U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Application of the Clause to Employment and Personnel Actions, concluded ...

With respect to the sexual harassment claim, the court held that the defendant’s argument that the claim was barred by the Clause was not properly before the court. 200

Nevertheless, the court provided some insight into how the Clause may apply to evidence supporting alleged sexual harassment, as opposed to alleged retaliation.

Whereas the plaintiff was “precluded from seeking discovery or otherwise inquiring about the Congressman’s reasons for removing Plaintiff as Scheduler,” the court suggested that “the proper focus of the remaining discovery ... appears to be the conduct that other individuals may have observed at times relevant to the Complaint, and what Plaintiff may have told others about such conduct.” 201

That evidence, it would appear, would not be protected by the Clause’s component privileges.

In sum, the Clause’s general immunity principle does not typically act as an absolute bar to employment-related claims brought under the CAA. 202

However, it would appear that there may be cases in which a CAA claim fails as a result of the application of the Clause’s evidentiary and testimonial privileges, which may effectively block a plaintiff from presenting evidence of related legislative acts necessary to support the claim. 203

200 Id. at 271

201 Id. at 274.

202 See Fields, 459 F.3d at 11.

203 See Howard, 720 F.3d at 949-50.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Nondisclosure Privilege: A Continued Circuit Split

Although the precise scope of the protections afforded by the Clause have not been clearly articulated by the Supreme Court, there appears to be some agreement among the lower courts that the Clause provides immunity from direct liability for legislative acts; prohibits the use of legislative-act evidence in the course of litigation; and protects a Member from being compelled to respond to questioning regarding his legislative acts. 204

There is stark disagreement, however, as to whether the Clause encompasses a general documentary “non-disclosure privilege” that applies unrelated to whether such documents are introduced into evidence. 205

When accepted, this privilege appears to be included within the testimonial component of the Clause, and may apply in a variety of situations, including protecting Members from compelled compliance with an administrative 206 or civil discovery 207 subpoena for legislative-act documents, or from disclosures reflecting legislative acts that occur during a search executed as part of a criminal investigation. 208

The D.C. Circuit has established the documentary nondisclosure privilege. 209

In a series of opinions, the circuit court determined that the Clause bars any compelled disclosure — not just the evidentiary use — of written materials that fall “within the sphere of legitimate legislative activity.” 210

According to the D.C. Circuit, this privilege is broad and “absolute,” and applies with equal “vigor” as the other aspects of the Clause. 211

The U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) and the Third Circuit have rejected this documentary nondisclosure privilege, considering it an undue expansion of the Clause. 212

Instead, these courts have held, at least in criminal cases, that the Clause prohibits only the evidentiary use of privileged documents, not their mere disclosure to the government for review as part of an investigation. 213

The disagreement has not been addressed by the Supreme Court. 214

204 See, e.g., Renzi, 651 F.3d at 1035 n. 27 (“To reiterate, the Court has identified three distinct privileges in the Clause: a testimonial privilege, an evidentiary privilege, and a privilege against liability.”); Howard, 720 F.3d at 946 (“As a general matter, the Speech or Debate Clause affords three distinct protections: (a) an immunity from ‘a civil or criminal judgment ...’ (b) an evidentiary privilege ... and (c) a testimonial and non-disclosure privilege ...”) (citations omitted).

205 Compare Rayburn, 497 F.3d at 655 (holding that the testimonial component of the Clause includes a documentary nondisclosure privilege), with Renzi, 651 F.3d at 1034 (holding that the testimonial component of the Clause does not create the documentary nondisclosure privilege outlined in Rayburn).

206 See Comm. on Ways & Means, 161 F. Supp. 3d at 238-45.

207 MINPECO, S.A. v. Conticommodity Services, Inc., 844 F.2d 856, 857-59 (D.C. Cir. 1988).

208 Rayburn, 497 F.3d at 660.

209 See id. at 660-62; Brown & Williamson, 62 F.3d at 420; MINPECO, 844 F.2d at 858.

210 Rayburn, 497 F.3d at 660.

211 Brown & Williamson, 62 F.3d at 420-21.

212 Renzi, 651 F.3d at 1032-39; Fattah, 802 F.3d at 524-29; In re Grand Jury Investigation, 587 F.2d 589, 595-97 (3rd Cir. 1978).

213 Fattah, 802 F.3d at 529.

214 Rayburn, 651 F.3d at 1033 (noting that “to date the Court has not spoken on whether the privilege conferred by the Clause includes a non-disclosure privilege”); Comm. on Ways & Means, 161 F. Supp. 3d at 238.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Nondisclosure Privilege: A Continued Circuit Split, continued ...

The D.C. Circuit position is perhaps best exemplified by two cases: Brown & Williamson Tobacco Corporation v. Williams and United States v. Rayburn House Office Building. 215

Brown & Williamson arose when a former employee of a law firm disclosed to a congressional committee stolen documents that were obtained while the firm was representing Brown & Williamson. 216

The law firm brought an action against the former employee in state court, and during that proceeding, the court issued subpoenas to two Members of the committee requiring the return of the stolen documents. 217

The case was removed to federal court, where the Members sought to quash the subpoenas on Speech or Debate grounds. 218

The court agreed with the Members, blocking the subpoenas and extending the Clause to include a general nondisclosure privilege. 219

In doing so, the court rejected three conclusions that had been reached by the Third Circuit in an earlier case.

First, the court rebuffed the idea that a Member must be named as a party to the suit in order for litigation to “distract them from their legislative work.” 220

“Discovery procedures” in any civil case, the court reasoned, “can prove just as intrusive” as being a party to a case. 221

The court similarly disagreed with the assertion that the testimonial component of the Clause applies only when Members or their aides are “personally questioned,” suggesting instead that “documentary evidence can certainly be as revealing as oral communications.” 222

Finally, the court dismissed the assertion that when applied to documents, the Clause’s protection “is one of nonevidentiary use, not of nondisclosure.”

Instead, noting the antidistraction purpose of the Clause, the court held that “the nature of the use to which documents will be put ... is immaterial if the touchstone is interference with legislative activities.” 223

The court concluded that “a party is no more entitled to compel congressional testimony — or production of documents — than it is to sue a congressman.” 224

215 Brown & Williamson, 62 F.3d at 411-421; Rayburn, 497 F.3d at 659-63.

216 Brown & Williamson, 62 F.3d at 411-12.

217 Id.

218 Id. at 412.

219 Id. at 420 (“We do not accept the proposition that the testimonial immunity of the Speech or Debate Clause only applies when Members or their aides are personally questioned. Documentary evidence can certainly be as revealing as oral communications ...”).

220 Id. at 418 (citing MINPECO, 844 F.2d 856.).

221 Id.

222 Brown & Williamson, 62 F.3d at 420.

223 Id. at 421.

224 Id

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Member Interactions with the Executive Branch

A closer look at judicial treatment of Member interactions with the executive branch reveals some of the difficulty in determining whether certain conduct qualifies as a legislative act.

While interactions with the executive branch may be viewed as “official” and “legitimate,” they are not always “legislative.” 136

It seems from Brewster and Johnson, for example, that communicating with an executive branch agency on behalf of a constituent is not a protected legislative act. 137

Interactions with the executive branch intended to “influence” executive policy for nonlegislative reasons are similarly not legislative acts. 138

The Gravel opinion further narrowed the class of interactions with the executive branch that could be deemed legislative, holding that:

Members of Congress are constantly in touch with the Executive Branch of the Government and with administrative agencies — they may cajole, and exhort with respect to the administration of a federal statute — but such conduct, though generally done, is not protected legislative activity. 139

This passage suggests that even communications and interactions with the executive branch pertaining to an agency’s administration and execution of a federal statute, though wholly unrelated to constituent services, are similarly unprotected.

Yet, when the interaction is connected to the conduct of “oversight,” the action may be more likely to be viewed as legislative and subject to the protections of the Clause.

