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EMPLOYMENT LAW — 1/31/07

High Court to consider whether staffer can sue Senate office, jurisdiction issues linger

The US Supreme Court has agreed to consider whether the US Constitution's Speech or Debate Clause (Clause) bars federal courts from hearing employment discrimination suits brought by congressional employees under the Congressional Accountability Act of 1995 (CAA) against their congressional employing offices (the personal offices of a Member of the House of Representatives or of a Senator). Procedurally, the case reached the High Court on appeal rather than by writ of certiorari. The Court did not accept jurisdiction in the case, postponing that issue until it holds a hearing of the case on the merits. (Office of Sen Mark Dayton v Hanson, Dkt No 06-618, cert granted 1/19/07)

The CAA extends the rights and protections of 11 existing employment, civil rights, health and safety-related laws and regulations to congressional employees. Included among those laws are: (1) Title VII; (2) the Age Discrimination in Employment Act of 1967; (3) the Americans with Disabilities Act of 1990; (4) the Rehabilitation Act of 1973; (5) the Equal Pay Act of 1963; (6) the Family and Medical Leave Act of 1993; (7) the Uniformed Services Employment and Reemployment Rights Act of 1994; (8) the Fair Labor Standards Act of 1938; (9) the Employee Polygraph Protection Act of 1988; (10) the Worker Adjustment and Retraining Notification Act; and (11) Chapter 71 (relating to federal service labor-management relations) of Title 5, United States Code.

Brad Hanson was employed as an office manager in Senator Dayton's (D-MN) Ft. Snelling, Minnesota, office. He sued the Office of Senator Dayton under the CAA for: (1) disability discrimination (incorporating provisions of the Rehabilitation Act and the Americans With Disabilities Act) and; (2) failing to pay him overtime compensation (incorporating provisions of the Fair Labor Standards Act). Hanson alleged that he was discharged shortly after notifying Senator Dayton that he needed surgery to correct a cardiac arrhythmia.

Representing Senator Dayton's office, Senate Chief Counsel for Employment, Jean M. Manning, filed an appeal in this case in the form of a jurisdictional statement, arguing that federal law allowed appeals of circuit court decisions on the scope of the CAA directly to the Supreme Court. On the merits, the appellant asked the High Court to review and overturn the District of Columbia Circuit Court of Appeals en banc decision (88 EPD ¶42,481), which held that congressional employees who perform legislative duties can bring employment discrimination suits against their congressional employing offices under the CAA without violating the Clause. While the en banc DC Circuit held that the Clause did not bar Hanson's suit, the court splintered into a plurality and three concurring opinions on how exactly the Clause could be used as a defense in CAA suits and who actually would be protected by the Clause -- the employing office, the Member or both.

The plurality, authored by Judge A. Raymond Randolph (with whom Chief Judge Douglas H. Ginsberg and Judges Karen LeCraft Henderson and David S. Tatel joined) found that not only did the Clause operate to protect employing offices' personnel decisions that were "part of" the legislative process, but the Clause also maintained an evidentiary privilege protecting Members from "inquir[ies] into legislative acts or the motivation for actual performance of legislative acts." Consequently, even if challenged personnel decisions were not "part of" a legislative act, the evidentiary privilege may effectively preclude congressional employees' bias suits.

In hearing the appeal, the Supreme Court has agreed to address the following: "Does the Speech or Debate Clause of the U.S. Constitution, U.S. CONST. art. 1 §6. cl 1, bar federal court jurisdiction of an action brought under the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 (2000), by a congressional employee whose job duties are part of the due functioning of the legislative process?" In addition to the Clause issue, the High Court directed the parties to brief and argue the following additional questions: (1) Was the Office of Senator Mark Dayton entitled to appeal the judgment of the Court of Appeals for the District of Columbia Circuit directly to this Court?; and (2) Was this case rendered moot by the expiration of the term of office of Senator Dayton? Dayton's term expired January 3, 2007. He only served one term and did not run for reelection.

Of note, on January 9, 2007, the Supreme Court denied certiorari in Bastien v Office of Sen Ben Nighthorse Campbell (85 EPD ¶41,817). In Bastien, the Tenth Circuit held that the Clause was not a jurisdictional bar to the staffer's CAA claims against her employer, a US Senator.

Chief Justice John G. Roberts, Jr. will not participate in the Supreme Court's review of this case. Although he did not take part in arguments of the underlying case on November 30, 2005 or in the DC Circuit's August 18, 2006 decision, Roberts was a member of the court when it voted to hear the case en banc.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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