Petition for Writ of Certiorari — Andrew S. Clyde, Individually and in His Official Capacity as a Member of the U.S. House of Representatives, et al., Petitioners v. William McFarland, in His Official Capacity as Sergeant at Arms of the U.S. House of Representatives, et al.

No. 23In the

Supreme Court of the United States

ANDREW S. CLYDE, et al.,

Petitioners,

v.

WILLIAM J. WALKER, et al.,

Respondents.

On Petition for a Writ of Certiorari to the United States

Court of A ppeals for the District of Columbia Circuit

PETITION FOR A WRIT OF CERTIORARI

Kenneth T. Cuccinelli, II

Earl N. “Trey” Mayfield, III

Counsel of Record

Juris Day, PLLC

10521 Judicial Drive, Suite 200

Fairfax, VA 22030

(703) 268-5600

tmayfield@jurisday.com

Counsel for Petitioners

326580

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

The Constitution’s Speech or Debate Clause provides

in pertinent part that, “for any Speech or Debate in

either House, [Senators and Representatives] shall

not be questioned in any other Place.” Art. I, § 6, cl.1.

The Behavior Clause of the Constitution provides that,

“[e]ach House may determine the Rules of its Proceedings,

punish its Members for disorderly Behaviour, and, with the

Concurrence of two thirds, expel a Member.” Art. I, § 5,

cl.2. And the Constitution’s Twenty-Seventh Amendment

states that, “No law, varying the compensation for the

services of the Senators and Representatives, shall take

effect, until an election of Representatives shall have

intervened.” Amend. XXVII.

1.

Whether the Speech or Debate Clause creates

a jurisdictional bar to judicial consideration

of whether internal congressional rules or

practices violate other textual provisions of the

Constitution?

2.

W hether the immunity from suit created

by the Speech or Debate Clause extends to

administrative functions within Congress like

payroll deductions and floor security that are not

core legislative activities?

3.

Whether the T wenty-Seventh A mendment

to the Constitution prohibits the U.S. House

of Representatives from reducing Members’

compensation by deducting punitive fines from

their salaries before the Members receive those

salaries?

ii

PARTIES TO THE PROCEEDING

& RULE 29.6 STATEMENT

Petitioners Andrew Clyde, Louie Gohmert, and

Lloyd Smucker were all Members of the U.S. House of

Representatives in the 117th Congress, and bring suit

both Individually and in their Official Capacities.

Respondents William J. Walker and Catherine

Szpindor are sued in their Official Capacities as Employees

of the U.S. House of Representatives.

Petitioners are individuals without corporate status.

iii

RELATED CASES

Clyde v. Walker, Civ. Act. No. 21-1605 (TJK), U.S.

District Court for the District of Columbia, Judgment

entered Aug. 1, 2022.

Clyde v. Walker, No. 22-5263, U.S. Court of Appeals

for the District of Columbia Circuit, Judgment entered

Oct. 20, 2023.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING & RULE 29.6

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . . vii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . viii

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

I.

CONTRARY TO THE D.C. CIRCUIT’S

OPINION, T HIS COU RT H A S

CLEARLY HELD THAT THE SPEECH

OR DEBATE CLAUSE DOES NOT

CREATE A JURISDICTIONAL BAR

TO JUDICIAL CONSIDERATION OF

CONSTITUTIONAL CHALLENGES OF

INTERNAL CONGRESSIONAL ACTS . . . . . 11

v

Table of Contents

Page

A. The D.C. Circuit’s Holding is against

this Court’s Precedents and Makes

Many Previously Justiciable Clauses

of the Constitution Unjusticiable . . . . . . . . 11

B. The D.C. Circuit’s “Jurisdictional

Bar” Theory Would Prevent Judicial

Review of Significant Constitutional

Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

C. No Case from this Court Describes

the Speech or Debate Clause as a

“Jurisdictional Bar,” Although the

D.C. Circuit Has Misinterpreted it for

Seventeen Years . . . . . . . . . . . . . . . . . . . . . . 17

D. T he S p e e c h or D eb at e C l au s e

Cr e at e s a Pot ent i a l I m mu n it y,

Not a Ba r t o Just iciabi l ity, for

Congressional Actions . . . . . . . . . . . . . . . . . 22

II. A D M I N I S T E R I N G PA Y R O L L &

SECURITY SCREENING ARE NOT

CORE LEGISLATIVE ACTS COVERED

B Y T H E S P E E C H OR DE B A T E

CLAUSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

vi

Table of Contents

Page

III. A STRAIGHT-FORWARD TEXTUAL

INTERPRETATION OF THE TWENTYSEV ENTH A MENDMENT SHOWS

T H A T T H E F I N E S “ VA R I E D ”

MEMBERS’ ACTUAL COMPENSATION,

A ND THIS COU RT SHOU LD

REVIEW THE MEANING OF THAT

CONSTITUTIONAL PROVISION . . . . . . . . . . 28

A. A Primary Purpose of the TwentySeventh Amendment is to Prevent

Congressional Salaries From Being

Decreased, a Practice the Founders

Expressly Recognized Could Be

Used to Threaten the Integ r ity

and Independence of Members and

Dissuade Indiv iduals of Modest

Means from Serving in Congress . . . . . . . 28

B. H o u s e R e s o l u t i o n 7 3 Va r i e s

Compensation in Violation of the

Twenty-Seventh Amendment . . . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

vii

TABLE OF APPENDICES

Page

A PPENDI X A — J U DGMENT OF THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU M BI A

CIRCUIT, FILED OCTOBER 20, 2023 . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

OF THE UNITED STATES DISTRICT

C OU RT F OR T H E DI S T R IC T OF

COLUMBIA, FILED AUGUST 1, 2022 . . . . . . . . . . 8a

APPENDIX C — RELEVANT STATUTES . . . . . . 23a

viii

TABLE OF CITED AUTHORITIES

Page

CASES:

Albright v. Oliver,

510 U.S. 266 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

Barker v. Conroy,

921 F.3d 1118 (D.C. Cir. 2019) . . . . . . . . . . . . . . . . . . 25

Coffin v. Coffin,

4 Mass. 1 (1808) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Doe v. McMillan,

412 U.S. 306 (1973) . . . . . . . . . . . . . . . 18, 22, 23, 25, 27

Dombrowski v. Eastland,

387 U.S. 82 (1967) . . . . . . . . . . . . . . . . . . . . . . 15, 17, 18

Eastland v. United States Servicemen’s Fund,

421 U.S. 491 (1975) . . . . . . . . . . . . . . . . . . . . . 13, 14, 15

Fields v. Office of Eddie Bernice Johnson,

459 F.3d 1 (D.C. Cir. 2006) . . . . . . . . . . . . . . . . . . 17, 19

Gravel v. United States,

408 U.S. 606 (1972) . . . . . . . . . . . . 13, 14, 18, 19, 20, 22,

23, 24, 25, 26, 27

Harlow v. Fitzgerald,

457 U.S. 800 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ix

Cited Authorities

Page

Howard v. Chief Administrative Officer of the

U.S. House of Representatives,

720 F.3d 929 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Hutchison v. Proxmire,

443 U.S. 111 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 15, 22

In re Grand Jury Proceedings,

563 F.2d 577 (1977) . . . . . . . . . . . . . . . . . . . . . . . . 26, 27

In re Sealed Case,

80 F.4th 355 (D.C. Cir. 2023) . . . . . . . . . . . . . . . . . . . 22

INS v. Chadha,

462 U.S. 919 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Kilbourn v. Thompson,

103 U.S. 168 (1881) . . . . . . . . . . . . . . . . . . 13, 14, 17, 18

Massie v. Pelosi,

72 F.4th 319 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24

McCarthy v. Pelosi,

5 F.4th 34 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21

NLRB v. Noel Canning,

573 U.S. 513 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 18

Powell v. McCormack,

395 U.S. 486 (1969) . . . . . 2, 3, 11, 12, 13, 15, 16, 18, 22

x

Cited Authorities

Page

Rangel v. Boehner,

785 F.3d 19 (D.C. Cir. 2015) . . . . . . . . . . . . . . 19, 20, 24

Schaffer v. Clinton,

240 F.3d 878 (10th Cir. 2001) . . . . . . . . . . . . . . . . . . . 32

Siegert v. Gilley,

500 U.S. 226 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Stop the Beach Renourishment, Inc. v.

Florida Dept. of Env. Protection,

560 U.S. 702 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

United States v. Ballin,

144 U.S. 1 (1892) . . . . . . . . . . . . . . . . . . . . . 3, 18, 20, 21

United States v. Brewster,

408 U.S. 501 (1972) . . . . . . . . . . . . . . . . . . . . . 15, 25, 27

United States v. Hatter,

532 U.S. 557 (2001) . . . . . . . . . . . . . . . . . . . . . . . . 33, 34

United States v. Heltoski,

442 U.S. 477 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

United States v. Johnson,

383 U.S. 169 (1966) . . . . . . . . . . . . . . . . . . . . . . . . 15, 24

United States v. Munoz-Flores,

495 U.S. 385 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

xi

Cited Authorities

Page

Walker v. Jones,

733 F.2d 923 (D.C. Cir. 1984) . . . . . . . . . . . . . 24, 25, 27

RELEVANT CONSTITUTIONAL PROVISIONS:

U.S. Const., Amend. XXVII . . . . . . . . . 1, 2, 4, 5, 9, 10, 21,

22, 28, 29, 32, 33, 34

U.S. Const., Art. 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 10

U.S. Const., Art. I, § 5, cl. 1 . . . . . . . . . . . . . . . . . . . 12, 20

U.S. Const., Art. I, § 5, cl. 2 . . . . . . . . . . . . . . . . . . . . . . .16

U.S. Const., Art. I, § 6, cl. 1 . . . . . . . . . . . . 1, 9, 10, 13, 30

U.S. Const., Art. I, § 7, cl. 1 . . . . . . . . . . . . . . . . . . . . . . . 16

U.S. Const., Art. III . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 33

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

H.R. 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 9, 32, 33

H.R. 73 117th Congress, 1st Sess. § 1(a)(1) . . . . . . . . . . . 6

H.R. 73 117th Congress, 1st Sess. § 1(a)(2) . . . . . . . . . . . 6

H.R. 73 117th Congress, 1st Sess. § 1(a)(3) . . . . . . . . . . . 6

xii

Cited Authorities

Page

H.R. 73 117th Congress, 1st Sess. § 1(b) . . . . . . . . . . . . . 6

H.R. 73 117th Congress, 1st Sess. § 1(c)(1) . . . . . . 6, 8, 33

H.R. 73 117th Congress, 1st Sess. § 1(c)(2) . . . . . . . . . . . 6

H.R. 73 117th Congress, 1st Sess. § 1(d) . . . . . . . . . . . . 33

H.R. 1629 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1 Edward Porritt with Annie G. Porritt, The

Unreformed House of Commons: Parliamentary

Representation Before 1832 (1909) . . . . . . . . . . . . . . 29

1 The Records of the Federal Convention of 1787

(Max Farrand ed., 1937) . . . . . . . . . . . . . . . . . . . 30, 31

Alexander Hamilton, Federalist Paper No. 79

(May 28, 1788) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Bernard Bailyn, The Ideological Origins of the

American Revolution (enlarged ed. 1992) . . . . . . . . 29

Debates in the House of Representatives (Aug.

14, 1789), in The Congressional Register,

Aug. 14, 1789 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Edmund Cody Burnett, The Continental Congress

420 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

xiii

Cited Authorities

Page

Elizabeth Rybicki, CRS Report No. 98-988, Voting

and Quorum Procedures in the House of

Representatives 7-8 (March 20, 2023) . . . . . . . . . . . . 9

Jack N. Rakove, The Beginnings of National Politics:

An Interpretive History of the Continental

Congress 235–38 (1979) . . . . . . . . . . . . . . . . . . . . . . . 30

Jack P. Greene, The Quest for Power (1963) . . . . . . . . . 30

Richard B. Bernstein, The Sleeper Wakes:

The History and Legacy of the TwentySeventh Amendment, 61 Fordham L. Rev. 497

(Dec. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28-29, 30

Richard B. Morris, The Forging of the Union,

1781-1789 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

The Eighteenth-Century Constitution: 1688-1815

(E. Neville Williams ed., 1960) . . . . . . . . . . . . . . . . . 29

1

OPINIONS BELOW

The court of appeals’ unreported opinion is available

at 2023 WL 6939987 (per curiam). Pet. App. 1a-7a. The

district court’s opinion is reported at 619 F.Supp.3d 193

(D.D.C. 2022). Pet. App. 8a-22a.

