Does a member of Congress have immunity under the Speech or Debate Clause against a an employment suit brought under the Congressional Accountability Act by a member of his former congressional staff and can such a dispute be appealed directly to the Supreme Court from a circuit court and heard even after the member of Congress has left office?
After a leave of absence, necessitated by health problems, from his position as a State Office Manager for Senator Dayton Brad Hanson was fired. He subsequently sued his former employer for discrimination on the basis of a disability and for failure to pay overtime compensation under the Congressional Accountability Act. Dayton argued, and continues to argue before the Supreme Court, that the Speech or Debate Clause of the Constitution grants him immunity from this action and therefore the suit must be dismissed. This case will turn on the issue of whether an administrative or personnel decision, such as firing an employee, is a legislative act within the meaning of the Clause. To reach that issue, however, the Court will first have to decide whether the CAA entitles Dayton to take a direct appeal from a court of appeals to the Supreme Court, rather than file for a writ of certiorari, and also whether the case has been rendered moot since one party to the action – the Office of Senator Mark Dayton – ceased to exist when Dayton’s term expired.
Questions as Framed for the Court by the Parties
Does the Speech or Debate Clause of the U.S. Constitution bar federal court jurisdiction of an action brought under the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 (2000), by a congressional employee whose job duties are part of the due functioning of the legislative process?
The Court directed the parties to brief the following additional questions:
Was the Office of Senator Mark Dayton entitled to appeal the judgment of the Court of Appeals for the District of Columbia Circuit directly to this Court?
Was this a case rendered moot by the expiration of the term of office of Senator Dayton?
Brad Hanson worked as a State Office Manager for Senator Dayton, a former Senator for the state of Minnesota. Brief for Appellant at 5. Hanson’s primary duties included setting up the Senator’s local Minnesota offices and overseeing the Health Care Help Line, a service to constituents experiencing problems with their health insurance carrier. Hanson v. Office of Senator Mark Dayton, 459 F.3d 1, 6 (C.A.D.C. 2006). His job required him to work overtime, for which he was never paid. Id.
In 2002, Hanson experienced heart problems which required surgery and a recovery time of two to three weeks. Id. Upon telling Senator Dayton of his condition and need for time off of work, Senator Dayton told Hanson he was “done,” to stop reporting to work and to take medical leave. Id. Senator Dayton’s Washington Office Manager called Hanson a short time later and informed him that his employment had been terminated. Id.
After undergoing surgery and a full recovery, Hanson embarked on what would become a complicated legal battle. After exhausting his administrative remedies, Hanson sued the Office of Senator Dayton (Dayton) under the Congressional Accountability Act (CAA). The CAA is a federal act that applies provisions of eleven federal employment laws to congressional offices. Brief for Appellant at 4. He accused Dayton of discriminating against him on the basis of a perceived disability and for failing to pay him for overtime hours. Id. at 6.
Dayton moved to dismiss the claim for lack of subject matter jurisdiction, arguing that the Speech or Debate Clause of the Constitution grants him immunity from suit under the CAA. Id. at 6. The District Court for the District of Columbia, however, denied Dayton’s motion to dismiss. Id.
Dayton appealed that decision to the Circuit Court for the District of Columbia which affirmed the District Court’s denial of dismissal. Id. The Circuit Court held that the Speech or Debate Clause does not bar jurisdiction, although it does play some role in the adjudication of CAA cases. Id. at 7. The Circuit Court was uncertain, however, what that role is. Upon this decision, Dayton appealed to the U.S. Supreme Court. Id.
Arguments Regarding Procedural Issues Presented
Dayton first argues that the CAA expressly allows direct appeal to the Supreme Court from a judgment of a lower court on the constitutionality of any provision of this act, and that the D.C. Circuit’s opinion satisfies that requirement. Brief for Appellant at 14.
Hanson contends, however, that Duquesne Light Co. v. Barasch, 488 U.S. 299 (1989), eliminated the Supreme Court’s jurisdiction over appeals from federal courts of appeals. See Appellee Motion to Dismiss or Affirm at 4. Thus, he argues that while the CAA’s language does state that direct appeal can be taken to the Supreme Court, that provision must apply only with regard to District Court decisions. Id. at 5-6. Because Dayton is appealing from the court of appeals, the Supreme Court should not accept jurisdiction. Id. at 6.
Dayton then argues, however, that the defendant of this case was the Office of Senator Mark Dayton, an entity that ceased to exist the day Senator Dayton’s term of office expired. Brief for Appellant at 16. Dayton argues that because the defendant in the action no long exists, the action cannot continue. Id. Dayton points to the fact that the CAA allows an employee to bring suit against an office of a Congressional member, a body sure to one day no longer exist, and also does not include a non-abatement clause, to show the legislative intent for a suit to be barred in a situation like this one. See id. at 19-21. A non-abatement clause is one that states that a claim will not be suspended for reasons unrelated to the merits of the claim.
