Professional Documents
Culture Documents
Filed: Patrick Fisher
Filed: Patrick Fisher
PUBLISH
DEC 10 2004
PATRICK FISHER
TENTH CIRCUIT
Clerk
RITA BASTIEN,
Plaintiff - Appellant,
v.
No. 02-1343
Jean Marie Manning, Senate Chief Counsel for Employment (Claudia A. Kostel,
Senate Senior Counsel for Employment, with her on the brief), Office of Senate
Chief Counsel for Employment, Arlington, Virginia, for Defendant - Appellee.
Traci L. Lovitt, of Jones, Day, Reavis & Pogue, New York, New York (Glen D.
Nager, of Jones, Day, Reavis & Pogue, Washington, D.C., with her on the brief),
for Amici Curiae American Federation of State, County and Municipal
Employees, AFL-CIO, National Employment Lawyers Association, AARP, and
American Association of People with Disabilities; Vincent Eng, Legal Director,
National Asian Pacific American Legal Consortium, Washington, D.C., on the
brief for Amicus Curiae National Asian Pacific American Legal Consortium;
Larry P. Weinberg, General Counsel, American Federation of State, County and
Municipal Employees, AFL-CIO, Washington, D.C.; Jenifer Bosco, Senior Staff
Attorney, National Employment Lawyers Association, San Francisco, California;
Andrew J. Imparato, President and CEO, American Association of People with
Disabilities, Washington, D.C.
Allison M. Zieve, Public Citizen Litigation Group, Washington, D.C.; Sheila A.
Bedi and David C. Vladeck, Institute for Public Representation, Georgetown
University Law Center, Washington, D.C., on the brief for Amici Curiae Project
on Government Oversight and Public Citizen, Inc.
Before SEYMOUR, BALDOCK, and HARTZ, Circuit Judges.
HARTZ, Circuit Judge.
Our Constitutions Speech or Debate Clause states that for any Speech or
Debate in either House, [members of Congress] shall not be questioned in any
other Place. U.S. Const. art. I, 6, 1. The issue before us is whether this
Clause precludes Plaintiff Rita Bastiens employment-discrimination claim
brought under the Congressional Accountability Act of 1995 (the CAA). Senator
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Ben Nighthorse Campbell fired Plaintiff from her position on his staff. Her
duties included meeting with the public to obtain information used by the Senator
for both constituent services and his legislative agenda. We hold that suit is not
barred because the claim does not question the conduct of official Senate
legislative business by Senator Campbell or his aides. We do not address,
however, whether certain evidence may be inadmissible in this litigation because
it concerns such conduct.
I.
April 30, 2001, alleging age discrimination and retaliation for discrimination
complaints. She alleged that the discrimination began several months before her
transfer to Colorado Springs and continued until her termination.
The Office moved to dismiss the suit under Fed. R. Civ. P. 12(b)(1),
contending that the Speech or Debate Clause barred federal subject matter
jurisdiction over the case, and that the claim should be dismissed on the ground of
sovereign immunity. The Office asserted that Plaintiffs duties of meeting with
constituents, gathering information for the Senator, discussing constituent
suggestions and then conveying them to the Senator, constitute actions that
directly relate to the due functioning of the legislative process, Bastien v.
Campbell, 209 F. Supp. 2d 1095, 1101 (D. Colo. 2002), and accordingly should
be shielded from judicial scrutiny by the Speech or Debate Clause. Plaintiff
responded that her actions were political rather than legislative in nature, and
that although she met with constituents to discuss certain issues, she never
performed legislative functions. Id.
The district court granted the Offices motion to dismiss. Id. It held that
the Speech or Debate Clause provides immunity to Members of Congress and
their aides for personnel actions taken with respect to employees whose duties are
directly related to the due functioning of the legislative process[.] Id. at 1103. It
then found that the majority of Plaintiffs job duties . . . were directly related to
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U.S.C.A. Const. art. I 6, 1. On its face the Speech or Debate Clause would
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his order shall no more justify the person who executed it than King
Charles's warrant for levying ship-money could justify his revenue
officer.
Id. at 202 (quoting Stockdale v. Hansard, 9 Ad. & E. 1, 112 Eng. Rep. 1112 (K.C.
1839) (emphasis added)). Accordingly, the Court construed Speech or Debate
broadly, writing:
It would be a narrow view of the constitutional provision to limit it
to words spoken in debate. The reason of the rule is as forcible in its
application to written reports presented in that body by its
committees, to resolutions offered, which, though in writing, must be
reproduced in speech, and to the act of voting, whether it is done
vocally or by passing between the tellers. In short, to things
generally done in a session of the House by one of its members in
relation to the business before it.
Id. at 204 (emphasis added).
