720 F.3d 939 (D.C. Cir. 2013), 12-5119, Howard v. Office of Chief Administrative Officer of United States House of Representatives

Docket Nº:12-5119, 12-5120.
Citation:720 F.3d 939
Opinion Judge:EDWARDS, Senior Circuit Judge:
Party Name:Lataunya HOWARD, Appellant/Cross-Appellee v. The OFFICE OF the CHIEF ADMINISTRATIVE OFFICER OF the UNITED STATES HOUSE OF REPRESENTATIVES, Appellee/Cross-Appellant.
Attorney:Ross A. Nabatoff argued the cause for appellant. With him on the briefs was Stanley M. Brand. Andrew D. Herman entered an appearance. Kerry W. Kircher, General Counsel, U.S. House of Representatives, argued the cause for appellee. With him on the briefs were William Pittard, Deputy General Counse...
Judge Panel:Before: GARLAND, Chief Judge, KAVANAUGH, Circuit Judge, and EDWARDS, Senior Circuit Judge. Dissenting opinion filed by Circuit Judge KAVANAUGH. KAVANAUGH, Circuit Judge, dissenting:
Case Date:June 28, 2013
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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720 F.3d 939 (D.C. Cir. 2013)

Lataunya HOWARD, Appellant/Cross-Appellee

v.

The OFFICE OF the CHIEF ADMINISTRATIVE OFFICER OF the UNITED STATES HOUSE OF REPRESENTATIVES, Appellee/Cross-Appellant.

Nos. 12-5119, 12-5120.

United States Court of Appeals, District of Columbia Circuit.

June 28, 2013

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Appeals from the United States District Court for the District of Columbia (No. 1:09-cv-01750).

Ross A. Nabatoff argued the cause for appellant. With him on the briefs was Stanley M. Brand. Andrew D. Herman entered an appearance.

Kerry W. Kircher, General Counsel, U.S. House of Representatives, argued the cause for appellee. With him on the briefs were William Pittard, Deputy General

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Counsel, Christine Davenport, Senior Assistant Counsel, and Todd B. Tatelman, Mary Beth Walker, and Eleni M. Roumel, Assistant Counsel.

Before: GARLAND, Chief Judge, KAVANAUGH, Circuit Judge, and EDWARDS, Senior Circuit Judge.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

OPINION

EDWARDS, Senior Circuit Judge:

This appeal requires the court to consider whether the Speech or Debate Clause of the Constitution, U.S. CONST. art. I, § 6, cl. 1, bars this lawsuit by Lataunya Howard against her former employer, the Office of the Chief Administrative Officer (" OCAO" ) of the United States House of Representatives, for alleged racial discrimination and retaliation in violation of the Congressional Accountability Act (" CAA" ), 2 U.S.C. §§ 1301-1438. Section 404(2) of the CAA creates a cause of action for covered employees in the legislative branch to sue in federal court for violations of the statute. Article I, section 6, in turn, provides that " for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." And " [t]he Speech or Debate Clause operates as a jurisdictional bar when the actions upon which a plaintiff [seeks] to predicate liability [are] legislative acts." Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1, 13 (D.C.Cir.2006) (en banc) (quotations, citations, and alterations omitted) appeal dismissed and cert. denied sub nom., Office of Senator Mark Dayton v. Hanson, 550 U.S. 511, 127 S.Ct. 2018, 167 L.Ed.2d 898 (2007).

The CAA " does nothing to a Member's Speech or Debate Clause immunity." Id. at 8. However, " a Member's personal office may be liable under the [CAA] for misconduct provided that the plaintiff can prove his case without inquiring into legislative acts or the motivation for legislative acts." Id. at 17 (quotations and citation omitted). This is so because " [t]he Speech or Debate Clause ... does not prohibit inquiry into illegal conduct simply because it has some nexus to legislative functions, or because it is merely related to, as opposed to part of, the due functioning of the legislative process." Id. at 10 (quotations and citations omitted).

In this case, we must determine whether the Speech or Debate Clause requires dismissal of Ms. Howard's suit under the CAA. Ms. Howard, who is African American, was hired by the OCAO as Deputy Budget Director on April 15, 2003; she was promoted to Budget Director in 2006. In January 2009, the position of Budget Director was abolished and Ms. Howard was involuntarily transferred to the position of Senior Advisor. On April 14, 2009, Ms. Howard was terminated by the OCAO for alleged insubordination. She commenced this action in District Court on September 15, 2009. Her complaint alleged " that: (1) her termination was based on her race; (2) her transfer from Budget Director to Senior Advisor constituted a demotion, which was based on her race; (3) she received less pay, by approximately $22,000 per year, than the Caucasian Senior Advisors; and (4) her termination was motivated in part by retaliatory animus stemming from her prior complaints to human resources regarding pay disparities and other issues." Howard v. Office of Chief Admin. Officer of U.S. House of Representatives, 793 F.Supp.2d 294, 297 (D.D.C.2011). The first, second, and fourth of these claims are before us on appeal.

