Fowler-Nash v. Democratic Caucus of the Pennsylvania House of Representatives

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

11-29-2006

Fowler-Nash v. Democratic Caucus

Precedential or Non-Precedential: Precedential

Docket No. 06-1636

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Case No: 06-1636

AMY L. FOWLER-NASH

v.

THE DEMOCRATIC CAUCUS OF THE PENNSYLVANIA

HOUSE OF REPRESENTATIVES;

R. TED HARHAI, Pennsylvania State Representative,

in his official and individual capacity;

SCOTT BRUBAKER, Director of Staffing

and Personnel for the Democratic Caucus

of the Pennsylvania House of Representatives

in his official and individual capacity,

Appellants

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court No.: 05-cv-01672

District Judge: The Honorable Arthur J. Schwab

Argued on October 26, 2006

Before: SMITH, WEIS, and NYGAARD, Circuit Judges

(Filed: November 29, 2006)

Danielle Banks, Esq. (argued)

Stradley, Ronon, Stevens & Young

2600 One Commerce Square

Philadelphia, PA 19103

Counsel for Appellants

George A. Bibikos, Esq.

John P. Krill Jr., Esq.

Linda J. Shorey, Esq.

Kirkpatrick & Lockhart Nicholson Graham

17 North Second Street

18th Floor

Harrisburg, PA 17101

Counsel for Amicus-Appellant

Samuel J. Cordes, Esq. (argued)

Ogg, Cordes, Murphy & Ignelzi

245 Fort Pitt Boulevard

Pittsburgh, PA 15222

Counsel for Appellees

OPINION

SMITH, Circuit Judge.

2

Amy Fowler-Nash (“Fowler-Nash”) brought suit

pursuant to 42 U.S.C. § 1983 against the Democratic Caucus of

the Pennsylvania House of Representatives (“the Caucus”), state

representative Ted Harhai, and Scott Brubaker, Director of

Staffing and Personnel for the Caucus. Fowler-Nash alleged

that she was discharged from her position as a legislative

assistant to Harhai in violation of her First and Fourteenth

Amendment rights. The Caucus filed a motion for judgment on

the pleadings on the basis of common law legislative immunity.

FED. R. CIV. P. 12(c). The Caucus argued that it was entitled to

absolute legislative immunity as Fowler-Nash was employed as

a legislative assistant, and her firing was therefore necessarily

“within the sphere of legitimate legislative authority.” Tenney

v. Brandhove, 341 U.S. 367, 376 (1951).

The District Court denied the Caucus’s Rule 12(c)

motion, holding that the Caucus did not exercise a legislative

function when it terminated Fowler-Nash. The Caucus contends

that application of a functional test, derived from the Supreme

Court’s opinion in Forrester v. White, 484 U.S. 219 (1988), was

error. The Caucus argues for an “alter ego” test that would look

to the duties of the discharged employee, not to the nature of the

personnel action taken.

We reject the Caucus’s argument. We will apply

Forrester’s functional test to claims of absolute legislative

immunity, and will affirm the District Court’s decision that the

Caucus is not entitled to immunity in this case. The “alter ego”

test lacks precedential support from the Supreme Court, from

3

our own Court, or from other courts of appeals. Its adoption

would open a circuit split. The “alter ego” approach is also a

poorer reflection of the purposes of legislative immunity than

the functional approach. Though this is a question of first

impression before this Court, our own jurisprudence regarding

municipal personnel actions strongly suggests that the Caucus

should not be shielded by legislative immunity. We will affirm

the District Court’s denial of the Caucus’s Rule 12(c) motion.

I. Facts and Procedural History

Ted Harhai is an elected Democratic Representative in

the Pennsylvania House of Representatives. John J. Harhai,

Representative Harhai’s brother, ran for a seat on the City

Council of Monessen, Pennsylvania in the 2005 Democratic

primary. John Harhai lost by seven votes to Jeffery Gagatko,

then filed a Petition to Recanvass in the Court of Common Pleas

of Westmoreland County, Pennsylvania. Pursuant to

Pennsylvania law, the Petition included 39 affidavits from

qualified electors alleging fraud or irregularities. Each of these

affidavits was notarized pursuant to state law. Recanvassing

yielded a nine vote victory for Harhai.

