Browning v. Clerk, U.S. House of Representatives
| Citation | 789 F.2d 923 |
| Decision Date | 08 July 1986 |
| Docket Number | No. 85-5144,85-5144 |
| Parties | 40 Fair Empl.Prac.Cas. 992, 40 Empl. Prac. Dec. P 36,091, 252 U.S.App.D.C. 241, 54 USLW 2565 Betty G. BROWNING v. CLERK, U.S. HOUSE OF REPRESENTATIVES, et al., Appellants. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
Steven R. Ross, with whom Charles Tiefer, Washington, D.C., was on brief, for appellants.
Linda Huber, Washington, D.C., for appellee.
Before WALD and SILBERMAN, Circuit Judges, and MacKINNON, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge MacKINNON.
Browning, the first black Official Reporter employed by the United States House of Representatives, was discharged after seven years for gross errors and omissions in a particular committee reporting assignment and generally for the low quality of her reporting. Browning admitted these errors below, 1 but alleged that the true reason behind her dismissal was racial animus, that the reasons given were pretextual, and that her discharge violated her rights under the equal protection/due process protections of the Fifth Amendment. The congressional defendants 2 moved to dismiss the suit asserting, inter alia, that Browning's claim was nonjusticiable under the immunity guaranteed by the Speech or Debate Clause of Article I. 3
The district court, claiming reliance upon this court's decision in Walker v. Jones, 733 F.2d 923 (D.C.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984), ruled that the Speech or Debate Clause did not shield congressional personnel actions affecting Official Reporters from judicial scrutiny. Because we find that the district court misapplied this court's holding in Walker and that the Speech or Debate Clause does shield this congressional personnel action from judicial scrutiny, we reverse the district court and remand with instructions to dismiss Browning's suit.
This case comes to us on appeal from the district court's denial of a motion to dismiss for lack of subject matter jurisdiction. For purposes of this review, therefore, we must assume the truth of Browning's allegations. Moreover, as the Supreme Court has instructed, "the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).
Browning was employed by the United States House of Representatives as an Official Reporter from August 1974 until October 1, 1981. Complaint p 7 (Joint Appendix ("JA") 5). While an Official Reporter, Browning's direct supervisor was appellant Geraldine Lyda, the Director of the Office of Official Reporters for the House of Representatives, who in turn was supervised by the Assistant to the Clerk of the House of Representatives, appellant Thomas Ladd. Overall responsibility for the administrative affairs of the House of Representatives rested with the Clerk of the House of Representatives, appellant Edmund L. Henshaw, who in turn was responsible to the appellant Speaker of the House of Representatives, the Honorable Thomas P. O'Neill. All such congressional personnel were named as defendants.
Browning was the first black person hired by the House of Representatives as an Official Reporter and was the only black Official Reporter during her tenure. Complaint p 7 (JA 5). Her duties as an Official Reporter entailed primarily the verbatim stenotype transcription of committee and subcommittee hearings. Affidavit of Betty G. Browning p 2 (JA 13). Browning alleges that she carried out her duties diligently and competently, although at the same time admitting incidents of poor performance. 4 Browning alleges that her termination was motivated by racial animus, Browning Affidavit p 10 (JA 17), and that appellant Lyda engaged in a "campaign of hostility" against Browning that was racially motivated. Id. p 5 (JA 14). For example, Browning alleges that Lyda would often assign her to cover hearings that would produce little testimony, and then complain of Browning's low production. Id. p 6 (JA 15). Other alleged incidents include one in which Lyda made cruel and derogatory remarks about Browning in the presence of her coworkers. Id. Lyda also allegedly solicited complaints regarding Browning's performance, but would not permit Browning to examine these complaints or rebut them. Id. p 7 (JA 15-16).
Browning further asserts that Lyda was able to enlist the aid of defendants Ladd and Henshaw in discharging Browning. Both Ladd and Henshaw, in communications with Browning, refer to a particular incident where her performance was poor, but Browning alleges that this incident was a mere pretext for her discharge. Browning Affidavit p 10 (JA 17). A disciplinary warning from Ladd describes this incident as follows:
In addition to these problems associated with the manner and quality of the reporting you perform for the Clerk, your record of page production is consistently the lowest of the reporting corps.
