A look at legislative immunity — maybe: Argument 4/24/07
on Apr 23, 2007 at 5:48 pm
In 1995, Congress took the important — if belated — step of committing itself to obey 11 federal laws against discrimination in the workplace; thereafter, its own workers were to be shielded by those laws. Whether that was a major stride, or merely an incremental step, may rest on the outcome of Supreme Court review of Dayton v. Hanson (06-618), scheduled for one-hour of oral argument starting at 1 p.m. Tuesday. The heart of the case, therefore, is the degree of legal immunity — if any — that the Constitution gives to lawmakers for their decisions about hiring, firing or promoting staff members. But, before the Court could get to that core issue, it must work its way through a multi-faceted exploration of civil procedure issues.
The office of a former member of the Senate, Ohio Democrat Mark Dayton, has asked the Court to rule that a onetime staff member fired from his job had no right to sue because his duties were closely related to legislative activity, so the action taken against him is shielded from legal attack by the Constitution’s Speech or Debate Clause. Dayton himself left office with the expiration of his term on Jan. 3 of this year, but the case may go on. That, however, is a threshold question the Justices will have to confront.
The underlying lawsuit against the Dayton office was filed by Brad Hanson. who had worked as the senator’s state office manager back in Minnesota, He claimed that he spent most of his work time on health insurance issues, advising constituents through a “health care help line.” He began developing cardiac problems in 2002, and sought time off for medical treatment. He claimed that he was fired over the telephone by the senator, who contended that Hanson had performed poorly as a staff member. Relying upon rights he believed he was given as a congressional employee by the Congressional Accountability Act of 1995, Hanson filed a lawsuit against the senator’s employment office, under the Family and Medical Leave Act, the Americans with Disabilities Act, and the overtime pay provisions of the Fair Labor Standards Act.
The senator’s office sought to have the case dismissed, arguing that Hanson’s duties were mainly legislative in character, so the firing was in essence a legislative act protected by the Speech or Debate Clause. A federal judge refused to dismiss the case, and the D.C. Circuit Court decided that it could go forward, without violating the Speech or Debate Clause.
That appeals court decision is the one the senator’s office appealed to the Court on Nov. 3. Two months later, it asked the Court to dismiss Hanson’s lawsuit as moot because the senator’s term had expired, so there was no longer any office to sue. The congressional staff-protection law, the office argued, does not provide a stand-in when the employing office that had been sued ceases to exist. The mootness issue is one of the preliminary questions the Court will have to answer before deciding whether to rule on the underlying constitutional immunity issue. There is also a separate procedural question over whether the Dayton office had filed a proper appeal to the Supreme Court, and, if it did not, whether the Court will convert the case into a form that can be reviewed.
When the Court on Jan. 19 ordered review of the case, it added questions about mootness and about the Dayton office’s right to appeal, and postponed until the hearing the question of its jurisdiction. If it does reach the merits of the case, the outcome could make a difference on whether many workers on Capitol Hill are put outside the laws against workplace discrimination.
The case now pits the former Dayton office, represented by the Senate Chief Counsel for Employment, against the Senate as a whole, which is siding with Hanson in favor of his right to pursue his lawsuit. Jean M. Manning, the Senate’s chief lawyer on employment issues, will argue first at Tuesday’s hearing, speaking for the Dayton office. Hanson will be represented by Richard A. Salzman of Washington’s Heller, Huron, Chertkof, Lerner, Simon and Salzman. He will share his half-hour of time with Thomas E. Caballero, an assistant legal counsel for the Senate, representing the Senate as a body. The full Senate favors letting Hanson’s case go to trial, and supports him on all issues before the Court.
Cbief Justice John G. Roberts, Jr., will not be taking part in the argument or in the decision. He was a member of the D.C. Circuit and participated in some facets of the Hanson case there.
The Dayton office filed in the Supreme Court a direct appeal from the D.C. Circuit Court, arguing that the Court was obliged to hear the case as a jurisdictional matter. If jurisdiction is not satisfied that way, the office suggests that the Court convert the appeal into a petition for certiorari, and review it. Hanson and the full Senate argue both that the appeal was improper as a jurisdictional matter, and that the Court should not hear the appeal as a discretionary grant of review. They also resist the Dayton office’s suggestion that the case is now moot because the senator has left office; the Senate contends that the lawsuit can be treated as against the Senate employment office so that it makes no difference that the Dayton office has gone out of existence. A fund exists to pay any judgment of settlement that Hanson might win, the Senate argues.
If the case gets over all of those procedural hurdles, the Justice would then confront the question of whether the Speech or Debate Clause operates as a limit on congressional employees’ access to the courts to complain of workplace bias under the 1995 law. The Senate employment office argues that senators cannot do their work without employees, who act as the members’ alter egos, so legislative acts by those alter egos should be as fully protected from judicial review as they would be if done by a member of Congress. Managing an alter ego, the office argues, is part of making the legislative process function properly. “It is well settled that the Speech or Debate Clause protects all legislative acts, not just speeches and debates on the floors and at committee hearings of the House and Senate,” the office argues. “The Speech or Debate Clause bars court adjudication of CAA discrimination claims brought by employees whose job duties are part of the due functioning of the legislative process…”
The Senate, on the other side, urges the Court to give special deference to Congress’ choice of how to regulate its own workplace. On the merits, it contends that “adverse personnel actions against congressional employees, including employees with legislative duties, are not themselves part of the legislative process,” so do not enjoy immunity from court challenge. Hanson makes the same point: “Routine personnel decisions…are not any part of the deliberative and communicative processes used to participate in committee or House proceedings, let alone an integral part.” A typical employment decision on Capitol Hill, the former staff member asserts, may be preparatory to the legislative process, but is not itself a part of that process.
The Dayton office’s only support from an amicus comes from the presiding officer of the Pennsylvania state Senate. Hanson is supported not only by the full Senate, as an amicus, but also by two members of Congess who worked to pass the 1995 law on job discrimination, Rep. Barney Frank, Massachusetts Democrat, and Rep. Christopher Shays, Connectice Republican, and by the AARP, an advocacy group that works against bias toward elders.
