Fields, Beverly v. Off Eddie Johnson

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 30, 2005 Decided August 18, 2006

No. 04-5315

BEVERLY A. FIELDS,

APPELLEE

v.

OFFICE OF EDDIE BERNICE JOHNSON, EMPLOYING OFFICE,

UNITED STATES CONGRESS,

APPELLANT

No. 04-5335

BRAD HANSON,

APPELLEE

v.

OFFICE OF SENATOR MARK DAYTON,

APPELLANT

Appeals from the United States District Court

for the District of Columbia

(No. 04cv00717)

(No. 03cv01149)

2

William F. Allen, Attorney, Office of House Employment

Counsel, argued the cause for appellant in No. 04-5315. With

him on the briefs was Kimberly Carey Williams, Attorney.

Gloria L. Ferguson, Attorney, entered an appearance.

Geraldine R. Gennet, General Counsel, U.S. House of

Representatives, and Kerry W. Kircher, Deputy General

Counsel, were on the brief for amicus curiae Bipartisan Legal

Advisory Group of the United States House of Representatives

in No. 04-5315.

Henry J. Hyde, pro se, was on the brief for amicus curiae

Congressman Henry J. Hyde in support of appellant in No. 04-

5315.

Wayne Marcus Scriven argued the cause and filed the brief

for appellee in No. 04-5315.

Jean M. Manning, Chief Counsel, Office of Senate Chief

Counsel for Employment, argued the cause for appellant in No.

04-5335. With her on the briefs was Toby R. Hyman, Senior

Counsel. Mary S. Bach, Counsel, entered an appearance.

Richard A. Salzman argued the cause for appellee in No. 04-

5335. With him on the brief were Douglas B. Huron and

Tammany M. Kramer.

Before: GINSBURG, Chief Judge, and SENTELLE,

HENDERSON, RANDOLPH, ROGERS, TATEL, BROWN, and

GRIFFITH, Circuit Judges.*

*

Circuit Judges Garland and Kavanaugh did not participate in

this matter.

3

Opinion for the Court in part filed by Circuit Judge

RANDOLPH, an opinion in which Chief Judge GINSBURG and

Circuit Judges HENDERSON and TATEL join.

Opinion concurring in part and in the judgment filed by

Circuit Judge ROGERS.

Concurring opinion filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit Judge

BROWN, with whom Circuit Judges SENTELLE and GRIFFITH

join.

RANDOLPH, Circuit Judge: Article I, section 6 of the

Constitution provides that “for any Speech or Debate in either

House, [Senators and Representatives] shall not be questioned

in any other Place.” We ordered these two appeals to be argued

together en banc in order to determine whether the Speech or

Debate Clause requires dismissal of these suits brought under

the Congressional Accountability Act of 1995, 2 U.S.C.

§§ 1301-1438, and whether Browning v. Clerk, U.S. House of

Representatives, 789 F.2d 923 (D.C. Cir. 1986), should remain

the law of this circuit.

I.

No. 04-5315 is an appeal from a district court order denying

a motion to dismiss a complaint alleging that the Office of

Representative Eddie Bernice Johnson discriminated against

Beverly A. Fields because of her race and gender and retaliated

against her for objecting to discriminatory conduct. No. 04-

5335 is an appeal from a district court order denying a motion

to dismiss a complaint alleging that the Office of Senator Mark

Dayton discriminated against Brad Hanson because of a

perceived disability and violated the Fair Labor Standards Act.

4

The Office of Representative Johnson and the Office of Senator

Dayton (collectively, the “Member Offices”) claim that the

Speech or Debate Clause immunizes them from these suits and

that the district court should have dismissed the complaints for

lack of subject matter jurisdiction pursuant to FED. R. CIV. P.

12(b)(1).1

A.

Fields and Hanson each sued under the Accountability Act.

The Act confers on “covered employees” rights and remedies

drawn from various labor and employment statutes not

previously applicable to the legislative branch.2 2 U.S.C.

§ 1302(a); see id. §§ 1311-16, 1331, 1341, 1351. It also

includes an anti-retaliation provision that prohibits “an

employing office” from “intimidat[ing], tak[ing] reprisal

against, or otherwise discriminat[ing] against, any covered

employee because the covered employee has opposed” or

1

Although we do not ordinarily have jurisdiction to review an

order denying a motion to dismiss because such an order is not “final”

under 28 U.S.C. § 1291, Bombardier Corp. v. Nat’l R.R. Passenger

Corp., 333 F.3d 250, 253 (D.C. Cir. 2003), “[i]ssues of Speech or

Debate Clause immunity may be immediately appealed,” Browning,

789 F.2d at 926 n.6 (citing Helstoski v. Meanor, 442 U.S. 500, 506

(1979)).

2

Of particular relevance here, the Accountability Act

incorporates portions of the Fair Labor Standards Act of 1938, 29

U.S.C. §§ 201-219, Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e to 2000e-17, the Americans With Disabilities Act of

1990, 42 U.S.C. §§ 12101-12213, the Family and Medical Leave Act

of 1993, Pub. L. No. 103-3, 107 Stat. 6 (codified as amended in

scattered sections of Titles 2, 5, and 29 of the U.S. Code), and the

Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796l. See 2 U.S.C.

§ 1302(a).

5

reported “any practice made unlawful” by the Accountability

Act. Id. § 1317(a). A “covered employee” is an individual

employed by the House of Representatives, the Senate, or some

other office specifically enumerated in the statute. Id.

§ 1301(3).3

Section 1404(2) creates a cause of action for covered

employees to sue in federal court for violations of the

Accountability Act. Section 1408(a) vests the “district courts of

the United States” with “jurisdiction over any civil action

commenced under section 1404.” Before initiating such an

action, the employee must seek counseling by, and mediation

with, the Office of Compliance, id. § 1408(a); see §§ 1402-1403,

“an independent office within the legislative branch,” id.

§ 1381(a). Thereafter, the employee may bring an action against

“the employing office alleged to have committed the violation,

or in which the violation is alleged to have occurred.” Id.

§ 1408(b). An “employing office” for these purposes includes

“the personal office of a Member of the House of

Representatives or of a Senator.” Id. § 1301(9)(A).

Fields, an African American female and the plaintiff in No.

04-5315, served as Representative Johnson’s chief of staff from

January 2002 until her discharge in early 2004. The parties

agree that as chief of staff, Fields was deeply involved in a wide

array of Representative Johnson’s legislative work. Fields’s

complaint alleged as follows. Elisabeth Howie, a “Black

Latino,” worked as an executive assistant and scheduler for the

Office of Representative Johnson. In April 2003, the office

decided to replace Howie with “an Asian person under the age

of 40.” Fields objected, but her objections were rebuffed, and

3

The statute also protects former employees and applicants for

employment. 2 U.S.C. § 1301(4).

6

she was directed to give Howie one day’s notice that she was

being terminated.

After Fields made her objections to Howie’s termination

known around the office, her co-workers began falsely accusing

her of poor performance. Fields alleged they did so because

they wanted “a Caucasian male rather than an African American

female” to be Representative Johnson’s chief of staff. Their

efforts eventually succeeded when the Office of Representative

Johnson promoted a non-African American male employee to

chief of staff and demoted Fields to administrative assistant.

The Office of Representative Johnson increased the new chief

of staff’s salary by approximately $10,000 – something it failed

to do for Fields despite promising her a salary increase when she

was chief of staff.

Fields filed an employment discrimination complaint with

the Office of Compliance on December 18, 2003, and began the

required counseling and mediation. While this was going on,

the Office of Representative Johnson “initiated a bad faith and

bogus investigation of plaintiff’s conduct as an employee . . . to

embarrass plaintiff before her co-workers and to force plaintiff

to resign from her employment position.” When Fields refused

either to drop her discrimination claims or to resign, she was

abruptly terminated. In response to this additional retaliation,

Fields filed a second employment discrimination complaint with

the Office of Compliance on March 11, 2004, and again

complied with the counseling and mediation requirements.

After exhausting her administrative remedies, Fields sued

the Office of Representative Johnson under the Accountability

Act. She alleged racial and gender discrimination in violation

of 2 U.S.C. § 1311(a)(1) (incorporating § 703 of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e-2), equal pay discrimination in

violation of 2 U.S.C. § 1313(a)(1) (incorporating §§ 6(a)(1) and

7

(d), 7, and 12(c) of the Fair Labor Standards Act of 1938, 29

U.S.C. §§ 206(a)(1), (d), 207, 212(c)), and two counts of

retaliation in violation of 2 U.S.C. § 1317(a). The Office of

Representative Johnson moved to dismiss the complaint for lack

of subject matter jurisdiction pursuant to FED. R. CIV. P.

12(b)(1), asserting immunity from suit under the Speech or

Debate Clause. The district court denied the motion to dismiss

without explanation. After ordering en banc review, we granted

Representative Johnson’s motion to intervene for the limited

purpose of asserting her Speech or Debate Clause immunity.

Brad Hanson, the plaintiff in No. 04-5335, joined Senator

Dayton’s Senate campaign in July 2000 and began serving as

State Office Manager in Senator Dayton’s Ft. Snelling,

Minnesota, office upon the Senator’s election to office.

Hanson’s complaint alleged as follows. Hanson’s work for

Senator Dayton centered on “setting up the Senator’s three local

offices in Minnesota” and overseeing “the transition of the

Health Care Help Line to Senator Dayton’s personal Senate

office.”4 The Health Care Help Line “offered assistance to

people having difficulties with their health insurance carriers,

HMO’s or physicians.” This work often required Hanson, an

employee entitled to overtime pay under the Fair Labor

Standards Act, to work overtime. The Office of Senator Dayton

never paid him for this overtime, even though the Office

“recognized” his “effectiveness” by increasing his salary and

paying him a bonus in January 2002.

Hanson began experiencing cardiac arrhythmia early in

2002. His physician advised him to undergo a coronary

4

The parties agree that Hanson spent much of his time

working on the Health Care Help Line, but they disagree about

whether this and other assistance Hanson provided to Senator Dayton

constituted legislative activities or merely “constituent services.”

8

ablation. The surgery would require only a short hospital stay,

but Hanson would need two to three weeks away from work to

recover. Hanson informed his co-workers that he needed heart

surgery and arranged a short meeting with Senator Dayton on

July 3, 2002, in the Ft. Snelling office to share the news with

him. “The meeting had not gone on for more than five minutes

when the Senator abruptly told Hanson, ‘You’re done,’” without

explanation. Senator Dayton told Hanson to stop reporting to

the office and to take medical leave instead. Matt McGowan,

Senator Dayton’s Washington Office Manager, later called

Hanson at home to inform him that “he would be terminated as

of September 30.” Hanson then underwent coronary ablation

and fully recovered.

Hanson sued the Office of Senator Dayton under the

Accountability Act after exhausting his administrative remedies.

His complaint accused the Office of Senator Dayton of violating

2 U.S.C. § 1312(a) (incorporating §§ 101-105 of the Family and

Medical Leave Act of 1993, 29 U.S.C. §§ 2611-2615),

discriminating against him on the basis of a perceived disability

in violation of 2 U.S.C. § 1311(a)(3) (incorporating § 501 of the

Rehabilitation Act of 1973, 29 U.S.C. § 791, and §§ 102-104 of

the Americans With Disabilities Act of 1990, 42 U.S.C.

§§ 12112-12114), and failing to pay him overtime compensation

in violation of 2 U.S.C. § 1313 (incorporating the

aforementioned provisions of the Fair Labor Standards Act).

The Office of Senator Dayton asserted immunity from suit under

the Speech or Debate Clause and moved to dismiss the

complaint for lack of subject matter jurisdiction pursuant to FED.

R. CIV. P. 12(b)(1).5 The district court denied the motion

without explanation.

5

The Office of Senator Dayton later filed an answer denying

Hanson’s allegations.

9

B.