Fowler-Nash was working at the time as a legislative

assistant to Representative Harhai. Fowler-Nash informed

counsel for Gagatko that many of the electors’ affidavits had

been improperly notarized in the electors’ absence, in violation

of state law. Gagatko filed an Emergency Petition to Set Aside

the Recanvass. Fowler-Nash was subpoenaed to testify at a

4

hearing on the Emergency Petition. She informed Gagatko’s

counsel that many of the electors were meeting with the notary

in Representative Harhai’s office so that they would be able to

identify the notary at the hearing and falsely state that the notary

had been present when the affidavits were signed.

Before the hearing was held, however, the parties agreed

to a stipulation that the 39 affidavits were not signed in the

presence of the notary. The trial judge by an order dated July

11, 2005 then vacated its initial June 22, 2005 order that

provided for a recanvassing of the votes. John Harhai appealed.

One week after John Harhai’s appeal was decided against him,

Brubaker terminated Fowler-Nash, informing her that

Representative Harhai could no longer trust her. Fowler-Nash

filed suit against the Caucus, Representative Harhai, and

Brubaker in federal district court, pursuant to 42 U.S.C. § 1983.

The Caucus moved for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c). The Caucus stated in its

Rule 12(c) motion that Fowler-Nash had been terminated for

“excessive telephone usage, internet privilege abuses and overall

job performance.” The District Court denied the motion. The

Caucus filed the instant appeal.1

1

The District Court had federal question jurisdiction

pursuant to 28 U.S.C. § 1331. We have jurisdiction under the

Collateral Order Doctrine of an order denying absolute

immunity. In re Montgomery County, 215 F.3d 367, 373 (3d

Cir. 2000).

Because “[t]his appeal presents a purely legal question

5

II. Discussion

The doctrine of legislative immunity flows from English

common law and the many centuries of struggle between the

English Crown and Parliament. See Tenney v. Brandhove, 341

U.S. 367, 372 (1951). Various English monarchs condemned

parliamentarians to prison for proposing or supporting bills they

found unhelpful. Id. The Glorious Revolution ended this

practice by codifying legislative immunity–“[t]hat the Freedom

of Speech, and Debates or proceedings in Parliament not to be

impeached or questioned in any Court or Place out of

Parliament”–in the English Bill of Rights of 1689. Id.

A century later, the Framers included a similar clause in

the Articles of Confederation, and then in Article I, Section 6 of

the United States Constitution: “[F]or any speech or debate in

either house [the members] shall not be questioned in any other

place.” U.S. Const. art. I, § 6, cl. 1; see Tenney, 341 U.S. at 372.

The Tenney Court aptly summed up the purposes of the Speech

and Debate Clause, stating that legislators must be “immune

from deterrents to the uninhibited discharge of their legislative

duty, not for their private indulgence but for the public good.”

341 U.S. at 377.

concerning the scope of the immunity doctrine,” we exercise

plenary review over the District Court’s denial of the Rule 12(c)

motion on legislative immunity grounds. Donivan v.

Dallastown Borough, 835 F.2d 486, 487 (3d Cir. 1987).

6

The Speech and Debate Clause does not, by its terms,

extend any protection to state legislators or officials.

Nevertheless, the Tenney Court extended legislative immunity

to state legislators and officials as federal common law,

extensively referencing the immunity’s deep common law

origins. Id. at 372. The Supreme Court has similarly extended

common law legislative immunity to local legislative officials,

see Bogan v. Scott-Harris, 523 U.S. 44 (1998) (extending

legislative immunity to members of a city council), and to non-

legislators legitimately engaged in a legislative function. See

Supreme Court of Va. v. Consumers Union of the United States,

446 U.S. 719, 732 (1980) (extending legislative immunity to

Virginia Supreme Court justices in promulgating a code of

professional responsibility).

The Supreme Court has often stated that the purpose of

common law legislative immunity is to reinforce the separation

of powers and safeguard legislative independence. See, e.g.,

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975);

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

Legislative immunity may protect an official exercising a

legislative function “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), and “from the

consequences of litigation’s results.” Id.

The Supreme Court rejected in Brewster the view that the

Speech and Debate Clause protects “all conduct related to the

7

due functioning of the legislative process.” Brewster, 408 U.S.

at 513. The Court stated that, “[w]e would not think it sound or

wise, simply out of an abundance of caution to doubly insure

legislative independence, to extend the privilege beyond its

intended scope, its literal language, and its history, to include all

things in any way related to the legislative process.” Id. at 516.

