Cushing v. Packard

United States Court of Appeals
For the First Circuit

No. 21-1177

ROBERT R. CUSHING, individually and in his capacity as the
Minority Leader of the N.H. House of Representatives, DAVID
COTE; KATHERINE D. ROGERS; KENDALL SNOW; PAUL BERCH; DIANE
LANGLEY; CHARLOTTE DILORENZO; N.H. DEMOCRATIC PARTY,

Plaintiffs, Appellants,

v.

SHERMAN PACKARD, in his official capacity as Speaker of the
House for the N.H. House of Representatives,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. District Judge]

Before

Thompson and Kayatta, Circuit Judges,
and Woodlock,* District Judge.

Israel F. Piedra, with whom Welts, White & Fontaine, PC,
William E. Christie, S. Amy Spencer, and Shaheen & Gordon, P.A.,
were on brief, for appellants.
Samuel R. V. Garland, Assistant Attorney General, with whom
Anthony J. Galdieri, Senior Assistant Attorney General, and
Jennifer S. Ramsey, Assistant Attorney General, were on brief, for
appellee.

* Of the District of Massachusetts, sitting by designation.
April 8, 2021
 KAYATTA, Circuit Judge. This expedited appeal arises

out of a decision by the Speaker of the New Hampshire House of

Representatives to enforce a House rule precluding any

representative from participating in proceedings involving the

full House -- including voting on House matters -- other than in

person. Plaintiffs include seven members of the House who claim

to suffer from medical conditions that make them especially

vulnerable to the highly contagious novel coronavirus ("COVID-

19"). Plaintiffs contend that Title II of the Americans with

Disabilities Act, 42 U.S.C. § 12132, and Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794, require the Speaker to allow

them to participate remotely. In denying plaintiffs' motion for

a preliminary injunction, the district court ruled that the

doctrine of legislative immunity bars the relief sought. On

plaintiffs' appeal, we now vacate that denial and remand for

further proceedings consistent with this opinion. Our reasoning

follows.

I.

Plaintiffs, elected members of the New Hampshire House

of Representatives, suffer from serious medical conditions and/or

disabilities that they allege render them particularly vulnerable

to serious illness or death, should they contract COVID-19.1 The

Plaintiffs, all of whom are over age sixty, have various
1

conditions and disabilities, including Stage 4 prostate cancer;

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risk of contracting COVID-19 is highest in heavily trafficked

public locations, particularly indoors. Plaintiffs brought their

suit in February of this year, at which point New Hampshire had

experienced 70,505 confirmed cases of COVID-19, resulting in 1,130

deaths.

The House has 400 members. In a typical year, those 400

members would gather in person for approximately twenty full

sessions. In September 2020, the House passed a motion requesting

that the Supreme Court of New Hampshire declare whether holding a

House session remotely, either wholly or in part, would violate

the New Hampshire Constitution. The Court answered that question

in the negative in November 2020, allowing for the possibility of

remote sessions. