Senate attorneys continue to challenge the limits of the Congressional Accountability Act in the fourth year of their efforts to dismiss a discrimination suit against former Sen. Mark Dayton (D-Minn.).
The CAA, passed in 1995, gives Congressional employees the same right that private-sector employees have to sue their employers. But the law was still relatively untested when Brad Hanson filed suit against Dayton in 2003.
In that lawsuit, Hanson claimed that Dayton wrongfully fired him after he asked for time off to undergo heart surgery. His claims have yet to see trial or jury, and in the intervening years, the lawsuit has become a vehicle for testing the CAA and the Constitution’s Speech or Debate Clause.
Now, within the past month, Senate attorneys have filed two motions: one to dismiss the case and another to move it to a Minnesota court. In the motion to dismiss, the Office of the Senate Chief Counsel for Employment argues that the CAA doesn’t provide for a lawsuit to continue after a Senator leaves office. Since Dayton retired in January, the case should be dismissed, it states.
“The bill that Congress enacted … provided that suit may be brought solely against the applicable ‘employing office’ — in this case, the Dayton Office,” the motion reads. “Accordingly, this action abated on January 3, 2007.”
Such a claim is unreasonable, said Richard Salzman, the attorney representing Hanson. The attorneys, court fees and any settlements for this case, he said, are furnished by Congress. The defendant has never been Dayton’s office, he said; it has always been the Senate itself.
“There’s nothing about this defendant that has changed,” he said. “The idea that Congress would have created this statute that finally allowed discrimination cases to go against Members of Congress and then, without saying it in the statute, created an escape hatch … we think is totally absurd.”
Salzman pointed to the case Bastien v. Office of Senator Ben Nighthorse Campbell, which was allowed to continue despite the Colorado Republican’s retirement in 2005. He also pointed to support from Reps. Barney Frank (D-Mass.) and Christopher Shays (R-Conn.), who both co-sponsored the CAA.
Senate attorneys have dragged out the case for too long, he said, and it’s time for a jury to hear the arguments on Hanson’s charges. He already has filed an opposition to the motion to dismiss and also plans to oppose the motion to transfer, which argues that all involved parties reside in Minnesota and that Dayton’s Senate office was the only tie to Washington, D.C. Dayton’s attorneys argue that moving the trial to Minnesota would not inconvenience or delay the proceedings, while Salzman said the D.C. court already has invested substantial time in the case.
“This judge has a familiarity with the issues, and this court has devoted a lot of resources to the issue,” he said.
But Senate attorneys argue that employees take a risk when suing under the CAA, rather than going through the Office of Compliance and submitting to a quicker hearing process. Since the employee is given the choice, and the CAA doesn’t make it clear who steps in as defendant when a lawmaker retires, Senate attorneys argue that such cases should be “abated,” or dismissed.
“The covered employee alone has the right to decide whether to proceed through the expedited process or to file a complaint in district court,” the motion reads. “The covered employee runs the same risk as any other litigant — that subsequent events may lead to the abatement of action.”
It isn’t the first time that the Senate chief counsel has tried to get the case dismissed. Attorneys first argued that the firing of Hanson fell under the Speech or Debate Clause, which grants lawmakers immunity from actions related to their official duties. When the district court rejected that argument and ruled the lawsuit may continue, Senate attorneys appealed to the Supreme Court. In May that court declined to rule on the constitutionality of the case, paving the way for a trial to begin.
Now a judge will have to rule on the latest motions to dismiss and transfer before the trial can start.
“They’ve made a lot of arguments to try to finally get this case dismissed, to try to get it moved,” Salzman said. “From our standpoint, this is relatively straightforward. Someday soon, we should get to address the merits of this case.”