On the same day that it decided Brewster, the Court took a broad

view in Gravel v. United States of who could invoke legislative

immunity, holding that a legislative aide could invoke immunity

if a legislator could invoke the immunity under the same

circumstances. 408 U.S. 606, 608-10 (1972). As to what

actions were protected by legislative immunity, the Court took

a narrow view, stating that the “heart of the Clause is speech or

debate in either House,” and that “[i]nsofar as the Clause is

construed to reach other matters, they must be an integral part of

the deliberative and communicative processes by which

Members participate in committee and House proceedings with

respect to the consideration and passage or rejection of proposed

legislation or with respect to other matters which the

Constitution places within the jurisdiction of either House.” Id.

at 625.

This Court has held that the federal common law

immunity is “coterminous” with the federal constitutional

legislative immunity, see Larsen v. Senate of the Commonwealth

of Pa., 152 F.3d 240, 249 (3d Cir. 1998), though the Supreme

Court has expressed particular reluctance about extending a

common law immunity. See Forrester v. White, 484 U.S. 219,

220 (1988) (describing the Court’s “absolute official immunity”

8

jurisprudence as “quite sparing”).

The Pennsylvania Constitution contains a Speech and

Debate Clause that tracks the federal clause, but it cannot shield

a legislator from a violation of federal law. See Pa. Const. art.

II, sec. 15.

A. The Functional Test is Appropriate for

Legislative Immunity

The Caucus contends that the District Court erred in

applying a “functional approach,” in which immunity hangs on

whether an action serves “the due functioning of the legislative

process.” United States v. Brewster, 408 U.S. 501, 516 (1972).

The Supreme Court applied this “functional” approach to a

personnel decision in Forrester v. White, 484 U.S. 219, 224

(1988).

The Caucus, however, argues for an “alter ego” test for

the application of legislative immunity. Under this approach,

the Court should determine if the person fired, demoted, or

otherwise affected by the legislator’s decision was so closely

linked to the legislative process that any actions taken towards

them were, in effect, legislative.

The Caucus contends that the District Court’s application

of the Forrester “functional” test was error for several reasons.

The Caucus contends that (1) Forrester concerned a personnel

decision made by a judge and should not therefore be applied to

9

legislative immunity, and that (2) a circuit split exists on the

question of which test is appropriate. We reject the first

contention. The second is simply wrong.

1. Forrester has been applied to legislative

immunity by every Court of Appeals to

consider the issue

The Caucus contends that the “functional” test laid out by

the Supreme Court in Forrester should be limited to judicial

immunity, as Forrester concerned a state judge’s claim of

immunity after firing a probation officer. We reject this sharp

limitation of Forrester. The Court’s opinion in Forrester

strongly suggests that it intended the “functional” test to be

applied broadly. Forrester v. White, 484 U.S. 219, 227 (1988).

Every court of appeals to consider the issue has followed the

Court’s suggestion and applied the Forrester test to legislative

immunity.

In Forrester, an Illinois state judge demoted, then

discharged, a female adult probation officer. Id. at 221. The

discharged officer alleged that she had been discriminated

against because of her sex, in violation of the Fourteenth

Amendment. Id. The judge argued that this personnel action

was protected by absolute judicial immunity. Id. The Forrester

Court unanimously rejected this claim. Id. at 229-30.

The Forrester Court noted that “[d]ifficulties have arisen

primarily in attempting to draw the line between truly judicial

10

acts, for which immunity is appropriate, and acts that simply

happen to have been done by judges,” and that “[h]ere, as in

other contexts, immunity is justified and defined by the

functions it protects and serves, not by the person to whom it

attaches.” Id. at 227 (emphasis added) (citing many cases

concerning legislators and executive officials). The Court noted

that “[r]unning through our cases, with fair consistency, is a

‘functional’ approach to immunity questions other than those

that have been decided by express constitutional or statutory

enactment.” Id. at 224. The Court responded to the threat of

“vexatious” lawsuits by former employees by pointing out that

this factor in “no way serves to distinguish judges from other

public officials who hire and fire subordinates.” Id. at 330-31.

The Forrester Court did not perceive its decision as announcing

a new test, but rather restating and clarifying a “functional”

approach that it had articulated in prior cases, many of which

concerned legislative immunity. Id.

The Court most recently applied the functional approach

to a claim of common law legislative immunity from a personnel

action claim in Bogan v. Scott-Harris. 523 U.S. at 52

(“Absolute immunity for local legislators under § 1983 finds

support not only in history, but also in reason.”). The Bogan

Court clarified that the functional inquiry is purely objective,

holding that, “[w]hether an act is legislative turns on the nature

of the act, rather than on the motive or intent of the official

performing it. . . . This leaves us with the question whether,

stripped of all considerations of intent and motive, petitioners’

actions were legislative.” Id. at 54-55. The Court unanimously

11

held that the city officials who had eliminated plaintiff’s

position by passage of a new budget had acted legislatively as

“acts of voting for an ordinance were, in form, quintessentially

legislative.” Id. at 55 (observing that introduction of a budget

and signing into law an ordinance are “formally legislative” and

“integral steps in the legislative process.”).

