Massie v. Pelosi

• Docket Number: Civil Action No. 21-2023 (RBW)
• Decision Date: 09 March 2022
• Parties: Hon. Thomas MASSIE, in his official and individual capacities, et al., Plaintiffs, v. Hon. Nancy PELOSI, in her official capacity as Speaker of the United States House of Representatives, et al., Defendants.
• Court: U.S. District Court — District of Columbia

590 F.Supp.3d 196

Hon. Thomas MASSIE, in his official and individual capacities, et al., Plaintiffs,

v.Hon. Nancy PELOSI, in her official capacity as Speaker of the United States House of Representatives, et al., Defendants.

Civil Action No. 21-2023 (RBW)

United States District Court, District of Columbia.

Signed March 9, 2022

Aaron Siri, Pro Hac Vice, Elizabeth Ann Brehm, Pro Hac Vice, Jessica Wallace, Pro Hac Vice, Siri & Glimstad LLP, New York, NY, Christopher D. Wiest, Pro Hac Vice, Crestview Hills, KY, Thomas B. Bruns, Pro Hac Vice, Bruns, Connell, Vollmar & Armstrong, LLC, Cincinnati, OH, John R. Garza, Garza Law Firm, P.A., Rockville, MD, for Plaintiff Thomas Massie.

Aaron Siri, Pro Hac Vice, Elizabeth Ann Brehm, Pro Hac Vice, Jessica Wallace, Pro Hac Vice, Siri & Glimstad LLP, New York, NY, Christopher D. Wiest, Pro Hac Vice, Crestview Hills, KY, Thomas B. Bruns, Bruns, Connell, Vollmar & Armstrong, LLC, Cincinnati, OH, John R. Garza, Garza Law Firm, P.A., Rockville, MD, for Plaintiffs Marjorie Taylor Greene, Ralph Norman.

Douglas N. Letter, Todd Barry Tatelman, Eric Randal Columbus, Stacie Marion Fahsel, United States House of Representatives Office of General Counsel, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiffs, the Honorable Thomas Massie, the Honorable Marjorie Taylor Greene, and the Honorable Ralph Norman, all members of the United States House of Representatives (the "House"), bring this civil action against the defendants, the Honorable Nancy Pelosi, in her official capacity as Speaker of the House; William J. Walker, in his official capacity as the Sergeant-at-Arms of the House; and Catherine Szpindor, in her official capacity as the Chief Administrative Officer of the House. See Plaintiffs’ Verified Complaint for Declaratory and Injunctive Relief ("Compl.") ¶¶ 5–10, ECF No. 1. The plaintiffs allege violations of the Twenty-Seventh Amendment to the United States Constitution, see id. ¶¶ 49–54; Article I, Section 5 of the Constitution, see id. ¶¶ 55–59; Article I, Sections 6 and 7 of the Constitution, see id. ¶¶ 60–67; and the First Amendment to the Constitution, see id. ¶¶ 68–75. Currently pending before the Court is the defendants’ motion to dismiss the plaintiffs’ Complaint. See Motion to Dismiss of Defendants Nancy Pelosi, William J. Walker, and Catherine Szpindor ("Defs.’ Mot.") at 1, ECF No. 31. Upon careful consideration of the parties’ submissions,¹ the Court concludes for the following reasons that it must grant the defendants’ motion and dismiss the plaintiffs’ Complaint.

I. BACKGROUND

The following allegations are taken from the plaintiffs’ Complaint, unless otherwise noted.

A. Regulatory Background

On May 15, 2020, in response to the COVID-19 pandemic, the 116th Congress "enacted H[ouse] Res[olution] 965, which, among other things, created a ‘covered period,’ during which members of Congress could vote by proxy." Compl. ¶ 15 n.5. House Resolution 965 stated that

at any time after the Speaker or the Speaker's designee is notified by the Sergeant-at-Arms, in consultation with the Attending Physician, that a public health emergency due to a novel coronavirus is in effect, the Speaker or the Speaker's designee, in consultation with the Minority Leader or the Minority Leader's designee, may designate a period (hereinafter in this resolution referred to as a "covered period") during which a Member who is designated by another Member as a proxy ... may cast the vote of such other Members or record the presence of such other Member in the House.

H.R. Res. 965 § 1(a), 116th Cong. (May 15, 2020), https://www.congress.gov/bill/116th-congress/house-resolution/965/text. House Resolution 965 further provided that "a covered period shall terminate [forty-five] days after the Speaker or the Speaker's designee designates such period[,]" but that

[i]f, during a covered period, the Speaker or the Speaker's designee receives further notification from the Sergeant-at-Arms, in consultation with the Attending Physician, that the public health emergency due to a novel coronavirus remains in effect, the Speaker or the Speaker's designee, in consultation with the Minority Leader or the Minority Leader's designee, may extend the covered period for an additional [forty-five] days.

