Senate Appeals Fees Ruling

Posted September 2, 2005 at 4:36pm

For the second time, lawyers for the Senate Sergeant-at-Arms are appealing a federal court’s determination that the office must pay attorney’s fees for dragging its feet during discovery in a discrimination suit brought by a former employee.

The Senate Chief Counsel for Employment, the office which represents the Sergeant-at-Arms in employment disputes, has appealed a federal judge’s ruling earlier this summer determining that Congress is not immune from having to pay attorney’s fees in cases brought under the Congressional Accountability Act.

The SAA had previously asked U.S. District Court Judge Henry Kennedy to reconsider a magistrate judge’s order. Magistrate Judge John Facciola had called the SAA’s six-month delay in producing documents and the action by its attorneys “maddening.”

The case now awaits action by the U.S. Court of Appeals for the Washington, D.C., Circuit.

The SAA claimed, among other things, that the Congressional Accountability Act did not waive Congress’ Sovereign Immunity with regard to the collection of attorney’s fees.

The principle of Sovereign Immunity protects Congress from lawsuits except on matters in which Congress determines by statute it can be sued. Lawyers for the Sergeant-at-Arms claimed that Congress did not explicitly waive its immunity in the CAA with respect to attorneys’ fees.

But Roy Banks, who is suing the SAA for race discrimination, claimed that Congress provided the court jurisdiction over civil actions commenced under the CAA, and that the court has inherent powers to enforce its rules — otherwise the SAA could abuse the discovery process and engage in other “bad-faith litigation” without fear of repercussions.

Passed in 1995, the Congressional Accountability Act for the first time applied 11 federal labor and workplace laws to Congress and created the Office of Compliance to administer and enforce the act.

“This is an important issue as it would be very difficult for anyone to litigate against Congress if Congress does not have the same rules and penalties for discovery as the other litigants,” said Bill Farley, Banks’ attorney.

In the same decision now under appeal, the D.C. District Court upheld Facciola’s refusal to force the Office of Compliance to reveal what employees say during counseling and mediation.

Legislative branch employees who believe one of the covered statutes has been violated can seek relief in either federal court or through a binding administrative proceeding at the Office of Compliance. Regardless of which avenue they choose, employees must undergo mandatory counseling and mediation at the Office of Compliance.

The CAA states that all counseling and mediation “shall be strictly confidential.” The Sergeant-at-Arms argued, however, that it would be denied due process if it could not have access to documents the plaintiff submitted to the Office of Compliance during that period.