We have applied Forrester outside the context of judicial

immunity. See Schrob v. Catterson, 948 F.2d 1402, 1409 (3d

Cir. 1991) (stating that the “Supreme Court has outlined a

functional approach to immunity issues,” and applying

Forrester to prosecutorial immunity (internal quotes omitted)).

Other courts of appeals have uniformly adopted this view of

Forrester and expressly applied the case to legislative immunity.

See Kamplain v. Curry County Bd. of Comm’rs, 159 F.3d 1248,

1251 (10th Cir. 1998) (“In order to determine whether

Defendants should be cloaked in legislative immunity, we look

to the function that the Board members were performing when

the actions at issue took place and we examine the nature of

those actions.”); Chateaubriand v. Gaspard, 97 F.3d 1218, 1220

(9th Cir. 1996) (“To determine whether legislative immunity

applies, courts look to ‘the nature of the function performed, not

the identity of the actor who performed it.’”); Alexander v.

Holden, 66 F.3d 62, 65 (4th Cir. 1995) (“Under Forrester v.

White, the functions of the [Brunswick County] commissioners

determine whether their actions are legislative or administrative

for purposes of immunity.”); Hansen v. Bennett, 948 F.2d 397,

401 (7th Cir. 1991) (“We look only to the function [Mayor]

Bennett was performing when he ejected Hansen. We apply this

12

functional approach even when evaluating conduct that takes

place within a meeting which includes some legislative

business.”); Gross v. Winter, 876 F.2d 165, 170 (D.C. Cir. 1989)

(applying Forrester to a firing by a Washington, D.C. city

council member). No court to have considered the issue has

limited Forrester in the manner the Caucus proposes.

The Caucus urges a radical limitation on the functional

test that is unsupported by Supreme Court or lower court

precedent. We reject this proposed narrowing of the Forrester

test.

2. The “alter ego” approach to legislative

immunity has been rejected by every Court of

Appeals to consider the issue

The Caucus repeatedly states that a circuit split exists as

to whether the “alter ego” or “functional” test applies to

legislative immunity for personnel actions. The Caucus relies

on two cases, Agromayer v. Colberg and Browning v. U.S.

House of Representatives, of the First Circuit and D.C. Circuit,

respectively, to support this proposition. See Agromayer v.

Colberg, 738 F.2d 55, 60 (1st Cir. 1984); Browning v. U.S.

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

No such split exists. The Court of Appeals for the First Circuit

has repeatedly undermined or ignored Agromayer and the Court

of Appeals for the D.C. Circuit recently repudiated Browning in

an en banc decision that unanimously rejected the “alter ego”

approach. See Fields v. Office of Eddie Bernice Johnson, 459

13

F.3d 1, 6-7 (D.C. Cir. 2006).

i. Agromayer is no longer applied in the First

Circuit

The First Circuit held in Agromayer that the politically

motivated refusal to hire a member of the opposing political

party as a legislative press officer was protected by common law

legislative immunity. Agromayer v. Colberg, 738 F.2d 55, 60

(1st Cir. 1984). The Agromayer Court held that “an employee

dealing with the deliberative and communicative processes must

be of direct legislative importance.” Id. (citing Gravel v. United

States, 408 U.S. 606, 625 (1972)) (internal quotes and citations

omitted). The Court stated that, “in applying the immunity we

decline to inquire deeply into the functions performed by a

particular personal legislative aide, inasmuch as such an inquiry

itself threatens to undermine the principles that absolute

immunity was intended to protect.” Agromayer, 738 F.2d at 60.

The Court held that personnel actions concerning employees

with “enough opportunity for ‘meaningful input’ into the

legislative process” should be immunized. Id.

The Agromayer Court relied on Chief Justice Burger’s

dissent in Davis v. Passman for this approach. Id. at 60 (citing

Davis v. Passman, 442 U.S. 228, 249-50 (1979) (Burger, C.J.,

dissenting)). The Davis Court declined to reach the legislative

immunity issue raised by a United States congressman who fired

a female aide, allegedly on account of her sex. Davis, 442 U.S.

at 248-49. However, Justices Burger, Powell, and Rehnquist

14

wrote separately to argue that the Court should have reached the

issue and that it should have been decided in favor of immunity.