JURISDICTION

The judgment of the court of appeals was entered on

October 20, 2023. The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. § 1254(1).

PROVISIONS INVOLVED

U.S. Const., Art. I, § 6, cl. 1. Pet. App. 23a.

U.S. Const. Amend. XXVII. Pet. App. 24a.

STATEMENT

This case is about when federal courts can avoid

deciding cases about the internal functioning of the

Houses of Congress when a constitutional provision was

arguably violated. The D.C. Circuit regarded these claims

as immune from judicial scrutiny, going against 140 years

of this Court’s precedents. While the judiciary may prefer

not to hear such a case, there are significant implications

to federal courts avoiding deciding important questions

that are part of the text of the Constitution, even if they

arise from internal congressional rules.

The D.C. Circuit held that the Speech and Debate

Clause is a jurisdictional bar. This Court has never held

2

the Speech or Debate Clause to be a jurisdictional bar

to constitutional challenges of congressional procedures.

Indeed, this Court has rejected that proposition when it

has taken such cases on the merits. Most notably, the D.C.

Circuit’s aversion to such suits is squarely in conflict with

this Court’s seminal decision in Powell v. McCormack,

395 U.S. 486 (1969), in which this Court reviewed a

constitutional claim arising from the House’s internal vote

denying a Member his seat and his salary.

In February 2021, the U.S. House of Representatives

passed a rule requiring the House Sergeant at Arms to

impose massive fines ($5,000 for the first offense, $10,000

for subsequent offenses) against Members who failed to

complete security screenings, and requiring the House’s

Chief Administrative Officer to deduct those fines from

the salaries of Members who did not pay the fines before

the Members ever received their salaries. Petitioners—

Members of Congress at the time—were all fined. Many

Members were denied the ability to vote on matters before

the House while they waited to pass through the required

security measures.

Petitioners sought judicial review of the House Rule,

asserting that the reduction of their salaries before

they ever received them constituted a “varying” of

their compensation in violation of the Twenty-Seventh

Amendment. They also argued that violating the screening

protocol to perform their representative duties could not,

in the absence of conduct disruptive to the legislative

process, constitute punishable “disorderly Behaviour.”

The D.C. Circuit held that the Speech or Debate

Clause “operates as a jurisdictional bar” to the judiciary’s

3

consideration of claims arising from legislative acts

“regardless of their alleged unconstitutionality.” The

court defined “legislative acts” as any act by the House

emanating from its powers under the Rules and Discipline

Clauses of Article I.

The D.C. Circuit’s interpretation of the Speech or

Debate Clause as a jurisdictional bar to the judicial

consideration of constitutional challenges of internal

congressional rules and procedures is contrary to this

Court’s precedents, dating at least from United States v.

Ballin, 144 U.S. 1 (1892). Ballin established that the House

is generally entitled to judicial deference in its internal

rulemaking, but that deference falls away when it ignores

constitutional restraints, violates fundamental rights, or

enforces rules not rationally connected to their claimed

objectives. The D.C. Circuit’s holding is inconsistent with

Ballin’s strictures. This Court has never held the Speech

or Debate Clause to be a jurisdictional bar to constitutional

challenges of congressional procedures. Indeed, the Court

has rejected that proposition when it has taken such cases

on the merits. Most notably, the D.C. Circuit’s aversion to

such suits is squarely in conflict with this Court’s seminal

decision in Powell v. McCormack, 395 U.S. 486 (1969).

Powell concerned the House’s internal vote denying a

Member his seat and his salary. Nonetheless, this Court

held both that it had subject matter jurisdiction to hear

the case and that the Speech or Debate Clause was no

bar to the justiciability of claims against congressional

employees who have violated textual commands of the

Constitution.

The D.C. Circuit’s all-encompassing construction of

Speech or Debate Clause immunity is at odds with this

4

Court’s long-standing instruction that the Clause applies

only to core legislative activities like voting, speaking

during congressional proceedings, and investigations.

This case challenges the automatic deduction of fines from

Members’ salaries. The D.C. Circuit held those deductions

to be a “legislative act” immune from judicial scrutiny

because they are performed pursuant to the House’s

internal authority under the Rulemaking and Discipline

Clauses. The Third Circuit, however, has split from that

view, instead holding that the payroll function is purely

ministerial and not a legislative act covered by Speech or

Debate immunity.

Moreover, this Court has never addressed the TwentySeventh Amendment’s protections. The Amendment

prevents “ vary ing” compensation. The Members’

compensation here was unquestionably “varied.” As with

judicial compensation, the Founders sought to protect

the ability of Members to exercise independent judgment

without financial coercion and to allow persons of modest

means to serve in the National legislature. This case

presents that very issue.

This Court should grant review to re-establish the

right of litigants to ask courts to determine whether

Congress is acting constitutionally, an admittedly difficult

question under our system of separation of powers. But

this Court has done it many times before. Under the D.C.

Circuit’s rationale, no challenge to unconstitutional actions

by the Houses of Congress based on internal rules and

procedures can be brought because every such action is

performed pursuant to the Rulemaking and Discipline

Clause. This unbounded view of “legislative acts” means

that no congressional variances of salary accomplished

5

by rule (instead of statute) can ever be heard. The D.C.

Circuit’s precedent-defying jurisdictional reinterpretation

of the Speech or Debate Clause will place large swathes

of unconstitutional congressional conduct beyond remedy.

The Court should take this opportunity to correct the

D.C. Circuit’s abdication of the judicial function, repair

the circuit split, and ensure that the Twenty-Seventh

Amendment is not a constitutional nullity.

1. Petitioners were Members of the U.S. House of

Representatives in the 117th Congress as members of

the then-minority opposition party Republican Caucus.

Congressmen Andrew Clyde (Georgia 9) and Lloyd

Smucker (Pennsylvania 11) currently serve in the 118th

Congress, while Louie Gohmert (Texas 1) did not seek

reelection. Am. Compl. ¶¶ 1–3, Dist. Ct. D.E. 9. Their

Amended Complaint alleges that their congressional

compensation was “varied” in violation of the TwentySeventh Amendment by the House deducting fines from

their salaries prior to those salaries being received. Id.

¶¶ 30–35.

Respondents Sergeant at Arms William Walker

(“SA A”) and Chief Administrative Officer (“CAO”)

Catherine Szpindor were senior employees of the U.S.

House of Representatives in the 117th Congress. Under

House Resolution 73, SAA Walker was responsible for

implementing the security procedures at the entrances to

the House chamber, including assessing the fines called

for under House Resolution 73. CAO Szpindor controlled

the payment of salaries to members of the House of

Representatives. Both individuals were accountable to

Speaker Pelosi. Id. ¶¶ 4–5, 8–10.

6

On February 2, 2021, the House passed H.R. 73,

directing the Sergeant at Arms to impose a $5,000 fine

against any member for “failure to complete security

screening for entrance to the House Chamber,” and a

$10,000 fine for any subsequent violation. H.R. 73, 117th

Congress, 1st Sess., § 1(a)(1)–(2), Imposition of Fines for

Failure to Complete Security Screening for Entrance to

House Chamber (2021) (hereafter, the “Screening Rule”).

Upon notice of an alleged Screening Rule violation, the

Member could appeal the charge to the House Ethics

Committee. Id. § 1(a)(3) and (b). The Member had 90 days

from the time a violation was determined with finality—

either because he didn’t contest it, or by the Committee’s

determination that he violated the rule—to pay the fine.

Id. § 1(c)(1) and (2). The CAO was required to deduct the

fine from a Member’s salary who did not pay the fine

within 90 days. Id. § 1(c)(1). Am. Compl. ¶¶ 8–10, Dist. Ct.

D.E. 9. The Sergeant at Arms implemented the Screening

Rule by placing magnetometers at the House Chamber

entrances. Id. ¶ 11.

As alleged in the Amended Complaint, Congressman

Clyde entered the House Chamber on February 3,

2021, without passing through a magnetometer. ThenActing Sergeant at Arms Timothy Blodgett notified

Congressman Clyde on February 5, 2021, that Clyde

would be fined $5,000 for violating the Screening Rule.

In contrast, on February 4, 2021, then-Speaker Nancy

Pelosi, the leader of the House Democratic majority,

violated the Screening Rule by entering the House

Chamber via a door in the Speaker’s Lobby, without

subjecting herself to the magnetometers. The security

personnel under the Sergeant at Arms’s authority made

no effort to force her to be screened or to restrain her

7

from entering the Chamber. The Sergeant at Arms did

not ever issue her a citation, her violation was never

referred to the House Ethics Committee, and she was

not fined. Similar violations without repercussions were

committed by senior Democratic leaders, Congresswoman

Maxine Waters (California 43), then-Chairwoman of the

House Financial Services Committee, Congressman

Jamie Raskin (Maryland 8), and Congresswoman Nydia

Velazquez (New York 7), then-Chairwoman of the House

Small Business Committee. Id. ¶¶ 12–17.

On February 5, 2021, Congressman Clyde again

entered the House Chamber, this time passing through

a magnetometer, but without allowing himself to be

detained for a secondary screening by security personnel,

saying, “I have to vote,” as his official phone had set off

the magnetometer. Sergeant at Arms Blodgett notified

Congressman Clyde on Feb. 8, 2021, that he would be fined

an additional $10,000 for violating the Screening Rule a

second time. Id. ¶¶ 18–19.

On February 3, 2021, then-Congressman Gohmert

was screened upon entry to the House Chamber without

incident. He later left the Chamber through the Speaker’s

Lobby to the men’s bathroom adjacent to the Speaker’s

Lobby—just feet from a security post. Security personnel

were present but did not request him to re-submit to

screening prior to re-entering the Chamber. He repeated

that course of action the next day, but the security

personnel then requested that Congressman Gohmert

submit to another screening; however, Gohmert informed

them that he had already been screened and proceeded

back into the House Chamber. Then-Acting Sergeant at

Arms Blodgett subsequently notified him that he had

8

violated the Screening Rule by entering the Chamber

without screening and would be fined $5,000. Id. ¶¶ 20–23.

On May 19, 2021, a vote was called for the final

passage of H.R. 1629. Congressman Smucker was then

away from the Capitol grounds, and he returned to vote

just before the vote closed. Knowing that he could miss

the vote, Congressman Smucker ran to the Chamber and

communicated to the security personnel at the entrance

that he would quickly vote—within their line of sight— and

return to complete the magnetometer screening, which

he did. He believed at the time that, had he delayed his

vote to accommodate the Screening Rule, he would have

missed the vote on H.R. 1629, thereby failing his first duty

to his constituents. Nonetheless, Sergeant at Arms Walker

notified Congressman Smucker that he had violated the

Screening Rule by entering the House Chamber without

being screened and would be fined $5,000. Id. ¶¶ 24–26. All

three Members appealed their fines to the House Ethics

Committee making several arguments, including that

the Screening Rule and its fines were being selectively

enforced against only Republicans and not against

Speaker Pelosi or other Democrats, and that such fines

reduced a Member’s salary in the same session in which it

was passed. The Ethics Committee denied their appeals,

affirming Clyde’s $15,000 fine and $5,000 each for Smucker

and Gohmert. After their unsuccessful appeals, CAO

Szpindor was required pursuant to H.R. 73 § 1(c)(1) to

take the fines directly from the Members’ congressional

salaries. Id. ¶¶ 19, 23, 26.

On April 14, 2021, Congressman Clyde was in his

legislative office when a vote was called. The magnetometer

went off, and he was required to be re-screened prior to

9

his entry. The voting system shut down just prior to him

being able to press the voting button.1 Other Members who

missed votes due to being delayed by the magnetometer

screening include Republican Representatives Michael

Burgess (Texas 26), Lauren Boebert (Colorado 3), Jeff

Duncan (South Carolina 3), Chris Smith (New Jersey 4),

and Brad Wenstrup (Ohio 2). Id. ¶¶ 28–29.

2. Petitioners Clyde and Gohmert filed suit on June

13, 2021, seeking declaratory and injunctive relief against

Sergeant at Arms Walker and CAO Szpindor in their

official capacities from enforcing H.R. 73 as violative of

the U.S. Constitution’s Twenty-Seventh Amendment and

the Discipline Clause, Article I, § 5, cl.2. 2 Compl., Dist. Ct.

D.E. 1. An Amended Complaint was filed July 15, 2021,

to add Congressman Smucker. Am. Compl., Dist. Ct.