Relying on Browning v. Clerk, U.S. House of

Representatives, 789 F.2d 923 (D.C. Cir. 1986), the Member

Offices argue that the district court lacked jurisdiction and

should have dismissed these suits because the Speech or Debate

Clause immunizes them from suits challenging personnel

decisions concerning employees like Fields and Hanson who

assist Members in performing legislative functions.

In Browning, a former employee of the House of

Representatives sued the Speaker and other House officers for

employment discrimination. Id. at 924 & n.2. Browning was

“the first black Official Reporter employed by the United States

House of Representatives.” Id. at 924. She claimed that despite

some poor performance on the job, “the true reason behind her

dismissal was racial animus.” Id. We held that a Member’s

personnel decision is shielded from judicial scrutiny when “the

[affected] employee’s duties were directly related to the due

functioning of the legislative process.” Id. at 929 (emphasis

removed).

Later decisions cast doubt on Browning. Two years after

Browning, the Supreme Court ruled that a state-court judge did

not have “absolute immunity from a suit for damages under 42

U.S.C. § 1983 for his decision to dismiss a subordinate court

employee.” Forrester v. White, 484 U.S. 219, 220 (1988). The

Court described its “absolute official immunity” jurisprudence

as “quite sparing,” citing as examples legislative immunity

under the Speech or Debate Clause and Presidential immunity

under Nixon v. Fitzgerald, 457 U.S. 731 (1982). Forrester, 484

U.S. at 224-25.6 Consistent with the narrowness of absolute

6

The Court characterized its decisions interpreting the Speech

or Debate Clause as being “careful not to extend the scope of the

10

immunity in these contexts, the Court explained that judges are

entitled to absolute immunity only for “judicial acts,” not

“administrative, legislative, or executive functions,” id. at 227,

no matter how “essential” such functions may be “to the very

functioning of the courts,” id. at 228. The Court then concluded

that the employment decision in Forrester was an

administrative, not a judicial, act and that the state-court judge

therefore was not entitled to absolute immunity. Id. at 229-30.

Gross v. Winter, 876 F.2d 165 (D.C. Cir. 1989), presented

the question whether common law legislative immunity

exempted a D.C. Councilmember’s personnel decisions from

judicial review. We recognized that Browning’s focus on “the

duties of the employee” as the “ultimate issue” was

“unquestionably [in] tension” with Forrester, “which accords no

weight to the duties of the employee.” Winter, 876 F.2d at 170

(quoting Browning, 789 F.2d at 928) (internal quotation mark

omitted; emphasis removed). We found “Forrester, not

Browning, controlling” and concluded that “the functions judges

and legislators exercise in making personnel decisions affecting

[probation officers and legislative aides, respectively] are

administrative, not judicial or legislative.” Id. at 172.

Now a conflict in the circuits has developed. In Bastien v.

Office of Senator Ben Nighthorse Campbell, 390 F.3d 1301

(10th Cir. 2004), cert. denied, 126 S. Ct. 396 (2005), a case

brought under the Accountability Act, the Tenth Circuit held

that the Speech or Debate Clause bars judicial review of a

Senator’s allegedly discriminatory personnel decision only when

the plaintiff’s claim “question[s] the conduct of official Senate

[Clause’s] protection further than its purposes require.” 484 U.S. at

224. The Court described the President’s absolute immunity as resting

on the President’s “‘unique position in the constitutional scheme.’”

Id. at 225 (quoting Fitzgerald, 457 U.S. at 749).

11

legislative business.” Id. at 1304 (emphasis added). The court

was “hesita[nt] to embrace th[e] test” we employed in Browning,

which it considered inconsistent with the Supreme Court’s

Speech or Debate Clause jurisprudence. Id. at 1318-19.

II.

The Accountability Act allows an employee of the House or

Senate to recover damages and seek injunctive relief from a

Member’s personal office “alleged to have committed [a]

violation [of the Accountability Act], or in which the violation

is alleged to have occurred.” 2 U.S.C. § 1408(b); id. § 1301(3),

(9); see, e.g., id. §§ 1311(b)(1), 1312(b), 1313(b).7 Congress

thereby unequivocally waived the sovereign immunity of a

Member’s personal office facing such allegations. See Lane v.

Peña, 518 U.S. 187, 192 (1996). Congress also provided in

§ 1413 that § 1408 “shall not constitute a waiver of sovereign

immunity for any other purpose, or of the privileges of any

Senator or Member of the House of Representatives under

article I, section 6, clause 1, [the Speech or Debate Clause] of

the Constitution.” The Accountability Act therefore does

nothing to a Member’s Speech or Debate Clause immunity, and

we must determine how that immunity operates in suits under

the Accountability Act.

7

After midnight of the first day of the 104th Congress, the

House passed the Act with little debate and without a committee

hearing or a committee vote; the Senate passed its version a few days

later, again with scarcely any debate and no hearings; there was no

conference committee; and even the Senate bill’s sponsor lamented the

lack of consideration given to this legislation. See James T. O’Reilly,

Collision in the Congress: Congressional Accountability, Workplace

Conflict, and the Separation of Powers, 5 GEO. MASON L. REV. 1, 3-4

(1996).

12

The Speech or Debate Clause reinforces the separation of

powers and protects legislative independence. See Eastland v.

U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975) (quoting

United States v. Brewster, 408 U.S. 501, 507 (1972); United

States v. Johnson, 383 U.S. 169, 178 (1966)); Gravel v. United

States, 408 U.S. 606, 616 (1972); Powell v. McCormack, 395

U.S. 486, 503 (1969); Tenney v. Brandhove, 341 U.S. 367, 373

(1951).8 As to the judicial branch, the Clause can protect

Members “from inquiry into legislative acts or the motivation

for actual performance of legislative acts,” Brewster, 408 U.S.

at 508, “from the burden of defending” certain suits,

Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (per curiam),

and “from the consequences of litigation’s results,” id. See

United States v. Helstoski, 442 U.S. 477, 487, 489 (1979); Doe

v. McMillan, 412 U.S. 306, 318 (1973); Powell, 395 U.S. at 502-

03, 505; Johnson, 383 U.S. at 173; Tenney, 341 U.S. at 377. In

each case, the Clause must be applied “in such a way as to

insure the independence of the legislature without altering the

historic balance of the three co-equal branches of Government.”

Brewster, 408 U.S. at 508.

8

The Speech or Debate Clause was adopted by the Founders

“without discussion and without opposition.” Johnson, 383 U.S. at

177; see 5 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON

THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY

THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 378, 406

(Jonathan Elliot ed., 2d ed. William S. Hein & Co. 1996) (1891); 2

THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 246 (Max

Farrand ed., 1966). The historical antecedents of the Clause are

discussed in Justice Frankfurter’s opinion for the Court in Tenney, 341

U.S. at 372-75, and in Justice Harlan’s opinion for the Court in

Johnson, 383 U.S. at 177-83. See also Powell, 395 U.S. at 502-03;

Gravel, 408 U.S. at 652-59 (Brennan, J., dissenting); 2 THE

FOUNDERS’ CONSTITUTION 318-45 (Philip B. Kurland & Ralph Lerner

eds., 1987).

13

The parties accept these principles and urge us to resolve

broad questions related to suits under the Accountability Act:

can a Member’s personal office invoke the Speech or Debate

Clause on the Member’s behalf, as legislative aides and

committees can?9 is a personnel decision always an

administrative act,10 or could a personnel decision be a

legislative act in certain circumstances?11 and so forth. “These

are perplexing questions. Their difficulty admonishes us to

observe the wise limitations on our function and to confine

ourselves to deciding only what is necessary to the disposition

of the immediate case[s].” Whitehouse v. Ill. Cent. R.R. Co.,

349 U.S. 366, 372-73 (1955); see Longshoremen v. Boyd, 347

U.S. 222, 224 (1954). We therefore begin with the validity of

our decision in Browning.

A.

The Speech or Debate Clause protects a Member’s conduct

if it is an integral “part of . . . the due functioning of the

[legislative] process.” Brewster, 408 U.S. at 516 (emphasis

removed); accord Gravel, 408 U.S. at 625. The Clause

obviously covers core legislative acts – “how [a Member] spoke,

how he debated, how he voted, or anything he did in the

chamber or in committee.” Brewster, 408 U.S. at 526; see also

9

See Gravel, 408 U.S. at 616-18; see also McMillan, 412 U.S.

at 312-13; Tenney, 341 U.S. at 379.

10

Cf. Forrester v. White, 484 U.S. 219, 228-29 (1988); Gross

v. Winter, 876 F.2d 165, 170-72 (D.C. Cir. 1989).

11

Cf. Bogan v. Scott-Harris, 523 U.S. 44 (1998); Rateree v.

Rockett, 852 F.2d 946, 950-51 (7th Cir. 1988).

14

Bastien, 390 F.3d at 1314.12 But the Supreme Court has long

held that the Clause does more.13 It protects acts that are “an

integral part of the deliberative and communicative processes by

which Members participate in committee and House

12

See, e.g., Gravel, 408 U.S. at 625 (“The heart of the Clause

is speech or debate in either House.”); Brewster, 408 U.S. at 512 (“A

legislative act has consistently been defined as an act generally done

in Congress in relation to the business before it. . . . [T]he Speech or

Debate Clause prohibits inquiry only into those things generally said

or done in the House or the Senate in the performance of official

duties and into the motivation for those acts.”); Kilbourn, 103 U.S. at

204 (protecting “things generally done in a session of the House by

one of its members in relation to the business before it”); see also

Coffin v. Coffin, 4 Mass. (1 Tyng) 1, 31 (1808) (“[I]t must appear that

some language or conduct of his, in the character of a representative,

is the foundation of the prosecution, for in no other character can he

claim the privilege.”).

13

Over the years, the Supreme Court has articulated a number

of different formulations to describe what the Speech or Debate

Clause protects. See, e.g., Helstoski, 442 U.S. at 489 (“The Clause

protects against inquiry into acts that occur in the regular course of the

legislative process and into the motivation for those acts. It precludes

any showing of how [a legislator] acted, voted, or decided.” (alteration

in original; citation and internal quotation marks omitted)); U.S.

Servicemen’s Fund, 421 U.S. at 501 (“The question to be resolved is

whether the actions of the [Member] fall within the ‘sphere of

legitimate legislative activity.’” (footnote omitted)); Johnson, 383 U.S.

at 180 (“[A] charge . . . that the Congressman’s conduct was

improperly motivated . . . is precisely what the Speech or Debate

Clause generally forecloses from executive and judicial inquiry.”);

Tenney, 341 U.S. at 376 (inquiring “whether from the pleadings it

appears that the defendants were acting in the sphere of legitimate

legislative activity”); see also Coffin, 4 Mass. (1 Tyng) at 27

(protecting “every thing said or done by [a Member] in the exercise of

the functions of that office”).

15

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.” Gravel, 408 U.S. at 625. And the Clause provides

further protection in precluding “inquiry . . . into the motivation

for” acts “that occur in the regular course of the legislative

process.” Helstoski, 442 U.S. at 489 (quoting Brewster, 408

U.S. at 525); accord Johnson, 383 U.S. at 180. In defining these

categories of protected conduct, the Court has been careful not

“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.” Brewster, 408 U.S. at 516. The

Speech or Debate Clause therefore “does not prohibit inquiry

into illegal conduct simply because it has some nexus to

legislative functions,” id. at 528 (emphasis added), or because

it is merely “related to,” as opposed to “part of,” the “due

functioning” of the “legislative process,” id. at 514 (emphasis

removed).

