Bastien v. Office of Campbell

• Decision Date: 10 December 2004
• Docket Number: No. 02-1343.,02-1343.
• Citation: 390 F.3d 1301
• Parties: Rita BASTIEN, Plaintiff-Appellant, v. The OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant-Appellee, American Federation of State County and Municipal Employees, AFL-CIO; National Employment Lawyers Association; AARP; National Asian Pacific American Legal Consortium; American Association of People with Disabilities, Project on Government Oversight; and Public Citizen, Inc., Amici Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

390 F.3d 1301

Rita BASTIEN, Plaintiff-Appellant, v. The OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant-Appellee American Federation of State County and Municipal Employees, AFL-CIO; National Employment Lawyers Association; AARP; National Asian Pacific American Legal Consortium;

American Association of People with Disabilities, Project on Government Oversight; and Public Citizen, Inc., Amici Curiae.

No. 02-1343.

United States Court of Appeals, Tenth Circuit.

December 10, 2004.

John S. Evangelisti (Karen Larson, with him on the briefs), Denver, CO, for Plaintiff-Appellant.

Jean Marie Manning, Senate Chief Counsel for Employment (Claudia A. Kostel, Senate Senior Counsel for Employment, with her on the brief), Office of Senate Chief Counsel for Employment, Arlington, VA, for Defendant-Appellee.

Traci L. Lovitt, of Jones, Day, Reavis & Pogue, New York, N.Y. (Glen D. Nager, of Jones, Day, Reavis & Pogue, Washington, D.C., with her on the brief), for Amici Curiae American Federation of State, County and Municipal Employees, AFL-CIO, National Employment Lawyers Association, AARP, and American Association of People with Disabilities; Vincent Eng, Legal Director, National Asian Pacific American Legal Consortium, Washington, D.C., on the brief for Amicus Curiae National Asian Pacific American Legal Consortium; Larry P. Weinberg, General Counsel, American Federation of State, County and Municipal Employees, AFL-CIO, Washington, D.C.; Jenifer Bosco, Senior Staff Attorney, National Employment Lawyers Association, San Francisco, CA; Andrew J. Imparato, President and CEO, American Association of People with Disabilities, Washington, D.C.

Allison M. Zieve, Public Citizen Litigation Group, Washington, D.C.; Sheila A. Bedi and David C. Vladeck, Institute for Public Representation, Georgetown University Law Center, Washington, D.C., on the brief for Amici Curiae Project on Government Oversight and Public Citizen, Inc.

Before SEYMOUR, BALDOCK, and HARTZ, Circuit Judges.

HARTZ, Circuit Judge.

Our Constitution's Speech or Debate Clause states that "for any Speech or Debate in either House, [members of Congress] shall not be questioned in any other Place." U.S. Const. art. I, § 6, ¶ 1. The issue before us is whether this Clause precludes Plaintiff Rita Bastien's employment-discrimination claim brought under the Congressional Accountability Act of 1995 (the CAA). Senator Ben Nighthorse Campbell fired Plaintiff from her position on his staff. Her duties included meeting with the public to obtain information used by the Senator for both constituent services and his legislative agenda. We hold that suit is not barred because the claim does not question the conduct of official Senate legislative business by Senator Campbell or his aides. We do not address, however, whether certain evidence may be inadmissible in this litigation because it concerns such conduct.

I. The Congressional Accountability Act

The CAA, 2 U.S.C. § 1301 et seq., extends the protections of 11 major workplace statutes to congressional employees. See § 1302(a)(1)-(11). It creates the Office of Compliance (OOC), an independent office within the legislative branch. See id. § 1381. The OOC has a five-member Board of Directors, appointed jointly by the Speaker of the House, the Senate Majority Leader, and the Senate and House Minority Leaders. See id. § 1381(b). "In addition to promulgating rules for implementation of the eleven statutes, the OOC oversees a complaint procedure that provides for counseling, mediation, formal hearings and decisions by a hearing officer, and appeal to the Board of Directors." James J. Brudney, Congressional Accountability and Denial: Speech or Debate Clause and Conflict of Interest Challenges to Unionization of Congressional Employees, 36 Harv. J. Legis. 1, 9 (1999). See generally Sandra Mazliah, The Congressional Accountability Act of 1995: Meandering the Mandatory Administrative Maze, 6 Fed. Cir. B.J. 5 (1996). The CAA provides for judicial review, see 2 U.S.C. § 1407, and it allows plaintiffs to opt out of some Board proceedings and instead file suit in federal district court. See id. §§ 1404, 1408; Brudney, supra, at 9-10.