D.E. 9. The Representatives alleged that reducing their

salaries by deducting the fines before they ever received

the salaries was a “variance” of their compensation in

violation of the Twenty-Seventh Amendment. Further,

they alleged that the House lacked authority to punish

them for (purportedly) violating the Screening Rule

because those infractions involved no disruptive conduct

and thus did not constitute “disorderly Behaviour” within

the Discipline Clause’s original meaning. Id. ¶¶ 30–41.

1. The House Speaker controls how long the voting period will

be kept open. Elizabeth Rybicki, CRS Report No. 98-988, Voting and

Quorum Procedures in the House of Representatives 7-8 (March

20, 2023).

2. Count II of both complaints also asserted violations of the

Arrest Clause, U.S. Const. Art. I, § 6, cl. 1, which were not pursued

on appeal.

10

The district court dismissed the case for lack of

subject matter jurisdiction under the Constitution’s

Speech or Debate Clause, Article I, § 6, cl.1. Judgment,

Dist. Ct. D.E. 21; Opinion Order, Dist. Ct. D.E.22. The

court concluded that the House’s actions were “legislative

acts” protected by the Clause that could not be judicially

reviewed. The court did not address parties’ merits

arguments of whether the Screening Rule violated either

the Twenty-Seventh Amendment or the Discipline Clause.

Id.; Pet. App. 9a–22a.

3. The D.C. Circuit affirmed per curiam, holding that

“the Speech or Debate Clause operates as a jurisdictional

bar when the actions upon which a plaintiff sought to

predicate liability were legislative acts. The Clause’s

immunity from suit is jurisdictional and prohibits the

judiciary from questioning speech, debate, or legislative

acts that fall within the Clause’s coverage.” Pet. App.

4a. Like the district court, the D.C. Circuit held that

“issuing a fine and deducting it from paychecks” were

“legislative acts” because they were done pursuant to

the internal procedures the House had established as

permitted by Article I’s Rules and Discipline Clauses.

Accordingly, it held that the Clause rendered the House’s

acts “absolutely” immune from suit “regardless of their

alleged unconstitutionality.” Id. 5a–7a.

11

ARGUMENT

I.

CONTRARY TO THE D.C. CIRCUIT’S OPINION,

THIS COURT HAS CLEARLY HELD THAT THE

SPEECH OR DEBATE CLAUSE DOES NOT

CREATE A JURISDICTIONAL BAR TO JUDICIAL

CONSIDER ATION OF CONSTIT U TIONA L

CHALLENGES OF INTERNAL CONGRESSIONAL

ACTS

A.

The D.C. Circuit’s Holding is against this

Court’s Precedents and Makes Many Previously

Justiciable Clauses of the Constitution

Unjusticiable.

This case should be controlled by Powell v. McCormack,

which expressly held that the Court could consider

Congressman Powell’s request that the Sergeant at Arms

“disburse funds,” i.e., his congressional salary. 395 U.S.

486, 504 (1969). If the D.C. Circuit below was correct

in asserting that any question related to the legislative

function is beyond the federal courts’ subject matter

jurisdiction, Powell could not have been decided. Powell

is one of this Court’s seminal Speech or Debate Clause

cases, and over 140 years of Supreme Court precedent

make clear that the Speech or Debate Clause is not—by

itself—a bar to justiciability. There is no instance in which

a party’s reliance upon the Clause was held by this Court

to deprive federal courts of jurisdiction to consider the

issue on the merits. The D.C. Circuit’s dismissal of this

case on subject matter jurisdiction grounds is directly

contrary to this Court’s precedents. The D.C. Circuit’s

belief that it lacks subject matter jurisdiction to consider

the Members’ constitutional claims merely because they

12

emanate from a legislative body, see Clyde Pet. App.

4a–7a, is untenable in the face of uniform Supreme Court

precedents to the contrary. Were the D.C. Circuit correct

in that conclusion, none of the discussed cases could have

been decided at all, regardless of this Court’s ultimate

determinations.

In Powell, Congressman Powell was prevented

from taking his seat in violation of the Qualifications

Clause of Article I, § 5, cl.1 and sought declaratory relief

against the House employees tasked with implementing

the House’s arguably unconstitutional decision. Powell

sought a declaratory judgment that the House Sergeant

at Arms had unconstitutionally withheld his congressional

salary and an injunction ordering the Sergeant at Arms

to provide that salary. Powell, 395 U.S. at 493–94.

Addressing arguments identical to those invoked by

the D.C. Circuit below, Powell expressly held both that

the Court had subject matter jurisdiction to hear the

case and that the Speech or Debate Clause is no bar to

justiciability to claims against congressional employees

who have violated textual commands of the Constitution.

Id. at 500–06, 512–16, 550. The Court concluded that

Powell had been unconstitutionally excluded from taking

his seat in the House of Representatives and remanded the

consideration of equitable relief for ordering the release

of his back pay to the lower courts. Id. at 550.

But the D.C. Circuit below rationalized dismissing

this case on jurisdictional g rounds because “ the

challenged acts are ‘legislative’ . . . because they involve

matters the Constitution places within the jurisdiction

of the House,” and “fines for violations of the [Screening

Rule] are an aspect of Congress’ power to punish its

Members for disorderly Behaviour.” Clyde, Pet. App.

13

5a (cleaned up). Powell rejected that logic, observing

that, “Respondents assert that the Speech or Debate

Clause of the Constitution, Art. I, § 6, is an absolute bar

to [Congressman Powell’s suit].” Powell, 395 U.S. at 501.

But, the Court held, legislative immunity does not bar

all judicial review of legislative acts. “That issue was

settled . . . expressly in Kilbourn v. Thompson, 103 U.S.

168 (1881), the first of this Court’s cases interpreting the

reach of the Speech or Debate Clause.” Powell, 395 U.S.

at 503. “The purpose of the [Clause‘s] protection afforded

legislators is not to forestall judicial review of legislative

action but to insure that legislators are not distracted from

or hindered in the performance of their legislative tasks by

being called into court to defend their actions.”3 Id. at 505.

Thus, legislative employees who commit unconstitutional

acts, even at the direction of Congress itself, can be held

liable for their acts. Id. at 504–05. It would be odd if this

were not true.

A f t er Po well, i n Ea stl an d v. Unit ed St at es

Servicemen’s Fund, 421 U.S. 491 (1975), a Senate

committee’s investigatory subpoena to a bank was

challenged and the Clause invoked as a defense to the

suit. All of the justices—in the majority, concurrence,

or dissent—expressly held the question of the Clause’s

applicability to be properly before the Court. The majority

opinion held, “[t]he question to be resolved is whether

the actions of the petitioners fall within the sphere of

legitimate legislative activity. If they do, the petitioners

‘shall not be questioned in any other Place’ about those

3. The Clause’s “fundamental purpose” is to “free[] the

legislator from executive and judicial oversight that realistically

threatens to control his conduct as a legislator.” Gravel, 408 U.S.

at 618.

14

activities since the prohibitions of the Speech or Debate

Clause are absolute[,]” and that “the Court of Appeals

correctly held that the District Court properly entertained

this action initially.” Id. at 513 and n.14 (cleaned up).

Concurring for three justices, Justice Marshall observed,

“the District Court properly entertained the action in

order to provide a forum in which respondent could assert

its constitutional objections . . . a court’s inquiry . . . is

necessarily quite limited once defendants entitled to do

so invoke [the Clause’s privilege].” Id. at 514. In dissent,

Justice Douglas wrote that the Clause’s immunity could

be denied to those “within the reach of judicial process.”

Id. at 518. No justice remotely suggested the Court lacked

subject matter jurisdiction to consider the case, even

though Eastland’s ultimate holding was that the Clause

provided “complete immunity” for the Members and

committee chief counsel at whom the suit was directed.

Id. at 495–96, 507.

The Court’s Speech or Debate cases have been

consistent on this point in the 140 years since Kilbourn. In

Gravel v. United States, another of the Court’s significant

explications of the Clause, the Court faced the question of

whether the Clause immunized a congressional aide, acting

on a senator’s behalf, from testifying before a grand jury.

408 U.S. 606, 613 (1972). The Court explicitly held, “we are

of the view that both the question of the aide’s immunity

and the extent of that immunity are properly before us in

this case.” Id. at 628 n.17. No justice, whether in majority

or dissent, suggested that the Clause’s invocation deprived

the Court of subject matter jurisdiction. See id., generally

and esp. at 618–20, 624–25.

The D.C. Circuit compounded its misapprehension

of the Clause’s coverage in assuming that “legislative

15

acts” means any internal congressional act. This Court

has resoundingly rejected that interpretation: While

“[i]t is beyond doubt that the Speech or Debate Clause

protects against inquiry into acts that occur in the

regular course of the legislative process and into the

motivation for those acts,” “[t]he only reasonable reading

of the Clause, consistent with its history and purpose, is

that it does not prohibit inquiry into activities that are

casually or incidentally related to legislative affairs, but

not part of the legislative process itself.” United States

v. Brewster, 408 U.S. 501, 525, 528 (1972). In other words,

passing an internal rule about security is not necessarily

“legislation.” Thus, the Brewster Court explicitly stated

it “has jurisdiction to hear this appeal.” Id. at 507. While

three justices dissented from the majority’s construction

of the Speech or Debate Clause, none contended the

Court lacked jurisdiction to consider the matter. See id.

at 529–50 (Brennan, J., dissenting), 551–63 (White, J.,

dissenting.).

Applying a fact-specific analysis in each case, this

Court has held the Clause gives absolute immunity for

members and staff, Eastland, 421 U.S. at 495–96, 507,

provided immunity for members, but not staff, Powell,

395 U.S. at 506, allowed no immunity for members or

staff, Hutchison v. Proxmire, 443 U.S. 111, 131, 133

(1979), embraced immunity for core legislative acts like

congressmen making speeches on the floor, United States

v. Johnson, 383 U.S. 169, 185 (1966), but not for nonlegislative acts like a staffer conducting an unlawful search

on behalf of a committee investigation, Dombrowski v.

Eastland, 387 U.S. 82, 82–83, 85 (1967), or – similar to the

instant case– the House doorkeeper denying a duly elected

member access to the House chamber. Powell, 395 U.S. at

493–94, 550. Notwithstanding the D.C. Circuit’s current

16

view that these cases are beyond judicial scrutiny, this

Court heard all those cases and rendered merits decisions

on the underlying constitutional challenges without the

Speech or Debate Clause rendering them non-justiciable.

B. The D.C. Circuit’s “Jurisdictional Bar” Theory

Would Prevent Judicial Review of Significant

Constitutional Questions.

House rules, or their implementation, are subject to

judicial review where a plausible constitutional violation is

alleged. The D.C. Circuit’s view of the Speech or Debate

Clause creates an absolute jurisdictional bar to judicial

consideration of any act simply because it is the subject of a

rule or practice internal to a house of Congress. Were that

the case, none of the following scenarios could be subject

to judicial review, as all plainly fall within the Rules and

Discipline Clause that the D.C. Circuit deems the final

word on what constitutes a “legislative act[:]” “Each House

may determine the Rules of its Proceedings” and “punish

its Members for disorderly Behaviour.” Art. I, § 5, cl.2.

For instance, under the D.C. Circuit’s “jurisdictional

bar,” as discussed supra, this Court could not have

heard Powell, a Member of Congress’ challenge to the

House’s refusal to seat him and pay his salary for reasons

not specified in the Constitution. This Court could not

have considered an external challenge to the Senate’s

own understanding of when it was “in session” or what

constitutes a “recess.” But see Noel Canning, 573 U.S. at

530–33, 550–53. The D.C. Circuit’s logic would preclude

any complaint that a revenue statute did not comply with

the Origination Clause. Art. I, § 7, cl. 1. But see United

States v. Munoz-Flores, 495 U.S. 385, 389–97 (1990)

(holding the judiciary had an independent obligation to

17

ensure that the political branches complied with textual

constitutional provisions).

That logic would also have prevented any challenge to

a legislative veto, whereby either house of Congress could,

by simple internal resolution not subject to bicameralism

or presentment, undo an executive branch act. But see INS

v. Chadha, 462 U.S. 919, 926–27, 941–43, 952, 958 (1983).

Third parties would be barred from challenging illegal

searches by congressional staffers conducted pursuant

to a congressional committee’s investigation (itself a

legislative act). But see Dombrowski v. Eastland, 387 U.S.

82 (1967). Likewise, there could be no liability against

congressional employees taking unlawful action pursuant

to a vote of the House ordering an unconstitutional act,

even though the vote itself is concededly a legislative act.

But see Kilbourne, 103 U.S. at 181–205.