Fields and Hanson contend that personnel decisions never

can be “an integral part of the deliberative and communicative

processes” in which Members engage as legislators, Gravel, 408

U.S. at 625, because personnel decisions never have more than

merely “some nexus to legislative functions,” Brewster, 408

U.S. at 528; see id. at 513-16. We agree that some personnel

decisions would not qualify. The legislative process at the least

includes “delivering an opinion, uttering a speech, or haranguing

in debate”;14 proposing legislation;15 voting on legislation;16

14

Tenney, 341 U.S. at 374 (quoting Coffin, 4 Mass. (1 Tyng)

at 27); accord Brewster, 408 U.S. at 526 (protecting “how [a Member]

spoke, how he debated”); see also Johnson, 383 U.S. at 180 (“[T]he

Speech or Debate Clause extends at least so far as to prevent

[conspiring to give a speech in the House in exchange for

remuneration] from being made the basis of a criminal charge against

16

making, publishing, presenting, and using legislative reports;17

authorizing investigations and issuing subpoenas;18 and holding

a member of Congress . . ..”). This, of course, is obvious from the text

of the Speech or Debate Clause. U.S. CONST. art I, § 6.

15

See Kilbourn, 103 U.S. at 204 (protecting “resolutions

offered”); see also Brewster, 408 U.S. at 526 (protecting “anything [a

Member] did in the chamber or in committee”); Tenney, 341 U.S. at

374 (protecting “every other act resulting from the nature, and in the

execution, of the office”) (quoting Coffin, 4 Mass. (1 Tyng) at 27).

16

See Brewster, 408 U.S. at 526 (protecting “how [a Member]

voted”); Tenney, 341 U.S. at 374 (protecting “the giving of a vote”)

(quoting Coffin, 4 Mass. (1 Tyng) at 27); Kilbourn, 103 U.S. at 204

(protecting “the act of voting, whether it is done vocally or by passing

between the tellers”).

17

See McMillan, 412 U.S. at 312 (“[A] published report may,

without losing Speech or Debate Clause protection, be distributed to

and used for legislative purposes by Members of Congress,

congressional committees, and institutional or individual legislative

functionaries.”); id. at 313 (protecting “preparing a report where [the

challenged materials] were reproduced, and authorizing the

publication and distribution of that report”); Tenney, 341 U.S. at 374

(protecting “the making of a written report”); Kilbourn, 103 U.S. at

204 (protecting “written reports presented in [the legislative] body by

its committees”).

18

See U.S. Servicemen’s Fund, 421 U.S. at 504 (“The power

to investigate and to do so through compulsory process plainly falls

within [the definition of legislative activity].”); id. (“Issuance of

subpoenas . . . has long been held to be a legitimate use by Congress

of its power to investigate.”); McMillan, 412 U.S. at 313 (protecting

the “act[] of authorizing an investigation pursuant to which the subject

materials were gathered”); Tenney, 341 U.S. at 377 (“Investigations,

whether by standing or special committees, are an established part of

representative government.”).

17

hearings and “introducing material at Committee hearings.”19

Many personnel decisions by Members’ personal offices lack

even “some nexus,” Brewster, 408 U.S. at 528, to these types of

legislative acts. Firing an aide for falsifying expense reports, or

disciplining an assistant for harassing others in the office is “not,

by any conceivable interpretation, an act performed as a part of

or even incidental to the role of a legislator.” Brewster, 408

U.S. at 526.

Browning nevertheless held that the Speech or Debate

Clause protects those personnel decisions taken with respect to

employees whose duties are “directly related to the due

functioning of the legislative process.” Browning v. Clerk, U.S.

House of Representatives, 789 F.2d 923, 929 (D.C. Cir. 1986)

(emphasis removed). We now see that an employee’s duties are

too crude a proxy for protected activity. Our holding in

Browning presumes that a personnel decision with regard to an

employee whose duties are “directly related to the due

functioning of the legislative process,” Browning, 789 F.2d at

929 (emphasis removed), is always “an integral part of the

deliberative and communicative processes,” Gravel, 408 U.S. at

625. But the presumption is, at a minimum, overinclusive and

therefore inconsistent with the Court’s practice of being “careful

not to extend the scope of the protection further than its

purposes require.” Forrester v. White, 484 U.S. 219, 224

(1988). Any number of counter-examples reveal as much: a

legislative aide may be discharged because of budgetary

19

McMillan, 412 U.S. at 312 (“[I]t is plain to us that the

complaint in this case was barred by the Speech or Debate Clause

insofar as it sought relief . . . for introducing material at Committee

hearings . . ., for referring the Report that included the material to the

Speaker of the House, and for voting for publication of the report.”);

id. at 313 (protecting the act of “holding hearings where the

[challenged] materials were presented”).

18

cutbacks; a staff member may be demoted solely for consistent

tardiness; a person seeking a top-level staff position might be

rejected for having a poor college transcript; and so forth. That

the person targeted by the personnel decision performs duties

“directly related to . . . the legislative process,” Browning, 789

F.2d at 929 (emphasis removed), is not enough – conduct must

be “part of,” not merely “related to,” the “due functioning” of

the “legislative process” to be protected by the Speech or Debate

Clause, Brewster, 408 U.S. at 514. At best, that an employee’s

duties are directly related to the legislative process establishes

merely “some nexus” between the personnel decision and that

process. Brewster, 408 U.S. at 528; see Brown & Williamson

Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995).

We therefore reject Browning’s test for determining when a

legislator’s personnel decision is protected by the Speech or

Debate Clause.

The Office of Senator Dayton defends Browning on the

ground that “[d]irecting one’s alter egos” – that is, legislative

aides with duties directly related to the legislative process, see

Gravel, 408 U.S. at 616-17 – necessarily “is an integral part of

the processes of achieving one’s legislative goals,” because of

the duties such employees perform. Br. for Appellant Office of

Senator Dayton 20. We see several problems with this

formulation. The Speech or Debate Clause protects conduct that

is integral to the legislative process, not a Member’s legislative

goals. It may be integral to a Member’s legislative goals –

indeed, integral even to accomplishing his “constitutionally

delegated duties,” id. – to send newsletters to constituents or

deliver speeches outside of Congress to generate support for

prospective legislation. But such acts are “political,” not

“legislative,” and therefore not protected by the Speech or

Debate Clause. Brewster, 408 U.S. at 512; see Proxmire, 443

U.S. at 131. Another problem with the formulation lies in its

assumption that a Member only directs his alter egos with regard

19

to constitutionally protected activities. “That Senators generally

perform certain acts in their official capacity as Senators does

not necessarily make all such acts legislative in nature.” Gravel,

408 U.S. at 625. Legislative aides are no different.20

The Office of Senator Dayton also relies on Nixon v.

Fitzgerald, 457 U.S. 731 (1982) – the presidential immunity

case – to defend Browning. In Fitzgerald, the Supreme Court

relied on separation of powers principles to grant the President

“absolute . . . immunity from damages liability for acts within

the ‘outer perimeter’ of his official responsibility.” Id. at 756.

It is true that both legislative and presidential immunity are

animated by separation of powers principles. But this does not

mean that the immunities are coextensive. The President’s

immunity is based on his “unique position in the constitutional

scheme,” id. at 749, and the “singular importance of the

President’s duties,” id. at 751. The Court therefore approaches

presidential immunity differently. Id. at 749; see Forrester, 484

U.S. at 224-25; Bastien, 390 F.3d at 1317. Legislative immunity

under the Speech or Debate Clause is limited to matters that are

part of, or integral to, the due functioning of the legislative

process. It is not enough that a Member’s conduct is within the

20

We have recognized that a “Member’s ability to do his job

as a legislator effectively is tied . . . to the Member’s relationship with

the public and in particular his constituents and colleagues in the

Congress.” Council on Am. Islamic Relations v. Ballenger, 444 F.3d

659, 665 (D.C. Cir. 2006). While there is no doubt a “clear nexus”

between a personnel decision involving an employee with legislative

duties and the Member’s “ability to carry out his representative

responsibilities effectively,” id. at 665-66, a “nexus” alone is

insufficient to trigger the protections of the Speech or Debate Clause,

Brewster, 408 U.S. at 528.

20

outer perimeter of the legislative process. Cf. Brewster, 408

U.S. at 513-16, 528.21

B.

Without Browning, we are left with the question how the

district court should evaluate the Member Offices’ claims to

Speech or Debate Clause immunity in these suits.

The Speech or Debate Clause operates as a jurisdictional

bar when “the actions upon which [a plaintiff] sought to

predicate liability were ‘legislative acts.’” McMillan, 412 U.S.

at 318 (quoting Gravel, 408 U.S. at 618). To determine on what

actions a plaintiff sought to predicate liability, we examine the

pleadings. See id. at 312 (finding it “plain . . . that the complaint

in this case was barred by the Speech or Debate Clause insofar

as it sought relief” for conduct protected by the Clause); Tenney,

341 U.S. at 376 (inquiring “whether from the pleadings it

appears that the [legislators] were acting in the sphere of

legitimate legislative activity.”); see also Brewster, 408 U.S. at

525 (examining the face of the indictment to determine whether

“inquiry into legislative acts or motivation for legislative acts is

necessary . . . to make out a prima facie case”). In these cases,

it does not appear from Fields’s or Hanson’s complaints that

either sought to predicate liability on protected conduct. Fields

alleges that the Office of Representative Johnson discriminated

against her because of her race and gender and retaliated against

21

There are other differences. Presidential immunity, for

instance, “does not extend indiscriminately to the President’s personal

aides or to Cabinet level officers,” Forrester, 484 U.S. at 225

(citations omitted), while Speech or Debate Clause immunity may be

invoked by a Member’s “aides insofar as the[ir] conduct . . . would be

a protected legislative act if performed by the Member himself,”

Gravel, 408 U.S. at 618.

21

her when she objected to discriminatory treatment of her co-

worker, Elisabeth Howie, and when she filed a complaint with

the Office of Compliance. Hanson alleges that Senator Dayton

himself discriminated against him because of his heart condition

and that the Office of Senator Dayton denied him deserved

overtime compensation. In neither case is it “necessary to

inquire into how [the Member] spoke, how he debated, how he

voted, or anything he did in the chamber or in committee in

order to make out a violation” of the Accountability Act.

Brewster, 408 U.S. at 526; compare Bastien, 390 F.3d at 1315-

16.22

22

Because the complaints are not predicated on legislative

acts, Judge Brown’s concurrence is mistaken in thinking it necessary

to decide whether the defendant – that is, the personal office of the

Member – is equivalent to the Member for the purpose of invoking the

jurisdictional bar of the Speech or Debate Clause. To prove the lack

of equivalency in the abstract – which misapplies the law for the

reasons Judge Tatel gives in his separate opinion – Judge Brown

writes that “nothing in the Act suggests that the member can make

final litigation decisions on behalf of the employing office.” Op. of

Judge Brown 15. This is not only irrelevant but impossible.

Litigation decisions are made by the client, on the advice of counsel.

The attorney representing the Member’s office is not a free agent. His

client is the personal office of the Member, which consists of the

Member and his staff. Who is in charge of the office and who makes

the decisions for the office? The Member of course.

Judge Brown argues that a Member’s personal office cannot

invoke the Clause on the Member’s behalf because it “is not a person,

nor a sovereign government, nor a branch of government, nor an

agency created by statute, nor a chartered corporation, nor a trust, nor

a partnership.” Op. of Judge Brown 12. The same could be said of

congressional committees, which fall within the Accountability Act’s

definition of “employing office.” 2 U.S.C. § 1301(9). Yet the

Supreme Court has held that legislative committees may invoke the

Clause. See Tenney, 341 U.S. at 379. Precedent in this circuit is to the

22

But the fact that Fields and Hanson are able to plead prima

facie cases under the Accountability Act without violating the

Speech or Debate Clause does not mean the Speech or Debate

Clause in no way hinders their suits. When the Clause does not

preclude suit altogether, it still “protect[s] Members from

inquiry into legislative acts or the motivation for actual

performance of legislative acts.” Brewster, 408 U.S. at 508;

Brown & Williamson, 62 F.3d at 415 n.5 (“Even when properly

subject to suit, members of Congress are privileged against the

evidentiary use against them of any legislative act, even if the

act is not claimed to be itself illegal, but is offered only to show

motive . . ..” (citing Helstoski, 442 U.S. at 487-89; Brewster,

408 U.S. at 527; Johnson, 383 U.S. at 169)). This evidentiary

privilege includes a “testimonial privilege.” Brown &

Williamson, 62 F.3d at 418. A Member “may not be made to

answer” questions – in a deposition, on the witness stand, and so

forth – regarding legislative activities. Gravel, 408 U.S. at 616;

see Brown & Williamson, 62 F.3d at 418-21. “Revealing

same effect. See Consumers Union v. Periodical Correspondents

Ass’n, 515 F.2d 1341 (D.C. Cir. 1975). Judge Brown cannot square

her position with Tenney, which the Supreme Court treats as a Speech

or Debate Clause case, Powell, 395 U.S. at 501, or with Consumers

Union.