The OCAO moved to dismiss the action in the District Court on the ground that Ms. Howard could not prove her claims

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without inquiring into matters protected by the Speech or Debate Clause. Id. at 295. The District Court denied the OCAO's motion as to Ms. Howard's claim that her transfer was an unlawful demotion based on her race. Id. at 308. However, the District Court held that Ms. Howard's claims that her termination from the OCAO was motivated by her race and by retaliatory animus must be dismissed " because they cannot proceed without inquiry into actions— specifically, communications— that are shielded by the Speech or Debate Clause." Id. On January 4, 2012, the District Court granted Ms. Howard's Motion to Certify for Interlocutory Appeal, Howard v. Office of Chief Admin. Officer of U.S. House of Representatives, 840 F.Supp.2d 52 (D.D.C.2012); and on April 13, 2012, this court granted Ms. Howard's Petition for Permission to Appeal, In re Howard, 2012 U.S.App. LEXIS 7593 (D.C.Cir. Apr. 13, 2012). We have jurisdiction over Ms. Howard's appeal and the OCAO's cross-appeal pursuant to 28 U.S.C. § 1292(b).

Both sides agree that the disputed adverse actions— Ms. Howard's alleged demotion and termination— are not legislative acts. Hence, there is no jurisdictional bar to this action. The question in this case is whether Ms. Howard's claims are precluded or limited by the evidentiary, testimonial, or non-disclosure privileges that emanate from the Speech or Debate Clause. See Fields, 459 F.3d at 14 (explaining that even " [w]hen the Clause does not preclude suit altogether, it still protect[s] Members from inquiry into legislative acts or the motivation for actual performance of legislative acts" (quotations and citation omitted)).

It is clear that, based on the parties' submissions to the District Court, Ms. Howard's demotion claim is not precluded. Daniel Beard, who was the Chief Administrative Officer (" CAO" ), submitted an affidavit (" Beard Affidavit" ) to the District Court stating three reasons to support Ms. Howard's demotion. As we explain below, it is undisputed that the first two reasons and part of the third reason do not implicate the Speech or Debate Clause. The remaining reason is that Ms. Howard communicated to the Committee on Appropriations information that reflected her own preferences regarding the House budget rather than the views of the CAO. An attempt to quarrel with this allegation might well create a Speech or Debate Clause problem, but Ms. Howard stipulates that she communicated her personal views. Her only claim is that this is not what motivated her alleged demotion. In other words, Ms. Howard contends that she must " be afforded a fair opportunity to show that [the OCAO's] stated reason [for her involuntary transfer] was in fact pretext." McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The District Court correctly held that " [i]f, under Fields, Howard's transfer was not a legislative act, and if Howard can prove that the [O]CAO's justification for her transfer was not the real reason behind it— without probing whether, how, or why she actually communicated with committee staff regarding the budget and the appropriations bill— then the Speech or Debate Clause should present no bar to her claim." Howard, 793 F.Supp.2d at 307.

Likewise, Ms. Howard's termination claim is not precluded. The Beard Affidavit asserts that Ms. Howard was terminated because she refused to complete a task she was assigned. Ms. Howard concedes that she did not complete the task, but says that the reason was that she did not have the necessary computer, data access, or staff support. There is an obvious credibility dispute between the parties. However, whether Ms. Howard had the resources and support needed to complete

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the task to which she was assigned concerns non -legislative matters and, thus, does not implicate the Speech or Debate Clause.

In sum, based on the record before us, we hold that the Speech or Debate Clause does not require the dismissal of this action. Ms. Howard may proceed with her all of her claims under the CAA, subject to the applicable strictures of the Speech or Debate Clause. Accordingly, we affirm in part and reverse in part the judgment of District Court and remand the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Facts

Pursuant to House Rule II(4)(a), the CAO " shall have operational and financial responsibility for functions as assigned by the Committee on House Administration." In addition, pursuant to House Rule II(4)(b), the CAO is, inter alia, responsible for providing semiannual financial and operational reports to the Committee on House Administration. The OCAO avers that the CAO supports the House Committees on Appropriations and House Administration by providing budget figures, financial analyses, and financial projections. See Beard Aff. ¶ 6, reprinted in Joint Appendix (" J.A." ) 93. Of particular relevance to this case, the CAO is responsible for the Government Contributions Account (the " Account" ), " which encompasses the employer-paid portion of [various employment taxes and benefits for all House employees, and] is one of the largest line items in the annual legislative branch appropriations bill." Id. ¶ 9, reprinted in J.A. 95. The parties agree that the OCAO engages in legislative activities, including many concerning the Account, but that not all of its activities are legislative. The parties also agree that Daniel Beard was the CAO at all times relevant in this case.

Lataunya Howard avers that she received the highest or...

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