To say that Speech or Debate in either House is to be construed broadly
is not, however, to say that it should be cast free from its mooring. In particular,
it should not be, and has not been, read to make members of Congress into a
special class of citizens protected from suit (or prosecution) arising out of any
activity that could assist in the performance of their official duties. After all,
virtually anything that a member of Congress does could be said to relate, more or
less directly, to official business (e.g., causing an accident when speeding to
attend a constituents dinner party). And although any suit or prosecution against
a member of Congress could improperly influence the member in the conduct of
official duties, the Clause does not protect against all such intrusions. The
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because the committee investigation had not exceeded the bounds of legislative
power, id. at 378. In other words, Speech or Debate in either House includes
questioning witnesses in committee meetings.
United States v. Johnson, 383 U.S. 169, 185 (1966), added two important
glosses to the Clause. First, the Court held that the Clause protects not only the
legislative acts of [a] member of Congress, but also the members motives for
performing them. Second, it held that even though the Clause may not bar a
particular prosecution altogether, it could preclude use of certain evidence.
Johnson, a former Congressman, had been convicted of violating and conspiring
to violate the federal conflict-of-interest statute by his efforts to influence the
Department of Justice to dismiss an indictment against a loan company and its
officers. Id. at 171. One part of that effort was his delivery of a speech on the
House floor favorable to the loan company. Id. at 172. The Court found that
proper application of the Clause required exclusion from trial of evidence relating
to Johnsons floor speech, the manner of its preparation, and his motives for
making it. Id. at 173-76. Certainly, the consideration of such evidence at trial
amounted to questioning a member of Congress concerning a Speech or Debate
in the members House. The Court rejected the Governments argument that the
Clause was meant to prevent only prosecutions based upon the content of
speech, such as libel actions, but not those founded on the antecedent unlawful
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conspired with state officials to violate Dombrowskis civil rights in obtaining the
records that were then subpoenaed by the committee.
Although Powell v. McCormack, 395 U.S. 486 (1969), is best remembered
for holding that the House of Representatives improperly excluded Mr. Powell
after his election in 1966, it also raised issues of Speech or Debate Clause
immunity with respect to Members of the House and its employees. The Court
determined that [a]lthough this action should be dismissed against respondent
Congressmen [for voting for exclusion], it may be sustained against their agents.
Id. at 550. But see id. at 501-02 (stating that Court need address only whether the
defendant House employees could be sued even if the Congressmen were
protected). The Court rejected the defendant employees attempt to distinguish
the rulings against congressional employees in Kilbourn and Dombrowski on the
grounds that the prior cases concerned an affirmative act by the employee
outside the House having a direct effect upon a private citizen, id., at 504, and
that they had involved suits for damages rather than the assertedly greater
interference with the legislative process in Powell, in which the plaintiff sought
disbursement of funds (salary) by the Sergeant at Arms, id. Otherwise, Powell
does not appear to have broken any new ground with respect to Speech or Debate
Clause protection.
The next Court opinion on the Clause, United States v. Brewster, 408 U.S.
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as protecting all conduct relating to the legislative process. In every case thus far
before this Court, the Speech or Debate Clause has been limited to an act which
was clearly a part of the legislative processthe due functioning of the process.
Id. at 515-16 (footnotes omitted). The Court concluded its rejection of a relatedto reading by pointing out the dangers of an excessive expansion of Speech or
Debate Clause immunity:
We would not think it sound or wise, simply out of an
abundance of caution to doubly insure legislative independence, to
extend the privilege beyond its intended scope, its literal language,
and its history, to include all things in any way related to the
legislative process. Given such a sweeping reading, we have no
doubt that there are few activities in which a legislator engages that
he would be unable somehow to relate to the legislative process.
Admittedly, the Speech or Debate Clause must be read broadly to
effectuate its purpose of protecting the independence of the
Legislative Branch, but no more than the statutes we apply, was its
purpose to make Members of Congress super-citizens, immune from
criminal responsibility.
Id. at 516.
On the same day as Brewster, the Court also decided Gravel v.
United States, 408 U.S. 606 (1972), in which it considered the Speech or Debate
Clause in the context of Senator Gravels disclosure of the Pentagon Papers. The
Court took the opportunity to explain the circumstances in which members of
Congress are protected by the Clause with respect to acts by their aides. It did
not, however, clearly expand protection in any other dimension.
The case arose out of a subpoena to Senator Gravels aide, Leonard S.
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just said that the order would provide ample protection. Id. at 628. This
peculiar language may have been appropriate because some of the limitations in
the order could be justified on grounds other than the Speech or Debate
Clausefor example, a grand jurys authority is generally limited to investigating
only crimeand those other grounds provided, in the context of that case, at least
as much protection as the Clause in certain areas.