Id. at 249-50. The dissent stated that a

Member of Congress has a right to expect that

every person on his or her staff will give total

loyalty to the political positions of the Member,

total confidentiality, and total support. . . .

lead[ing] a Member to employ a particular person

on a racial, ethnic, religious, or gender basis

thought to be acceptable to the constituency

represented, even though in other branches of

Government–or in the private sector–such

selection factors might be prohibited.

Id. Chief Justice Burger concluded that “long-accepted concepts

of separation of powers dictate, for me, that until Congress

legislates otherwise as to employment standards for its own

staff, judicial power in this area is circumscribed.” Id.

The First Circuit Court of Appeals began to move away

from the Agromayer approach even before Forrester called the

decision into question. A year after Agromayer, the First Circuit

turned toward a more functional analysis in Cutting v. Muzzey,

in which the Court held that a town board’s imposition of

“outrageous conditions” on a subdivision proposal was not

protected by legislative immunity. 724 F.2d 259, 262 (1st Cir.

1984). The Cutting Court laid out a two part test “for

distinguishing between legislative and administrative activity.”

Id. at 262. The Court asked first whether the decision was based

15

on “legislative facts,” generalizations or considerations of

policy, and second, whether the decision had a legislative

impact, extending prospectively and beyond one person or a

small group. Id.

The First Circuit continued to apply this strain of

functional analysis after Forrester. The Court stated in 1992

that, “[u]nder current legal theory, immunity attaches or does

not attach depending on what kind of action was performed

rather than on who performed the action,” referring to a decision

to eliminate several civil service positions occupied by political

opponents. Acevedo-Cordero v. Cordero-Santiago, 958 F.2d

20, 23 (1st Cir. 1992). The Court then explicitly applied the

Cutting legislative facts/legislative effects test to the firing of a

legislative librarian, extensively referencing Forrester in the

process. Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25,

28 (1st Cir. 1994) (“The issue is thus whether defendants were

acting in a legislative or administrative capacity when they

discharged Negron.”). The Court reiterated its commitment to

a functional test in a case concerning various personnel actions

against 88 civil service employees, stating that “[e]mployment

decisions generally are administrative except when they are

accomplished through traditional legislative functions such as

policymaking and budgetary restructuring that strike at the heart

of the legislative process.” Acevedo-Garcia v. Vera-Monroig,

204 F.3d 1, 8 (1st Cir. 2000) (internal quotes omitted). See also

Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23, 29 (1st Cir.

1996) (“Acts . . . that are administrative in nature do not give

rise to absolute immunity from liability in damages under §

16

1983.”) (quoting Forrester, 484 U.S. at 229); Nat’l Ass’n of

Social Workers v. Harwood, 69 F.3d 622, 643 (1st Cir. 1995)

(“Because immunity is defined by the functions it serves, even

legislators themselves are not immune for actions taken in an

administrative capacity.”) (quoting Forrester, 484 U.S. at 227).

The First Circuit has never explicitly overturned

Agromayer. It has, instead, abandoned altogether the “alter ego”

approach to legislative immunity.

ii. The D.C. Circuit unanimously rejected the

“alter ego” approach in Fields v. Johnson

The Caucus relied on the D.C. Circuit’s decision in

Browning v. U.S. House of Representatives as a second case

demonstrating a circuit split over which test should govern

legislative immunity. See Browning v. U.S. House of

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

that Court unanimously and explicitly overturned Browning in

its en banc decision in Fields v. Office of Eddie Bernice

Johnson, and unanimously applied Forrester’s functional test to

personnel actions. 459 F.3d 1, 6-7 (D.C. Cir. 2006).

The D.C. Circuit held in Browning that “the standard for

determining Speech or Debate Clause immunity is best

expressed as whether the employee’s duties were directly related

to the due functioning of the legislative process.” Browning,

789 F.2d at 929. The Court concluded that the official reporter

for the House was directly related to the legislative process and,

17

therefore, his firing was shielded by absolute legislative

immunity. Id.

The Fields decision reconsidered Browning in light of

Forrester. See 459 F.3d at 6-7. Fields was the consolidated

appeals of two Congressional employees seeking redress for

firings allegedly based on racial and disability discrimination.

Id. at 5. The discharged employees availed themselves of the

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

1301-1438, which, by its terms, does not displace Speech and

Debate Clause immunity. Fields, 459 F.3d at 5. The D.C.

Circuit noted that Forrester “cast doubt” on Browning. Id. at 7.

