In a surprise move that could lay the groundwork for review by the Supreme Court, the federal appeals court now hearing two lawsuits against Members of Congress has decided to hear both cases together in front of the entire circuit.
The decision to cancel one case’s scheduled oral argument and instead hear it together with another case that has already been heard is the clearest indication yet that the constitutional issues have caught the attention of judges on the U.S. Court of Appeals for the D.C. Circuit.
“It’s highly, highly unusual. Put another way, it’s extraordinary,” said Miller Baker, a partner with the firm McDermott Will & Emery.
Usually, a case proceeds to an en banc review — one heard by all active judges on the circuit — only after the three-judge panel assigned to the case has issued a decision, and even then it’s not automatic.
Almost without exception, such reviews are requested by at least one of the parties. But there has been no indication of that in court filings in either of these cases.
Perhaps the last time a full circuit court took a case “as an original matter,” Baker said, was in Bush v. Gore in 2000, when the full 11th Circuit decided to hear the lawsuit directly from the trial court.
The move last week by the D.C. Circuit to hear Beverly Fields v. Rep. Eddie Bernice Johnson (D-Texas) and Brad Hanson v. Sen. Mark Dayton (D-Minn.) together in front of the whole circuit means that a decision is not likely until next year because of where the rescheduled argument will fall on the court’s calendar.
By deciding to have a full circuit review from the get-go, the court is seeming to acknowledge that an appeal in one or both cases is likely. When a party appeals a decision by a three-judge panel, it either seeks to take the case to the whole circuit or to the Supreme Court. An en banc review sometimes, but not always, precludes a review by the high court.
What’s at issue in these cases is whether staffers can bring discrimination and civil rights suits against lawmakers, as authorized by the 1995 Congressional Accountability Act. A handful of Members, including Johnson and Dayton, have argued that the Constitution shields them from such suits.
Although it’s notoriously difficult to accurately glean judges’ leanings from questions and comments posed during oral arguments, the panel hearing the Johnson case last month at times seemed openly hostile to the position taken by her attorneys.
The central question now before the full D.C. Circuit is whether that clause — which prohibits lawmakers from being questioned about the “Speech or Debate in either House … in any other place” — prevents Fields’ and Hanson’s suits from moving forward.
Although the immunity as written in the Constitution applies to the “Speech or Debate” in each chamber, courts have long interpreted the clause more broadly and have understood it to protect decisions they make in their legislative capacity from questioning in court.
One of the issues before the court in April was whether personnel decisions are “legislative acts,” and thus protected or administrative acts, and presumably not.
In a separate case last year, the U.S. Court of Appeals for the 10th Circuit decided 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 back to a lower court for trial.
In the meantime, however, Campbell retired, and his taxpayer-funded Senate attorneys are now arguing that the case is moot. The 10th Circuit has yet to rule on that motion. The D.C. Circuit could find itself in a similar position if the Dayton case isn’t decided before the Minnesota Senator retires in January 2007.
Speculation about how the 10th Circuit came to hear the Johnson and Dayton cases together en banc has focused on the role of one judge, Raymond Randolph, who was coincidentally assigned to both three-judge panels.
At the oral argument in April, Randolph was the most vocal of three judges, and he seemed to articulate from the bench a way he thought the court could decide the case without impinging lawmakers’ immunity or undermining intension the CAA. Because of his obvious interest in the case and his presence on both panels, Randolph’s role ultimately could be pivotal.
At one point during last month’s hearing, Randolph equated the suit against Johnson as “a suit against Congress itself,” because, he reasoned, individual offices are just part and parcel of the institution. And if Congress was sued, he said, “it wouldn’t have Speech or Debate immunity, it would have Sovereign Immunity.”
If Randolph’s view holds, that would be an important distinction. The principle of Sovereign Immunity protects Congress from suits 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. So if Congress consented to be sued in these cases, what remains would be the question of whether an individual lawmaker’s Speech or Debate immunity can act as a shield from CAA suits against his or her office.
The CAA set up the “office of” instead of individual lawmakers as the defendants in these cases. The essentially legal fiction principlely serves as a way to protect Members from personal liability. But Randolph seemed to purport another function — allowing lawmakers to claim their own, personal immunity as an evidentiary matter without preventing the cases against their offices from proceeding.
Whether the whole circuit takes that view will ultimately help determine the fate of a key part of the 1995 law, the right for legislative branch workers to take employers — including Members of Congress — to court.