The most recent incident concerns your failure to accurately and thoroughly report a committee hearing of the Subcommittee on Oversight and Investigations, Committee on Interstate and Foreign Commerce, on Involvement of Organized Crime in the Hazardous Waste Disposal Industry, December 16, 1980. By letter from the Chairman, we were advised that large gaps existed in the transcript, in some cases comprising omissions of whole paragraphs of testimony. Testimony during this hearing was taken under oath to insure veracity and for possible use in judicial proceedings in the event that responses by witnesses were determined to be false or perjurious. The subsequent release and review of the tape-recorded version of the hearing has revealed gross errors and omissions and has resulted in embarrassment to this office, as the supervisory office for official reporters, and to the U.S. House of Representatives. The failure to provide an accurate transcription of the hearing to the committee has damaged the investigative process of the subcommittee and may subject the subcommittee and/or House to possible legal action.
Browning admits these errors, but denies their significance. Browning Affidavit p 8 (JA 16). Finally, Browning alleges that the Speaker of the House of Representatives participated in her discharge in that he "permitted and authorized the other defendants, over whom he had supervisory authority, to engage in the discriminatory conduct complained of ... and refused to take corrective action when the wrongful conduct was brought to his attention." Complaint p 13 (JA 6-7).
In the district court, the congressional defendants moved to have the complaint dismissed under Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure. 5 The district court, claiming reliance upon this court's decision in Walker v. Jones, 733 F.2d 923 (D.C.Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984), denied the motion. See Browning v. Clerk, U.S. House of Representatives, No. 84-1637 (D.D.C. filed Dec. 17, 1984). The congressional defendants then immediately brought this appeal. 6
This case presents the question of the proper scope of the immunity guaranteed by the Speech or Debate Clause in the context of congressional personnel decisions. 7 Although our analysis is informed by this court's recent decision in Walker v. Jones, the instant appeal concerns activities within the legislative core. We approach our task with some caution in light of the importance of the Speech or Debate Clause to the separation of powers which is central to our constitutional form of government.
The Speech or Debate Clause provides that "for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other Place." U.S. Const. art. I, Sec. 6, cl. 1. The relatively short judicial history of this clause has witnessed considerable interpretation as Congress has changed the way in which it performs its duties. Although the literal scope of this clause is limited, it is well-settled that the clause protects more than simply speeches and debates by Representatives and Senators on the floors and in the committees of the Congress. For example, the Supreme Court has held that the clause protects all "things generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, 13 Otto 168, 103 U.S. 168, 204, 20 L.Ed. 377 (1881). It is equally clear that the clause protects Members' aides or assistants insofar as their conduct would be protected if performed by the Member himself. See Gravel v. United States, 408 U.S. 606, 618, 92 S.Ct. 2614, 2623, 33 L.Ed.2d 583 (1972).
Congressional personnel decisions present difficult questions of Speech or Debate Clause immunity because the congressional action at issue may be slightly removed from the direct legislative process. In construing the Speech or Debate Clause in this context, we are mindful of James Madison's advice that "[i]n the application of the [Speech or Debate Clause] to emerging cases ... the reason and necessity of the privilege must be the guide." 4 Writings of James Madison 221 (1865). Thus, we employ a functional approach to interpreting the Speech or Debate Clause, being further influenced by the view that the clause "ought not be to construed strictly, but liberally, that the full design of it may be answered." Coffin v. Coffin, 4 Mass. 1 (1808), quoted in Kilbourn, 13 Otto 168, 103 U.S. at 203. See United States v. Johnson, 383 U.S. 169, 180, 86 S.Ct. 749, 755, 15 L.Ed.2d 681 (1966); McSurely v. McClellan, 553 F.2d 1277, 1284 (D.C.Cir.1976), cert. dismissed, 438 U.S. 189, 98 S.Ct. 3116, 57 L.Ed.2d 704 (1978).
The Speech or Debate Clause is intended to protect the integrity of the legislative process by restraining the judiciary and the executive from questioning ...
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