Judge Brown also thinks it significant that “an employee in

the personal office of a member is in truth an employee of Congress”

because salary payments are administered centrally by the Secretary

of the Senate and the Chief Administrative Officer of the House of

Representatives. See Op. of Judge Brown 12-13. That is also true of

legislative aides, who are able to invoke the Clause in certain

circumstances, see Gravel, 408 U.S. at 621-22 – indeed it is true even

of Members. These matters, as well as the exceedingly odd idea that

a Member’s staffing decisions are made “on behalf of Congress”

rather than the Member, Op. of Judge Brown 12, simply have no

bearing on the issues before us.

23

information as to a legislative act . . . to a jury” – whether by

testimony or other evidence – “would subject a Member to being

‘questioned’ in a place other than the House or Senate, thereby

violating the explicit prohibition of the Speech or Debate

Clause.” Helstoski, 442 U.S. at 490.

Thus, even if the challenged personnel decisions are not

legislative acts, inquiry into the motivation for those decisions

may require inquiry into legislative acts. For example,

interactions with legislative staff (which may form part of the

basis for personnel actions) are often part of the due functioning

of the legislative process. The Supreme Court recognized this

in Gravel when it approved an order that, among other things,

“forbade questioning any witness including [a congressional

aide] . . . concerning communications between the Senator and

his aides during the term of their employment and related to [a

particular] meeting or any other legislative act of the Senator.”

Gravel, 408 U.S. at 628-29 (footnote omitted). The Speech or

Debate Clause therefore may preclude some relevant evidence

in suits under the Accountability Act.23

Most of the claims in these suits allege discrimination and,

absent direct evidence of discrimination, are subject to the

framework established by McDonnell Douglas Corp. v. Green,

23

Judge Brown’s concurrence states that “there is little reason

to believe that allowing these suits to proceed will threaten legislative

independence or unduly involve the judicial branch in the affairs of

the legislative branch.” Op. of Judge Brown 16. This speculation has

no basis in reality. The Accountability Act authorizes suits based on

conduct occurring in a Member’s personal office, see 2 U.S.C.

§ 1408(b), which necessarily calls into question the actions of

Members or their aides.

24

411 U.S. 792 (1973).24 That framework – under which a

plaintiff proves a prima facie case of discrimination, which the

employer rebuts by producing evidence that its conduct was

nondiscriminatory, which the plaintiff then seeks to demonstrate

is pretextual, see Tex. Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 253-56 (1981) – presents special problems in the

context of the Speech or Debate Clause.25 Liability for

24

Fields alleges racial and gender discrimination in violation

of 2 U.S.C. § 1311, which incorporates § 703 of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e-2, to which the McDonnell Douglas

framework applies, see McDonnell Douglas Corp., 411 U.S. at 802.

She also alleges retaliation under 2 U.S.C. § 1317(a), to which the

McDonnell Douglas framework presumably applies. See Broderick

v. Donaldson, 437 F.3d 1226, 1231-32 (D.C. Cir. 2006). Hanson

alleges disability discrimination in violation of 2 U.S.C. § 1311(a)(3),

which incorporates § 501 of the Rehabilitation Act, 29 U.S.C. § 791,

and §§ 102-104 of the Americans with Disabilities Act, 42 U.S.C.

§§ 12112-12114, both of which are subject to the McDonnell Douglas

framework. See Barth v. Gelb, 2 F.3d 1180, 1185-86 (D.C. Cir. 1993)

(Rehabilitation Act); Duncan v. Wash. Metro. Area Transit Auth., 240

F.3d 1110, 1114 (D.C. Cir. 2001) (en banc) (Disabilities Act).

25

Not all of the claims in the complaints allege discrimination.

Fields and Hanson both allege violations of 2 U.S.C. § 1313, which

incorporates certain provisions of the Fair Labor Standards Act, but to

which the McDonnell Douglas framework does not apply. See, e.g.,

Thompson v. Sawyer, 678 F.2d 257, 270-71 (D.C. Cir. 1982)

(discussing equal pay discrimination in violation of 29 U.S.C.

§ 206(d)); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88

(1946) (discussing burden allocation in suits seeking overtime

compensation under the Fair Labor Standards Act). (Hanson also

alleges a nondescript violation of 2 U.S.C. § 1312, which incorporates

§§ 101-105 of the Family and Medical Leave Act, 29 U.S.C. §§ 2611-

2615, but the complaint does not give sufficient detail to know

whether the McDonnell Douglas framework will apply to this claim.)

Nondiscrimination claims such as these, which may give rise to

25

discriminatory personnel decisions rests not on the fact that

action was taken (“you can’t fire me”), nor on the duties of the

employee against whom action was taken (“you can’t fire the

chief of staff”), but on the reason that action was taken (“you

can’t fire me for that reason”). But what happens when the

action was motivated by the employee’s participation in the

legislative process?

Suppose a plaintiff sues a Member’s personal office

claiming her discharge violated the Accountability Act.

Suppose further that she is able to make out a prima facie case

of discrimination of one form or another. If the employing

office produces evidence – by affidavit, for example – that the

personnel decision was made because of the plaintiff’s poor

performance of conduct that is an integral part of “the due

functioning of the [legislative] process,” Brewster, 408 U.S. at

516 (emphasis removed), then for the plaintiff to carry her

burden of persuasion, she must “demonstrate that the proffered

reason was not the true reason for the employment decision,”

Burdine, 450 U.S. at 256; see also Smith v. District of Columbia,

430 F.3d 450, 455-56 (D.C. Cir. 2005); Murray v. Gilmore, 406

F.3d 708, 713 (D.C. Cir. 2005). In many cases, the plaintiff

would be unable to do so without “draw[ing] in question” the

legislative activities and the motivations for those activities

asserted by the affiant – matters into which the Speech or

Debate Clause prohibits judicial inquiry. Brewster, 408 U.S. at

526 (quoting Johnson, 383 U.S. at 185); see also Helstoski, 442

U.S. at 490. For example, if a Senator claimed to have fired an

employee because speeches the employee wrote did not

accurately reflect the Senator’s legislative objectives, the Speech

or Debate Clause would preclude the employee from proving

her case by demonstrating that the speeches she wrote did in fact

liability regardless of the employer’s motivation, are unlikely to

present the problems discussed above.

26

accurately reflect the Senator’s legislative objectives. In such a

case, if the evidence ultimately bore out the affiant’s account of

the plaintiff’s discharge, then the very inquiry leading to that

conclusion would be unconstitutional. See Helstoski, 442 U.S.

at 489 (“The Clause protects ‘against inquiry into acts that occur

in the regular course of the legislative process and into the

motivation for those acts.’ . . . [R]eferences to past legislative

acts of a Member cannot be admitted without undermining the

values protected by the Clause.” (quoting Brewster, 408 U.S. at

525)).

In employment discrimination cases under the

Accountability Act, then, as in any other employment

discrimination case, the defendant will provide evidence of a

legitimate nondiscriminatory reason for the discharge. To

invoke the Speech or Debate Clause, the employing office

should include with this evidence an affidavit from an individual

eligible to invoke the Speech or Debate Clause recounting facts

sufficient to show that the challenged personnel decision was

taken because of the plaintiff’s performance of conduct

protected by the Speech or Debate Clause. The affiant must

have personal knowledge of the facts underlying his averment

and otherwise must be able to assert a Member’s Speech or

Debate Clause immunity. See Gravel, 408 U.S. at 618; see also

id. 622 n.13 (“[A]n aide’s claim of privilege can be repudiated

and thus waived by the Senator.”).26 The affidavit must indicate

into what “legislative activity” or into what matter integral to the

due functioning of the legislative process the plaintiff’s suit

necessarily will inquire.

26

A plaintiff therefore may challenge a defendant’s eligibility

to invoke the Speech or Debate Clause by arguing that the predicates

for doing so under Gravel are not satisfied.

27

With that submission, the district court must then determine

whether the asserted activity is in fact protected by the Speech

or Debate Clause. If it is, the action most likely must be

dismissed, as the failure to rebut a defendant’s evidence with

“evidence . . . that the[] proffered justifications were mere

pretext” normally is fatal to a plaintiff’s discrimination

allegations. Smith, 430 F.3d at 455-56. If the lawsuit does not

inquire into legislative motives or question conduct part of or

integral to the legislative process, or if the district court

determines that the asserted activity is not in fact part of or

integral to the legislative process, then the case can go forward.

Cf. Minker v. Baltimore Annual Conference of United Methodist

Church, 894 F.2d 1354, 1360-61 (D.C. Cir. 1990) (noting, in a

different context, that where inquiry into a matter was forbidden

“even for the purpose of showing it to be pretextual,” the claim

need not be dismissed because “it may turn out that the

potentially mischievous aspects . . . are not contested . . . or are

subject to entirely neutral methods of proof” and “[o]nce

evidence is offered, the district court will be in a position to

control the case”). We need not decide today whether a case in

which the plaintiff uses evidence unrelated to legislative acts –

such as direct evidence of discrimination or evidence that at the

time of discharge the Senator offered a different reason for the

employment action from the one alleged in the affidavit – to

demonstrate that the defendant’s legislative explanation is

pretext requires more questioning of the defendant’s legislative

motives than the Speech or Debate Clause allows. We merely

note that a plaintiff who seeks to prevail by quarreling with the

defendant’s statements about activity protected by the Speech or

Debate Clause must fail.

We recognize that in operating this way the Clause

effectively may preclude a plaintiff’s discrimination suit. But

this does not deprive the Accountability Act of all force, as

Fields and Hanson suggest. Just as “a Member of Congress may

28

be prosecuted under a criminal statute provided that the

Government’s case does not rely on legislative acts or the

motivation for legislative acts,” Brewster, 408 U.S. at 512, so

too a Member’s personal office may be liable under the

Accountability Act for misconduct provided that the plaintiff

can prove his case without inquiring into “legislative acts or the

motivation for legislative acts,” id. And a plaintiff whose suit

cannot proceed in federal court by operation of the Speech or

Debate Clause still may avail himself of the Accountability

Act’s administrative complaint procedure. See 2 U.S.C. § 1405.

Accordingly, we now reject the Browning framework and

affirm the judgments below because the Speech or Debate

Clause does not bar jurisdiction in these cases.

Affirmed.

R OGERS , J., concurring in part and in the judgment:

For reasons stated in the opinions of Judge Randolph and

Judge Brown, I agree that the employee-duties test of

Browning v. Clerk, U.S. House of Representatives, 789

F.2d 923 (D.C. Cir. 1986), is overbroad and must be

rejected. See Op. of Judge Randolph 17-20; Op. of Judge

Brown 9-10.

I also agree that the Speech or Debate Clause does not

pose a jurisdictional bar to Fields’ and Hanson’s lawsuits

under the Congressional Accountability Act (“CAA”).