The D.C. Circuit’s interpretation of the Speech or

Debate Clause as a bar to judicial review of actions

internal to either house of Congress is wholly inconsistent

with the Article III obligation to give all constitutional

commands effect.

C.

No Case from this Court Describes the Speech

or Debate Clause as a “Jurisdictional Bar,”

Although the D.C. Circuit Has Misinterpreted

it for Seventeen Years.

The circuit held below, “[T]he Speech or Debate

Clause operates as a jurisdictional bar when ‘the actions

upon which a plaintiff sought to predicate liability were

legislative acts.’” Clyde, Pet. App. 4a (emphasis added)

(quoting Fields v. Office of Eddie Bernice Johnson,

459 F.3d 1, 13 (D.C. Cir. 2006) (en banc) (cleaned up)

18

(quoting Doe v. McMillan, 412 U.S. 306, 318 (1973) (quoting

Gravel, 408 U.S. at 618)). That assertion cannot be squared

with this Court’s precedents, particularly in light of the

D.C. Circuit’s expansive view of what constitute ‘legislative

acts.’

First, regardless of whether a challenged congressional

rule or practice falls within the general rubric of a

“legislative act,” it must still otherwise be consistent with

the rest of the Constitution. United States v. Ballin, 144

U.S. 1, 5 (1892) (reaff’d, NLRB v. Noel Canning, 573 U.S.

513, 551 (2014)). Hence, for example, although the House

debated and voted not to seat Congressman Powell—

as “legislative” an act as can be imagined—the Court

nonetheless took up his case and found that act to violate

another provision of the Constitution, the Qualifications

Clause. Powell, 395 U.S. at 514, 519–48. Second, though

Members of Congress cannot be held liable for voting

and speaking in favor of unconstitutional measures,

congressional employees can be held liable and enjoined

from carrying out such measures. Gravel, 408 U.S. at

618–22; Powell, 395 U.S. at 506; Dombrowski, 387 U.S.

at 84; Kilbourn, 103 U.S. at 200, 202.

Moreover, neither McMillan nor Gravel describe the

Speech or Debate Clause as being “jurisdictional” in the

sense of depriving the courts of the ability to consider the

case on the merits. McMillan used the term “jurisdiction”

to describe the scope of the Clause’s reach, including

congressional investigations as within the meaning of

the “legislative acts” covered by the Clause because it

is a core function of the legislative process. 412 U.S. at

313, 318. Gravel’s mention of “jurisdiction,” moreover,

was the opposite of the D.C. Circuit’s conclusion here;

the Clause is not a complete barrier to adjudicating

19

anything Congress does internally: “Legislative acts are

not all-encompassing.” 408 U.S. at 606. “[T]hey 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.” Id.

(cleaned up).

The D.C. Circuit’s error here appears to stem from

the loose use of the term “jurisdiction,” in tandem with a

failure to consistently discern the difference between a

“legislative act” and a “congressional act” in its Speech

or Debate jurisprudence over the past seventeen years.

Describing the Clause as “jurisdictional” is nomenclature

created by the Fields opinion. See 459 F.3d at 13. But the

Fields court correctly ascertained that the employment

discrimination claims alleged therein did not constitute

legislative acts (though the Clause might preclude certain

acts or evidence from being introduced in support of those

claims). Id. at 13–14.

In Howard v. Chief Administrative Officer of the

U.S. House of Representatives, another employment

discrimination case against the House, the circuit repeated

its “jurisdictional bar” formulation from Fields, but again

correctly discerned that the Clause was inapplicable where

“legislative acts” were not in question. 720 F.3d 929, 412

(2013). The term was used again in Rangel v. Boehner,

wherein then-Congressman Rangel sued other House

Members and employees, challenging the procedures by

which the House had censured him. 785 F.3d 19, 21–22

(D.C. Cir. 2015). Correctly applying this Court’s (and its

own) precedents, the circuit determined that the House’s

procedures to investigate and censure its Members were

legislative acts readily within the Clause’s protections

20

for House Members and their alter ego employees. Id. at

23–25. Citing Howard, the circuit unnecessarily referred

to the Clause’s effect as “jurisdictional,” id. at 22, while

also describing it as an “immunity” under this Court’s

precedents. Id. at 23–25.

The circuit again characterized the Clause as

“jurisdictional” in McCarthy v. Pelosi, a challenge to

the House’s adoption of an internal rule permitting

Members to vote by proxy. 5 F.4th 34, 36–38 (2021).

There, however, the circuit appears to have departed

from the Speech-or-Debate framework dictated by this

Court’s precedents. Without further detail, McCarthy

states the plaintiffs allege, “various constitutional

provisions require Members to be physically present on

the House floor in order to count towards a quorum and

cast votes.” Id. at 38. The opinion does not discuss the

alleged constitutional infirmities. Instead, McCarthy

asserts that because voting is a legislative act, the Clause

jurisdictionally precluded the circuit from even evaluating

any constitutional challenge to that voting procedure. Id.

at 38–39.4 That conclusion cannot be squared with this

4. Petitioners offer no view of whether McCarthy’s ultimate

conclusion dismissing the proxy voting challenge was correct; only

that the analytical framework was at odds with how this Court has

applied the Speech or Debate Clause. If, for example, the McCarthy

plaintiffs had raised a colorable claim that the Quorum Clause, Art. I,

§ 5, cl.1, was being violated by the House’s Proxy Voting Rule (which

cannot be discerned from the circuit’s truncated opinion), the courts

were obligated to consider the question on the merits. See Ballin, 144

U.S. at 5; Gravel, 408 U.S. at 620–21. So too, courts must consider

whether there are specific textual constitutional provisions that

take precedence over more general provisions. See Stop the Beach

Renourishment, Inc. v. Florida Dept. of Env. Protection, 560 U.S.

702, 721 (2010).

21

Court’s jurisprudence analyzing the Clause’s applicability

on a case-by-case basis.

More recently, Massie v. Pelosi was a challenge

to a mandatory mask rule for House Members during

COVID-19 that imposed fines upon violators, fines

deducted directly from their salaries before they were

paid. 72 F.4th 319, 320–21 (2023). The Massie plaintiffs

brought numerous constitutional challenges to the Mask

Rule, including that the fining mechanism violated

the Twenty-Seventh Amendment. Id. at 31. Adding

to McCarthy’s analytical errors, the Massie court

erroneously declared the Mask Rule to be a legislative

act simply because it was a congressional activity voted

on by the House. Id. at 322–23. As explained in Part II,

infra, this Court has repeatedly defined “legislative acts”

as limited to the functions of legislating, such as speaking,

voting, communicating, and investigating. Administrative

functions within the houses of Congress, regardless of

their desirability, are not core legislative activities. The

Speech or Debate Clause was inapposite in Massie, and

the court should have conducted an analysis under Ballin

as to whether any other constitutional provision precluded

the House from regulating hygiene under the Rules

Clause. Thus, as in McCarthy, the D.C. Circuit failed both

to consider the constitutional challenges presented to it

(asserting a jurisdictional bar to doing so), and to make

the mandatory distinction between Members supporting

unconstitutional rules and congressional employees

executing them. Id. at 322–24. All of Massie’s analytical

errors were replicated in Clyde below, where the D.C.

Circuit erroneously declared (1) the purely administrative

activities of security screening and payroll deduction to

be “legislative acts;” (2) that because the case involved

22

“legislative acts,” the court lacked jurisdiction to consider

the constitutional challenges under the Discipline Clause

and the Twenty-Seventh Amendment; and (3) jurisdiction

was likewise lacking to determine if congressional

employees had acted unconstitutionally. Pet. App. 4a–7a.

D.

The Speech or Debate Clause Creates a

Potential Immunity, Not a Bar to Justiciability,

for Congressional Actions.

The Clause creates an individual privilege for

Members, not collectively for the outcomes of congressional

action. See In re Sealed Case, 80 F.4th 355, 375 (D.C. Cir.

2023) (Katsas, J., concurring) (citing, e.g., Coffin v. Coffin,

4 Mass. 1, 27 (1808)). This Court characterizes the Speech

or Debate Clause as a legislative immunity doctrine. See,

e.g., Powell, 395 U.S. at 503; Gravel, 408 U.S. at 620, 626,

628 n.17; see also 648, 660–61 (Brennan, J., dissenting)

(also describing the Clause as creating an “immunity”);

McMillan, 412 U.S. at 307, 314–16, 318, 320, 324–25; see

also 326–27, 330 (Douglas, J., concurring) (also describing

the Clause as creating an “immunity”) and 339, 343

(Rehnquist, J., concurring in part and dissenting in part)

(same); Hutchison, 443 U.S. at 123, 127, 131–32; see also

136 (Brennan, J., dissenting) (also describing the Clause

as creating an “immunity”). Immunity doctrines are

generally considered a waivable defense, not an absolute

jurisdictional limitation on a court’s judicial authority.

Siegert v. Gilley, 500 U.S. 226, 231 (1991) (“qualified

immunity is a defense”); Gravel, 408 U.S. at 621–22

(suggesting that a Member of Congress could waive or

repudiate an aide’s Speech or Debate immunity); see

also United States v. Heltoski, 442 U.S. 477, 493 (1979)

(suggesting that an individual member of Congress

might be able to waive Speech or Debate immunity “by

23

an explicit and unequivocal expression”). As this Court’s

precedents demonstrate, a party’s invocation of the Speech

or Debate Clause is no impediment to a court’s exercise of

jurisdiction over the case, or to its justiciability. Like any

other constitutional provision, a court must determine if

and how it applies to the facts at hand.

II. ADMINISTERING PAYROLL & SECURITY

SCREENING ARE NOT CORE LEGISLATIVE

ACTS COVERED BY THE SPEECH OR DEBATE

CLAUSE.

The congressional staff functions at issue—conducting

payroll deductions and security screenings—are purely

administrative in nature, and not “legislative acts” within

the Speech or Debate Clause’s ambit. The constitutional

test for speech or debate tracks the common-sense notion

that the vast array of administrative functions performed

by the House do not fall within the Speech or Debate

Clause unless they are integral to the core legislative

functions of deliberation and communication among

members concerning the public’s business. The Clause

simply does not reach conduct “that is in no wise [sic]

related to the due functioning of the legislative process.”

Gravel, 408 U.S. at 625.

In general, the Supreme Court has followed a

functional approach to legislative immunity. See Harlow

v. Fitzgerald, 457 U.S. 800, 810–11 (1982) (holding the

courts’ functional approach to immunity cannot extend

that immunity beyond the core purpose being protected).

The Speech or Debate Clause does not insulate legislative

functionaries carrying out non-legislative tasks from

suit. McMillan, 412 U.S. 306, 315 (1973). Congressional

24

employees may accrue Speech or Debate immunity from

suit “insofar as the conduct of the [employee] would be

a protected legislative act if performed by the Member

himself.”5 Gravel, 408 U.S. at 618. “The key consideration,

the Supreme Court cases teach, is the act presented for

examination, not the actor.” Walker v. Jones, 733 F.2d

923, 929 (D.C. Cir. 1984) (Ginsburg, J.) (emphasis added).

“The heart of the [Speech or Debate] Clause is

speech or debate in either House. Insofar 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.” Gravel, 408 U.S. at 625

(emphasis added).

Clause-protected “legislative acts” include preparing

committee reports, conducting hearings and investigations,

committee staff using documents for official business,

communications between a congressman and his staff

regarding legislative business, selecting witnesses, bill

drafting, staff members’ preparations for legislative

activities, and, of course, speaking within the House, and

voting. See Rangel, 785 F.3d at 24–25 (collecting cases);

Johnson, 383 U.S. at 185.

5. The D.C. Circuit defined “legislative acts” as those

“regulat[ing] the conduct of Members on the House floor.” Clyde,

2023 WL 6939987 at *2 (quoting Massie, 72 F.4th at 323). That is

not a definition supported by this Court’s Speech or Debate Clause

jurisprudence.

25

By contrast, numerous activities well within the

normal course of congressional functions have been held

not to be protected by the Speech or Debate Clause:

contacting executive branch employees and agencies and

seeking to influence them, privately publishing documents

obtained in the course of congressional duties, Gravel,

408 U.S. at 624–26; assisting in obtaining government

contracts, preparing constituent newsletters, Brewster,

408 U.S. at 512–13; as well as press releases, speeches and

documents delivered outside of Congress. McMillan, 412

U.S. at 317. Moreover, non-legislative functions occurring

within the legislative branch, such as an opening prayer

by a chaplain employed by the House, or personnel actions

in the course of superintending congressional food service

facilities, are also plainly not subject to the Clause’s

immunity. See, e.g., Barker v. Conroy, 921 F.3d 1118 (D.C.

