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Court: Congress Can Be Made to Pay

Judge Says CAA Doesn’t Immunize Congress on Reimbursing Legal Fees

A federal judge ruled earlier this month that Congress is not immune from having to pay attorneys’ fees in cases brought under the Congressional Accountability Act.

In addition, the judge determined that a court could not compel the Office of Compliance to reveal what employees say during counseling and mediation and refused to compel discovery of those proceedings.

Judge Henry Kennedy of U.S. District Court for the District of Columbia denied a motion by the Senate Sergeant-at-Arms to reconsider a magistrate judge’s order requiring the SAA to pay attorneys’ fees in a race discrimination case. The magistrate had sanctioned the Sergeant-at-Arms over the office’s failure to turn over documents to the plaintiff in a timely manner.

Attorneys for Roy Banks convinced the magistrate judge in February that the refusal of SAA attorneys to turn over relevant documents for a period of six months justified the imposition of sanctions.

Magistrate Judge John Facciola was scathing in his remarks about the conduct of SAA attorneys.

“The case law would have alerted any lawyer with a healthy respect for his own skin” to produce the documents, negotiate some other arrangement with opposing counsel or seek judicial relief, Facciola said in his February decision, which was upheld this month. Instead Facciola asserted that the Sergeant-at-Arms — which is represented by the Senate Chief Counsel for Employment — didn’t produce or claim anything, including what’s called a privilege log, which outlines the documents the defendant claims it doesn’t have to release in discovery.

“What a lawyer cannot do is ignore the obligation to produce a privilege log when the opposing party has repeatedly demanded it over several months, and then, without judicial approval, further delay its production once opposing counsel formally demanded the privilege log by a letter,” Facciola wrote. He called the action of SAA attorneys “maddening.”

“At this point in time, simple fairness dictates that SAA reimburse plaintiff for the fees and costs it incurred,” the judge determined.

Sergeant-at-Arms attorneys did not agree, however, and appealed Facciola’s decision. The SAA claimed, among other things, that the Congressional Accountability Act did not waive Congress’ Sovereign Immunity with regard to the collection of attorney’s fees.

In his decision earlier this month, however, the federal district judge upheld the magistrate judge’s ruling without comment.

The principle of Sovereign Immunity protects Congress from lawsuits except on matters for which Congress determines by statute it can be sued. Lawyers for the Sergeant-at-Arms claimed that Congress did not explicitly waive its immunity in the CAA with respect to attorneys’ fees.

But Banks claimed that Congress provided the court jurisdiction over civil actions commenced under the CAA, and that the court has inherent powers to enforce its rules — otherwise the SAA could “abuse” the discovery process and engage in other “bad-faith litigation” without fear of repercussions.

Passed in 1995, the Congressional Accountability Act for the first time applied 11 federal labor and workplace laws to Congress and created the Office of Compliance to administer and enforce the act.

Legislative branch employees who believe one of the covered statutes has been violated can seek relief in either federal court or through a binding administrative proceeding at the Office of Compliance.

Regardless of which avenue they choose, employees must undergo mandatory counseling and mediation at the Office of Compliance. The CAA states that all counseling and mediation “shall be strictly confidential.” The Sergeant-at-Arms argued, however, that it would be denied due process if it could not have access to documents the plaintiff submitted to the Office of Compliance during that period.

In its own brief, the Office of Compliance said Congress meant what it said and that the office could not uphold its statutory obligations unless strict confidentiality was honored, otherwise employees may not feel free to bring forth discrimination and other violations of the act.

Facciola decided not to resolve the conflict. Both agencies, he noted, are creatures of Congress.

“The controversy over access to the records is therefore an intramural battle” that only Congress itself could resolve, he said.

In denying the Sergeant-at-Arms’ motion, the district court upheld Facciola’s order, thereby thwarting the SAA’s attempts to obtain confidential counseling and mediation records.

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