Neither the history of the Clause nor Supreme Court

precedent provides a basis on which to conclude that

personnel decisions are “legislative acts” because, even

when motivated by legislative considerations, the

personnel decisions themselves are not “an integral part of

the deliberative and communicative processes by which

Members participate in [congressional] proceedings.”

Gravel v. United States, 408 U.S. 606, 625 (1972); see

Bastien v. Office of Senator Ben Nighthorse Campbell, 390

F.3d 1301, 1315 (10th Cir. 2004); cf. Forrester v. White,

484 U.S. 219, 229 (1988). Further, consistent with

Supreme Court jurisprudence indicating the court should

examine the pleadings to determine “whether it is

necessary to inquire into how [the Member] spoke, how he

debated, how he voted, or anything he did in the chamber

or in committee in order to make out a violation of this

statute,” United States v. Brewster, 408 U.S. 501, 526

(1972), an examination of the complaints makes clear that

neither plaintiff must rely on legislative acts to make a

prima facie case. See Op. of Judge Randolph 20-21.

I further agree that the Clause’s evidentiary privilege,

see, e.g., United States v. Helstoski, 442 U.S. 477, 487-90

(1979), has a role to play. See Op. of Judge Randolph 22-

2

23; Op. of Judge Brown 19; Op. of Judge Tatel 3.

Defining that role presents potentially difficult questions,

particularly as the Supreme Court has yet to speak to the

question in this context, and its statements in other

contexts can be understood to point in different directions,

as the opinions of Judge Randolph and Judge Brown

reflect. Compare Op. of Judge Randolph 25-26 (citing

Helstoski, 442 U.S. at 489-90), with Op. of Judge Brown

20-21 (citing Gravel, 408 U.S. at 629 n.18).

For the reasons stated in Judge Brown’s opinion, it is

tempting to interpret the unique statutory scheme created

by Congress in the CAA in a manner that allows

discrimination and other claims to proceed against the

Member’s personal office largely unfettered by the

protections afforded by the Speech or Debate Clause when

Members or their alter egos are personally sued, see Op. of

Judge Brown 11-17, 21; see also Op. of Judge Tatel 4. But

Supreme Court jurisprudence has yet to so limit the reach

of the Clause. See Op. of Judge Randolph 12-13 (citing

cases); Op. of Judge Tatel 4. Nevertheless, it is not self-

evident that the Clause’s safeguards of legislative

independence would be threatened by an approach that

permitted CAA suits such as those before us to proceed

subject only to protection of evidence of legislative acts

produced by Members and their alter egos upon proper

invocation of the privilege.

Because these are appeals of denials of motions to

dismiss under Federal Rule of Civil Procedure 12(b)(1),

the court need not address what happens when legislative

acts arise as potential evidence in varying contexts in CAA

litigation. It is unclear whether or precisely how these

questions may arise upon the remand of the cases on

appeal. The court would benefit from briefing based on the

3

application of the evidentiary privilege by the district court

in a particular context. Attempts to signal the answers to

such questions are fraught with problems. Hence, I would

leave open the question of how the Clause may limit

evidence offered by parties in CAA litigation and whether

the role of the Member’s personal office as the defendant

under the CAA affects the application of the Clause.

Accordingly, I join Judge Randolph’s opinion to the

extent it is consistent with the views I have expressed.

TATEL, Circuit Judge, concurring: Though disappointed

at our failure to reach consensus in this important case, I take

some solace from the fact that the commonalities of our

opinions exceed their differences—differences that relate to

questions more easily answered after further factual

development. I write separately to point out the

commonalities, to briefly discuss the differences, and to

suggest how the cases should proceed on remand.

First, the commonalities. All of us agree that Browning

v. Clerk, U.S. House of Representatives, 789 F.2d 939 (D.C.

Cir. 1986), extends further than the Speech or Debate Clause

requires. See Op. of Judge Randolph 17; Op. of Judge Brown

10; Op. of Judge Rogers 1. All of us also agree, however, that

the Speech or Debate Clause still has some role to play in

employment discrimination cases, Op. of Judge Randolph 22;

Op. of Judge Brown 19; Op. of Judge Rogers 1, and that the

question of what precisely the Clause precludes is best

resolved on a case-by-case basis, Op. of Judge Randolph 25-

27; Op. of Judge Brown 21; Op. of Judge Rogers 2-3. And all

of us agree that the two district court orders should be

affirmed.

What, then, divides us? After dispensing with Browning,

the two principal opinions diverge. Judge Randolph’s opinion

for the court holds that because neither of the cases before us

rests on legislative acts, we have no basis for dismissing them.

Judge Randolph then points out that the Speech or Debate

Clause may preclude some evidence, that in many

employment cases it may preclude the very evidence upon

which plaintiffs seek to rely, and that if it does, the suit may

not proceed. The principal concurrence focuses on whether

the defendant functions as a Member’s alter ego, arguing that

wide variations in Speech or Debate Clause protection hinge

on the answer to that question. This approach would apply

one version of the Speech or Debate Clause if the defendant is

a Member’s alter ego and another if the defendant is not.

2

Not only do I find this distinction unworkable, but I do

not understand what it means for a defendant to “be” a

Member’s alter ego. No one acts as a Member’s alter ego all

the time: even a Member’s primary legislative aide does not

act as the Member’s alter ego when brushing her teeth.

Whether an aide acted as a Member’s alter ego turns on the

particular act the aide performed on the Member’s behalf.

Reinforcing this point, Gravel v. United States, the first case

to have used the term “alter ego,” focuses on the aide’s

actions: “the Speech or Debate Clause applies not only to a

Member but also to his aides insofar as the conduct of the

latter would be a protected legislative act if performed by the

Member himself.” 408 U.S. 606, 618 (1972) (emphasis

added); see also id. at 621-22 (“the privilege applicable to the

aide [must be] viewed . . . as the privilege of the Senator, and

invocable only by the Senator or by the aide on the Senator’s

behalf, and . . . in all events the privilege available to the aide

is confined to those services that would be immune legislative

conduct if performed by the Senator himself” (footnote

omitted) (emphasis added)); id. at 622 (noting that an aide can

testify “at trials or grand jury proceedings involving third-

party crimes” only if “the questions do not require testimony

about or impugn a legislative act”).

Of course, the person who performed the challenged

action and the defendant in the litigation are often the same

person (e.g., if the aide faces criminal or civil liability), so it is

a convenient shorthand to say that only an alter ego can

exercise the privilege to preclude litigation about particular

conduct. But that shorthand refers to whether the person

acted as the Member’s alter ego when performing the

(possibly) legislative act at issue, not to whether the aide “is”

an alter ego at the time of the litigation. Even language from

Gravel, upon which the principal concurrence relies, comes

from a section of the opinion emphasizing the conduct at issue

3

over the defendant’s identity. The statement “relief could be

afforded without proof of a legislative act or the motives or

purposes underlying such an act,” id. at 621, quoted in Op. of

Judge Brown 20, appears in a paragraph beginning “[n]one of

these three cases [Kilbourn v. Thompson, 103 U.S. 168

(1881), Dombrowski v. Eastland, 387 U.S. 82 (1967), and

Powell v. McCormack, 395 U.S. 486 (1969)] adopted the

simple proposition that immunity was unavailable to

congressional or committee employees because they were not

Representatives or Senators; rather, immunity was unavailable

because they engaged in illegal conduct that was not entitled

to Speech or Debate Clause protection,” Gravel, 408 U.S. at

620.

Focusing on particular actions rather than on the

defendant’s “status” as an alter ego suggests a simple rule: no

Member or alter ego can be held liable for the performance of

a legislative act. As Judge Randolph points out, however,

these cases do not implicate that rule because neither Fields

nor Hanson must prove the performance of a legislative act in

order to prevail. Op. of Judge Randolph 20-21.

But the Speech or Debate Clause does not end there. We

all agree that the Clause also precludes introduction of certain

evidence and that this aspect of the privilege will come into

play in these cases if a Member or an appropriate aide asserts

it. See id. at 26 (“The affiant . . . must be able to assert a

Member’s Speech or Debate Clause immunity.”); Op. of

Judge Brown 21 (“[T]he Clause functions only as a

testimonial and documentary privilege, to be asserted by

members and qualified aides if they are called upon to

produce evidence.”). Still, we differ on how broad a role the

Clause plays. The principal concurrence suggests that so long

as aides are neither producing the evidence nor defending the

case, litigation can center on the motivation for legislative

4

acts. See Op. of Judge Brown 20-22. According to Judge

Randolph, the Speech or Debate Clause precludes litigation in

which a plaintiff seeks to meet the McDonnell Douglas

burden by challenging the veracity of an aide’s testimony

about the motivation for legislative acts. See Op. of Judge

Randolph 23-27 (citing McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973)). Because judicial assessment of the

aide’s testimony would constitute “inquiry into legislative

acts or the motivation for actual performance of legislative

acts,” United States v. Brewster, 408 U.S. 501, 509 (1972), I

agree with Judge Randolph.

To be sure, I might prefer a more limited view of the

Speech or Debate Clause’s reach were I writing on a blank

slate, but several Supreme Court decisions make clear that we

must tread carefully in this area. See Op. of Judge Randolph

12 (citing cases). Indeed, “[r]ather than giving the [Speech or

Debate] Clause a cramped construction, the [Supreme] Court

has sought to implement its fundamental purpose of freeing

the legislator from executive and judicial oversight that

realistically threatens to control his conduct as a legislator.”

Gravel, 408 U.S. at 618. For this reason, I believe we must

leave it to the Supreme Court to narrow the Speech or Debate

Clause’s reach. See Rodriguez de Quijas v. Shearson/Am.

Exp., Inc., 490 U.S. 477, 484 (1989) (“[T]he Court of Appeals

should . . . leav[e] to [the Supreme] Court the prerogative of

overruling its own decisions.”).

Thus, although I agree that suits against congressional

offices—as authorized by the Congressional Accountability

Act—place less pressure on Members than would suits

against Members personally, I cannot agree that the Clause’s

protection extends only to cases in which Members (or their

aides) are witnesses or defendants. Nor do I share the

principal concurrence’s confidence that CAA cases will not

5

“unduly involve the judicial branch in the affairs of the

legislative branch.” Op. of Judge Brown 16. Certainly the

language from Gravel upon which the principal concurrence

relies—“We do not intend to imply . . . that in no grand jury

investigations or criminal trials of third parties may third-

party witnesses be interrogated about legislative acts of

Members of Congress,” Gravel, 408 U.S. at 629 n.18, quoted

in Op. of Judge Brown 20—stands for no such proposition;

Gravel states only that some testimony about legislative acts

by third-party witnesses may be admissible, not that all such

testimony is admissible.

For these reasons, I join Judge Randolph’s opinion. Still,

I emphasize that despite our differences, we all agree that on

remand the district courts must determine whether particular

aspects of these two cases implicate Speech or Debate Clause

concerns. In my view, the district courts should focus on

determining whether the cases may proceed without undue

judicial “inquiry into acts that occur in the regular course of

the legislative process and into the motivation for those acts.”

Brewster, 408 U.S. at 525. Because such determinations will

necessarily be fact-bound, it is appropriate that we announce

no blanket rule today. Once the district courts develop the

factual records, the issues that divide this court may become

clearer.

BROWN, Circuit Judge, with whom SENTELLE and

GRIFFITH, Circuit Judges, join, concurring in the judgment: The

Congressional Accountability Act of 1995 (the “Act”), 2 U.S.C.

§§ 1301-1438, was the first legislation of the 104th Congress,

adopted in the Senate by a vote of 98 to 1, and adopted unani-

mously in the House. Section 102(a) of the Act lists several

federal laws that “shall apply . . . to the legislative branch of the

Federal Government,” including (1) the Fair Labor Standards

Act of 1938, (2) Title VII of the Civil Rights Act of 1964, (3)

the Americans with Disabilities Act of 1990, (4) the Age

Discrimination in Employment Act of 1967, (5) the Family and

Medical Leave Act of 1993, and (6) the Occupational Safety and

Health Act of 1970. 2 U.S.C. § 1302(a). President Clinton

described the Act as “a reform that requires Congress to live

under the laws it imposes on the American people,” commenting

that “Washington has too often isolated itself from the every day

experience of ordinary Americans.” Remarks on Signing the

Congressional Accountability Act of 1995, 31 Weekly Comp.

