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Judges Grill Johnson’s Lawyers During Oral Arguments

A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit heard arguments today on the question of whether the Constitution shields Members of Congress from suits brought under the Congressional Accountability Act.

Although it’s notoriously difficult to accurately glean judges’ leanings from questions and comments posed during oral arguments, at least two of the three panelists seemed openly hostile to the position taken by attorneys for the office of Rep. Eddie Bernice Johnson (D-Texas).

Johnson is appealing a lower court’s ruling that the retaliation and wrongful termination case brought against the Congresswoman by her former chief of staff, Beverly Fields, could proceed despite the lawmaker’s arguments that the Speech or Debate Clause of the Constitution renders her immune from such suits.

The central question now before D.C. Circuit Judges Harry Edwards, Raymond Randolph and David Tatel is whether that clause — which prohibits lawmakers from being questioned about the “Speech or Debate in either House … in any other place” — prevents Fields’ suit from going forward.

In what court observers often term a “hot bench,” the judges immediately began firing questions at Johnson’s attorney regarding the validity of his argument before he had much chance to make it. William Allen, who represents Johnson as part of the House employment counsel’s office, cited legal precedent to assert that the Speech or Debate privilege is absolute.

Although the immunity is written in the Constitution as applying to the “Speech or Debate” in each chamber, courts have long interpreted the clause more broadly and understood it to protect legislative acts from questioning in court.

One of the issues before the court today was whether personnel decisions are legislative acts, and thus protected, or administrative acts, and presumably not.

The U.S. Court of Appeals for the 10th Circuit decided in a separate but similar case last year that personnel decisions were administrative acts and thus not covered by Speech or Debate immunity. The case, Rita Bastien v. Office of Sen. Ben Nighthorse Campbell (R-Colo.), was sent to a lower court for trial. (Campbell retired last year.)

Today’s oral argument appeared to be headed along a slightly divergent path, although the end result could be the same.

“The question is whether the personal immunity of a Member can be used to block a suit against the office,” Randolph said. But he quickly took the discussion elsewhere.

“This is in effect a suit against Congress itself,” Randolph said. “If Congress was sued, it wouldn’t have Speech or Debate immunity, it would have Sovereign Immunity.”

The principle of Sovereign Immunity protects Congress from suit except as how it consents to be sued. The CAA, enacted in 1995 to apply 11 civil rights and anti-discrimination laws to the legislative branch for the first time, allows staffers to take their employers to court for alleged violations.

Randolph and Edwards both seemed to purport that individual offices are part and parcel of Congress as a whole, and that the CAA is clear that employees could sue the institution for violations.

So under that reasoning, Congress waived its Sovereign Immunity with the CAA, and since the law sets up the “office of” instead of individual lawmakers as the defendants, Members could claim their personal Speech or Debate immunity without preventing the cases against their offices from proceeding.

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