Hanson, however, compares the office against which the action is taken to a corporation, and argues that as the dissolution of a corporation does not render a case against it moot, neither should the Senator’s end of term do so here. See Brief for Appellee in Opp. to Mootness at 2. Hanson points to specific components of the CAA to support its argument, such as Sec. 1415, which creates a treasury fund to satisfy judgments rendered against a Congressional office and makes no exemption for use of funds after the member of congress has left office. See Brief for Appellee in Opp. to Mootness at 3.
Lastly on this point, Hanson argues that to render this case moot by virtue of Dayton’s end of term, the purpose and effect of the statute would be virtually eviscerated. See id. at 5. Members of Congress could stall litigation or put off complaints to ensure that they will be out of office, and thus jurisdiction will be lost, before the situation is resolved. See id.
Arguments Regarding Substantive Issues Presented
As to the application of the Speech or Debate Clause, Dayton first notes that the CAA expressly preserves the immunity provided by the Speech or Debate Clause to members of Congress. Brief for Appellant at 23. The question therefore becomes whether the suit at hand falls within the scope of immunity granted by the Speech or Debate Clause.
The Clause, Dayton argues, precludes any litigation that would force a member of Congress to answer questions or reveal information about a legislative act or the motive behind such an act. Id. at 26-27. An action is a protected “legislative act,” Dayton argues, when it falls within the due functioning of the legislative process. See id. at 25. In other words, if an action taken by a member of Congress falls within the “due functioning of the legislative process,” it is considered a legislative act and the Speech or Debate Clause grants the member immunity from questions regarding it.
In arguing that there are “legislative acts” involved in this action, Dayton contends that a member of Congress can not perform his or her duties without the assistance of a congressional staff. See id. at 27-28. Because this staff is so vital to the Senator’s legislative duty, steps taken to manage the congressional staff, including hiring and firing, are part of the “due functioning of the legislative process” and should be protected by the Speech or Debate Clause. Id. at 28. In addition, Dayton argues that the importance of the Congressional staff makes them, in essence, the alter ego of the member of Congress so that any activity in which they engage can be considered a legislative act just as the member of Congress’s activity is so conceived. Id. at 27-28.
This leads to the crux of Dayton’s argument, that an employment suit between a former congressional staff member and a member of Congress must be barred by the Speech or Debate Clause because it will ultimately bring up questions about at least one legislative act, the termination of the employee, and possibly others, such as the duties and actions of the employee. Id. at 29, 32.
Hanson, however, argues that the legislative acts covered by the Speech or Debate Clause have a much a narrower scope. He contends that the Clause was meant to cover debates occurring within both houses of Congress, and while its meaning has been extended, it only reaches “deliberative and communicative process” related to considering legislation or other matters within the Constitutional duties of the legislature. See Appellee Motion to Dismiss or Affirm at 8. He argues that in the past, the court has been reluctant to extend this meaning to other areas. Id. at 10.
Hanson points to Forrester v. White, 484 U.S. 219 (1988), a case involving the immunity given under statute to a member of the judiciary who had fired an employee, and argues that the Court should apply the same functional approach to their application of the Speech or Debate Clause. See Appellee Motion to Dismiss or Affirm at 10. In Forrester, the Court looked at the decision made by the member, not the duties of the complaining employee who made it, and decided that although administrative decisions might be important to judicial functioning, they are not judicial acts warranting immunity. See Forrester, 484 U.S. at 224; Appellee Motion to Dismiss or Affirm at 10. Hanson contends that similarly here, the Court should look at Dayton’s decision to fire him as the act in question, without regard to Hanson’s legislative duties or their importance to Dayton’s work, and find it an administrative, not legislative, act outside the scope of the Speech or Debate clause.
Finally, Dayton notes that the Court in Nixon v. Fitzgerald, 457 U.S. 731 (1982), held that even though there is no textual support for its finding, the President retains absolute immunity in his sphere of authority, which included personnel actions. Brief for Appellant at 35. The Court in that case based its decision on the principle of separation of powers. Dayton argues that because the Constitution affords the greatest independence to the legislative branch, it would be inconsistent to give the executive absolute immunity in such situations and deprive members of Congress the same treatment. See id. at 35-37.
Hanson, however, disposes of this argument by stating that while the President may enjoy broad immunity, members of Congress simply do not. See Appellee Motion to Dismiss or Affirm at 12. The Speech or Debate Clause confers immunity on the legislative branch and does so only for legislative acts. Furthermore, the Supreme Court has not allowed that immunity to extend past the essential functions of members of Congress such as speech and debate, voting, committee reports, etc. Id. at 12-13. As it has not done so in the past, Hanson argues, it should likewise refuse to do so here.