Cir. 2019); Walker, 733 F.2d at 930–32.

As then-Judge Ginsburg pointed out in Walker, the

argument that every administrative function performed

by the House falls within the Speech or Debate Clause is

“far-fetched.” 733 F.2d at 931. The Clause‘s “fundamental

purpose” is to “free the legislator from executive and

judicial oversight that realistically threatens to control

his conduct as a legislator.” Id. (quoting Gravel, 408

U.S. at 618) (emphasis added). Services “not peculiar to

a Congress member’s work qua legislator may advance

a member’s general welfare,” but is not “legislative in

character,” and “not reasonably described as work that

significantly informs or influences our nation’s laws.”

Walker, 733 F.2d at 931 (cleaned up).

The D.C. Circuit pointed to no contrary case from this

Court suggesting that administrative functions of security

26

and payroll might constitute “legislative acts.” Nor could

it, because notwithstanding its contrary suggestion that

the Clause extends to every internal House act resulting

from its rules, “the Clause has not been extended beyond

the legislative sphere.” Gravel, 408 U.S. at 624–25.

Payroll operations are not remotely “an integral

part of the deliberative and communicative processes

by which Members participate in committee and House

proceedings,” nor do they constitute “other matters

which the Constitution places within the jurisdiction of

the House.” Id.

The D.C. Circuit’s holding that House payroll

administration is a “legislative act” conflicts directly with

the Third Circuit’s determination on that same question in

In re Grand Jury Proceedings, 563 F.2d 577 (1977). Grand

Jury squarely held that legislative payroll is a merely

ministerial activity not within the Clause’s ambit. Id. at

585. Construing the Pennsylvania Constitution’s Speech or

Debate Immunity as being the same found in the Federal

Constitution, the Third Circuit rejected the Pennsylvania

Senate’s contention that it was immune from providing

its payroll records in response to a grand jury subpoena.

Id. “Such an expansion of the privilege would give it

wider coverage than the Speech or Debate Clause and

provide more of a safeguard than is necessary to preserve

legislative independence and integrity.” Id. While payroll

evidence is “tangentially related to the legislative function,

[it] is so peripheral as not to be covered by the privilege.

The legislative function is separate and distinct from that

of compensation of the office and the ministerial work to

prepare payrolls[.]” Id. (emphasis added). Rejecting the

D.C. Circuit’s notion here that payroll is a “legislative

27

act,” Grand Jury concluded, “[t]his clerical work must be

performed regardless of the position that any legislator

may wish to take on issues of public importance.” Id.

“The only reasonable reading of the Clause, consistent

with its history and purpose, is that it does not prohibit

inquiry into activities that are casually or incidentally

related to legislative affairs but not a part of the legislative

process itself.” Brewster, 408 U.S. at 528. Administering

payroll may well be an important function for House

operations, but the function’s importance does not convert

it into a legislative activity, much less speech or debate.

See Walker, 733 F.2d at 931. Accordingly, the Speech or

Debate Clause has no applicability to the payroll deduction

complained of here.

The distinction between legislative acts (where

Clause immunity applies), as opposed to their execution

(where it does not), is well-established. As then-Judge

Ginsburg pointed out, “The Supreme Court has drawn

a key distinction, ‘between legislative speech or debate

and associated matters such as voting and committee

reports and proceedings,’ on the one hand, and ‘executing a

legislative order,’ or ‘carrying out legislative directions,’ on

the other hand. The former, the Supreme Court has

emphasized, is what the Speech or Debate Clause shields.”

Walker, 733 F.2d at 931–32 (cleaned up) (citing Gravel, 408

U.S. at 620–21; Doe v. McMillan, 412 U.S. 306, 314–15

(1973)). Carrying out a decision, “even if the decision itself

is properly called ‘legislative,’ is not cloaked with Speech or

Debate immunity, for execution or carrying out directions

post-dates what the Clause protects—the process leading

up to the issuance of legislative directions.” Walker, 733

F.2d at 932 (emphasis in original). Members of Congress

28

may have immunity for discussing and voting for an

unconstitutional rule, like the automatic fine deduction at

issue here. But congressional employees, like the Sergeant

at Arms and Chief Administrative Officer, are not immune

from a judicial order forbidding the rule’s implementation.

III. A S T R A I G H T - F O R WA R D T E X T U A L

I N T ER PR ETAT ION OF T H E T W E N T YSEV EN T H A M EN DM EN T SHOWS T H AT

THE FINES “VARIED” MEMBERS’ ACTUAL

COM PENSATION, A N D T HIS COU RT

SHOULD REVIEW THE MEANING OF THAT

CONSTITUTIONAL PROVISION

As argued above, this Court can and should hear cases

about legislative functions where a specific provision of

the Constitution has been alleged to have been violated.

The Members here have had their compensation “varied,”

which, at a minimum, is contrary to the text of the TwentySeventh Amendment.

A.

A Primary Purpose of the Twenty-Seventh

Amendment is to Prevent Congressional

Salaries From Being Decreased, a Practice the

Founders Expressly Recognized Could Be Used

to Threaten the Integrity and Independence of

Members and Dissuade Individuals of Modest

Means from Serving in Congress.

W hat is today know n as the T wenty- Seventh

Amendment began its odyssey to enactment as the second

amendment in the original Bill of Rights draft proposed

by James Madison and adopted by the First Congress in

1789. See generally, Richard B. Bernstein, The Sleeper

Wakes: The History and Legacy of the Twenty-Seventh

29

Amendment, 61 Fordham L. Rev. 497, 521–31 (Dec. 1992)

(“Sleeper”). Between 1789 and 1791, this “compensation

amendment” was ratified by only six states, making it

ineligible to join the ten amendments that were approved

as the Bill of Rights. Id. at 532–33. Two more states

ratified it through 1978. Id. at 534, 537. A cascade of state

ratifications began in 1983, and it became the TwentySeventh Amendment to the Constitution in 1992. Id. at

537, 539 n.214.

While the Amendment is commonly thought of today

as a limitation on Congress’s ability to vote itself a pay

raise, that was but one animating purpose. Rather, it

prohibits any law “varying the compensation,” not just

those that increase it.

The Founders were greatly concerned that diminishing

congressional pay could be used to pressure Members

from exercising independent judgment and to prevent

qualified men of modest means from serving in the new

national legislature. The founding generation was wellaware of the practice of House of Commons candidates

promising to reduce (or even eliminate) their wages to

garner popularity with their constituents, which had that

very effect. Sleeper at 500–01.6 Americans in the 1770s

and 1780s found such conduct debasing to the notion of

representative government. Id. at 501.7

6. Citing 1 Edward Porritt with Annie G. Porritt, The

Unreformed House of Commons: Parliamentary Representation

Before 1832, at 151–203 (1909).

7. Citing 1 Por itt at 96 – 98; The Eighteenth- Centur y

Constitution: 1688-1815, at 151–52 (E. Neville Williams ed., 1960);

Bernard Bailyn, The Ideological Origins of the American Revolution

46–51, 85–93, 130–138 (enlarged ed. 1992).

30

During the Continental Congresses and into the

Articles of Confederation period, state legislatures

responsible for paying their congressional delegates

used that leverage to punish Congress for ignoring state

interests, and those delegates were an easy target for

fiscal belt-tightening during the post-Revolution’s poor

economy. Sleeper at 501–02. 8 Delegates endured lengthy

waits to be paid, if at all. “Even those delegates who had

independent means, and thus did not rely on the small

salaries paid by the states, did not accept this situation

lightly. Notable American politicians began to write

scathing letters to their home states, demanding to know

how long they were to serve their country without being

paid for it.” Id. at 502.9

Hence, the new national legislature’s independence and

stability was a major concern at the 1787 Constitutional

Convention. Id.10 In discussing how congressional pay

should be set in the context of debating what eventually

became known as the Constitution’s “Ascertainment

Clause,”11 the delegates avidly debated the potential

8. Citing Jack P. Greene, The Quest for Power (1963); Edmund

Cody Burnett, The Continental Congress 420, 421, 425, 629, 650, 710,

713 (1941); Richard B. Morris, The Forging of the Union, 1781-1789,

at 91–94 (1987); Jack N. Rakove, The Beginnings of National Politics:

An Interpretive History of the Continental Congress 235–38 (1979).

9. See sources cited supra, note 8.

10. Citing 1 The Records of the Federal Convention of 1787, at

20–22 (Max Farrand ed., 1937) (all references are to James Madison’s

notes unless otherwise indicated).

11. “The Senators and Representatives shall receive a

compensation for their services, to be ascertained by law, and paid

out of the treasury of the United States.” U.S. Const., Art. 1, § 6, cl.1.

31

harms of insufficient congressional remuneration, or its

potential diminishment.

Echoing the well-known concern about House of

Commons candidates seeking voter favor by promising

to cut their pay, Massachusetts delegate Elbridge

Gerry noted as “one principal evil” of democracy was

“the want of due provision for those employed in the

administration of Governnt [sic]. It would seem to be a

maxim of democracy to starve the public servants.” 1 The

Records of the Federal Convention of 1787, at 48 (Max

Farrand ed., 1937). Virginia delegate George Mason

raised the problematic history of low pay discouraging

capable men from public service, “[t]he parsimony of the

States might reduce the provision so low as had already

happened in choosing delegates to Congress, the question

would be not who were most fit to be chosen, but who were

most willing to serve.” Id. at 216. Nathaniel Gorham of

Massachusetts and Edmund Randolph of Virginia both

raised the threat to congressional independence created

by the possibility of salary reductions. Gorham pointed

out that state legislatures “were always paring down

salaries in such a manner as to keep out of offices men

most capable of executing the functions of them.” Id. at

372. Randolph, in turn, stressed that “[i]f the States were

to pay the members of the Natl. Legislature, a dependence

would be created that would vitiate the whole System.”

Id. (emphasis added).

With the proposed Constitution setting no restraint on

either increasing or decreasing congressional salaries, it

became the second of Madison’s proposed amendments in

the Bill of Rights he offered in the First Congress. As in

the Constitutional Convention, Representatives discussed

32

the House of Commons’ sorry history of manipulating pay.

Congressman Sedgwick stated that “designing men might

reduce the wages very low, much lower than it was possible

for any gentleman to serve without injury to his private

affairs.” Debates in the House of Representatives (Aug.

14, 1789), in The Congressional Register, Aug. 14, 1789.

Plainly, Revolutionary dismay over Parliamentary

reductions in pay, the Founders’ understanding of the way

national legislators could be dissuaded from independent

judgment, and the threat of excluding those of modest

means from public service all informed the TwentySeventh Amendment’s enactment. Those critical concerns

are precisely what underlie this case: salary manipulation

by the House Democratic Majority to deprive Republican

Members of their political independence and financial

ability to serve. “In the general course of human nature,

a power over a man’s subsistence amounts to a power

over his will.” Alexander Hamilton, Federalist Paper No.

79 (May 28, 1788). See also Schaffer v. Clinton, 240 F.3d

878, 884–85 (10th Cir. 2001) (noting that Hamilton was

speaking of a decrease in pay, and that such a decrease

would be a real injury providing standing under the

Twenty-Seventh Amendment). The Amendment was

enacted not just to prevent congressional self-dealing by

pay increases, but to protect Members from pay decreases

being used as an instrument for either political pressure

or exclusion.

B. House Resolution 73 Varies Compensation in

Violation of the Twenty-Seventh Amendment.

House Resolution 73 “varies compensation” of the

Members by specifically and explicitly targeting their

salary. “If a Member… against whom a fine is imposed

33

by the Sergeant-at-Arms under [this resolution] has not

paid the fine prior to the expiration of the [relevant time

period], the Chief Administrative Officer shall deduct

the amount of the fine from the net salary otherwise due

the Member.” H.Res. 73, § 1(c)(1) (emphasis added). The

fines are specifically directed against Members’ salaries;

Section 1(d) of the Resolution explicitly forecloses other

ways Members might have paid the fines in question—

leaving only their salary or other personal funds to

answer. This ensures maximum pressure is brought to

bear on Members who rely on their Congressional salary

as their primary means of support.

Respondents mistakenly argued below that “fines

imposed and collected pursuant to House Resolution 73

do not change the ‘compensation for services’ of House

Members.” While the fines may not change the underlying

salary level of $174,000 per annum, it defies logic (and

math) to suggest that deducting money—$5,000 or $15,000

per Congressman—does not vary, i.e., reduce, those

Members’ actual compensation for their services. The fine

reduces the Member’s salary before he ever receives it.