For example, in Eastland v. United States Serviceman’s Fund, the Supreme Court held that “the power to investigate ... plainly falls” within the definition of legislative. 140

Thus, interactions with the executive branch taken pursuant to an authorized congressional investigation, including those actions taken at hearings, in issuing subpoenas, or pursuing contempt, have all been interpreted to be protected legislative acts. 141

136 See Brewster, 408 U.S. at 512.

137 Id.; Johnson, 383 U.S. at 172.

138 See Gravel, 408 U.S. at 625; Johnson, 383 U.S. at 172.

139 Gravel, 408 U.S. at 625.

140 Eastland, 421 U.S. at 504.

141 Id.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Member Interactions with the Executive Branch, concluded ...

Less formal oversight contacts with the executive branch (for example, actions taken by individual Members not pursuant to an official committee investigation) have not always received protections under the Clause. 142

In Menendez, the Third Circuit held that a claim of conducting “‘oversight’ does not automatically result in Speech or Debate protections.” 143

Instead, the court reasoned that “oversight activities exist along a spectrum” in which some informal actions are unprotected, but other “informal attempts to influence the Executive Branch on policy, for actual legislative purposes, may qualify as ‘true legislative oversight’ and merit Speech or Debate immunity.” 144

Lobbying on behalf of a particular party, the court held, was an action “outside the constitutional safe harbor” created by the Clause. 145

To the contrary, other courts have held that “the applicability of the Speech or Debate Clause’s protections does not hinge on the formality of the investigation.” 146

“The controlling principle,” one court has asserted, is “whether information is acquired in connection with or in aid of an activity that qualifies as ‘legislative’ in nature.” 147

Consistent with this reasoning, federal courts have found “fact finding,” “field investigations,” and “information gathering” by individual Members to be protected legislative acts. 148

One way to harmonize these “informal contacts” cases is perhaps that when a Member is seeking to obtain information from the executive branch, the act is “legislative,” but when the Member is attempting to “influence” executive branch policy, the act is not legislative, at least generally. 149

It would appear difficult, however, to draw a distinction between “cajoling” executive branch officials on the “administration of a federal statute,” which is unprotected, and “true legislative oversight.” 150

Oversight often serves many purposes, including a desire to influence executive branch operations.

For example, a committee may solely be seeking information, or it may be conducting an investigation for the purposes of pushing the agency to implement the law in the manner that Congress desires. 151

Nevertheless, there remains significant uncertainty concerning what types of Member communications with the executive branch are protected by the Clause.

142 See McDade, 28 F.3d at 299-300. Confusion among the courts on this topic may be highlighted by comparing McSurely v. McClellan, 553 F.2d 1277, 1287 (D.C. Cir. 1976) (suggesting a “requirement of congressional authorization of the inquiry” for oversight activity to be protected by the Clause) with Miller v. Transamerican Press, Inc., 709 F.2d 524, 530 (9th Cir. 1983) (holding that actions during an unofficial investigation by an individual Member are protected by the Clause).

143 Menendez, 831 F.3d at 166.

144 Id. at 168.

145 Id. at 169.

146 SEC v. Comm. on Ways & Means of the United States House of Representatives, 161 F. Supp. 3d 199, 236 (S.D.N.Y. 2015).

147 Jewish War Veterans of the United States of Am., Inc. v. Gates, 506 F. Supp. 2d 30, 57 (D.D.C. 2007).

148 United States v. Biaggi, 853 F.2d 89, 103 (2nd Cir. 1988); Lee, 775 F.2d at 521; Miller, 709 F.2d at 530; McSurely, 553 F.2d at 1286-87.

149 See Comm. on Ways & Means, 161 F. Supp. 3d at 246 (noting that documents that reflect a Member “‘cajol[ing]’ or ‘exhort[ing] with respect to the administration of a federal statute,’ they must be produced,” but documents that “reflect the Committee’s or the Subcommittee’s gathering of information to aid in legislating on the issue of Medicare reimbursement rates — whether according to formal congressional processes, [] or informal efforts [] — they are protected under the Clause and need not be produced”) (citations omitted).

150 Gravel, 408 U.S. at 625; Menendez, 831 F.3d at 168.

151 See CRS Report RL30240, Congressional Oversight Manual, by L. Elaine Halchin et al. (describing the various purposes of oversight). See also, United States v. McDade, 28 F.3d 283, 299-300 (3rd Cir. 1994) (discussing the broad meaning of the term “oversight”).

