Opposition Brief — Jones v. Walker

Office - Supreme Court. US.

: FILED

ty wm § VQ NOV 2 1994

ALEXAN'DE iu. STEVAS.,

CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1984

HONORABLE ED JONES, CHAIRMAN OF THE

SUBCOMMITTEE ON SERVICES OF THE UNITED STATES

HOUSE OF REPRESENTATIVES’ COMMITTEE ON HOUSE

ADMINISTRATION, ET AL.,

Petitioners,

V

ANNE W. WALKER,

Respondent.

Petition For a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

BRIEF IN OPPOSITION FOR ANNE W. WALKER

JOHN J. GILECE, JR.

4801 St. Elmo Avenue

Bethesda, Maryland 20814

Tel. No. (801) 986-1777

WILLIAM HARRY GARBER

Courthouse Plaza II

10345 Democracy Lane, Suite A

Fairfax, Virginia 22020

Tel. No. (703) 352-3436

Attorneys for Respondent

Anne W. Walker

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

BEST AVAILABLE COPY

QUESTIONS PRESENTED

Whether the Chairman, who is a member of Congress,

and the Staff Director, of the House of Representatives

Subcommittee on Services of the Committee on House Ad-

ministration are immune from civil liability under the

Speech or Debate Clause of the Constitution for their al-

leged discriminatory (gender-based) and wrongful! dis-

charge of the General Manager of the House of Represen-

tatives Restaurant System.

PARTIES INVOLVED

The parties to this Petition are the Honorable Ed Jones,

Congressman and Chairman of the Subcommittee of Serv-

ices, Committee on House Administration of the House of

Representatives, and Thomas Marshall, the Subcommit-

tee’s former Staff Director, petitioners; and Anne W.

Walker, former General Manager of the House of Represen-

tatives Restaurant System, respondent.

ii

CONTENTS

Page

QUESTION PRESENTED ........... ce eeeeeeeeeeeenes i

PARTIES INVOLVED .ocas 0snnacae swale eeeeneeeea nee i

CONTENTS ...cccccacnnvess0ancnmn eee eeeeee eee ii

CASES AND AUTHORITIES ....cccsscussesesssssssse ili

CONSTITUTIONAL PROVISIONS INVOLVED .........-.- 2

STATEMENT OF THE CASE ...ccccscvenntssccsunncss 2

ARGUMENT ......00ccu0080000b5 eee 7

A. This Case Does Not Present Any Important Ques-

tion Involving The Relationship Between The Leg-

islative And Judicial Branches of Government ...

B. The Decision Of The Court Of Appeals, Denying

Speech Or Debate Protection To Personnel Deci-

sions, Does Not Dec de The Question In Any Way

Which Conflicts With The Decisions Of This Court 9

C. The Court Of Appeals Did Not Decide Any Impor-,

tant Question Regarding Official Immunity Which

Should Be Decided By This Court ............. 10

CONCLUSION ....c000000e85he55eu Ok Sen eee 12

~)

ili

CASES AND AUTHORITIES

_ CASES: Page

Baker v. Carr, 369 U.S. 186 (1962) ..............005. 9

Consumers Union of the United States, Inc. v. Periodical

Correspondents Association, 515 F.2d 1341 (D.C.

Cir. 1975), cert. den., 423 U.S. 1501 (1976) ....... 4,5

Davis v. Passman, 442 U.S. 228 (1979) ........... passim

Gravel v. United States, 408 U.S. 606 (1972) ........ 9, 10

Harlow v. Fitzgerald, 547 U.S. 800 (1982) ....... 6, 10, 11

Page v. District of Columbia, 20 App. D.C. 469 1902 .. 8

Parker v. Allen, No. 74-1846, slip op. (D.D.C June 6,

Ce Pane AW bie oie RMON Ak's ¥ OX 5, 6

United States v. Brewster 408 U.S. 501 (1972) ....... 9, 11

United States v. Lee, 106 U.S. 196 (1882) ............ 12

Walker v. Jones, 733 F.2d 923 (D.C. Cir. 1984) ..... passim

Walker v. Jones, 557 F. Supp. 366 (D.D.C. 1983) ... passim

Constitution:

Artecte f, Section 6, Clause [ ..... 2.6... cas. passim

Fifth Amendment 2

IN THE

Supreme Court of the United States

OCTOBER TERM 1984

ee

HONORABLE ED JONES, CHAIRMAN OF THE

SUBCOMMITTEE ON SERVICES OF THE UNITED STATES

HOUSE OF REPRESENTATIVES’ COMMITTEE ON HOUSE

ADMINISTRATION, ET AL.,

Petitioners,

V.

ANNE W. WALKER,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR A

WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF

COLUMBIA CIRCUIT

Respondent Anne W. Walker, former Manager of the

House of Representatives Restaurant System, through her

attorneys, pray for the denial of the issuance of a writ of

certiorari sought by petitioners, the Chairman and a former

Staff Director of the House of Representatives’ Subcommit-

tee on Services, Committee on House Administration, for

review of the judgment of the United States Court of Ap-

peals for the District of Columbia Circuit entered on May 1,

to

1984, in favor of respondent and against petitioners in this

proceeding.

CONSTITUTIONAL PROVISIONS INVOLVED

Article I, Section 6, Clause 1 of the Constitution of the

United States of America provides in pertinent part: “. . .

and for any Speech or Debate in either House, they [the

Senators and Representatives] shall not be questioned in

any other place.”

The Fifth Amendment to the Constitution of the United

States of America provides in pertinent part: “No person

shall be . . . deprived of life, liberty, or property, without

due process of law... .”

STATEMENT OF THE CASE

This case involves an action for damages, reinstatement,

and declaratory and injunctive relief, arising out of the

allegedly discriminatory (gender-based) and wrongful dis-

charge of respondent Anne W. Walker as General Manager

of the House of Representatives’ Restaurant System (here-

inafter, the “House Restaurant System”), in violation of her

liberty and property interests and of the Equal Protection

component of the Due Process Clause of the Fifth Amend-

ment (Complaint, Paras. 20-40; Pet. App. D at 8d-11d).

Facts alleged in the complaint on September 23, 1982 are

summarized below.

In December 1970, Anne W. Walker was hired by the

Subcommittee to manage the House Restaurant System

(Complaint, Para. 7; Pet. App. D at 4d). At the time of her

employment, and throughout her employment, she was led

to believe that so long as her duties were performed in a

proper and efficient manner, her employment would be

perinanent and would continue. This belief was based on

well-known personnel policies of the Subcommittee, and on

Anne W. Walker's conversations and communications with

the Subcommittee Chairman and with other Subcommittee

members and staff of the Subcommittee to the effect that

employees not involved in the legislative process are dis-

charged only for valid cause and reason relating to improper

or inadequate job performance. (Complaint, Para. 9; Pet.

App. D at 4d.

Anne W. Walker was employed in various positions in the

House Restaurant System for a period of approximately ten

years (Complaint, Para. 11; Pet. App. at 5d). During this

period she changed the financial position of the House Res-

taurant System from a loss to a net profit in excess of three

million dollars (Complaint, Para. 11; Pet. App. at 5d); man-

aged, controlled, and operated the House Restaurant Sys-

tem without intervention or criticism (Complaint, Para. 14,

Pet. App. D. at 6d); and was led to believe and understand

that her performance was at all times satisfactory (Com-

plaint, Paras. 9, 14, and 15; Pet. App. D at 4d—6d). Indeed,

during 1980, Chairman Jones increased the salary of Anne

W. Walker by eight thousand dollars per annum to forty-five

thousand dollars per annum because of the efficient manner

in which she operated the House Restaurant System (Com-

plaint, Para. 14; Pet. App. D at 6d).

In May 1982, at her request, Anne W. Walker met with

Congressman Jones and Thomas Marshall, the Staff Direc-

tor of the Subcommittee, at which time she detailed the

operations and profit structure of the House Restaurant

System. They made no comment and expressed no dissatis-

faction with her performance; and, concluded the meeting

without criticism. (Complaint, Para 15; Pet. App. at 6d.)

Early in 1982, Congressman Jones indicated to others

that because of Anne W. Walker's sex she was overpaid and

that her salary was “ridiculous for a woman” (Complaint,

4

Para. 13; Pet. App. D. at 5d—6d). On June 22, 1982, Con-

gressman Jones notified Anne Walker of her discharge

(Complaint, Para. 16; Pet. App. D at 6d-7d):

It is with regrets that I must terminate your employ-

ment as general manager of the House Restaurant

System effective June 30, 1982,” . . . as “best for the

future of the Restaurant System”. . . “Sincerely yours,

Ed Jones, Chairman.”

In July 1982, Congressman Jones and Staff Director Mar-

shall hired a male persor as General Manager (Complaint,

Para. 18; Pet. App. D at /©.

After Anne W. Walker's discharge, Congressman Jones

made Knowingly false public statements and representa-

tions that she was discharged because she (1) operated the

House Restaurant System inefficiently and at a loss, (2)

engaged in improper and/or illegal bookkeeping practices,

and (3) engaged in misappropriation and “skimming” of

funds from the House Restaurant System (Complaint,

Para. 19; Pet. App. D at 7d-8d).

On February 15, 1988, the District Court dismissed the

complaint in its entirety on the sole ground that “the dis-

charge of a House Restaurant employee, pursuant. to au-

thority granted by a congressional subcommittee, is an

action within the ‘legislative sphere.” (Memorandum deci-

sion; Pet. App. B at 3b.) The District Court reasoned:

Actions related to the internal administration of Con-

gress have been found to be protected legislative acts.

For example, the seating of the press in the House and

Senate galleries, Consumers Union of the United

States, Inc. v. Periodical Correspondents Association,

515 F.2d 1341 (D.C. Cir. 1975) cert. den. 423 U.S. 1501

(1976) . . . have been found to be legislative action

protected by the Speech or Debate Clause. In addition,

this District Court has previously held that the admin-

istration of a congressional restaurant “while it may not

attain the magnitude of some congressional duties, is

clearly an activity which is within the ‘leyislative

sphere’. ” Parker v. Al/en, et al., No. 74-1846, slip op. at

9 (D.D.C. June 6, 1975).

The cases indicate that actions of Congress in making

“internal arrangements for its own necessities” are

within the “legislative sphere.”

On May 1, 1984, the Court of Appeals reversed the dis-

missal of the complaint as to Congressman Jones and Staff

Director Marshall on the ground that “personnel actions of

the kind Jones and Marshall are alleged to have taken, if

effected for unlawful reasons, do not fall within the legis-

lative functions to which the absolute immunity of the

Speech or Debate Clause attaches.” (733 F.2d 934, Pet. App.

A at 19a).' The Court of Appeals reasoned that food service

work is not legislative in nature (733 F.2d 934; Pet. App. A.

at 14a); and, that it would “demean the high purpose of the

speech or debate privilege to extend it to official activities of

Congress members and their aides in ‘mundane fields’ out-

side ‘the legislative core.” Davis v. Passman, 544 F.2d 865,

880 (5 Cir. 1977); rev'd on other grounds, 571 F.2d 793 (5 Cir.

1978) (en banc), rev'd 442 U.S. 228 (1979),” (733 F.2d 929;

Pet. App. A at 10a.) That Court also distinguished Conswm-

ers Union of the United States, Inc. v. Periodical Corre-

spondents Association, 515 F.2d 1341 (D.C. Cir. 1975), on

the ground that the press seating arrangements in were

‘The District Court dismissed to complaint as to Congressmen

Mollohan and Coyne because the “complaint attributed no actual

participation in the termination of Walker's employment . . .” to them

(733 F.2d 925 n.1; Pet. App. A. at 2a—3a.)