***Dayton argues that not all employee claims would be barred if the Speech or Debate Clause was bar jurisdiction here. He argues, for example, that sexual harassment claims would not be barred because behavior that typically constitutes a sexually hostile work environment, such as groping and lewd jokes, is not in the due functioning of the legislative process. Brief for Appellant at 31-32.
While this case addresses the scope of both the CAA and the Speech or Debate Clause, there are also some procedural issues at stake. Dayton has appealed this decision, rather than bring it to the Supreme Court by writ of certiorari, as is the traditional method of review. Brief for Appellant at 14. The Court will address whether this was the proper method under the CAA. If the Court decides that the CAA does not authorize direct appeal, they could deter the course of this litigation, forcing Dayton to file a petition for writ of certiorari. This, in addition, will clarify this procedural aspect of the CAA.
In addition, the Court could also find that the case is moot due to the fact that Senator Dayton is no longer in office. Id. at 17. If the Court finds that the entity being sued, the Office of Dayton, has ceased to exist and there is no provision in the CAA providing a solution for this situation, then Hanson will be left without a remedy. This means that in the future, employees wishing to bring suit against the professional employers will have to do so promptly, as to avoid losing their case when the member of Congress goes out of office. See Brief for Appellee in Opp. to Mootness at 5.
While these aspects of the Court’s decision are important to understanding the nuts and bolts of the CAA, if these issues are resolved so that the suit is able to continue before the Supreme Court, the Court will be forced to address the substance of both the CAA and the Speech or Debate Clause of the Constitution.
The Speech or Debate Clause states that Senators and Representatives shall “be privileged from arrest during their attendance at the session of their respective houses, and in going to and returning from the same,” and “shall not be questioned” for any speech or debate in either house.” U.S. Const., art. I, § 6, cls. 1. The purpose of the clause is grounded in the principle of separation of powers and is to ensure that members of Congress can perform their legislative duties without the fear of prosecution. See Brief for Appellant at 23-24. The Court has interpreted the Speech or Debate Clause, in Eastland v. U.S. Serviceman’s Fund, 421 U.S. 491, 503 (1975), to provide immunity for all acts within the sphere of legislative functioning. See Brief for Appellant at 25.
If the Court finds that the personnel actions of a member of Congress, that is, the decisions to hire, fire, promote, delegate, etc. with regard to his or her staff, do not constitute “legislative acts,” then the Speech or Debate Clause does not give the member of Congress immunity. See Appellee Motion to Dismiss or Affirm at 8. The result of this is that members of Congress will be held accountable for their inner-office actions to a much greater degree.
In the long run, this could force members of Congress to be much more careful in the way they delegate to and manage their extended staff. Without the protection of the Speech or Debate Clause in an employment suit, the member of Congress, or the aggrieved employee, could face questions about the duties they possess and decisions they have made, potentially revealing information meant to be kept private for the effective functioning of the legislative branch. See Brief for Appellant at 13. In other words, one purpose of the Speech or Debate Clause was to allow members of Congress to make decisions without being forced to explain them later in court, and a decision in favor of Hanson here could thwart that objective in certain situations. See id. at 10. This threat could force members of Congress to rethink the way they relate and give responsibility to their staff.
On the other hand, however, a decision giving less protection to members of Congress under the CAA would presumably empower employees who feel as though they have been treated unfairly. Working for a Senator or Representative, while it carries much responsibility, is still a job like many others in which employees should expect to be free from unwarranted treatment. A decision in favor of Hanson would ensure that employees are able to seek redress for such treatment and hold members of Congress to the same standard as other employers.
If the Supreme Court decides the other way, however, and holds that the Speech or Debate Clause does bar federal jurisdiction over an action brought by a Congressional employee under the CAA, then members of Congress will be protected against such actions and will not be forced to answer for any decisions they have made in the course of their legislative work. This will preserve the meaning and objective of the Speech or Debate Clause in its entirety in this significant area of legislative activity – personnel relations.
However, if the Court decides in favor of Dayton, then, in effect, the act applying employment laws to members of Congress will be stripped of much of its force. If the Court finds that the day-to-day functioning of congressional staff members constitutes “legislative acts”, and that the actions of members of Congress should be classified the same way, then it is hard to see how any suit by a staff member against his or her employer would not implicate the Speech or Debate Clause. Essentially, then, a decision in Dayton’s favor will severely narrow the scope of the CAA, possibly negating its effect all together.
The Speech or Debate Clause serves the important function of allowing members of Congress to make decisions and statements with regard to legislation without fear of being held judicially accountable for them at a later time. Here, the Supreme Court will determine how far that privilege extends, thereby giving more definition to the scope of the Clause. The decision will give members of Congress a better understanding of the immunity they enjoy outside actual speech and debate. In addition, it will either enhance or diminish the force of the CAA, thereby clarifying the rights of congressional employees in the workplace.
Written by: Breanne Atzert