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Members File in CAA Case

Angry at what they believe is an attempt by the House leadership to undermine a key portion of the landmark 1995 law that brought Congress under anti-discrimination laws, Reps. Barney Frank (D-Mass.) and Christopher Shays (R-Conn.) plan to introduce a privileged resolution that would rescind the stance the House recently took regarding the statute in federal court.

In a January amicus brief, the House argued before the U.S. Court of Appeals for the D.C. Circuit that the Constitution shields lawmakers from suits brought by staffers whose work is vital to the legislative process. The brief was filed in a case against Rep. Eddie Bernice Johnson (D-Texas) and would seem to support her claims of immunity from the wrongful-termination suit brought by her former chief of staff.

While taking no position on the merits of the case, the brief put forth an institutional position — for the first time by either chamber — essentially stating that top legislative staffers may not sue their employers under the Congressional Accountability Act. Though the statute includes no such exemption, the brief asserted that by allowing such cases to proceed, the courts would unconstitutionally impinge on the independence of the legislative branch.

Shays and Franks, both of whom helped draft the CAA, believe that such a position effectively nullifies the whole point of the statute, which for the first time allowed Congressional workers the opportunity to go to court for employment disputes. The CAA brought Congress under 11 civil rights and workplace laws, replacing oft-maligned fair-employment offices in each chamber with an independent agency within the legislative branch and, ultimately, the chance for employees to go through the court system to seek adjudication.

Although they are part of the bipartisan legal advisory group with the House Republican leadership, the Democratic leadership declined to support the filing of the brief. Frank said his leadership agreed with him that the brief the House filed in January took “this very extreme position.”

“We intend to change that,” Frank said.

Speaker Dennis Hastert’s (R-Ill.) office did not return a call seeking comment.

A privileged resolution, like the one being offered by Frank and Shays, affects the dignity or the integrity of the House or the reputation or conduct of its Members. If a motion qualifies as such, the House has to address it in some way.

By seeking this route, Shays and Franks are hoping to ensure that their concerns are heard, because such resolutions bypass the committee process and go directly to the floor. Even if the House votes to table it, the chamber is on record addressing the question. After a lawmaker gives notice on the floor of its introduction, the Speaker has two days to bring it up.

Separately, Frank also filed an amicus brief in another CAA case that’s making its way through the D.C. Circuit. That case involves Brad Hanson, a former staffer to Sen. Mark Dayton (D-Minn.), who alleges that he was fired because of a heart condition.

Like Johnson, Dayton argued that the Constitution’s Speech or Debate Clause renders him immune from being sued. A D.C. District judge declined to dismiss the case on those grounds, and Dayton appealed. Oral argument in that case will be heard May 11 by a three-judge panel for the U.S. Court of Appeals for the D.C. Circuit.

Hanson recently sought to consolidate his case with that of Beverly Fields, Johnson’s former chief of staff, because the two cases pivot on essentially the same issue before the same appellate court — namely, whether the clause in Article I that protects Members from being questioned about the “Speech or Debate in either House … in any other place” is a valid defense against suits brought under the CAA. Hanson’s motion to consolidate was denied. The oral argument in the Fields v. Johnson case is set for April 14.

The House did not file an amicus brief in the Dayton case, presumably because it involved the Senate, and thus avoided breaking an unspoken tradition of keeping out of the other chamber’s affairs.

Although Frank did not pit himself against the House directly by filing the brief, the marked similarity of the Johnson and Dayton cases renders his action largely a symbolic separation. Frank still took exactly the opposite stance of the House as a whole on an issue critical to the ultimate fate of the law. In the process, he became the first individual lawmaker in either chamber to weigh in.

Meanwhile, in another CAA case in appellate court, lawyers for ex-Sen. Ben Nighthorse Campbell (R-Colo.) have continued to argue that the case against him became moot when he left office.

In December, the 10th U.S. Circuit Court of Appeals ruled that the Constitution does not shield lawmakers from suits brought under the CAA, as Campbell had claimed. It sent the case — brought by Rita Bastien, a former Colorado-based employee who alleged Campbell fired her because of her age — back to district court for trial. Although he is no longer in the Senate, Campbell is still represented by the Senate Chief Counsel for Employment, and his lawyers have asked the appellate court to vacate its judgment.

Bastien’s attorneys have motioned that Campbell’s attorneys are acting so frivolously as to merit the awarding of attorney’s fees. The three-judge panel has yet to rule on that motion. The Senate Chief Counsel for Employment declined to comment.

Campbell’s lawyers also recently sought and received an extension of the deadline to petition the Supreme Court to hear the case.

“I would say that these guys are going up” to the Supreme Court, said Bastien’s attorney, John Evangelisti, in an interview. “That would be my hunch. I don’t think they are doing all of this posturing over and over again just to say they lost. They are not settling these cases. I think they are pushing for a decision and taking the Congresspeople who are willing to make a public fight about it.”

As for the lack of media attention to the lawsuits, Evangelisti said that “certainly a trip to the Supreme Court will do it. Maybe they will all get consolidated.”

In the meantime, outside groups continue to weigh in, as they did when the appeal was first brought to the 10th Circuit.

In an unusual move, the three-judge panel requested the groups who filed amicus briefs in the case last year — including AARP, Public Citizen, the American Federation of State, County and Municipal Employees, the Project on Government Oversight, the National Employment Lawyers Association, the American Association of People with Disabilities and the National Asian Pacific American Legal Consortium — submit briefs on the question of vacating judgment now that Campbell is out of office.

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