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Application of the Clause to Employment and Personnel Actions

The Speech or Debate Clause plays a key role in civil actions challenging Members’ employment and personnel actions.

These cases generally arise under the Congressional Accountability Act (CAA), which made several civil rights, labor and employment, and workplace safety laws applicable to congressional offices. 152

After seeking confidential 153 counseling and mediation, the CAA expressly authorizes “covered employees” to bring a civil action for violations of the incorporated laws, not against an individual Member, but against the “employing office.” 154

The CAA also prohibits any employing office from retaliating against an employee for alleging a CAA violation. 155

Settlements and judgments reached under a CAA authorized action are paid out of funds appropriated to the legislative branch. 156

The law, it appears, was “intended to subject the legislative branch to liability for violation of federal employment laws, not to subject its Members personally to such liability.” 157

Moreover, the law expressly provides that the authorization to bring a civil suit under the CAA “shall not constitute a waiver ... of the privileges of any Senator or Member of the House of Representatives under [the Clause].” 158

The Supreme Court has held that “this provision demonstrates that Congress did not intend the Act to be interpreted to permit suits that would otherwise be prohibited under the Speech or Debate Clause.” 159

152 P.L. 104-1 (1995) (codified at 2 U.S.C. §§ 1301-1438). 2 U.S.C. § 1302(a) provides a list of 11 laws that the CAA makes applicable to the legislative branch.

153 2 U.S.C. § 1416.

154 Id. at §§ 1301, 1401-08. A “covered employee” includes employees of the House, Senate, and a number of other legislative branch offices. Id. at § 1301(3). “Employing office” includes “the personal office of a Member of the House of Representatives or of a Senator [or] ... a committee of the House of Representatives or the Senate or a joint committee ...,” and other legislative branch offices such as the Congressional Budget Office and the Architect of the Capitol. Id. at § 1301(9).

155 Id. at § 1317(a).

156 Id. at § 1415(a).

157 Fields, 459 F.3d at 28 (emphasis in original).

158 2 U.S.C. § 1413. See Fields, 459 F.3d at 8 (“The [CAA] therefore does nothing to a Member’s Speech or Debate Clause immunity....”).

159 Office of Senator Dayton v. Hanson, 550 U.S. 511, 514, (2007).

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Application of the Clause to Employment and Personnel Actions, continued ...

The judicial framework for analyzing the Clause’s application to Member employment and personnel decisions has evolved over time.

Prior to enactment of the CAA, 160 the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) had determined that the Clause immunized Members from claims challenging personnel decisions concerning most of their staff. 161

In Browning v. Clerk of the United States House of Representatives, the D.C. Circuit broadly held that “personnel decisions are an integral part of the legislative process to the same extent that the affected employee’s duties are an integral part of the legislative process.” 162

The court, therefore, held that the Clause protected personnel actions taken by Members that impacted any employee whose “duties were directly related to the due functioning of the legislative process.” 163

Thus, the Clause’s application depended on the functions and duties of the impacted employee.

The Browning holding, however, was subsequently called into question by two later decisions outside the Speech or Debate Clause context that addressed the “administrative” nature of personnel decisions.

First, in Forrester v. White, the Supreme Court held that judicial immunity for “judicial acts” did not extend to an employment decision, which the court categorized as an administrative act rather than a judicial act. 164

Second, in Gross v. Winter, the D.C. Circuit extended that reasoning to the legislative sphere. 165

In an opinion addressing common law legislative immunity enjoyed by members of the D.C. City Council, rather than Speech or Debate Clause protections enjoyed by Members, the court relied on Forrester to hold that the “functions ... legislators exercise in making personnel decisions ... are administrative, not [] legislative.” 166

These cases arguably implied that a Member’s personnel decision should be viewed as nonlegislative, and, therefore, not protected by the Clause.

160 Prior to the CAA, an employment-related claim arising from a personnel action that allegedly violated the Constitution could still be brought pursuant to an implied cause of action. See, e.g., Davis v. Passman, 442 U.S. 228, 244 (1979) (implying a cause of action for sex discrimination under the Fifth Amendment); Walker v. Jones, 733 F.2d 923, 933 (D.C. Cir. 1984) (implying a cause of action for sex discrimination under the Fifth Amendment).