6

intended to shield members of Congress from press mem-

ber’s use of their House access to lobby iegislators (733 F.2d

930; Pet. App. A at 12a}—which unquestionably relates to

the legislative business of the Congress. The Court of Ap-

peals also noted that, in Parker v. Al/en, No. 74-1846, slip

op. (D.D.C. June 6, 1975; unpublished) the District Court

concluded that the Capitol Architect who actually fired the

head waiter of the Senate Restaurant System was not im-

mune from suit under the Speech or Debate Clause, and

awarded the head waiter substantial relief. The Court of

Appeals also held that petitioners are not immune from suit

under the doctrine of absolute immunity because the scope

of that doctrine “does not extend beyond the scope of the

Speech or Debate Clause. See Harlow v. Fitzgerald, 457

U.S. 800, 810-11 (1982); Davis v. Passman, 442 U.S. 228,

235 n.11, 246 (1979).” (733 F.2d 932; Pet. App. A. at 17a.)

The Court of Appeals further held that they had ad-

dressed the wrong issue with respect to qualified immunity:

the question of the uncertainty of the law pertaining to the

Speech or Debate Clause, rather than whether their con-

duct violated any “‘clearly established statutory or constitu-

tional right [of Anne W. Walker] of which a reasonable

person would have known.’ Harlow v. Fitzgerald, 457 U.S.

at 818; see also id. at 807.” (733 F.2d 932, 933; Pet. App. A. at

17a—18a).

The Court of Appeals also held that the allegations of

Anne W. Walker's complaint are sufficient enough so as not

to be subject to be dismissed for failure to state any claim

upon which relief can be granted (733 F.2d 933; Pet. App. A

at 18a—19a).°

*Petitioners do not challenge this holding.

~]

ARGUMENT

A. This Case Does Not Present Any Important Question

Involving The Relationship Between The Legislative

and Judicial Branches of Government.

Petitioners assert that this case presents the question of

“whether Congressional decisions’ to dismiss senior aides

are shielded by the Speech or Debate Clause.” (Petition at

7.) Petitioners contend that the Supreme Court should

grant certiorari to review this issue because it involves an

important issue concerning the relationship between the

legislative and judicial branches of government, the signifi-

cance of which was recognized in Davis v. Passman, 442

U.S. 228, 235 n.11 (1979) (Petition at 7-8).

For the first time, in this Court, Petitioners contend, in

substance, that the subject matter of Anne C. Walker's

complaint is nonjusticable because the Court of Appeals

“judgment fails to accord to the House the respect that any

court owes a coordinate branch of government. (Judge

MacKinnon dissenting, 733 F.2d 938; Petition at 11, see also

Petition at 7-8). Petitioners rely on that part of the cissent-

ing opinior of Chief Justice Burger, joined by Justices

Powell and Rehnquist, in Davis v. Passman, 442 U.S. at

*There is no allegation by Anne W. Walker in the complaint or

elsewhere, and no evidence of record, to support petitioners’ asser-

tion that any “Congressional decision” was made to discharge her.

The complaint merely alleges that in discharging her the petitioners

engaged in acts in violation of her Constitutional rights. (733 F.2d

931; Pet. App. A. 14a—15a.) Likewise, there is no evidence of record to

support petitioners’ claims that (1) “[a]fter consideration of the mat-

ter in executive session, the subcommittee dismissed the [so-called]

committee aide who served as General Manager of the Restaurant

System.” (Questions Presented, Petition at (i); and (2) “[t]he specific

meeting of the Subcommittee which is the subject of the complaint

was conducted in executive session.” (Petition at 11 n.12).

250, which states that “long-accepted concepts of separation

of powers dictate . . . that until Congress legislates other-

wise as to employment standards for its own staffs, judicial

power in this area is circumscribed.” (Petition at 8.)