The Court stated that its decision in Gross v. Winter had

narrowed Browning, as the Court had found that Forrester, not

Browning, controlled in a personnel action by a D.C. Council

member. Id. See Gross v. Winter, 876 F.2d 165, 170 (D.C. Cir.

1989) (observing that Browning is “unquestionably [in] tension”

with Forrester, “which accords no weight to the duties of the

employee”). The Court noted with dismay that the Tenth

Circuit’s decision in Bastien had created a circuit split. Fields,

459 F.3d at 8. See Bastien v. Office of Senator Ben Nighthorse

Campbell, 390 F.3d 1301 (10th Cir. 2004). In explicitly

rejecting the Browning test, the Bastien Court held that Speech

and Debate Clause immunity protected a U.S. Senator in a

personnel action only when the plaintiff “questioned the conduct

of official Senate legislative business.” Bastien, 390 F.3d at

1304.

The Fields Court stated that many personnel actions lack

18

even “some nexus” to a protected legislative activity and that,

“[f]iring 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.” 459 F.3d at 11 (quoting

United States v. Brewster, 408 U.S. 526, 507(1972)). The

majority opinion written by Judge Randolph overturned

Browning:

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,” is always “an integral part of

the deliberative and communicative processes.”

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.” Any number of

counter-examples reveal as much: a legislative

aide may be discharged because of budgetary

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,” is not enough–conduct must

19

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

functioning” of the “legislative process” to be

protected by the Speech or Debate Clause. 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. We therefore reject Browning’s test

for determining when a legislator's personnel

decision is protected by the Speech or Debate

Clause.

Id. at 11-12 (internal citations omitted). The Court then rejected

the argument that “[d]irecting one’s alter egos–that is, legislative

aides with duties directly related to the legislative

process–necessarily is an integral part of the processes of

achieving one’s legislative goals, because of the duties such

employees perform.” Id. at 12 (internal quotes omitted). The

Court noted that “[t]he Speech or Debate Clause protects

conduct that is integral to the legislative process, not a

Member’s legislative goals,” and that many activities that are

integral to “legislative goals,” such as sending newsletters or

delivering speeches to constituents, are “political,” not

“legislative,”–and are therefore beyond the scope of legislative

immunity. Id. The Court also noted that, “[a]nother problem

with the formulation lies in its assumption that a Member only

directs his alter egos with regard to constitutionally protected

activities.” Id. The Fields Court emphasized Gravel’s

conclusion that simply because a Senator performs certain duties

in his official capacity does not make those duties legislative.

Id. (citing Gravel v. United States, 408 U.S. 606, 625 (1972)).

20

The Fields Court held that, “[l]egislative aides are no different.”

Fields, 459 F.3d at 12.

The Fields Court was splintered on some issues, but not,

as Judge Tatel pointed out in his concurrence, on the issues

discussed above. Fields, 459 F.3d at 18 (“I take some solace

from the fact that the commonalities of our opinions exceed their

differences.”) (Tatel, J., concurring). The principal concurrence,

authored by Judge Brown, focuses on who may invoke

derivative legislative immunity, arguing that only “alter ego[s]”

of the representative may do so. Id. at 22-24 (Brown, J.,

concurring). This line of debate is not germane to the instant

case, as Judge Brown was concerned with who may invoke

legislative immunity, not with what actions are immune. Id.

Nevertheless, Judge Tatel’s attack on the very concept of

legislative alter egos is instructive:

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.”

21

Id. at 19 (quoting Gravel, 408 U.S. at 619). Judge Tatel makes

the same point as Fowler-Nash: that the Caucus’s “alter ego”

theory is essentially an inapposite analogy to Gravel.

In its supplemental brief, the Caucus and its amicus, the

Republican Caucus, urge several distinctions from Fields that

are not persuasive. The Caucus urges that the application of the

Congressional Accountability Act in Fields makes it

distinguishable and that we must resolve the instant case without

regard to the Congressional intent behind the Congressional

Accountability Act. However, the Fields Court acknowledged

at the outset that the Accountability Act, by its terms, does not

disturb Speech and Debate Clause immunity. Id. at 8-9.

Accordingly, the intent behind the Accountability Act appears

to have played no role in the Court’s decision. Id.

B. Applying the Forrester functional test

This Court will apply the functional test articulated in

Forrester. The Democratic Caucus was not acting in a

legislative capacity when it fired Fowler-Nash and should not be

protected by absolute legislative immunity.