161 Browning v. Clerk of the United States House of Representatives, 789 F.2d 923, 928-29 (D.C. Cir. 1986). See also, Niedermeier v. Office of Max S. Baucus, 153 F. Supp. 2d 23, 31 n.5 (D.D.C. 2001) (“It also appears that this court lacks subject matter jurisdiction over plaintiff's amended claim, because the Speech or Debate Clause provides defendant immunity for his legislative acts and this Circuit has defined legislative acts to include personnel actions of members of Congress.”) (citing Browning, 789 F.2d at 929).

162 Id. at 928.

163 Id. at 929.

164 Forrester v. White, 484 U.S. 219, 220 (1988).

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

166 Id. at 172.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Application of the Clause to Employment and Personnel Actions, continued ...

Forrester and Gross suggest that the initial shift away from Browning’s reasoning predated the enactment of the CAA in 1995.

Moreover, the courts have explained that the CAA “does nothing to a Member’s Speech or Debate Clause immunity.” 167

Therefore, it does not appear that the CAA compelled the courts to alter their approach to these types of claims.

Yet, after enactment of the CAA, the courts continued to diverge from the course charted by Browning, ultimately leading to a rejection of that decision’s determination that the Clause generally acts as a bar to employment-related claims. 168

In the 2004 decision of Bastien v. Office of Campbell, the first case addressing how the Clause applies to the CAA, the U.S. Court of Appeals for the Tenth Circuit (Tenth Circuit) “hesitated to embrace” the D.C. Circuit’s reasoning in Browning, finding instead that “a personnel decision is not a ‘legislative act,’ ... and is therefore not entitled to immunity.” 169

The Clause provided protections in CAA-related claims, according to the court, only to the extent that other “legislative acts must be proved to establish the claim ...” 170

Two years later, the D.C. Circuit reconsidered Browning in Fields v. Office of Johnson. 171

That consolidated case involved CAA claims for racial, gender, and disability discrimination and retaliation brought by a pair of House and Senate staffers. 172

There was no clear majority opinion in Fields, but the en banc court was unanimous in deciding both that the Clause does not require automatic dismissal of CAA claims and that the Browning framework was no longer consistent
with Supreme Court precedent and should be abandoned. 173

The plurality opinion 174 explicitly rejected Browning’s test for determining when the Clause protects a Member’s personnel decisions, holding that regardless of the role of the given employee, “many personnel decisions” lack any “nexus” to legislative acts and are, therefore, not protected by the Clause. 175

167 Fields, 459 F.3d at 8. See also, 2 U.S.C. § 1413.

168 See Fields, 459 F.3d at 11-13; Bastien v. Office of Campbell, 390 F.3d 1301, 1318-19 (10th Cir. 2004).

169 Bastien, 390 F.3d at 1318.

170 Id.

171 Fields, 459 F.3d at 11-13.

172 Id. at 4.

173 Id. at 17; Id. at 17 (Rodgers, J., concurring); Id. at 25-26 (Brown, J., concurring); id. at 18 (Tatel, J., concurring).

174 Judge Brown’s concurring opinion took a narrower view, suggesting that the CAA creates a “legal fiction” by holding the Member’s office liable for employment discrimination, not the Member or his aides individually. Id. at 26 (Brown, J., concurring) The employing office, Judge Brown asserted, should not enjoy the protections of the Clause, only the Member and covered aides if personally implicated. Id. at 26-7.

175 Fields, 459 F.3d at 11.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Application of the Clause to Employment and Personnel Actions, continued ...