The Amendment’s protection against congressional

salary diminution mirrors the similar protection provided

by the Judicial Compensation Clause. Art. III, § 1. As

this Court observed in United States v. Hatter, which

concerned the constitutionality of particular tax increases

upon certain classes of then-sitting federal judges, the

Clause’s purpose is to protect judicial independence

from Congress by preventing Congress from reducing

judicial compensation. 532 U.S. 557 (2001). Likewise, a

foundational purpose of the Twenty-Seventh Amendment

is to prevent congressional majorities from coercing

congressional minorities with salary reductions. Hatter

34

speaks to that threat in the judicial context, observing

that “discriminatory taxes” or other “indirect measures

that . . . reduce take-home pay” would violate the Clause’s

protection against salary reduction. Id. at 569, 571, 576.

That is precisely what is occurring here in the legislative

context: indirect measures, i.e., fines, are being used to

reduce the take-home pay of targeted Representatives,

one of the very abuses the Twenty-Seventh Amendment

is designed to prevent. Indeed, a majority of one House

of Congress has accomplished by mere internal rule that

which could not be accomplished by statute: Reduction

of targeted Members’ salaries without an intervening

election.

Before 1992, Congress plainly had the authority

under the Discipline Clause to fine Members and deduct

those fines directly from Members’ salaries. The TwentySeventh Amendment now precludes that collection method,

at least for punitive fines deducted without a Member’s

consent.12 Rights specifically identified in the Constitution

take precedence over more general provisions. See, e.g.,

Albright v. Oliver, 510 U.S. 266, 273 (1994). The TwentySeventh Amendment prohibits deducting fines from

a Member’s salary before he receives it because that

diminution is a variance of his compensation, regardless

of how it is labeled or the rationale for doing so. Like any

other creditor, the House may collect its fines by means

other than salary reductions.

12. Petitioners take no position here on salary deductions

for absences, restitutional fines, or individual court-ordered

garnishments, as such circumstances may be governed by

considerations not relevant to this case.

35

CONCLUSION

The Court should grant the petition for a writ of

certiorari.

Respectfully submitted,

Kenneth T. Cuccinelli, II

Earl N. “Trey” Mayfield, III

Counsel of Record

Juris Day, PLLC

10521 Judicial Drive, Suite 200

Fairfax, VA 22030

(703) 268-5600

tmayfield@jurisday.com

Counsel for Petitioners

APPENDIX

i

TABLE OF APPENDICES

Page

A PPENDI X A — J U DGMENT OF THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLU M BI A

CIRCUIT, FILED OCTOBER 20, 2023 . . . . . . . . . 1a

APPENDIX B — MEMORANDUM OPINION

OF THE UNITED STATES DISTRICT

C OU RT F OR T H E DI S T R IC T OF

COLUMBIA, FILED AUGUST 1, 2022 . . . . . . . . . . 8a

APPENDIX C — RELEVANT STATUTES . . . . . . . 23

1a

Appendix A OF THE UNITED

APPENDIX A — JUDGMENT

STATES COURT OF APPEALS FOR THE

DISTRICT OF COLUMBIA CIRCUIT, FILED

OCTOBER 20, 2023

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA CIRCUIT

No. 22-5263

September Term, 2023

ANDREW S. CLYDE, INDIVIDUALLY, AND

IN HIS OFFICIAL CAPACITY AS A MEMBER

OF THE U.S. HOUSE OF REPRESENTATIVES;

LOUIE GOHMERT, INDIVIDUALLY, AND IN

HIS OFFICIAL CAPACITY AS A MEMBER OF

THE U.S. HOUSE OF REPRESENTATIVES;

LLOYD SMUCKER, INDIVIDUALLY, AND IN HIS

OFFICIAL CAPACITY AS A MEMBER OF THE

U.S. HOUSE OF REPRESENTATIVES,

Appellants,

v.

WILLIAM J. WALKER, IN HIS OFFICIAL

CAPACITY AS SERGEANT AT ARMS OF THE U.S.

HOUSE OF REPRESENTATIVES; CATHERINE

SZPINDOR, IN HER OFFICIAL CAPACITY AS

CHIEF ADMINISTRATIVE OFFICER OF THE U.S.

HOUSE OF REPRESENTATIVES,

Appellees.

FILED ON: OCTOBER 20, 2023

2a

Appendix A

Appeal from the United States District Court for the

District of Columbia (No. 1:21-cv-01605)

Before: Srinivasan, Chief Judge, and Rao and Childs,

Circuit Judges.

JUDGMENT

This case was considered on the record from the

United States District Court for the District of Columbia

and on the briefs and oral arguments of the parties.

The court has afforded the issues full consideration and

determined they do not warrant a published opinion.

See D.C. Cir. R. 36(d). For the reasons stated below, it is

hereby:

ORDERED and ADJUDGED that the district court’s

order be affirmed.

***

In February 2021, the United States House of

Representatives adopted House Resolution 73, which

required Members to complete security screening before

entering the House Chamber and authorized fines for any

Member who failed to complete such screening. H. Res.

73, 117th Cong. § 1(a)(1), 167 Cong. Rec. H274–75 (daily

ed. Feb. 2, 2021).1 Representatives Andrew Clyde, Louie

Gohmert, and Lloyd Smucker refused to complete the

mandated security screening before entering the House

1. H.R. 73 expired at the end of the 117th Congress.

3a

Appendix A

Chamber. 2 Pursuant to the Resolution, the Sergeant at

Arms levied fines against each Representative, which

were deducted from their net salaries by the Chief

Administrative Officer.

The Representatives sued the Sergeant at Arms and

the Chief Administrative Officer. They maintained the

Resolution violated the Twenty-Seventh Amendment and

the Discipline Clause and challenged its enforcement.

The district court held the suit barred by the Speech or

Debate Clause and dismissed for lack of subject matter

jurisdiction. Clyde v. Walker, 619 F. Supp. 3d 193, 199–201

(D.D.C. 2022). The Representatives timely appealed. 3

I.

The Representatives first contend the district court

erred when it dismissed their complaint for lack of subject

matter jurisdiction. They maintain that Speech or Debate

Clause immunity operates as an affirmative defense rather

than as a jurisdictional bar.4 We disagree.

2. These facts are taken from the complaint, which we

accept as true for purposes of reviewing the district court’s order

granting the Sergeant at Arms and Chief Administrative Officer’s

motion to dismiss. See Bernhardt v. Islamic Republic of Iran, 47

F.4th 856, 861 (D.C. Cir. 2022).

3. Although Louie Gohmert is no longer a representative, he

faces an ongoing pocketbook injury—a $5,000 fine—so his claims

are not moot. See, e.g., Powell v. McCormack, 395 U.S. 486, 496

(1969).

4. This case concerns only the Speech or Debate Clause’s

immunity from suit and does not implicate the other protections

recognized as flowing from the Clause, such as its evidentiary

4a

Appendix A

The Speech or Debate Clause provides: “Senators

and Representatives ... for any Speech or Debate in either

House ... shall not be questioned in any other Place.” U.S.

Const. art. I, § 6, cl. 1. In our system of separated powers,

the Clause is “one manifestation of the [Constitution’s]

‘practical security’ for ensuring the independence of the

legislature.” United States v. Johnson, 383 U.S. 169, 179

(1966) (quoting The Federalist No. 48, at 332 (James

Madison) (Jacob E. Cooke ed., 1961)). The Clause provides

this security by “prevent[ing] intimidation of legislators

by the Executive and accountability before a possibly

hostile judiciary.” Gravel v. United States, 408 U.S. 606,

617 (1972).

“[T]he Speech or Debate Clause operates as a

jurisdictional bar when ‘the actions upon which a plaintiff

sought to predicate liability were legislative acts.’” Fields

v. Off. of Eddie Bernice Johnson, 459 F.3d 1, 13 (D.C. Cir.

2006) (en banc) (cleaned up) (quoting Doe v. McMillan, 412

U.S. 306, 318 (1973)); see also In re Sealed Case, 80 F.4th

355, 362 (D.C. Cir. 2023); Massie v. Pelosi, 72 F.4th 319,

321 (D.C. Cir. 2023); Rangel v. Boehner, 785 F.3d 19, 22

(D.C. Cir. 2015); Howard v. Off. of Chief Admin. Officer of

U.S. House of Representatives, 720 F.3d 939, 941 (D.C. Cir.

2013). The Clause’s immunity from suit is jurisdictional

and prohibits the judiciary from “question[ing]” speech,

debate, or legislative acts that fall within the Clause’s

coverage. U.S. Const. art. I, § 6, cl. 1.

and testimonial privileges. Those privileges shield Members

against certain forms of questioning but do not deprive the court

of jurisdiction. See Massie v. Pelosi, 72 F.4th 319, 321 n.1 (D.C.

Cir. 2023).

5a

Appendix A

II.

We next consider whether the challenged acts fall within

the Clause’s ambit. The Representatives maintain the

defendants may be sued because issuing a fine and deducting

it from paychecks were merely “administrative activities

that are not speech, debate, or core legislative [acts].”

“Beyond actual speech or debate, an act is considered

‘legislative’ only if it is ‘an integral part of the deliberative

and communicative processes by which Members

participate in committee and House proceedings with

respect to’ either: (1) ‘the consideration and passage or

rejection of proposed legislation’ or (2) ‘other matters

which the Constitution places within the jurisdiction of

either House.’” Massie, 72 F.4th at 322 (quoting Gravel,

408 U.S. at 625).

The challenged acts are “legislative” within the

meaning of Gravel’s second prong because they involve

matters the Constitution places within the jurisdiction of

the House. The Constitution vests “[e]ach House” with the

authority to “determine the Rules of its Proceedings” and

“punish its Members for disorderly Behaviour.” U.S. Const.

art. I, § 5, cl. 2. We have recently held that the adoption

and execution of a House Resolution are legislative acts

implicating the House’s power pursuant to the Rules and

Discipline Clauses. In McCarthy v. Pelosi, Representatives

challenged a House Resolution permitting voting by proxy.

5 F.4th 34, 38 (D.C. Cir. 2021). We held that “the House

adopted its rules for proxy voting under its power to

‘determine the Rules of its Proceedings.’” Id. at 40 (quoting

U.S. Const. art. I, § 5, cl. 2). Although the challenged acts

6a

Appendix A

“involve[d] implementation of proxy voting pursuant to

the Resolution,” they were nonetheless “integral” to the

“processes by which Members participate in … House

proceedings.” Id. at 39 (emphasis added) (quoting Gravel,

408 U.S. at 625). And in Massie, Representatives challenged

a House Resolution that required wearing masks in the

House Chamber, and, as in this case, violations resulted

in fines deducted from Members’ salaries. 72 F.4th at 321.

We held that the Resolution was a legislative act because,

“like the proxy voting rule, [the mask rule] regulates the

conduct of Members on the House floor.” Id. at 323. And we

emphasized that fines for violations of the Resolution are

“an aspect of Congress’ power to ‘punish its Members for

disorderly Behaviour’ … that may not be questioned in this

court.” Id. (quoting U.S. Const. art. I, § 5, cl. 2).

The suit here is indistinguishable from Massie and

McCarthy. The House enacted Resolution 73 pursuant

to the Rules Clause, and the Resolution “regulates

the conduct of Members on the House floor.” Massie,

72 F.4th at 321. When the Representatives failed to

comply with the security procedures required by the

Resolution, the Sergeant at Arms issued a fine and the

Chief Administrative Officer deducted the fine from

their paychecks. “The [Sergeant at Arms] engaged in

a legislative act when he fined the Representatives for

violating the Resolution, and the Chief Administrative

Officer engaged in a legislative act when she deducted

those fines from the Representatives’ salaries.” Id. at 323.

Both acts are protected by the Speech or Debate Clause.

The Representatives resist this conclusion and

maintain that House Rules are reviewable whenever “a

7a

Appendix A

plausible constitutional violation is alleged.” We rejected

that argument in Massie, and we do so again today. Id.

at 323–24. To safeguard congressional independence,

the Clause’s “immunity from suit is ‘absolute,’” shielding

protected legislative acts regardless of their alleged

unconstitutionality. Id. (quoting Rangel, 785 F.3d at 24);

see also In re Sealed Case, 80 F.4th at 362; Eastland v.

U.S. Servicemen’s Fund, 421 U.S. 491, 509–10 (1975).

***

When executing House Resolution 73, the defendants

were engaged in legislative acts. They are therefore

entitled to Speech or Debate Clause immunity, and we lack

jurisdiction to consider the merits of the Representatives’

claims.

For the foregoing reasons, we affirm. Pursuant to D.C.

