Hyde Seeks To File Brief On CAA
International Relations Chairman Henry Hyde (R-Ill.) is injecting himself into a federal appellate court case that could determine the scope of constitutional immunity from suits brought under the Congressional Accountability Act.
The Illinois Republican’s “friend of the court” brief is nearly identical to one submitted earlier this year by the Bipartisan Legal Advisory Group, made up of the top leaders from each party in the House. Despite the group’s name, however, that brief was signed by only Republicans, a point that has been noted by the U.S. Court of Appeals for the D.C. Circuit.
Because the case the BLAG brief addressed has since been consolidated, it is not technically part of the record for the rescheduled oral argument. In his motion seeking the court’s permission to file the brief, Hyde wrote that he only recently became aware that the leadership would not refile their brief.
At stake is whether the clause in Article I that protects Members from being questioned about the “Speech or Debate in either House … in any other place” is a valid shield against suits brought under the CAA.
How that constitutional clause interacts with the 1995 statute — in which Congress applied federal labor law to itself for the first time — is the subject of two cases now before the D.C. Circuit, Fields v. Johnson and Hanson v. Dayton, and another in the 10th Circuit.
The constitutional and institutional issues involved in those cases were significant enough for the D.C. Circuit to unilaterally combine them earlier this year and reschedule the oral argument in front of all active judges on the circuit. This exceptionally rare move came after a three-judge panel had already heard oral arguments in the Johnson case.
All but one of the half-dozen senior staffers who have sued their employers under the CAA have run into the Speech or Debate wall. After years percolating in lower courts, a handful of cases are now moving up the federal circuit.
How those cases are decided — and most observers expect the Supreme Court to weigh in eventually — may have profound consequences on the implementation of Congress’ landmark law as well the fundamental relationship between the two branches of government.
Oral argument for the combined cases is scheduled for late September at the D.C. Circuit.
Under pressure from Rep. Barney Frank (D-Mass.), who helped write the CAA, the Democratic leadership did not sign the leadership brief supporting the underlying Speech and Debate argument made by Johnson.
The three-judge panel noted the omission of any Democrats from the “bipartisan” brief during oral argument in the Johnson case in April. (The Republicans have three seats and the Democrats have two on BLAG, which makes decisions on legal matters confronting the House as an institution.)
Hyde’s brief in many places duplicates the BLAG brief word-for-word.
“This brief is being offered to protect House institutional interests,” said Ron Bonjean, spokesman for Speaker Dennis Hastert (R-Ill.), of Hyde’s brief.
A spokeswoman for House Minority Leader Nancy Pelosi (D-Calif.) declined requests for comment.
Frank, who helped draft the CAA, believes that the House GOP leadership’s position effectively nullifies the whole point of the statute, which for the first time allowed Congressional workers the opportunity to go to court for employment disputes.
The CAA brought Congress under 11 civil rights and workplace laws, replacing oft-maligned fair-employment offices in each chamber with an independent agency within the legislative branch and, ultimately, the chance for employees to go through the court system to seek adjudication.
Members of Congress are represented in employment disputes by each chamber’s employment counsel. In representing their individual clients, the chamber’s respective employment counsels sometimes take a different legal position than the House and Senate general counsels, who represent each chambers’ institutional interests.
This explains the assertion in Hyde’s motion to have his brief included in the record that it reflects “a more nuanced construction of the Speech or Debate Clause than do the briefs filed by the [former employees or lawmakers] in this case.”
Mirroring the House leadership brief, which was written by the general counsel’s office, Hyde would have courts use a stricter test for determining whether a case had to be thrown out on Speech or Debate grounds than the conditions laid out in briefs submitted by Rep. Eddie Bernice Johnson (D-Texas) and Sen. Mark Dayton (D-Minn.) in their respective cases.
In a clear reference to arguments made by the individual lawmakers, Hyde said the legal precedent he would have the court adopt does not stand “for the bald proposition that a Member of Congress is automatically entitled to Speech or Debate immunity with respect to an employment claim simply because the employee performed some legislative duties.”
That has essentially been the position Johnson and Dayton have taken.
Rather, Hyde said, a lawmaker should be entitled to such immunity only if two conditions are met: If the employee’s duties were directly related to the due functioning of the legislative process, and if the personnel action in question arose out of the employee’s performance or nonperformance of those duties.
The House’s brief represented the first institutional position set forth by either chamber regarding the immunity afforded lawmakers from suits brought under the CAA. The Senate has been silent on the issue, even though its employment counsel has represented multiple Senators in such cases in federal court.
In April, Frank indicated that he and CAA co-sponsor Rep. Christopher Shays (R-Conn.) intended to file a privileged resolution overturning the brief filed by the House leadership. But no resolution has been filed. A spokesman for Frank said he worried that lawmakers would “misinterpret his intentions,” especially because he and Johnson are both Democrats.
Frank did a brief in the Dayton case, however. If the D.C. Circuit accepts Hyde’s petition to have his brief included in the court’s consideration of the combined cases (it first must overcome a procedural hurdle), the Illinois Republican would become the second lawmaker to submit a brief on the Speech or Debate question in CAA cases.
Hyde’s brief, like the Republican leadership’s before him, pointed out to the court that even if some presumably high-level staffers were denied the ability to take their grievances to court because of their ties to the legislative process, they would still have an ability to seek redress through the Office of Compliance.
Under the statute, employees can choose to take their case to district court or to a binding hearing at the Office of Compliance. (Mandatory counseling and mediation proceed either choice.) The hearing is run much like a trial, albeit without a jury deciding the case.
The attorney for Beverly Fields, who is suing Johnson for wrongful termination, said if Congress wanted to “exclude certain employees” from having the ability to go to court, they “could have put it into the act.”
“Why did you put the judicial [option] in there?” Wayne Martin Scriven, Fields’ attorney, asked, if only certain employees could pursue it. “Who did you want to to have a jury trial? Nowhere in the debate did the Members [discriminate as to] who could pursue a jury trial.”