This Court has relied on a functional approach since well

before Forrester was handed down. See Aitchison v. Raffiani,

708 F.2d 96, 99 (3rd Cir. 1983) (“We look to the function the

individual performs rather than his location within a particular

branch of government.”). After Forrester, this Court reaffirmed

its commitment to a functional approach and articulated a two

22

prong test for determining whether a particular action is

legislative. See Ryan v. Burlington County, N.J., 889 F.2d 1286,

1290 (3rd Cir. 1989) (“It is only with respect to the legislative

powers delegated to them by the state legislatures that the

members of local governing boards are entitled to absolute

immunity.”).

The two part test developed by this Court inquires into

whether an action was both “substantively” and “procedurally”

legislative when undertaken by municipal legislators and

officials. Ryan, 889 F.2d at 1290-91 (holding that staffing

decisions regarding county jails were not legislative).2 We did

2

The Ryan Court echoed the two part test articulated by

several other courts:

There are two requirements which an act must

meet in order to be regarded as legislative for

immunity purposes. First, the act must be

“substantively” legislative, i.e., legislative in

character. Legislative acts are those which

involve policy-making decision[s] of a general

scope or, to put it another way, legislation

involves line-drawing. Where the decision affects

a small number or a single individual, the

legislative power is not implicated, and the act

takes on the nature of administration. In addition,

the act must be “procedurally” legislative, that is,

passed by means of established legislative

procedures. This principle requires that

23

not, however, apply the test developed at the municipal level to

the allegedly unconstitutional impeachment of a state Supreme

Court justice by the Pennsylvania Senate because “[t]he

line-drawing between administrative and legislative acts at issue

in these cases has no bearing under the situation before us

because neither party suggests that the Senators were acting in

an administrative capacity,” and, “because concerns for the

separation of powers are often at a minimum at the municipal

level.” Larsen v. Senate of Commonwealth of Pa., 152 F.3d

240, 252 (3d Cir. 1998). The Larsen Court extended immunity

to the state senators because “power was consciously assigned

to the Senate primarily as a function of the separation of

powers,” therefore the senators were acting within “the sphere

of legitimate legislative activity.” Id. This Court recently

expanded on this analysis, holding that “allocating the total

appropriation for office staffing among the Democratic house

members [is] within the sphere of legitimate, legislative

activity.” Youngblood v. DeWeese, 352 F.3d 836, 841 (3d Cir.

2003) (quoting Tenney, 341 U.S. at 376) (internal quotes

omitted). Accordingly, the allegedly punitive passage by state

constitutionally accepted procedures of enacting

the legislation must be followed in order to assure

that the act is a legitimate, reasoned decision

representing the will of the people which the

governing body has been chosen to serve.

Ryan, 889 F.2d at 1290-91.

24

legislators of an appropriation bill that cut back an opponent’s

staff was entitled to immunity. Id.

The Larsen Court held that the two part test developed

for municipal immunity did not apply to state legislators. 152

F.3d at 252. This Court has, however, developed an extensive

jurisprudence exploring the distinction between legislative and

administrative actions at the municipal level. Although these

cases are not controlling in this context, their reasoning is

instructive. This Court has repeatedly stated that “decisions

affecting a single individual or a small number of people do not

implicate legislative power and, thus, such actions are

administrative in nature,” whereas decisions affecting the

community at large are likely legislative–though this inquiry is

not necessarily conclusive. Acierno v. Cloutier, 40 F.3d 597,

610 (3d Cir. 1994); see also Donivan v. Dallastown Borough,

835 F.2d 486, 487 (3d Cir.1987), Rogin v. Bensalem Twp., 616

F.2d 680, 693-94 (3d Cir. 1980). The Acierno panel refined this

test and added that an appropriate inquiry includes whether the

legislator had acted to promulgate new law or policy, or was

merely enforcing existing policy. Acierno, 40 F.3d at 610. We

applied this test to a personnel action in Carver, in which

several high-level municipal employees were fired and their

positions eliminated, allegedly due to their political affiliation.