Circuit Rule 36(d), this disposition will not be published.

The Clerk is directed to withhold issuance of the mandate

until seven days after resolution of any timely petition for

rehearing or petition for rehearing en banc. See Fed. R.

A pp. P. 41(b); D.C. Cir. R. 41(a)(1).

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Daniel J. Reidy

Deputy Clerk

8a

B

APPENDIX B — Appendix

MEMORANDUM

OPINION

OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA,

FILED AUGUST 1, 2022

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 21-1605 (TJK)

ANDREW S. CLYDE et al.,

Plaintiffs,

v.

WILLIAM J. WALKER et al.,

Defendants.

August 1, 2022, Decided;

August 1, 2022, Filed

MEMORANDUM OPINION

Three Members of the United States House of

Representatives sued the Sergeant at Arms of the House

of Representatives and the Chief Administrative Officer

of the House of Representatives—collectively, the “House

Officers”—to challenge a House Rule requiring Members

to pass through security screening before entering

the House Chamber in the United States Capitol. The

House Officers move to dismiss. As explained further

9a

Appendix B

below, the Constitution’s Speech or Debate Clause bars

the Members’ claims, so the Court will grant the House

Officers’ motion and dismiss this case for lack of subject

matter jurisdiction.

I.

Background

This Court and others have recounted the details

about the attack on the United States Capitol on January 6,

2021. See, e.g., Republican Nat’l Committee v. Pelosi, No.

22-cv-659 (TJK), 2022 U.S. Dist. LEXIS 78501, 2022 WL

1294509, at *1 (D.D.C. May 1, 2022); Trump v. Thompson,

20 F.4th 10, 17-19, 455 U.S. App. D.C. 49 (D.C. Cir. 2021).

About a week after that, Acting Sergeant at Arms of the

House of Representatives Timothy Paul Blodgett issued a

memorandum requiring House Members, among others,

to undergo security screening when entering the House

Chamber inside the Capitol. See 167 Cong. Rec. H119,

H119 (daily ed. Jan. 11, 2021); ECF No. 14 at 13 & n.4.

On February 2, 2021, the House adopted House

Resolution 73, formally imposing this security-screening

requirement and establishing a protocol for its enforcement.

See H.R. Res. 73, 117th Cong. § 1(a)(1), 167 Cong. Rec.

H265, H274-75 (daily ed. Feb. 2, 2021). The Resolution

instructs the Sergeant at Arms to fine a Member failing

to comply with the security-screening requirement

$5,000 for a first offense and $10,000 for any subsequent

offense. Id. § 1(a)(2). Any Member fined may appeal the

fine to the House Committee on Ethics, and such fine will

be upheld “unless the appeal is agreed to by a majority

of the Committee.” Id. § 1(b)(1), (b)(2). If the fine is

10a

Appendix B

upheld and the Member does not pay it within a certain

period, the Chief Administrative Officer of the House

of Representatives—Catherine Szpindor, at all times

relevant here, see 167 Cong. Rec. H1, H9 (daily ed. Jan.

3, 2021)—is instructed to “deduct the amount of the fine

from the net salary otherwise due the Member.” H.R. Res.

73, § 1(c)(1). The Resolution authorizes the Sergeant at

Arms and the Chief Administrative Officer to “establish

policies and procedures” to implement it. Id. § 1(e). The

Acting Sergeant at Arms allegedly implemented the

Resolution by installing freestanding magnetometers

at the entrances to the House Chamber and equipping

security personnel stationed at those entrances with

handheld magnetometers. ECF No. 9 ¶ 11.

On February 3, Representative Andrew Clyde

allegedly entered the House Chamber without passing

through a magnetometer or being screened by security

personnel, and a few days later the Acting Sergeant at

Arms issued him a $5,000 fine for violating the Resolution.

ECF No. 9 ¶ 12. On February 5, Representative Clyde

allegedly entered the House Chamber by passing through

a magnetometer, but he refused to be “detained for a

secondary screening” by security personnel, and a few days

later the Acting Sergeant at Arms issued him a $10,000

fine for violating the Resolution. Id. ¶ 18. Representative

Clyde appealed the fines, but the Committee on Ethics

upheld them. Id. ¶ 19.

On February 4, Representative Louie Gohmert

allegedly went through security screening “without

incident” before entering the House Chamber, later exited

11a

Appendix B

the House Chamber briefly “in full view” of the security

personnel stationed at that exit, then reentered the

House Chamber without submitting to another security

screening. ECF No. 9 ¶ 21. The next day, the Acting

Sergeant at Arms issued him a $5,000 for violating the

Resolution. Id. ¶ 22. Representative Gohmert appealed

the fine, but the Committee on Ethics upheld it. Id. ¶ 23.

On May 19, Representative Lloyd Smucker allegedly

entered the House Chamber hurriedly to vote on a bill

he feared he had “only seconds” left to vote on, telling

security personnel stationed at the entrance he passed

through that he would vote “within their line of sight”

and then return to go through security screening. ECF

No. 9 ¶ 24.1 The next day, the Sergeant at Arms—by then,

William J. Walker had been sworn into the office, see 167

Cong. Rec. H2111, H2111 (daily ed. Apr. 26, 2021)—issued

him a $5,000 fine for violating the Resolution. ECF No. 9

¶ 25. Representative Smucker appealed the fine, but the

Committee on Ethics upheld it. Id. ¶ 26.

Representatives Clyde, Gohmert, and Smucker then

sued the Sergeant at Arms and the Chief Administrative

Officer in their official capacities. ECF No. 9 at 1-2;

id. ¶¶ 4-5. They brought three constitutional claims to

challenge implementation of the Resolution: (1) a claim

against the Sergeant at Arms under the Arrest Clause,

id. ¶¶ 38, 40-41 (discussing U.S. Const. art. I, § 6, cl.

1); (2) a claim against the Sergeant at Arms under the

1. Several Members, including Representative Clyde, have

allegedly missed votes because the security screening delayed their

entry into the House Chamber. ECF No. 9 ¶¶ 28-29.

12a

Appendix B

Discipline Clause, id. ¶¶ 37, 39, 41 (discussing U.S. Const.

art. I, § 5, cl. 2); and (3) a claim against both the Sergeant

at Arms and the Chief Administrative Officer under the

Twenty-Seventh Amendment, id. ¶¶ 30-31, 34 (discussing

U.S. Const. amend. XXVII). They sought declaratory and

injunctive relief. Id. ¶¶ 35, 41.

The House Officers move to dismiss, arguing that

the Speech or Debate Clause of Article I, Section 6 of

the Constitution deprives this Court of subject matter

jurisdiction over the Members’ claims and that, even if

not, the Members have failed to state a claim. See ECF

No. 14. The Members oppose the motion. See ECF No. 15. 2

II. Legal Standard

“Federal courts are courts of limited jurisdiction.”

Kokkonen v. Guardian Life Ins., 511 U.S. 375, 377, 114 S.

Ct. 1673, 128 L. Ed. 2d 391 (1994). “It is to be presumed

that a cause lies outside this limited jurisdiction,” and

the “party asserting jurisdiction” bears the burden of

“establishing the contrary.” See id.; Moran v. U.S. Capitol

Police Bd., 820 F. Supp. 2d 48, 53 (D.D.C. 2011) (citing

2. The Members also move for a hearing on the motion. ECF

No. 15 at 43; ECF No. 17; see LCvR 7(f). Whether to conduct one

is “within the discretion of the Court.” LCvR 7(f). Here, holding a

hearing will not assist the Court’s resolution of the motion because

the parties’ filings sufficiently address the clear, purely legal issues

presented. See Ndoromo v. Barr, 486 F. Supp. 3d 388, 395 (D.D.C.

2020); Borum v. Brentwood Vill., LLC, No. 16-cv-1723 (RC), 2020

U.S. Dist. LEXIS 54840, 2020 WL 1508906, at *15 n.25 (D.D.C. Mar.

30, 2020). Thus, the Court will deny the Members’ motion.

13a

Appendix B

Lujan v. Def. of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130,

119 L. Ed. 2d 351 (1992)). The Court must dismiss an action

if it lacks subject matter jurisdiction. See Fed. R. Civ. P.

12(b)(1), (h)(3). When a defendant raises a jurisdictional

immunity from suit as a bar to claims, the plaintiff must

overcome that defense to avoid dismissal. See Jackson v.

Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006).

III. Analysis

The House Officers move to dismiss the Members’

claims against them for lack of subject matter jurisdiction

under the Speech or Debate Clause. The Clause bars the

Members’ claims, so the Court will grant the motion and

dismiss the case for lack of subject matter jurisdiction.

The Speech or Debate Clause provides that “for

any Speech or Debate in either House, [Senators and

Representatives] shall not be questioned in any other

Place.” U.S. Const. art. I, § 6, cl. 1. Its purpose is “to

preserve the independence and thereby the integrity of

the legislative process.” United States v. Brewster, 408

U.S. 501, 524, 92 S. Ct. 2531, 33 L. Ed. 2d 507 (1972).

It “serves the additional function of reinforcing the

separation of powers so deliberately established by the

Founders.” Eastland v. U.S. Servicemen’s Fund, 421 U.S.

491, 502, 95 S. Ct. 1813, 44 L. Ed. 2d 324 (1975) (internal

quotation marks omitted). When it applies, the Clause

provides “absolute immunity from civil suit,” including

suits seeking only declaratory or injunctive relief, even

in the face of allegations that the challenged actions were

nefariously motivated or violated the Constitution. See

14a

Appendix B

Rangel v. Boehner, 785 F.3d 19, 23, 415 U.S. App. D.C.

60 (D.C. Cir. 2015); Eastland, 421 U.S. at 496, 502-03,

508-10. And in our Circuit, the Clause is a subject matter

jurisdictional bar. See Judicial Watch, Inc. v. Schiff, 998

F.3d 989, 993, 452 U.S. App. D.C. 308 (D.C. Cir. 2021).

It is “well established that the Clause’s protections

extend to Congressional aides and staff.” McCarthy v.

Pelosi, 5 F.4th 34, 39, 453 U.S. App. D.C. 305 (D.C. Cir.

2021), cert. denied, 142 S. Ct. 897, 211 L. Ed. 2d 604

(2022); see also Eastland, 421 U.S. at 495, 512; Rangel,

785 F.3d at 25. This is because the “key consideration”

under the Clause “is the act presented for examination,

not the actor.” McCarthy, 5 F.4th at 39 (internal quotation

marks omitted).

As for the acts protected by the Clause, the “Supreme

Court has consistently read the Speech or Debate Clause

‘broadly’ to achieve its purposes.” See Rangel, 785 F.3d

at 23 (quoting Eastland, 421 U.S. at 501). Thus, although

the Clause speaks of “Speech or Debate,” it protects all

“legislative acts.” Doe v. McMillan, 412 U.S. 306, 312,

93 S. Ct. 2018, 36 L. Ed. 2d 912 (1973). And “legislative

acts for purposes of Speech-or-Debate-Clause immunity

include both (i) matters pertaining ‘to the consideration

and passage or rejection of proposed legislation,’ and (ii)

‘other matters which the Constitution places within the

jurisdiction of either House.’” McCarthy, 5 F.4th at 40

(quoting Gravel v. United States, 408 U.S. 606, 625, 92 S.

Ct. 2614, 33 L. Ed. 2d 583 (1972)). In other words, whether

an act is protected by the Clause turns on whether the act

is “integral” to the “business” constitutionally committed

15a

Appendix B

to the House—legislating, of course, but also other

matters such as executing internal rules and disciplining

Members. See Walker v. Jones, 733 F.2d 923, 929, 236 U.S.

App. D.C. 92 (D.C. Cir. 1984); see also Consumers Union

of U.S., Inc. v. Periodical Correspondents’ Ass’n, 515 F.2d

1341, 1343, 1351, 169 U.S. App. D.C. 370 (D.C. Cir. 1975)

(citing the Rule-making Clause, U.S. Const. art. I, § 5, cl.

2); Rangel, 785 F.3d at 23 (citing the Discipline Clause,

U.S. Const. art. I, § 5, cl. 2).

Here, each challenged act of the House Officers

qualifies as a legislative act. See Gravel, 408 U.S. at 625.

Thus, the Speech or Debate Clause bars the Members’

claims.

First, the Members assert that the security screening

violates the Arrest Clause because it is an “arrest”

absent “treason,” “felony,” or “breach of the peace.”