Id. § 1(b)(1). Since the passage of House Resolution 965 on May 15, 2020, the covered period "has been repeatedly extended by the Speaker[,]" Compl. ¶ 15 n.5,² and, on January 4, 2021, House Resolution 965 was incorporated by the 117th Congress in House Resolution 8, see H.R. Res. 8, 117th Cong. (Jan. 4, 2021), https://www.congress.gov/bill/117th-congress/house-resolution/8/text?q=% 7B% 22search% 22% 3A% 5B% 22house+resolution+8% 22% 2C% 22house% 22% 2C% 22resolution% 22% 2C% 228% 22% 5D% 7D&r=3&s=6 (providing that "House Resolution 965, One Hundred Sixteenth Congress, shall apply in the One Hundred Seventeenth Congress in the same manner as such resolution applied in the One Hundred Sixteenth Congress" with minor changes); Compl. ¶ 15 n.5 (alleging that, "[o]n or about January 4, 2021, the House ..., in the 117th Congress, enacted H[ouse] Res[olution] 8, which, among other things, incorporated the 2020 H[ouse] Res[olution] 965 with certain changes not material to this matter").

1. The House's Mask Policy

On January 4, 2021, the Speaker announced the following policies regarding "conduct during a covered period" ("the House's mask policy"):

[u]nder clause 2 of rule I, the Chair is required to preserve order and decorum in the [House] Chamber.^{[3 ]} This includes the responsibility to ensure the protection of Member and staff safety and health during proceedings. This responsibility is of paramount importance, particularly in the midst of a pandemic. As such, the Chair wishes to stress the importance of safe practices. Members and staff will be required to wear masks at all times in the [House Chamber] without exception, including while Members are under recognition. Members will not be recognized unless they are wearing a mask, and recognition will be withdrawn if they remove their mask while speaking. The Chair expects all Members and staff to adhere to this requirement as a sign of respect for the health, safety, and well-being of others present in the Chamber and surrounding areas. Members and staff will not be permitted to enter the [House Chamber] without wearing a mask. Masks will be available at the entry points for any Member who forgets to bring one. The Chair views the failure to wear a mask as a serious breach of decorum. The Sergeant-at-Arms is directed to enforce this policy. Based upon the health and safety guidance from the attending physician and the Sergeant-at-Arms, the Chair would further advise that all Members should leave the Chamber promptly after casting their votes. Furthermore, Members should avoid congregating in the rooms leading to the Chamber, including the Speaker's lobby. The Chair will continue the practice of providing small groups of Members with a minimum of [five] minutes within which to cast their votes. Members are encouraged to vote with their previously assigned group. After voting, Members must clear the Chamber to allow the next group a safe and sufficient opportunity to vote. It is essential for the health and safety of Members, staff, and the U.S. Capitol Police to consistently practice social distancing and to ensure that a safe capacity be maintained in the Chamber at all times. To that end, the Chair appreciates the cooperation of Members and staff in preserving order and decorum in the Chamber and in displaying respect and safety for one another by wearing a mask and practicing social distancing. All announced policies, including those addressing decorum in debate and the conduct of votes by electronic device, shall be carried out in harmony with this policy during the pendency of a covered period.

167 Cong. Rec. H40–41 (daily ed. Jan. 4, 2021) (announcement by the Speaker Pro Tempore), https://www.congress.gov/congressional-record/2021/1/4/house-section/article/H38-7; see Compl. ¶ 17 & n.9.

2. House Resolution 38

On January 12, 2021, the House "enacted H[ouse] Res[olution] 38[,]" Compl. ¶ 15, which stated, inter alia:

SEC. 4. (a) During a covered period designated pursuant to section 3(s) of House Resolution 8—

(1) the Sergeant-at-Arms is authorized and directed to impose a fine against a Member, Delegate, or the Resident Commissioner for the failure to wear a mask in contravention of the Speaker's announced policies of January 4, 2021[.]

H.R. Res. 38 § 4(a)(1), 117th Cong. (Jan. 12, 2021), https://www.congress.gov/117/bills/hres38/BILLS-117hres38eh.pdf.

Fines imposed pursuant to House Resolution 38 are "treated as though imposed under clause 3(g) of rule II," id. § 4(a)(2), which "authorize[s] and direct[s the Sergeant-at-Arms] to impose a fine against a Member, Delegate, or the Resident Commissioner for the use of an electronic device for still photography or for audio or visual recording or broadcasting in contravention of" the relevant rules and policies, H.R. Rule II, cl. 3(g)(1), https://rules.house.gov/sites/democrats.rules.house.gov/files/117-House-Rules-Clerk.pdf; see Compl. ¶ 15 n.6. Fines imposed under clause 3(g) of Rule II amount to "$500 for a first offense and $2,500 for any subsequent offense[,]" H.R. Rule II, cl. 3(g)(2), and may only be imposed subject to the following three procedures, see id. cl. 3(g)(3). First, "[t]he Sergeant-at-Arms shall promptly notify the Member, Delegate, or the Resident Commissioner[;] the Speaker[;] the Chief Administrative Officer[;] and the Committee on Ethics of any such fine." Id. cl. 3(g)(3)(A). Second, the "Member, Delegate, or Resident Commissioner may appeal the fine in writing to the Committee on Ethics[,] not later than [thirty] calendar days or five legislative days, whichever is later, after notification[.]" Id. cl. 3(g)(3)(B). In the event that the Member, Delegate, or...