However, this dissent refers only to the staffs of Members of

Congress who are considered to be “intimately a part of the

policymaking and political process” where there is an “im-

perative need for loyalty, confidentiality, and political com--

patibility—not simply to a political party, an institution or

an administration, but to the individual Member.” Davis v.

Passman, 442 U.S. at 250.

Anne W. Walker was neither such a Congressional staff

member, nor an aide, or alter ego to the Subcommittee.’ As

the chief food service facility manager, she was completely

removed from the legislative arena. She did not work for any

Member of Congress; but rather, was an employee of the

Subcommittee and worked directly for the Staff Director of

that Subcommittee. The Staff Director was neither a mem-

ber of Congress nor an aide to any Member of Congress.

Anne W. Walker's duties and responsibilities did not in-

volve or influence any legislative functions or activities. Her

discharge as General Manager of the House Restaurant

‘Petitioners suggest that Anne W. Walker, as General Manager of

the House Restaurant System, was an agent or officer of the House of

Representatives based on the holding in Page v. District of Columbia,

20 U.S. App. D.C. 469, 474 (1902), that persons conducting the

restaurants of the Houses of Congress are not required to take out

local liquor licenses because they are quasi agents or officers of the

Houses. (Petition at 13 n.14.) It is apparent that this type of agency

does not suggest, without more, that there was a close intimate

relationship between the manager of the restaurants and their em-

ployers in the matters of legislative functions and activities—one of

the factual predicates needed to establish that Anne W. Walker was

an aide to the Subcommittee.

. fore ge A ren rr re me ce >

9

System could not. therefore, materially impact on the sepa-

ration of power concerns which the Petitioners seek to raise.

Absent this genuine issue concerning “lack of the respect

due coordinate branches of government,” Baker v. Carr, 369

U.S. 186, 217 (1962), “judicial review of [this] Congressional

employment decision[] is constitutionally limited only by

the reach of the Speech or Debate Clause of the Constitu-

tion, Art. I, §6, el. 1.” Davis v. Passman, 442 U.S. at 235

n.11. Thus, the merits of the Speech or Debate issue are

properly before this Court. Anne W. Walker submits that

the decision of the Court of Appeals on that issue is in all

respects correct for the reasons set forth in its opinion (Pet.

App. A).

B. The Decision of the Court of Appeals, Denying Speech

or Protection To Personnel Decisions, Does Not De-

cide The Question In Any Way Which Conflicts With

The Decisions Of This Court.

Petitioners assert that the Court of Appeals “jettisoned”

the traditional test for the invocation of the Speech or De-

bate Clause and “invented and applied a novel and unprece-

dented criterion: whether the subject of the legislative ac-

tion is in a ‘mundane field’ . . . as opposed to a matter ‘of

state.’ 733 F.2d at 926; App. A at 4a.” (Petition at 9.)

However, this allegedly “blatant distortion of the classic

test” (Petition at 9) articulated in Gravel v. United States,

408 U.S. 606 (1972) is nowhere to be found in the opinion of

the Court of Appeals.

That Court understood, and correctly applied, the Gravel

test when it stated that “[alctivities ‘casually or incidently

related to legislative affairs,’ id. at 558 [United States v.

Brewster, 408 U.S. 501 (1972)], but not ‘part and parcel of

the legislative process,’ Gravel v. United States, 408 U.S. at

10

626, are outside the realm of Speech or Debate protec-

tion’”(733 F.2d 929; Pet. App. A at 10a.)

In applying the Gravel test to the alleged violative con-

duct of the petitioner, the Court ef Appeals drew the logical

and common sense conclusions that (1) restaurant manage-

ment does not involve any “functions relating to the process

of lawmaking . . . “or” “‘other matters’ of state ‘which the

Constitution places within the jurisdiction of either House.