Pres. Doc. 91, 91 (Jan. 22, 1995). In these cases, we address

whether, and in what circumstances, the defendant in an action

brought pursuant to the Act may assert the Speech or Debate

Clause as a jurisdictional bar, thereby requiring summary

dismissal of the action.

Our determination of this issue calls into question the

framework we articulated in Walker v. Jones, 733 F.2d 923

(D.C. Cir. 1984), and Browning v. Clerk, U.S. House of Repre-

sentatives, 789 F.2d 923 (D.C. Cir. 1986), concerning applica-

bility of the Speech or Debate Clause in employment litigation

involving congressional employees. I conclude that the rule

stated in those cases distorts the Speech or Debate Clause

beyond its natural contours, and therefore I, too, would repudiate

it and refocus our analysis on the terms of the Constitution and

the relevant statements of the Supreme Court, but I would

approach the case in a somewhat different way than Judge

Randolph.

2

I

A

Fields v. Office of Eddie Bernice Johnson, Employing Office,

United States Congress, No. 04-5315: From January 2002 until

March 2004, Beverly Fields was the chief of staff in the

congressional office of Eddie Bernice Johnson, a member of the

United States House of Representatives. On June 3, 2004, Fields

brought an employment discrimination action under the Act,

naming the “Office of Eddie Bernice Johnson” as the defendant

as section 408 of the Act requires. See 2 U.S.C. § 1408. In her

amended complaint, Fields claims the office actively sought an

Asian person under the age of forty to replace a dark-skinned

Latino employee. When the office selected a suitable Asian

employee, it terminated the Latino employee, giving the

employee only one day’s notice. Fields objected and asked the

office to allow the Latino employee to continue working for two

more months, but the office allegedly rejected this request.

About the same time, according to the complaint, the office

began efforts to replace Fields, who is African American, with

a white man. To that end, the office allegedly made false

accusations against Fields regarding her job performance and

her relationships with coworkers and then demoted Fields by

taking away her supervisory responsibilities. Fields claims the

demotion was based on her race and gender and that it was also

in retaliation for her having intervened on behalf of the Latino

employee. In addition, Fields alleges discrimination in regards

to pay. Finally, Fields claims the office initiated a bad faith

investigation of her conduct as an employee, seeking thereby to

force her to resign, and when Fields refused to resign, the office

allegedly terminated her. Fields claims the investigation and

subsequent termination were retaliatory.

3

The office moved to dismiss the complaint under Federal

Rule of Civil Procedure 12(b)(1), claiming lack of jurisdiction

based on the Speech or Debate Clause. According to a declara-

tion filed by the office, Fields was integrally involved in

executing Johnson’s legislative agenda. Though many of her

duties were administrative, Fields was also involved in formulat-

ing legislative strategy, advising Johnson on how to vote,

approving Johnson’s floor statements, drafting legislation, and

conferring with staff of other legislative offices about various

legislative initiatives.

On August 25, 2004, the district court denied the motion to

dismiss in a two-line order, which stated no reasons, and on

August 27, 2004, the office filed this interlocutory appeal.

B

Hanson v. Office of Senator Mark Dayton, No. 04-5335: From

January 2001 until September 2002, Brad Hanson held various

positions in the congressional office of Mark Dayton, a member

of the United States Senate. Throughout this time, Hanson was

located in Fort Snelling, Minnesota. On May 29, 2003, Hanson

brought an employment discrimination action under the Act,

naming the “Office of Senator Mark Dayton” as the defendant.

See 2 U.S.C. § 1408. In his complaint, Hanson claims he was

hired as a “State Office Manager.” His job allegedly involved

setting up three local offices in Minnesota and overseeing a

“Health Care Help Line,” which assisted people with their

healthcare coverage problems. He alleges he worked consider-

able overtime, for which he was not paid. In 2002, according to

the complaint, Hanson developed a medical condition that

required surgery and a few weeks’ recovery time. Hanson claims

he met with Dayton on July 3, 2002, to tell Dayton of his need

for this surgery. Five minutes into the meeting, Dayton allegedly

said, “You’re done,” and he told Hanson he should no longer

4

report to the office and should instead go on immediate medical

leave. On July 17, 2002, a senior staff member allegedly called

Hanson at home and told him he would be terminated as of

September 30, 2002. The complaint alleges Dayton fired Hanson

because Hanson needed time off to recover from surgery, in

violation of the Family and Medical Leave Act of 1993, and also

because Dayton erroneously perceived Hanson to be disabled,

in violation of the Americans with Disabilities Act of 1990. The

complaint further alleges that the failure to compensate Hanson

for overtime violated the Fair Labor Standards Act of 1938.

The office moved to dismiss the complaint under Federal

Rule of Civil Procedure 12(b)(1), claiming lack of jurisdiction

based on the Speech or Debate Clause. According to a declara-

tion filed by the office, Hanson’s work included meeting with

constituents, briefing the Senator on constituent concerns

regarding healthcare and law enforcement, overseeing the

“Health Care Help Line,” and identifying possible legislative

initiatives. The declaration asserts that Hanson’s work enabled

him to identify a problem regarding reimbursements to ambu-

lance service providers, and it claims Hanson was part of a team

that investigated this problem and advised Dayton, proposing

legislative solutions. As a result of this advice, Dayton intro-

duced a bill entitled the Medicare Ambulance Payment Reform

Act of 2001, and Dayton also initiated a committee hearing to

address this issue. The declaration states that Hanson helped

plan the committee hearing, selected topics and witnesses, and

developed questions for Dayton to ask at the hearing.

Hanson responded to this declaration with his own declara-

tion stating that the office “exaggerates my role in legislation”

and “[o]verall, I estimate that I did not spend more than five

percent of my time on the type of legislative duties described in

Senator Dayton’s motion.”

5

On September 7, 2004, the district court denied the motion

to dismiss in a minute order, which stated no reasons, and on

September 21, 2004, the office filed this interlocutory appeal.

C

In most circumstances, our jurisdiction to hear appeals from

district court orders only extends to “final decisions.” 28 U.S.C.

§ 1291. Under the collateral order doctrine, we also have

jurisdiction to hear immediate appeals of certain interlocutory

orders, see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541

(1949), namely those orders that “conclusively determine the

disputed question, resolve an important issue completely

separate from the merits of the action, and [are] effectively

unreviewable on appeal from a final judgment,” Coopers &

Lybrand v. Livesay, 437 U.S. 463, 468 (1978). Such orders must

“present[] a serious and unsettled question” to be immediately

appealable. Cohen, 337 U.S. at 547. “[T]he denial of a substan-

tial claim of absolute immunity is an order appealable before

final judgment, for the essence of absolute immunity is its

possessor’s entitlement not to have to answer for his conduct in

a civil damages action.” Mitchell v. Forsyth, 472 U.S. 511, 525

(1985). This framework applies to claims of immunity under the

Speech or Debate Clause. See, e.g., Helstoski v. Meanor, 442

U.S. 500, 506 (1979). Because we have not yet had occasion to

determine whether the personal offices of members of Congress

may assert the protections of the Speech or Debate Clause, these

cases present “serious and unsettled” questions arising out of

“substantial” claims of absolute immunity. We therefore have

jurisdiction to consider these appeals under the collateral order

doctrine.

6

II

The Constitution provides: “[F]or any Speech or Debate in

either House, [the Senators and Representatives] shall not be

questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. The

historical record does not indicate any debate or controversy

with respect to this provision. Very similar provisions appear in

the Articles of Confederation and the English Bill of Rights of

1689. The Clause has its roots in centuries of struggle between

the English Parliament and the Crown—struggle that sometimes

erupted in armed conflict, with both Parliament and the Crown

commanding independent armies. In more than one instance,

royal troops arrested or attempted to arrest members of Parlia-

ment in reaction to speeches made and actions taken in Parlia-

ment. Coming in response to these confrontations, the Bill of

Rights of 1689 established a bedrock legal foundation for the

freedom of ideas within Parliament. Nearly a hundred years

later, the Speech or Debate Clause established the same princi-

ple in American government. As the Supreme Court has

explained, “the purpose of the Speech or Debate Clause is . . . to

preserve the independence and thereby the integrity of the

legislative process.” United States v. Brewster, 408 U.S. 501,

524 (1972).

[T]he privilege was . . . born primarily of a desire . . . to

prevent intimidation by the executive and accountability

before a possibly hostile judiciary. . . . There is little doubt

that the instigation of criminal charges against critical or

disfavored legislators by the executive in a judicial

forum . . . is the predominate thrust of the Speech or Debate

Clause.

United States v. Johnson, 383 U.S. 169, 181-82 (1966).

7

The Supreme Court first interpreted the Speech or Debate

Clause in Kilbourn v. Thompson, 103 U.S. 168 (1881). Kilbourn

involved a false imprisonment claim based on the plaintiff’s

arrest by the Sergeant at Arms of the House of Representatives.

Id. at 170. The Sergeant at Arms was acting pursuant to a

contempt finding of the House, id. at 176-77, but the Supreme

Court ruled the contempt finding improper, id. at 199-200.

While the Court allowed the false imprisonment action against

the Sergeant at Arms to proceed, it concluded that House

members could claim immunity under the Speech or Debate

Clause. Id. at 200-05. The Court adopted a principle of liberal

construction as regards the Clause, extending its scope to

legislative votes, reports, committee proceedings, and “‘every-

thing said or done . . . as a representative, in the exercise of the

functions of that office.’” Kilbourn, 103 U.S. at 203 (quoting

Coffin v. Coffin, 4 Mass. 1, 27 (1808)).

Though Kilbourn made clear that the reach of the Speech or

Debate Clause extends beyond a literal reading of its terms,

several later Supreme Court decisions have carefully circum-

scribed the scope of the clause, holding that it applies only to

core legislative acts, not incidental or peripheral activities of

congressional offices. For example, in Brewster, the Supreme

Court concluded that the Speech or Debate Clause “prohibits

inquiry only into those things generally said or done in the

House or the Senate in the performance of official duties and

into the motivation for those acts.” 408 U.S. at 512. The Court

rejected a rule that anything “in any way related” to the legisla-

tive process was privileged, id. at 516, and it listed a variety of

“political” activities that are not privileged, such as

“‘errands’ performed for constituents, the making of appoint-

ments with Government agencies, assistance in securing

Government contracts, preparing so-called ‘news letters’ to

constituents, news releases, and speeches delivered outside the

8

Congress,” id. at 512. See also Hutchinson v. Proxmire, 443

U.S. 111, 131 (1979).

In Gravel v. United States, 408 U.S. 606 (1972), decided the

same day as Brewster, the Supreme Court considered whether

the clause protected the private publication of classified govern-

ment documents. Senator Mike Gravel had placed the classified

documents into the public record of a subcommittee meeting,

but the Court concluded that a subsequent arrangement for

private publication of the documents was not a protected

legislative act. Id. at 625-26. The Court described the clause as

covering only matters “integral [to] the deliberative and commu-

nicative 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 jurisdic-

tion of either House.” Id. at 625. The Court then added that the

protection “extend[s] . . . beyond pure speech or debate . . . , but

only when necessary to prevent indirect impairment of such

deliberations.” Id. (emphasis added, internal quotation marks

and citation omitted). In other words, the Court’s relatively

broad formulation of the Clause’s scope was cabined by the

requirement that the Clause should only apply to the extent

necessary to protect actual speech or debate.

