Lawyers Defend Hill Firing

Posted March 5, 2007 at 6:52pm

The Congressional Accountability Act does not give legislative branch employees the right to file discrimination lawsuits against Members of Congress, Senate attorneys argued in a brief filed with the Supreme Court last week.

Appealing an August decision by a lower court that allowed a discrimination suit against former Sen. Mark Dayton (D-Minn.) to move forward, the Office of the Senate Chief Counsel for Employment contends that lawmakers are protected from such actions under the Constitution’s Speech or Debate Clause, which provides Members with immunity for actions related to their official duties.

“When an employee’s job duties are part of the due functioning of the legislative process, the Speech or Debate Clause bars court adjudication of the employee’s CAA claims because they are necessarily predicated or rely on … a legislative act,” the brief reads.

In the discrimination lawsuit, former Dayton staffer Brad Hanson claims he was improperly fired after taking time off to have cardiac surgery. Specifically, Hanson argues Dayton violated the Family and Medical Leave Act and Americans with Disabilities Act, as well as the Fair Labor Standards Act by failing to pay him overtime.

But Hanson cannot move forward with his original lawsuit until the Supreme Court decides whether he has the right to sue in the first place.

In the brief, Senate attorneys write that Congressional employees essentially serve as “alter egos” for Members, assigned to do tasks Members themselves simply don’t have the time to get to, according to the brief.

Thus, they play a role in the legislative process, which the Speech or Debate Clause is designed to protect.

“When a Member hires, assigns duties and geographic locations to, promotes, demotes, disciplines, and fires an alter ego, for example, those acts are part of the functioning of his legislative process,” the brief reads. “Therefore, the Speech or Debate Clause provides absolute immunity for those personnel actions, irrespective of the Member’s motive for taking them.”

Hanson’s attorneys argue, however, that the Supreme Court previously has ruled government officials do not have immunity when it comes to employment matters.

They point to the 1988 ruling in Forester v. White, in which the Supreme Court found that a judge does not have immunity in regards to employment decisions, because they involve administrative duties.

“When he’s making an employment decision, it’s not a judicial act, it’s administrative,” said attorney Richard Salzman, who is representing Hanson in the lawsuit. “The same reasoning would apply here.”

But in the brief, Senate attorneys argue that the closest the Supreme Court has come to addressing the issue is in rulings regarding the president, who enjoys immunity in personnel decisions.

In the case Nixon v. Fitzgerald, the court ruled President Richard Nixon had the right to fire a management analyst after he gave damaging testimony before Congress.

“It would be incongruous to determine that members of Congress are less protected,” the brief reads.

But Salzman argued that Members don’t occupy the same constitutional role as the president, and thus the argument doesn’t apply.

“The court found the existence of immunity was required by the unique role that the president plays in the constitutional scheme,” Salzman said.

Senate attorneys also claim that because Dayton officially left the Senate on Jan. 3, the suit itself is now moot. Salzman said he will argue against that claim in Hanson’s briefing, which is due to the court on April 3.

“We’re working on it as we speak,” Salzman said.

The court is scheduled to hear oral arguments in the case on April 24.