Gravel v. United States, 408 U.S. 606, 625 (1972);” and (2)

“Selecting, supervising, and discharging a food facilities

manager ... is not reasonably described as work that

significantly informs or influences the shaping of our nation’s

laws.” (733 F.2d 926, 931; Pet. App. A. at 4a and 1da.)

Accordingly, neither the decision nor the rationale of the

Court of Appeals in any way conflicts with the decisions of

this Court.

C. The Court of Appeals Did Not Decide Any Important

Question Regarding Official Immunity Which Should

Be Decided By This Court.

Petitioners assert that “this Court has not resolved the

degree of official immunity—absolute’ or qualified—con-

cerning the dismissal of a Congressional aide.” (Petition at

13.) This question was not considered by the Court of Ap-

peals because that Court found as “far-fetched” the notion

that Anne W. Walker was a Congressional aide, ranking

aide, or alter ego of the Subcommittee. (733 F.2d 931; Pet.

App. A at 13a—l4a.) Accordingly, further consideration of

this question is not warranted.

‘This Court has held that the doctrine of “absolute immunity” is

coextensive with the Speech or Debate Clause as it applies to Mem-

bers of Congress and their aides. Harlow v. Fitzgerald, 457 U.S. at

810-811; Davis v. Passman, 442 U.S. at 228.

11

Petitioners contend that he Court of Appeals erred in

focusing its analysis of the qualified immunity criteria set

forth in ‘Har’ow v. Fitzgerald, 457 U.S. 800, 818 (1982), on

‘heir aller<d violative acts, rather than on Speech or Debate

Clause bar to remedies for these acts; and, that so long as

there is uncertainty as to whether the courts have jurisdic-

tion governing Congressional personnel decisions, mem-

bers of Congress and their aides must act at their peril

(Petition at 14-15).

This Court has already held that “judicial review of con-

gressional employment decisions is constitutionally limited

only by the reach of the Speech or Debate Clause... ”

Davis v. Passman, 442 U.S. at 235 n.11. It is clear from its

opinion (733 F.2d 932, 933; Pet. App. A at 17a-18a) that the

Court of Appeals properly applied the qualified immunity

criteria of Harlow v. Fitzgerald.

As Chief Justice Burger stated in his dissent in United

States v. Brewster, 408 U.S. at 507: “The immunities of the

Speech or Debate Clause were not written into the Consti-

tution simply for the personal or private benefit of Members

of Congress, but to protect the beac of the legislative

process.”

The integrity of the legislative process was not impinged

by Anne W. Walker's operation and management of the

House Restaurant System, or by her hiring, supervision, or

firing.

The recurrent theme of petitioners’ case is that, in dis-

charging Anne W. Walker as General Manager of the House

Restaurant System, they can violate her Constitutional

rights with impunity because they are protected by the

Speech or Debate Clause. But, “[nJo man [person] in

this country is so high that he is above the law. No officer

of the law may set that law at defiance with impunity.”

12

United States v. Lee, 106 U.S. 196, 200 (1882), quoted

with approval in Davis v. Passman, 442 U.S. at 246. Yet,

the petitioners would have the Supreme Court condone

their allegedly flagrant, unlawful firing of Anne W.

Walker. “All officers of the government, from the high-

est to the lowest, are creatures of the law, and are bound

to obey it.” Jd., 442 U.S. at 246. But the petitioners

would have the Supreme Court place them above Anne

W. Walker’s Constitutional rights.

There is no moral, ethical, legal, or other good and

sufficient reason why the petitioners should not be held

responsible for violating Anne W. Walkers’ clearly es-

tablished Constitutional rights of which they knew or

should have known.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

JOHN J. GILECE, JR.

4801 St. Elmo Avenue

Bethesda, Maryland 20814

Tel. No. (301) 986-1777

WILLIAM HARRY GARBER

Courthouse Plaza II

10345 Democracy Lane, Suite A

Fairfax, Virginia 22030

Tel. No. (703) 352-3436

Counsel for Respondent

Anne W. Walker

November 1, 1984