Unlike the Supreme Court, we have interpreted the Speech

or Debate Clause in the employment litigation context. In

Walker, 733 F.2d at 934, we held that the Clause permitted a

general manager of the House restaurant to sue for sex discrimi-

nation. In that case, we posited a distinction between “staff . . .

who help prepare for hearings or assist in the composition of

legislative measures” and those who provide “[a]uxiliary

services attending to human needs,” and we held that the latter

group are not “‘legislative’ in character.” Id. at 931. Judge

MacKinnon concurred in part and dissented in part, arguing that

9

the Speech or Debate Clause immunizes members of Congress

from liability with respect to all employment decisions so long

as those decisions are treated as legislative by Congress itself.

Id. at 938 (MacKinnon, J., concurring and dissenting). Judge

MacKinnon expressly rejected the court’s measurement of

Congress’s actions against “some Platonic ideal of the ‘legisla-

tive’ process,” arguing that Congress itself defines what is a

legitimate subject of legislative decisionmaking. Id. In this

regard, Judge MacKinnon noted that the restaurant manager had

been terminated on the authority of a vote taken by a congressio-

nal subcommittee. Id. at 941-43.

Two years later, in Browning, 789 F.2d 923, we held that

the Speech or Debate Clause precluded any “judicial scrutiny”

into the discharge of a House reporter whose job was to tran-

scribe committee proceedings, id. at 924, and therefore it

immunized Congress, its members, and their aides from liability,

id. at 931. The court distinguished Walker on the ground that

Walker involved an employee whose duties were not “directly

related to the due functioning of the legislative process.” Id. at

929 (emphasis omitted). The court articulated the following rule:

“Where the duties of the employee implicate Speech or Debate

Clause concerns, so will personnel actions respecting that

employee.” Id. at 928. Put another way, “[p]ersonnel decisions

are an integral part of the legislative process to the same extent

that the affected employee’s duties are an integral part of the

legislative process.” Id. at 928-29.

The line we drew in Walker and Browning, focusing on the

complaining employee’s duties, has some superficial appeal; its

glaring flaw, however, is that it lacks any basis in the Speech or

Debate Clause. Moreover, by defining very broadly the type of

duties that might constitute “an integral part of the legislative

process”—even including within that definition a House reporter

who lacked discretionary authority—we gave the immunity an

10

unduly expansive scope. A rule of decision that more closely

reflects the language and purpose of the Speech or Debate

Clause would need to focus on the subject matter of the em-

ployee’s lawsuit and the evidence the parties would need to

present to the court, because the complaining employee’s duties

are an imperfect metric for probing whether the lawsuit will in

fact force the court to inquire into protected matters. For

example, even if a complaining employee’s duties are central to

the legislative process, as in the case of an employee who drafts

legislation and floor speeches, the employee’s lawsuit may turn

factually on a series of overt requests for sexual favors and

crude remarks, and therefore it may have nothing to do with the

member’s legislative activities. In short, by focusing on the

duties of the complaining employee, Walker and Browning

established a much broader immunity than necessary to protect

legislative independence, and nothing in the Speech or Debate

Clause or the Supreme Court’s precedents compelled this broad

immunity. Therefore, like Judge Randolph, Op. of Judge

Randolph 18, I also would repudiate the reasoning used in

Walker and Browning and proceed to the issue before us without

the constraint of the framework imposed by those precedents.

III

In enacting the Congressional Accountability Act, Congress

in effect sidestepped Browning’s broad formulation of immunity

by designating the “employing office,” rather than the member,

as the defendant. 2 U.S.C. §§ 1301(9), 1408(b). Nevertheless,

appellants in the two cases before us argue that the “employing

office” can invoke the Speech or Debate Clause on behalf of the

member and thereby gain the benefit of the privilege. I reject

this view.

First, it seems highly implausible, in light of Congress’s

unambiguous intention to open itself to liability under federal

11

employment laws, that Congress designated a defendant that

could invoke the member’s Speech or Debate Clause rights.

Why would Congress go to the trouble of designating the

employing office as the defendant merely to create a bureau-

cratic redundancy able to assert the same privileges as the

member?

Second, the Supreme Court has determined that a member’s

aide is permitted to invoke the Clause on the member’s behalf

because the aide acts as an alter ego of the member, working

under the member’s authority and subject to his direction.

Gravel, 408 U.S. at 616-18. The same cannot be said of the

employing office. This second point requires us to analyze

exactly what the “employing office” is. Unfortunately, the law

is not as clear in this regard as it could be, but it is at least clear

enough to say what the employing office is not; it is not an alter

ego of the member.

The Act defines the “employing office” as

(A) the personal office of a Member of the House of

Representatives or of a Senator; (B) a committee of the

House of Representatives or the Senate or a joint commit-

tee; (C) any other office headed by a person with the final

authority to appoint, hire, discharge, and set the terms,

conditions, or privileges of the employment of an employee

of the House of Representatives or the Senate; or (D)

[various specifically named offices within the legislative

branch].

2 U.S.C. § 1301(9). For purposes of the cases before us, an

“employing office” is the personal office of a member.

The personal office of a member, however, is not an

independent legal entity, nor does it have any independent

12

interests. It is not a person, nor a sovereign government, nor a

branch of government, nor an agency created by statute, nor a

chartered corporation, nor a trust, nor a partnership.1 It is an

organizational division within Congress, established for Con-

gress’s administrative convenience, analogous to a department

within a large corporation. Therefore, an employee in the

personal office of a member is in truth an employee of Con-

gress, as to whom the member (acting on behalf of Congress)

has supervisory control.

Title 2 of the United States Code is entitled “The Con-

gress,” and it deals generally with the administrative organiza-

tion of Congress. Chapter 4 of Title 2, entitled “Officers and

1

The same, of course, might be said of a congressional

committee, which would also qualify as an “employing office” under

2 U.S.C. § 1301(9). We are not here presented with a case involving

a congressional committee as a defendant, but a committee arguably

has a stronger claim to independent legal existence than a member’s

personal office in that a committee is formally established for certain

express purposes and carries out actions in its own name, whereas a

personal office exists only as a shell defendant to be sued under the

Act. According to Judge Randolph, “the Supreme Court has held that

legislative committees may invoke the [Speech or Debate] Clause.”

Op. of Judge Randolph 21 n.22 (citing Tenney v. Brandhove, 341 U.S.

367, 379 (1951)). Tenney did not so hold. Tenney held that Congress

did not intend 42 U.S.C. § 1983 to supplant common law principles of

legislative independence by imposing possible civil liability on state

legislative committees. See 341 U.S. at 376; see also Supreme Court

of Va. v. Consumers Union of the United States, Inc., 446 U.S. 719,

732 (1980). Judge Randolph also relies on Consumers Union of the

United States, Inc. v. Periodical Correspondents’ Ass’n, 515 F.2d

1341 (D.C. Cir. 1975). Consumers Union did not even involve a

legislative committee as a defendant. Rather, it involved a private

association, id. at 1345, that—like a legislative aide—acted on behalf

of members of Congress, id. at 1350.

13

Employees of Senate and House of Representatives,” governs

employment-related administrative issues. Nothing in chapter 4

suggests that employees in member offices are anything other

than congressional employees, or that member offices are

anything other than administrative divisions within the two

Houses of Congress. It is certainly true that Congress has chosen

to adopt an administrative structure that gives great independ-

ence to its members. For example, each member of the Senate

has a budget for employee compensation, 2 U.S.C.

§ 61–1(d)(1)(A); within the limits of that budget, “Senators may

fix the number and the rates of compensation of employees in

their respective offices” and “[a] Senator may establish such

titles for positions in his office as he may desire to designate, by

written notification to the disbursing office of the Senate,” id.

§ 61–1(d)(2). Nevertheless, salary payments to these employees

are administered centrally by the Secretary of the Senate. Id.

§ 60c–1. Similarly, members of the House of Representatives

are authorized to employ as many as 18 permanent employees,

id. § 92(a), but again, salary payments are administered centrally

by the Chief Administrative Officer of the House of Representa-

tives, id. §§ 60d–1, 95–1.

Thus, Congress has delegated to its individual members

discretion in hiring, firing, and managing employees in their

personal offices, but it did not make each of those offices into an

independent government agency, and the employees remain

employees of Congress as a whole. Congress could certainly

choose to structure its administrative affairs in a different

manner and may decide that stricter branch-wide personnel

policies are warranted in order to limit violations of the Act. In

any case, its current supervisory structure does not imply that

the personal offices of its members are anything other than

convenient administrative divisions.

14

For this reason, if we are to be legally precise, we cannot

speak in terms of the “office” of a member taking a particular

personnel action, because the “office” of the member is not a

legal person. If a member hires or fires a legislative aide, the

member makes a decision on behalf of the Congress, exercising

power Congress has delegated to the member. Cf. 2 U.S.C.

§ 1301(9)(C) (designating as an “employing office” “any other

office headed by a person with the final authority” to make

personnel decisions (emphasis added)). The office of the

member only gains some sort of quasi-legal existence when a

dispute rises to the level of a suit under the Act. Then, the

complaining employee has no choice but to name the member’s

office as the defendant because that is precisely what the Act

instructs the employee to do. Id. § 1408(b). In sum, the “em-

ploying office” exists as a prescribed label for the defendant in

a lawsuit under the Act, and it has no prior existence as an

independent entity that took any specific action against the

employee.

Therefore, though Congress has expressly designated the

employing office as the name of the defendant, the question

remains: Who is the real defendant behind the name? The

answer to that question is not a simple one, but what is simple

is that the member is not the real defendant, nor is the real

defendant an alter ego of the member. First, Congress intended

to subject the legislative branch to liability for violation of

federal employment laws, not to subject its members personally

to such liability. See id. § 1302. Second, Congress’s attorneys

defend the action. See id. § 1408(d); see also James J. Brudney,

Congressional Accountability and Denial: Speech or Debate

Clause and Conflict of Interest Challenges to Unionization of

Congressional Employees, 36 HARV. J. ON LEGIS. 1, 10 n.46

(1999). Third, Congress’s Office of Compliance has final

settlement authority. See 2 U.S.C. § 1414. Fourth, funds

15

appropriated to Congress’s Office of Compliance pay any

settlement or judgment. See id. §§ 1381(a), 1415(a).

Moreover, nothing in the Act suggests that the member can

make final litigation decisions on behalf of the employing office.

It is true that the Executive Director of the Office of Compliance

only has authority to approve or reject settlements “entered into

by the parties,” id. § 1414, implying that the employing office

separately negotiates the settlement. However, it is not clear that

the employing office would be under the direction of the

member in this regard, especially because the member arguably

has a personal interest in the litigation that is at odds with that

of the employing office. Furthermore, this provision at most

gives the member, acting as Congress’s agent, an active role in

the litigation; it clearly leaves the Office of Compliance as the

final decisionmaker. It is also true that the Office of Compliance

is to some extent an independent office within the legislative

branch, subject to limited congressional oversight, id. § 1381,

but if the Office of Compliance is not directly within Congress’s

control, it is certainly not within the member’s control.

In short, the “employing office” is nothing like a member’s

aide, who can invoke the Speech or Debate Clause privilege on

the member’s behalf. Rather, by way of the Act, Congress

sought to subject the legislative branch as an institution to

federal employment laws. Id. § 1302(a). Cf. Bastien v. Office of

Senator Ben Nighthorse Campbell, No. 01-cv-799, 2005 WL

3334359, at *4 (D. Colo. Dec. 5, 2005) (“[T]he term ‘employing

office’ actually refers to Congress and Congress is the responsi-

ble entity under the CAA.”), quoted in --- F.3d ----, 2006 WL

1756043, at *1 (10th Cir. June 28, 2006). Even if it is not quite

apt to describe the “employing office” as an alter ego of

Congress, it is far less appropriate to describe it as an alter ego

16

of the member.2 Most accurately put, the “employing office” is

an administrative division within Congress, designated to be

named as the defendant in these actions. Nothing in that status

suggests that an employing office can invoke a member’s

Speech or Debate Clause rights.