Further hampering an understanding of the reach of the Clause under
Gravel is the uncertainty regarding the scope of the protection with respect to all
noncriminal acts performed by the Senators aides in the course of their
employment, in preparation for the subcommittee hearing, id. at 629. This
protection is not explored in the opinion. In particular, the scope of preparation
for a hearing, which could include virtually any work by an aide, is left
unspecified. Perhaps such specificity was unnecessary in that case because
Rodberg had been an aide for only a few hours before the hearing. In any event,
despite Gravels expansive construction of the Clause to protect certain activity
of congressional aides, it still confined protection to activity closely and directly
tied to the conduct of official legislative business.
In Doe v. McMillan, 412 U.S. 306 (1973), the Court considered a suit by
persons allegedly defamed by a committee report publicly disseminated by the
Government Printing Office. The Court held that the Speech or Debate Clause
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particular activities other than literal speech or debate fall within the legitimate
legislative sphere we look to see whether the activities took place in a session of
the House by one of its members in relation to the business before it. Id. at 503
(quoting Kilbourn, 103 U.S. at 204). The power to investigate and to do so
through compulsory process plainly falls within [Gravels] definition [of the
legitimate legislative sphere]. Id. at 504. [T]he power to investigate is inherent
in the power to make laws. Id. The investigation at issue [was] related to and in
furtherance of a legitimate task of Congress. Id. at 505. Not only were the
Committee members immune from suit, but so was the Committees Chief
Counsel. See id. at 507.
United States v. Helstoski, 442 U.S. 477 (1979), removed any doubt that
evidence of legislative acts cannot be introduced into evidence for any purpose.
Former Congressman Helstoski was prosecuted for allegedly accepting bribes in
return for promising to introduce private bills granting resident status to aliens.
The issue was the extent to which the Speech or Debate Clause required exclusion
of evidence the Government sought to offer during trial. The Government
contend[ed ]that the Speech or Debate Clause does not bar the introduction of all
evidence referring to legislative acts . . . [and] argue[d] that the Clause does not
prohibit it from introducing evidence of discussions and correspondence which
describe and refer to legislative acts if the discussions and correspondence did not
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occur during the legislative process. Id. at 486. The Government said that it
s[ought] to introduce such evidence to show Helstoskis motive for taking money,
not to show his motive for introducing the bills. Id. Following Johnson and
Brewster, the Court largely rejected the Governments argument, stating that those
precedents leave no doubt that evidence of a legislative act of a Member may not
be introduced by the Government. Id. at 487. It reiterated that [t]he Clause
protects against inquiry into acts that occur in the regular course of the legislative
process and into the motivation for those acts. Id. at 489 (quoting Brewster, 408
U.S. at 525). It noted, however, that [a] promise to deliver a speech, to vote, or
to solicit other votes at some future date is not speech or debate, [nor is] a
promise to introduce a bill . . . a legislative act. Id. at 490.
The most recent Supreme Court opinion on the Speech or Debate Clause was
handed down a quarter-century ago. In Hutchinson v. Proxmire, 443 U.S. 111
(1979), the source of Senator Proxmires problem was not alleged criminality but
an allegedly libelous attempt at humor. The Senators Golden Fleece Award
publicized expenditures of taxpayer money he considered wasteful. Plaintiff
Hutchinson received the award for his research on anger in animals. Senator
Proxmire entered his comments in the Congressional Record and then referred to
the award in newsletters to his constituents and others. In addition, he referred to
the research in a television interview, and his aide contacted federal agencies that
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does not cover things done beyond the place and limits of duty. J. Story,
Commentaries on the Constitution 863 at 329 (1st ed. 1833) (Story) (quoted by
Proxmire, 443 U.S. at 126).
Even accepting Senator Proxmires contention that newsletters and press
releases exert some influence on other votes in the Congress and therefore have a
relationship to the legislative and deliberative process, id. at 131, the Court said
such a relationship was insufficient to trigger Speech or Debate Clause protection.
It noted that in Brewster it had carefully distinguished between what is only
related to the due functioning of the legislative process, and what constitutes the
legislative process entitled to immunity under the Clause. Id. (quoting Brewster,
408 U.S. at 512). Although Congresss informing itself through hearings is a
legislative function protected by the Clause, the transmittal of such information
by individual Members in order to inform the public and other Members is not a
part of the legislative function or the deliberations that make up the legislative
process. Id. at 133. Newsletters and press releases . . . are primarily means of
informing those outside the legislative forum; they represent the views and will of
a single Member. It does not disparage either their value or their importance to
hold that they are not entitled to the protection of the Speech or Debate Clause.