Carver v. Foerster, 102 F.3d 96, 100 (3d Cir. 1996). The Court

assumed that “a legislative body’s decision to eliminate a

government position, in contrast to the mere termination of a

person’s employment, is legislative activity,” but that neither the

county nor the county commissioner was necessarily immune

25

from suit as they “acted in various capacities–legislative,

executive and administrative.” Id. The county commissioner

had given “a unilateral order” to have political opponents fired,

which was not “engaging in policy-making of general

application regarding the expenditure of County funds, but []

making either an executive decision on how the anticipated

cutback should be implemented or an administrative decision

that certain individuals should be fired.” Id. The Court also

noted that an “unconstitutional or illegal course of conduct by

county government does not fall within the doctrine of absolute

immunity merely because it is connected to or followed by a

vote of a county board.” Id. at 101. This Court provided a

useful counterexample in Gallas v. Supreme Court of

Pennsylvania, where Pennsylvania Supreme Court justices were

held immune after issuing an order for “administrative

reorganization of the First Judicial District,” that eliminated the

position of Executive Administrator. 211 F.3d 760, 766 (3d Cir.

2000).

This approach to distinguishing administrative from

legislative functions is particularly appealing as it tracks exactly

the Supreme Court’s analysis in Bogan v. Scott-Harris:

Respondent, however, asks us to look beyond

petitioners’ formal actions to consider whether the

ordinance was legislative in substance. We need

not determine whether the formally legislative

character of petitioners’ actions is alone sufficient

to entitle petitioners to legislative immunity,

26

because here the ordinance, in substance, bore all

the hallmarks of traditional legislation. The

ordinance reflected a discretionary, policymaking

decision implicating the budgetary priorities of

the city and the services the city provides to its

constituents. Moreover, it involved the

termination of a position, which, unlike the hiring

or firing of a particular employee, may have

prospective implications that reach well beyond

the particular occupant of the office. And the city

council, in eliminating [the Department of Health

and Human Services], certainly governed in a

field where legislators traditionally have power to

act. Thus, petitioners’ activities were

undoubtedly legislative.

523 U.S. 44, 55-56 (1998) (internal quotes omitted). The

Supreme Court refused to insist that formally legislative acts,

such as passing legislation, also be “legislative in substance.”

Id. This aspect of Bogan prompted this Court in Larsen to drop

the two part legislative facts/procedure test when considering

absolute immunity claims by state legislators. 152 F.3d at 252.

However, the Bogan Court also unanimously endorsed this

Court’s approach to identifying administrative action. 523 U.S.

at 55-56.

This Court’s approach to distinguishing administrative

from legislative functions is consistent with the approach

27

adopted by other courts of appeals in reviewing personnel

actions by state legislators. The First Circuit Court of Appeals

adopted essentially the same distinction between administrative

and legislative acts, holding that termination of a legislative

librarian by state legislators was an administrative act and

therefore not entitled to immunity from suit under 42 U.S.C. §

1983. Negron-Gaztambide v. Hernandez-Torres, 35 F.3d 25, 28

(1st Cir. 1994). The Ninth Circuit Court of Appeals has taken

the same approach, holding that the Washington State

Democratic Caucus acted administratively when it demoted and

terminated a Senate information officer for allegedly refusing to

engage in inappropriate campaign work. Chateaubriand v.

Gaspard, 97 F.3d 1218, 1221 (9th Cir. 1996).

Neither Harhai nor Brubaker nor the Caucus were acting

in a legislative capacity when they terminated Fowler-Nash.

Harhai’s decision did not reach beyond a single employee. It

did not eliminate Fowler-Nash’s position, thereby affecting

future employees. Harhai’s decision, according to the Caucus’s

pleadings, did not rely on any broad consideration of policy,

neither was it directed to creating a new policy. It was a

textbook example of a legislator performing an administrative

function. The Caucus argues that this Court should hold that it

is inappropriate for a court to even inquire after a pre-textual

legislative purpose. However, this argument is inapposite as the

Caucus did not offer even a legislative pretext for Fowler-

Nash’s termination.

The Caucus, Harhai, and Brubaker clearly exercised an

28

administrative function when they terminated Fowler-Nash.

Common law legislative immunity does not apply.

III. Conclusion

The Caucus’s argument lacks any precedent to support it.

The functional approach applied by the District Court is an

accurate reflection of the Supreme Court’s approach, this

Court’s precedents, and is compatible with our sister courts of

appeals’ decisions. The Caucus urges us to adopt a position that

would re-create a circuit split that the D.C. Circuit has recently

labored mightily to close. The “alter ego” approach is a poor

reflection of the purposes of common law legislative immunity.

Notwithstanding the above, common law legislative

immunity may still have a role to play in Fowler-Nash’s suit.

Harhai may well be able to invoke evidentiary protections if

Fowler-Nash seeks to inquire into activities that are directly

within the legislative sphere. However, the Caucus’s Rule 12(c)

motion for judgment on the pleadings on the grounds of

legislative immunity was properly denied in the District Court.

We will affirm the District Court’s judgment.

29