In addition, because the defendant in these suits is so

differently situated than a member’s aide, there is little reason

to believe that allowing these suits to proceed will threaten

legislative independence or unduly involve the judicial branch

in the affairs of the legislative branch. Of course, the precise

rationale of the Supreme Court in Gravel—that aides must be

treated as members’ alter egos because “the day-to-day work of

such aides is so critical to the Members’ performance,” Gravel,

408 U.S. at 616-17—does not apply here because, under the Act,

the employing office serves no role in a member’s daily

legislative work, functioning only as a defendant in employment

suits. Nevertheless, Gravel also requires the court to extend

Speech or Debate Clause protection if failing to do so “will

inevitably . . . diminish[] and frustrate[]” the Clause’s purpose

of “prevent[ing] intimidation of legislators by the Executive and

accountability before a possibly hostile judiciary,” id. at 617, or

if “judicial oversight . . . realistically threatens to control [a

member’s] conduct as a legislator,” id. at 618. I do not believe,

2

Judge Tatel contends that “[w]hether an aide acted as a

Member’s alter ago turns on the particular act the aide performed on

the Member’s behalf.” Op. of Judge Tatel 2. Statutorily, a member’s

personal office only exists as a defendant to be sued under the Act. As

the office is not an entity—actual or juridical—that can take actions,

a fortiori it cannot act on behalf of the member; it is therefore

precluded from qualifying as an alter ego of the member. Given that

conclusion, I see no need to determine whether particular acts alleged

in the complaint were “legislative,” as those acts were not performed

by the office itself.

17

however, that the limited judicial oversight the Act permits will

contravene these standards.

To begin, the pressures the Act places on the member are

slight: The member bears no financial risk—either from a

judgment or attorneys’ fees. The member, through invocation of

the evidentiary privilege, which I discuss below, can avoid

distractions by refusing to testify or provide evidence regarding

legislative acts. The member may face some embarrassment by

having his or her personnel decisions placed under the micro-

scope, but little more than he would due to any other publicity-

generating event. The conduct at issue in these suits must be

considered to be at or beyond the outer edge of what is “integral

[to] the deliberative and communicative processes by which

Members participate in committee and House [or Senate]

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.” Id. at 625; cf. Forrester v. White, 484 U.S. 219, 229

(1988). Taken together, these considerations suggest that suits

under the Act against the employing office do not “realistically

threaten[] to control [a member’s] conduct as a legislator.”

Gravel, 408 U.S. at 618.

Thus, I see no reason to conclude that the employing office

in an action brought pursuant to the Act is entitled to invoke the

Speech or Debate Clause, either on its own behalf or on behalf

of a member. Clarifying this point is critical because it estab-

lishes that appellants in these cases cannot assert the Clause as

a jurisdictional bar, regardless of whether the actions are

predicated on legislative acts, and it also impacts how the Clause

applies as an evidentiary rule.

Under the Supreme Court’s cases, the Speech or Debate

Clause often operates as an immunity from suit—or, more

18

precisely, as a jurisdictional bar depriving courts of the power to

hear the suit. In Dombrowski v. Eastland, 387 U.S. 82, 85

(1967), for example, the Court stated that, when the Speech or

Debate Clause applies, members of Congress “should be

protected not only from the consequences of litigation’s results

but also from the burden of defending themselves.” Id. at 85

(emphasis added). Similarly, in Gravel, the Court said that

members of Congress are “shielded by the Speech or Debate

Clause both from liability for their illegal legislative act and

from having to defend themselves with respect to it.” 408 U.S.

at 620. And, in Doe v. McMillan, 412 U.S. 306, 318 (1973), the

Court stated that certain acts “may not serve as a predicate for

a suit” against members and aides, requiring dismissal of the

complaint. Appellants here hope to gain the benefit of this

jurisdictional bar, but allowing the suits to proceed will not force

the members of Congress to bear the burden of defending the

suits, nor will it subject the members to civil or criminal liability

that might undermine their independence as legislators. Because

appellants are not members of Congress, or alter egos of

members, and therefore have no Speech or Debate Clause

protection, the jurisdictional bar is not applicable.3

3

Because I conclude that members’ offices cannot assert the

protections of the Speech or Debate Clause, I do not reach the

subsequent questions of whether the acts alleged in the complaints in

these cases are “legislative” and the jurisdictional significance of that

determination. Cf. Op. of Judge Randolph 20-21. However, if the

defendants here could assert the Speech or Debate Clause, I believe

the jurisdictional application of the clause might be broader than Judge

Randolph suggests. For the purposes of the Speech or Debate Clause

to be fulfilled, it arguably ought to bar as a jurisdictional matter not

only lawsuits in which the complaints are predicated on legislative

acts, but also suits that will inevitably necessitate an inquiry into such

acts and motivations, even where such inquiry would arise due to an

affirmative defense. Cf. Davis v. Passman, 442 U.S. 228, 235 n.11

(1979) (“Defenses based upon the Clause should thus ordinarily be

19

That conclusion does not, however, suggest the Clause can

play no part in these actions. The Supreme Court has also

articulated an evidentiary application of the Speech or Debate

Clause for those cases not requiring dismissal of the complaint

on jurisdictional grounds. In Brewster, 408 U.S. 501, the Court

stated that “a Member of Congress may be prosecuted under a

criminal statute provided that the Government’s case does not

rely on legislative acts or the motivation for legislative acts.” Id.

at 512. Applying this rule, the Court permitted a bribery

prosecution of a member of the Senate to go forward, because

the prosecution focused only on whether the member received

compensation in exchange for a promise to vote a certain way,

and not on how the member actually voted or why. Id. at 525-

27. Hence, the Court concluded that no “inquiry into a legisla-

tive act or the motivation for a legislative act [is] necessary to a

prosecution under this statute or this indictment.” Id.

In United States v. Helstoski, 442 U.S. 477 (1979), the court

made clear that the holding in Brewster—permitting criminal

prosecutions that do not rely on proof of legislative acts or the

motives for such acts—should be applied as an evidentiary rule

governing proceedings at trial. Helstoski concerned a criminal

prosecution of a former member of the House in relation to

“allegations that aliens had paid money for the introduction of

private bills which would suspend the application of the

immigration laws so as to allow them to remain in this country.”

Id. at 479. The Supreme Court instructed the trial court to apply

the Speech or Debate Clause as a rule of evidence: “[Johnson

given priority, since federal legislators should be exempted from

litigation if their conduct is in fact protected by the Clause.”

(emphases added)). If, for example, a member is a named defendant

in a state law tort action alleging wrongful termination, limiting the

member to an evidentiary application of the Clause seems too

restrictive.

20

and Brewster] leave no doubt that evidence of a legislative act

of a Member may not be introduced by the Government in a

prosecution . . . .” Id. at 487. “Nothing [however] in our

opinion . . . prohibits excising references to legislative acts, so

that the remainder of the evidence would be admissible.” Id. at

488 n.7. “As to what restrictions the Clause places on the

admission of evidence, . . . [the Court’s] concern is whether

there is mention of a legislative act.” Id. at 490.

In Gravel, 408 U.S. 606, as already discussed, the Court

extended Speech or Debate Clause protections to congressional

aides. The Court distinguished Kilbourn, noting that in Kilbourn

(and other cases permitting civil actions against aides), “relief

could be afforded [against the aide] without proof of a legisla-

tive act or the motives or purposes underlying such an act.” Id.

at 620-21. By contrast, if the lawsuit requires proof of a legisla-

tive act or the motive for such an act, then the aide can assert the

Speech or Debate Clause protections. Id. at 621-22. Notably, the

Court clarified in a footnote that its holding did not apply to

cases in which the defendant was neither a member of Congress

nor an alter ego of a member: “We do not intend to imply,

however, that in no grand jury investigations or criminal trials

of third parties may third-party witnesses be interrogated about

legislative acts of Members of Congress.” Id. at 629 n.18

(emphasis added).

The cases now before us present the situation contemplated

in the footnote in Gravel, because the defendants in these cases

are neither members of Congress nor aides of members, and as

the Gravel footnote suggests, this fact is significant as regards

the evidentiary application of the Clause.4 In a civil or criminal

4

Under Judge Randolph’s approach, a “case can go forward” if

it “does not inquire into legislative motives or question conduct part

of or integral to the legislative process,” but should be dismissed if it

21

suit against a member or an aide, any inquiry into legislative acts

amounts to an impermissible “question[ing],” in violation of the

Speech or Debate Clause. See Helstoski, 442 U.S. at 489;

Brewster, 408 U.S. at 525. This rule makes sense because, in

order to defend the suit fully, the member or aide would have to

respond to any evidence of legislative acts introduced against

him, no matter the source of the evidence, and the member’s

silence might work to his disadvantage. In these cases, on the

other hand, the defendants are not members or aides but

employing offices, entities that cannot themselves assert the

protections of the Speech or Debate Clause. The purposes

behind the Speech or Debate Clause are not implicated by an

inquiry into legislative acts in such cases, as the suits threaten

neither the independence of the legislature as a whole nor of the

individual members. Because the members are not defendants,

the suits do not burden them with defense costs nor place them

at any risk of personal liability, and as long as members and

their aides are not themselves “questioned,” an inquiry into

legislative acts does not implicate the Speech or Debate Clause.

Cf. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429

U.S. 252, 266-68 (1977). Thus, where the member is not a party,

the Clause functions only as a testimonial and documentary

privilege, to be asserted by members and qualified aides if they

are called upon to produce evidence. We need not explore the

precise contours of this privilege today; the district court may

address these problems as they arise. Of course, when the

would require any inquiry into legislative acts. Op. of Judge Randolph

27. While Judge Tatel purports to join Judge Randolph’s opinion in

full, he admits that, according to the Gravel footnote, at least some

evidence of legislative acts may be admitted against third-party

defendants. See Op. of Judge Tatel 5. Such a concession effectively

undermines Judge Randolph’s approach; the possibility of admitting

such evidence means that many suits may proceed even if they would

entail some inquiry into legislative acts.

22

privilege makes relevant evidence unavailable, the parties will

have to present their cases as best they can without the evidence,

as would occur in other instances when non-parties possess

privileged information.

IV

The Supreme Court has liberally construed the Speech or

Debate Clause, but it still remains tethered to its underlying

purpose. Brewster, 408 U.S. at 516. Its purpose is not to

immunize Congress from all liability; rather, its purpose is to

ensure free and unrestrained discussion, debate, and decision

relating to legislative matters. We can always hypothesize long

cause-and-effect chains by which remote events somehow affect

legislative decisions, but these remote events were not the

concern of the Framers of our Constitution when they included

in that document a clause protecting legislative speech and

debate. Rather, they were concerned with much more immediate

threats to legislative independence. They were concerned that

members of Congress would be arrested or held liable specifi-

cally on account of arguments they had voiced in the course of

heated debates over pending legislative issues. Johnson, 383

U.S. at 182. They were concerned about the political rivalries

that naturally arise among the several branches of government,

rivalries that might cause a hostile executive or judiciary to

harass a member of Congress who had been outspoken about

some abuse of power. Id. at 179-81. In addressing these con-

cerns, they did not intend “to make Members of Congress super-

citizens,” Brewster, 408 U.S. at 516, who could block all

judicial inquiry into their personnel practices and workplace

conduct.

Appellants in these actions are not members of Congress

entitled to invoke the Speech or Debate Clause, nor are they

alter egos of members. Therefore, the Speech or Debate Clause

23

does not provide a basis for dismissing these actions; rather, it

operates as an evidentiary protection for members of Congress

and their aides who might be asked to provide evidence in these

actions. For these reasons, I agree that we should affirm the

district court’s orders denying defendants’ motions to dismiss.