The Fields plurality, which has been relied upon in subsequent opinions, 176 articulated a new framework for evaluating CAA claims that highlights the distinction between the Clause’s general immunity principle and the component evidentiary and testimonial privileges. 177

The plurality determined that the general immunity principle did not “bar” the suit because the personnel actions in question were not themselves legislative acts. 178

However, the plurality reasoned that “when the Clause does not preclude suit altogether, it still ‘protects Members from inquiry into legislative acts or the motivation for actual performance of legislative acts’” through the component evidentiary and testimonial privileges. 179

Thus, although generally not barring a CAA suit altogether, the Clause may “hinder” the suit by “preclud[ing] some relevant evidence.” 180

This was especially so in a claim for discrimination that “rests not on the fact that action was taken ... but on the reason that action was taken,” which would likely require the plaintiff to disprove the Member’s proffered motivation for taking the challenged personnel action. 181

176 See Howard, 720 F.3d at 947 (“Our discussion of Fields focuses on Judge Randolph’s plurality opinion because ... it reflects the broadest view of the Speech or Debate Clause.”); Floyd v. Lee, 968 F. Supp. 2d 308, 318 (D.D.C. 2013) (applying the Fields plurality opinion)

177 Id. at 13-15.

178 Id. at 13. Nor did the claims seek “to predicate liability on protected conduct.” Id.

179 Id. at 14 (citing Brewster, 408 U.S. at 508).

180 Id. at 14.

181 Id. at 15-16 (emphasis in original) (“For example, if a Senator claimed to have fired an employee because speeches the employee wrote did not accurately reflect the Senator’s legislative objectives, the Speech or Debate Clause would preclude the employee from proving her case by demonstrating that the speeches she wrote did in fact accurately reflect the Senator’s legislative objectives. In such a case, if the evidence ultimately bore out the affiant’s account of the plaintiff’s discharge, then the very inquiry leading to that conclusion would be unconstitutional.”). The Senate office appealed the D.C. Circuit’s decision directly to the Supreme Court. Office of Senator Dayton, 550 U.S. at 511. The Court denied certiorari, while also determining that it lacked jurisdiction under the CAA to hear an appeal of the interlocutory order. Id. at 515.

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Re: U.S. CONSTITUTION: THE SPEECH OR DEBATE CLAUSE

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Congressional Research Service

Understanding the Speech or Debate Clause
, continued ...

Todd Garvey, Legislative Attorney

December 1, 2017

Application of the Clause to Employment and Personnel Actions, continued ...

The Fields plurality opinion was relied upon in Howard v. Office of the Chief Administrative Officer of the United States House of Representatives. 182

That case involved a CAA claim for racial discrimination and retaliation brought by a former House employee. 183

As in the Fields plurality, the court determined that the claim itself was not barred, as the personnel action in question was not a “legislative act.” 184

But the court highlighted that “in many employment discrimination cases, proof of ‘pretext’ will be crucial to the success of the claimant’s case,” 185 and those allegations of pretext, the court reasoned, must be proven “using evidence that does not implicate protected legislative matters.” 186

In some cases, the court warned, a plaintiff may not be able to meet the required burden of proof because the Clause bars him “from inquiring into legislative motives ... or conduct part of or integral to the legislative process....” 187

In the instant case, the court remanded to the district court with directions that the plaintiff’s claims be allowed to proceed, under the caveat that “it remain[ed] to be seen” whether, due to the “strictures” of the Clause, the plaintiff would be able to produce sufficient evidence to prove her claim. 188

Indeed, it was ultimately determined that the employee failed to produce sufficient evidence showing the asserted reason for her termination was pretextual. 189

182 Howard, 720 F.3d at 947.

183 Id. at 941.

184 Id. at 949.

185 Id. at 947. In McDonnell Douglas Corp. v. Green, the Supreme Court established a framework for certain types of employment discrimination claims in which after a plaintiff proves a prima facie case for discrimination, the employer rebuts by producing evidence of a nondiscriminatory purpose, which the plaintiff then attempts to demonstrate is pretextual. 411 U.S. 792, 802-804 (1973).

186 Id. at 949.

187 Id. at 950.

188 Howard, 720 F.3d at 950.

189 Howard v. Office of the Chief Admin. Officer of the United States House of Representatives, No. 15-5243, 2015 U.S. App. LEXIS 22290, at *2 (D.C. Cir. 2015) (“Nor has appellant produced sufficient evidence for a reasonable jury to find that the appellee’s asserted non-discriminatory reason for her termination — that she was insubordinate — was pretextual and that the appellee discriminated against her on the basis of race.”).

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