In June a panel of the D.C. Circuit decided Howard v. Office of the CAO, in which a former congressional employee argued the Speech or Debate Clause did not bar her lawsuit challenging adverse employment action under the Congressional Accountability Act. If it stands, the case resolves a question left open by Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006) (en banc), appeal dismissed and cert. den. sub nom., Office of Senator Mark Dayton v. Hanson, 550 U.S. 511 (2007). However, the Chief Administrative Officer of the House has petitioned for rehearing en banc, and the D.C. Circuit has ordered Howard to file a response, so it is possible the Howard case will be reheard by the full court.
In Fields, four separate opinions were written, but all of the judges agreed that employment actions, such as terminations, are not themselves legislative activities protected by the Speech or Debate Clause. However, if the employing office asserts legislative activity as the reason for the adverse employment action, Fields acknowledged that the Clause may make it difficult for the employee to challenge the action in court.
In Howard’s case, for example, her former congressional employer (the CAO) submitted an affidavit that one of the reasons for taking adverse employment action against her was that she had undermined the CAO’s ability to support the legislative activities of the Committees on Appropriations and House Administration. Howard had done this, according to the affidavit, by not sharing information with her colleagues who were also involved in budget matters on which the CAO was providing legislative support to the committees, by not listening to her colleagues, and by communicating her own views on budget matters, rather than those of the CAO, to the congressional committees.
Under Fields, Howard is prohibited by the Speech or Debate Clause from disputing the accuracy of the CAO’s affidavit with respect to these legislative activities. However, Fields left open the question of whether the employee may nonetheless claim the employer’s stated reason was a mere pretext for discrimination. A majority of the Howard panel concluded that the employee may make such a claim “provided she does not contest her employer’s conduct of protected legislative activities and that she prove her allegations of pretext using evidence that does not implicate protected legislative matters.” Majority Op. at 18.
Theoretically, I suppose, this result makes some sense. One can imagine a case where there is strong direct evidence that an employee was fired for discriminatory reasons, and therefore the employee may be able to prove her case without disputing the employer’s statements about legislative activities or introducing any legislative evidence herself.
In the real world, though, it is unlikely this situation would arise very often. Although the D.C. Circuit panel suggested that Howard might make the required showing by introducing evidence that the reasons given by the CAO at the time of the adverse employment action were different than what it asserts at trial, it also acknowledged that Howard might not even make it to trial because the Speech or Debate Clause “will bar her from inquiring into legislative motives or question[ing] conduct integral to the legislative process.” Majority Op. at 20. As Judge Kavanaugh notes in dissent, “[a] plaintiff saddled with a stipulation that she was really lousy at performing her legislative duties is not a plaintiff who is likely to even get to trial, much less to win, in a discrimination case.” Dissent at 7.
In its petition for rehearing, the CAO contends that “[t]he majority’s ruling deprives the congressional affidavit—around which the entire Fields edifice is constructed—of any real significance by permitting plaintiffs to circumvent it by artfully pleading pretext.” It also contends that once a congressional affidavit establishes that the employment action was taken because of legislative activities, the only exceptions to dismissal “even contemplated” by Fields “were direct evidence of discrimination or evidence of conflicting employer rationales for the employment actions.” Neither of these, the CAO maintains, exist in the Howard case.
Assuming the case is allowed to proceed in the district court, there are some thorny discovery and trial issues ahead. Presumably Howard will seek to depose congressional witnesses. There will be objections to any questions relating to the congressional affidavit or the legislative activities that the CAO contends led to Howard’s termination. Because the denial of an asserted Speech or Debate privilege is subject to immediate appeal, this could mean very extended litigation in the discovery phase.
And what happens if the case does make it to trial? The CAO presumably will put on evidence that Howard was “really lousy” at her legislative duties. Under the Fields/Howard framework, is Howard prohibited from cross-examining or rebutting this evidence? It sounds like the answer is yes, which would seem to create some novel problems for the trial judge and plaintiff’s counsel.
(On a sidenote, suppose a congressional witness gives false testimony regarding the employee’s performance of legislative activities? Would the witness be immune from perjury charges on the ground that inquiring into the truth of the testimony would amount to “questioning” the legislative activity about which the testimony was given? Or would the relevant authority be that of giving testimony in a non-legislative proceeding and therefore beyond the scope of the Speech or Debate Clause? For somewhat analogous problems, see the discussion of the Feeney case here and here.)
The answers to these questions will have to await further litigation. For now, congressional employees would probably be wise to take Judge Kavanaugh’s advice and bring their cases before the Office of Compliance, rather than in federal court, when tricky Speech or Debate Clause issues are anticipated. See Dissent at 7. Because the Office of Compliance is a legislative forum, it is not “any other Place” within the meaning of the Speech or Debate Clause, and thus the privilege does not apply there.