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Three-Judge Panel Hears CAA Case

Oral arguments were held in federal appeals court last week in one of a handful of cases in which lawmakers have claimed that the Constitution immunizes them from suits brought under the Congressional Accountability Act.

A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit heard arguments Thursday in a wrongful-termination case brought by Beverly Fields, former chief of staff to Rep. Eddie Bernice Johnson (D-Texas).

Attorneys for both sides fielded questions from a panel of judges who were quick to interrupt and who seemed transfixed by the intricacies of how the landmark 1995 law, which for the first time applied federal labor laws to Congress, interacts with the constitutional protections afforded to lawmakers.

Although it’s notoriously difficult to glean judges’ leanings from questions and comments posed during oral arguments, at least two of the three panelists seemed openly hostile to Johnson’s position — that the Speech or Debate Clause of the Constitution renders her immune from such suits.

Johnson is appealing a lower court’s ruling that Fields’ retaliation and wrongful termination case could proceed despite the lawmaker’s claim of immunity.

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

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.

William Allen, who represents Johnson as part of the House Employment Counsel’s office, asserted that “Congress did its best to solve the constitutional problem” when it drafted the statute but ultimately could not resolve the issue.

To that, Edwards replied: “I think that is where your argument is terribly fragile.”

Allen was referring to a portion of the statute that explicitly says the CAA in no way waives individual lawmakers’ Speech or Debate protection.

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

The named defendants in lawsuits brought under the CAA are technically the “office of” the lawmakers rather than the individual Members themselves. That legal fiction was set up to prevent Members from being held personally liable in employment disputes.

But Randolph seemed to use that provision of the statute to find a way around the Speech or Debate Clause protections all together.

“This is in effect a suit against Congress itself,” Randolph said, explaining that individual offices are simply portions of the institution as a whole. And if Congress was sued, he said, instead of Speech or Debate immunity, it has sovereign immunity.

The principle of sovereign immunity protects Congress from suits, except on the grounds on which 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. (It is for the right to a jury trial that Fields is now fighting.)

So under Randolph’s 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 case against their offices from proceeding because they are not the named defendants.

As Fields’ attorney, Wayne Marcus Scriven, explained it, Johnson’s claims of Speech or Debate immunity could be raised as an evidentiary matter, thus allowing the suit to proceed while Johnson retains her right to not be questioned about legislative acts.

Allen, in his rebuttal, said such reasoning was faulty because Fields couldn’t prove her case without an unpermissible intrusion into Johnson’s protected legislative sphere.

Scriven said that was a hurdle the employee would have to deal with at trial, but added that such questions were irrelevant in determining whether the case should be allowed to proceed on its merits.

At least two of the three judges — Randolph and Edwards — seemed inclined to agree. Going to unusual lengths, the two judges made most of Scriven’s arguments for him from the bench. Tatel asked probing questions but was more reserved in his commentary, while Randolph and Edwards at times appeared to openly mock the arguments by Johnson’s attorneys.

When Allen argued that Johnson’s employment decisions are protected, Edwards responded: “A personnel decision is not a legislative decision.”

One of the issues before the court 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. His attorneys have since argued that the case is now moot, but the 10th Circuit has yet to rule on that motion.)

The third case percolating in federal appeals court is that of Brad Hanson v. Office of Sen. Mark Dayton (D-Minn.). Last year a D.C. District judge denied Dayton’s motion to dismiss the case on Speech or Debate grounds. Dayton appealed, and oral arguments are set for May 11. Randolph is one of the three judges who will sit on that panel.

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