Id. Of particular relevance here, the Court distinguished Proxmires actions from
congressional efforts to inform itself through committee hearings[, which] are
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of the Speech or Debate Clause have always been confined within the limits of
formal, official proceedings. This limitation has been recognized from Kilbourn,
103 U.S. at 204 (describing object of Clause as things generally done in a session
of the House by one of its member in relation to the business before it) to
Johnson, 383 U.S. at 172 (attempts to influence executive agency are outside
Clauses scope) to Brewster, 408 U.S. at 512 (the Clause prohibits inquiry only
into those things generally said or done in the House or Senate in the performance
of official duties and into the motivation for those acts), to Gravel, 408 U.S. at
625 ([i]nsofar as the Clause is construed to reach other matters [than speech or
debate in either House], they must be an integral part of the deliberative and
communicative processes by which Members participate in committee and House
proceedings with respect to the consideration and passage or rejection of proposed
legislation or with respect to other matters which the Constitution places within
the jurisdiction of either House), and to Proxmire, 443 U.S. at 126 (this
privilege is strictly confined to things done in the course of parliamentary
proceedings, and does not cover things done beyond the place and limits of duty
(quoting Story)). The expression summarizing this proposition is that the Clause
protects only legislative, not political, acts. See Brewster, 408 U.S. at 512.
We now turn to the specifics of the case before us.
IV.
legislative act by Senator Campbell or any member of his staff. Defendant has not
pointed to, or even suggested, that Plaintiff would need to prove that Senator
Campbell cast a particular vote, subpoenaed a witness, or took part in any other
official Senate or Senate committee action. What Defendant does suggest is that
meetings with constituents or other members of the publiceither by the Senator
himself or by his aidesare legislative acts to the extent that information is
gathered that could affect his votes or his efforts to craft proposed legislation. In
support of this position Defendant cites language in the Supreme Courts decisions
in Doe, United States Servicemens Fund, and Proxmire, stating that gathering
information was a legislative act. In each of these cases, however, the information
gathering being addressed was in the course of formal committee action, when the
committee had subpoenaed witnesses or disclosed information during a hearing.
No Supreme Court opinion indicates that Speech or Debate Clause immunity
extends to informal information gathering by individual members of Congress. On
the contrary, Gravel summarized the nonimmunized civil complaint against the
committee counsel in Dombrowski as charg[ing] [him] with conspiring with state
officials to carry out an illegal seizure of records that the Committee sought for its
own proceedings, Gravel, 408 U.S. at 619surely an information-gathering
function. Gravel explained that even though the committee counsel was
gathering information for a hearing[,] . . . relief could be afforded [to those suing
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sure, any imposition of liability on a public official may impair that officials
performance of official duties; lawsuits by former employees can consume time
and energy, and the prospect of such suits may deter the official from discharging
an employee whose incompetence diminishes the officials own efficiency and
effectiveness. But Fitzgerald made clear that determining whether to recognize an
absolute immunity requires balancing such interests against the interests of those
who have been wronged. See id. at 744-48. And recognition of the Presidents
absolute immunity derived from [t]he Presidents unique status under the
Constitution. Id. at 750 (emphasis added). The Court said that [b]ecause of the
singular importance of the Presidents duties, diversion of his energies by concern
with private lawsuits would raise unique risks to the effective functioning of
government, id. at 751, and the sheer prominence of the Presidents office
makes him an easily identifiable target for suits for civil damages, id. at 752-53.
Surely these considerations also weigh heavily in the context of high ranking
executive officials, such as governors and cabinet officers; but the Court viewed
decisions giving such officials only a qualified immunity to be inapposite. Id. at
750.
Prominent as members of Congress are, the threat to the performance of
their duties arising from employment litigation is nothing like what would confront
the President. It is worth observing that the third branch of government, the
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Session of their respective Houses, and in going to and returning from the same[.]
U.S. Const. art. I, 6, 1.
Senator Huey Long had been sued for libel in the District of Columbia, and
a summons to answer the complaint was served on him in the District during a
congressional session. The Court rejected Longs argument that the constitutional
protection against arrests encompasses immunity from such a summons while he
was conducting the publics business in Congress. Justice Brandeis wrote that the
language of the constitutional provision protecting members of Congress from
arrest is exact and leaves no room for a construction which would extend the
privilege beyond the terms of the grant. 293 U.S. at 82. Likewise, we decline to
read a congressional equivalent of the Fitzgerald privilege into the Speech or
Debate Clause.
Finally, Defendant relies on Browning v. Clerk, 789 F.2d 923 (D.C. Cir.
1986), the one appellate opinion dismissing an employment claim because of
Speech or Debate Clause immunity. The court in that case dismissed a complaint
alleging racial discrimination filed by a woman fired from her position as an
official reporter of the House of Representatives. The court stated that [t]he
touchstone to determining whether the Speech or Debate Clause immunity attaches
is whether the activities at issue were an integral part of the deliberative and
communicative processes [of Congress], Gravel, 408 U.S. at 625, such that the
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Conclusion
We hold that Plaintiffs cause of action under the CAA is not barred by the
Speech or Debate Clause. We REVERSE the dismissal by the district court and
REMAND for further proceedings consistent with this opinion.
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