See U.S. Const. art. I, § 6, cl. 1 (“The Senators and

Representatives . . . shall in all cases, except treason, felony

and breach of the peace, be privileged from arrest during

their attendance at the session of their respective Houses,

and in going to and returning from the same . . . .”). But

this security screening is a legislative act. For one, being

performed at the entrances to the House Chamber, the

security screening regulates “the very atmosphere in

which lawmaking deliberations occur,” which courts have

found makes an act legislative. See Walker, 733 F.2d at

930 (discussing Consumers Union, 515 F.2d at 1347 &

n.12, 1350); see also Massie v. Pelosi, 590 F. Supp. 3d 196,

2022 U.S. Dist. LEXIS 41944, 2022 WL 703942, at *12-14

(D.D.C. Mar. 9, 2022), appeal docketed, No. 22-5058 (D.C.

16a

Appendix B

Cir. Mar. 14, 2022) (concluding the same about a House

mask mandate inside the House Chamber). Also, the

screening is done in “execution of internal rules” of the

House—the Resolution. See Consumers Union, 515 F.2d

at 1351. And the “‘execution of internal rules’” like this

one “is ‘legislative.’” See Rangel, 785 F.3d at 24 (quoting

Consumers Union, 515 F.2d at 1351). Thus, the security

screening qualifies as a legislative act, and the Members’

Arrest Clause claim against the Sergeant at Arms is

barred. See McCarthy, 5 F.4th at 40.

Second, the Members assert that fining them for

violating the Resolution amounts to “punish[ ment]” absent

any “disorderly behavior” and thus is unconstitutional

under the Discipline Clause. See U.S. Const. art. I, § 5, cl.

2 (“Each House may . . . punish its members for disorderly

behavior . . . .”). But imposing these fines also qualifies

as a legislative act. At the very least, this is so because

the fines are imposed in “execution of internal rules” of

the House and to discipline Members for violating those

internal rules. See Consumers Union, 515 F.2d at 1351;

Rangel, 785 F.3d at 24. Also, the fines are an integral “part

of the scheme” that the House has adopted to regulate

“Members’ behavior” in the lawmaking “‘atmosphere’”—it

is the mechanism that the House has chosen to enforce

the security-screening requirement. See Massie, 2022

U.S. Dist. LEXIS 41944, 2022 WL 703942, at *11-12, *14

(quoting Walker, 733 F.2d at 930). That the fines at issue

were subsequently “ratified” by the House Committee

on Ethics confirms “their occurrence within the scope of

the legislative process.” See Consumers Union, 515 F.2d

at 1351. Thus, the imposition of these fines is a legislative

17a

Appendix B

act, and the Members’ Discipline Clause claim against the

Sergeant at Arms is barred. See McCarthy, 5 F.4th at 40.

Third, the Members assert that imposing fines on

them and then deducting those fines from their salaries

“var[ies]” their “compensation” before an “election of

Representatives . . . intervened” following adoption of the

“law” under which the fines are imposed and deducted,

violating the Twenty-Seventh Amendment. See U.S.

Const. amend. XXVII (“No law varying the compensation

for the services of the Senators and Representatives shall

take effect, until an election of Representatives shall have

intervened.”). But these actions too qualify as legislative

acts. As just discussed, the fines are imposed in “execution

of internal rules” of the House and to discipline Members

for violating those internal rules, as is the assessment of

the fines. See Consumers Union, 515 F.2d at 1351; Rangel,

785 F.3d at 24. Further, the imposition and deduction of

these fines are an integral “part of the scheme” that the

House has adopted to regulate “Members’ behavior” in the

lawmaking “‘atmosphere’”—they are the mechanisms that

the House has chosen to enforce the security-screening

requirement. See Massie, 2022 U.S. Dist. LEXIS 41944,

2022 WL 703942, at *11-12, *14 (quoting Walker, 733 F.2d at

930). Thus, the House Officers’ imposition and assessment

of fines are “legislative acts,” and the Members’ TwentySeventh Amendment claim against the House Officers is

barred. See McCarthy, 5 F.4th at 40.

The Members raise several counterarguments, but

all are foreclosed by precedent.

18a

Appendix B

First, the Members contend that the acts they

challenge—“security screening” and “administering

payroll”—are not legislative acts for Speech or Debate

Clause purposes because they are “administrative

functions.” ECF No. 15 at 16, 19. Without question,

“[a]uxiliary services” provided by congressional staff that

are “not closely connected to the business” constitutionally

committed to the House—for example, attending to “food

service, medical care, physical fitness needs, parking, and

haircutting” for Members—do not qualify as legislative

acts even though they “promote [legislators’] comfort

and convenience in carrying out Article I business.” See

Walker, 733 F.2d at 929, 931. But in characterizing the

acts they challenge as generic “administrative functions of

security and payroll,” the Members ignore their context.

See ECF No. 15 at 19. As discussed above, the security

screening, fining, and salary deductions challenged

here have a direct nexus to, and are part of an overall

scheme regulating, Members’ behavior in the lawmaking

atmosphere on the House floor. See also Massie, 2022

U.S. Dist. LEXIS 41944, 2022 WL 703942, at *12-14.

Thus, these acts qualify as legislative acts even though,

considered at a high degree of generality and divorced

from their context, they are “administrative functions.”

Second, invoking a line of authority, the Members

assert that the Court should distinguish between

“legislative acts and execution thereon” in determining

whether the Clause applies. ECF No. 15 at 22-25

(discussing Gravel, 408 U.S. 606; Powell v. McCormack,

395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969);

Dombrowski v. Eastland, 387 U.S. 82, 87 S. Ct. 1425, 18 L.

Ed. 2d 577 (1967) (per curiam); Kilbourn v. Thompson, 103

19a

Appendix B

U.S. 168, 26 L. Ed. 377 (1880); and Walker, 733 F.2d 923).

They argue that while “Members of Congress may have

immunity for discussing and voting for an unconstitutional

rule,” “congressional employees . . . are not immune from

a judicial order forbidding the implementation of such a

rule.” ECF No. 15 at 25.

Recently, however, other House Members relied on

this same line of cases to make this same argument—

unsuccessfully. See, e.g., McCarthy, 5 F.4th at 40-41;

Massie, 2022 U.S. Dist. LEXIS 41944, 2022 WL 703942,

at *13. In McCarthy, for instance, in the face of a

constitutional challenge brought by some House Members

to another House resolution, the D.C. Circuit rejected

the argument that “the acts of voting on and adopting

the Resolution lie within the Clause’s zone of immunity,

but acts undertaken in implementing the Resolution

do not.” 5 F.4th at 40-41. It did so because, it held, the

“salient distinction under the Speech or Debate Clause

is not between enacting legislation and executing it”

but between “legislative acts and non-legislative acts.”

Id. at 41. The McCarthy court thus concluded that the

Clause encompasses the “execution” of congressional

directives so long as the “executing actions themselves

constitute legislative acts.” Id. And it explained that the

line of authority in question establishes only that “conduct

carrying out” congressional directives “is beyond the

Speech or Debate Clause’s compass when it is not itself a

legislative act.” See id.3 As discussed above, the steps the

3. The McCarthy court discussed Walker, see McCarthy, 5 F.4th

at 40, but it did not explicitly address the Walker court’s observation,

relied on by the Members here, that the “execution of a decision, even

20a

Appendix B

House Officers took to carry out the Resolution qualify

as “legislative acts” themselves. See McCarthy, 5 F.4th at

41. Thus, the Clause “encompasses the[ir] execution” of

the Resolution. See id.; see also Massie, 2022 U.S. Dist.

LEXIS 41944, 2022 WL 703942, at *13-14.

Third, the Members argue that “House rules are

susceptible to judicial review” under United States v.

if the decision itself is properly called ‘legislative,’ is not cloaked

with Speech or Debate immunity” because “execution or carrying

out directions post-dates what the Clause protects—the process

leading up to the issuance of legislative directions,” see Walker, 733

F.2d at 932. That said, the McCarthy court considered the same

line of cases from which the Walker court derived that observation

and concluded that it did not establish the per se decision/execution

distinction that the Members urge here. Compare McCarthy, 5

F.4th at 40-41, with Walker, 733 F.2d at 931-32 & n.11. The Court

reads Walker consistently with McCarthy to mean only that acts

that execute legislative acts are not automatically protected under

the Clause “merely because” the executing acts “relate to the

underlying decision.” See Walker, 733 F.2d at 943 (MacKinnon,

J., concurring in part and dissenting in part) (agreeing with and

restating the “majority’s distinction”). However, acts that execute

legislative acts are protected under the Clause when the executing

acts themselves are also legislative acts. See McCarthy, 5 F.4th at

41. Further, reading Walker this way reconciles it with Consumers

Union, which considered the same line of authority yet “spoke of

the Clause’s applicability to conduct ‘enforcing internal rules of

Congress’ or ‘executing . . . internal rules,’” thus precluding a per se

decision/execution distinction. See McCarthy, 5 F.4th at 41 (brackets

omitted) (quoting Consumers Union, 515 F.2d at 1350-51). In any

event, Consumers Union predates Walker, so the Court must follow

Consumers Union to the extent Walker conflicts with it on this point.

See, e.g., Sierra Club v. Jackson, 648 F.3d 848, 854, 396 U.S. App.

D.C. 297 (D.C. Cir. 2011).

21a

Appendix B

Ballin, 144 U.S. 1, 12 S. Ct. 507, 36 L. Ed. 321 (1892),

and its progeny whenever a House rule is alleged to

“ignore constitutional restraints,” “violate fundamental

rights,” or lack “a reasonable relation between the mode

or method of proceeding established by the rule and

the result which is sought to be attained.” ECF No. 15

at 13-15 (quoting Ballin, 144 U.S. at 5). This is true,

at times—but not when the Speech or Debate Clause

bars the challenge. Consumers Union—on which the

Members rely to make this argument, see ECF No. 15

at 13—shows as much. 515 F.2d 1341, 169 U.S. App.

D.C. 370.4 There, the court suggested that the plaintiff’s

constitutional challenge to a congressional rule might

have been justiciable under Ballin—but even so, it could

“not reach the merits” of that challenge because “despite

the claim of constitutional violation,” the Clause rendered

the matter “yet nonjusticiable.” See id. at 1347-48, 1348

n.16. McCarthy reinforces this point. 5 F.4th 34, 453

U.S. App. D.C. 305. The McCarthy court held that the

Clause barred the suit without considering the merits

of the House Members’ constitutional challenge to the

House resolution at issue in that case. Id. at 38-41; see

4. The Members also rely on Boehner v. Anderson, 30 F.3d

156, 160, 308 U.S. App. D.C. 94 (D.C. Cir. 1994), to argue that their

claims are “judicially cognizable.” See ECF No. 15 at 14, 19-20. The

Boehner court held that a Member of Congress had standing to

bring a Twenty-Seventh Amendment claim against the Clerk of the

House of Representatives (among others), and it did not exercise its

“equitable discretion” to decline jurisdiction. 30 F.3d at 160-61. But

it did not hold that the claim was justiciable even though the Speech

or Debate Clause applied. In fact, the Clerk apparently never invoked

the Clause because the Boehner court never even considered whether

it applied. Id. at 161.

22a

Appendix B

also Rangel, 785 F.3d at 23-24 (holding that the Clause

barred a constitutional challenge to a House disciplinary

proceeding because the proceeding was “a ‘legislative’

matter that ‘the Constitution places within the jurisdiction

of [the] House,’” without addressing the merits of the

challenge (quoting Gravel, 408 U.S. at 625)). Thus, where,

as here, the Clause applies, judicial review is precluded

even if it would otherwise be available under Ballin.

IV. Conclusion

For these reasons, the Court will dismiss this case

for lack of subject matter jurisdiction. A separate order

will issue.

/s/ Timothy J. Kelly

TIMOTHY J. KELLY

United States District Judge

Date: August 1, 2022

23a

Appendix

C

APPENDIX C —

RELEVANT

STATUTES

U.S.C.A. Const. Art. I § 6, cl. 1

Section 6, Clause 1. Compensation

of Members; Privilege from Arrest

The Senators and Representatives shall receive a

Compensation for their Services, to be ascertained by

Law, and paid out of the Treasury of the United States.

They shall in all Cases, except Treason, Felony and Breach

of the Peace, be privileged from Arrest during their

Attendance at the Session of their respective Houses,

and in going to and returning from the same; and for

any Speech or Debate in either House, they shall not be

questioned in any other Place.

24a

Appendix C

U.S.C.A. Const. Amend. XXVII

Amendment XXVII. Compensation

of Senators and Representatives

No law, varying the compensation for the services of

the Senators and Representatives, shall take effect, until

an election of Representatives shall have intervened.