Under the CAA a plaintiff may file a complaint only against the employing office, not the individual member of Congress. See 2 U.S.C. §§ 1405(a) & 1408(b). The Office of House Employment Counsel, see id. § 1408(d), or the Senate Chief Counsel for Employment represents the office, Brudney, supra, at 10 n. 46; and damages are paid from funds appropriated into the OOC's Treasury account. See § 1415(a). Of particular relevance to our case, the CAA explicitly retains Speech or Debate Clause immunity for members of Congress, see § 1413, thereby avoiding any issue regarding whether Congress as a whole can waive such immunity for individual members.

II. Factual and Procedural Background

Plaintiff worked for six years — from July 7, 1994, to September 4, 2000 — as a Senate Aide in Senator Campbell's Englewood, Colorado, office. On September 5, 2000, at the age of 61, she was transferred to the Senator's Colorado Springs office, where she was a District Director. On April 10, 2001, she was terminated.

Plaintiff sued Senator Campbell's office (the Office) under the CAA on April 30, 2001, alleging age discrimination and retaliation for discrimination complaints. She alleged that the discrimination began several months before her transfer to Colorado Springs and continued until her termination.

The Office moved to dismiss the suit under Fed.R.Civ.P. 12(b)(1), contending that the Speech or Debate Clause barred federal subject matter jurisdiction over the case, and that the claim should be dismissed on the ground of sovereign immunity. The Office asserted that "Plaintiff's duties of meeting with constituents, gathering information for the Senator, discussing constituent suggestions and then conveying them to the Senator, constitute actions that directly relate to the due functioning of the legislative process," Bastien v. Campbell, 209 F.Supp.2d 1095, 1101 (D.Colo.2002), and accordingly should be shielded from judicial scrutiny by the Speech or Debate Clause. Plaintiff responded that "her actions were political rather than legislative in nature, and that although she met with constituents to discuss certain issues, she never performed legislative functions." Id.

The district court granted the Office's motion to dismiss. Id. It held that "the Speech or Debate Clause provides immunity to Members of Congress and their aides for personnel actions taken with respect to employees whose duties are directly related to the due functioning of the legislative process [.]" Id. at 1103. It then found that "the majority of Plaintiff's job duties ... were directly related to the due functioning of the legislative process." Id. at 1104.

The court characterized Plaintiff's job responsibilities in the Englewood office as follows:

Plaintiff's interaction with constituents and her attendance at various meetings and congressional hearings on behalf of the Senator illustrates that Plaintiff's duty was not only to provide Senator Campbell with information, but to take action on behalf of the Senator and provide him with recommendations on various legislative issues and agendas.

Id. at 1105. It described her job responsibilities in the Colorado Springs office as including "gathering and conveying to Senator Campbell himself, and to the Defendant, information critical to the Senator's legislative agenda." Id. at 1106. The court concluded that "the personnel actions taken by [the Office] against the Plaintiff are afforded Speech or Debate Clause immunity." Id. at 1104.

Plaintiff appeals this ruling. We reverse and remand to allow the suit to proceed.

III. The Speech or Debate Clause

The first paragraph of Article I, § 6 of the Constitution states:

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

U.S.C.A. Const. art. I § 6, ¶ 1. On its face the Speech or Debate Clause would not appear to apply to a Senator's conduct with respect to his employees. It appears to protect only the Senator's remarks on the Senate Floor. But the Supreme Court has long treated the Clause as constitutional shorthand for a more extensive protection.

The Office contends that this protection encompasses "personnel actions taken against employees whose job duties directly relate to the due functioning of the legislative process." Aplee. Br. at 41 (capitalization omitted). In its view, Plaintiff was such an employee, so her claim is constitutionally barred.

We disagree. As we read the Supreme Court's opinions on the Speech or Debate Clause, the Clause protects only "legislative" acts by a member of Congress or an aide, and only official, formal acts (or perhaps their functional equivalent) deserve the adjective "legislative." In particular, Plaintiff's informal contacts with constituents and other sources of information and opinion were not legislative in nature. Because Plaintiff's duties were not legislative and personnel actions allegedly taken against her were not in themselves legislative, her CAA claim can proceed.

Our conclusion follows from a careful review of Supreme Court precedent. We now proceed to summarize the Court's opinions to establish that the Office's contentions go beyond any holding and are inconsistent with the Court's explanations of its holdings.

The Court's first pronouncement on the Clause was in Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1880). First, Kilbourn held that a committee investigation exceeded...