously, and that a “clear and distinct reading” of the law makes clear that Members are not immune from suits. He went on to make an argument that has not previously been emphasized in these cases, including Bastien’s.

The law, Scriven wrote, specifically makes the “office of” and not individual lawmakers responsible for employment violations and thus permits employees to go to court without impeding Members’ personal immunity.

“By not imposing individual liability on a Member of Congress or exposing any Member of Congress to provide for a legal defense or to pay any judgement …, the CAA did not affect or waive the Speech or Debate Clause immunity of the individual Member of Congress. However, the CAA waived the immunity of Congress as a collective governmental entity for employment discrimination cases,” Scriven wrote. “Plaintiff has a right to proceed to trial before a jury to have her claims determined on their merits.”

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. If the courts ultimately determine Speech or Debate immunity prohibits legislative 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 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.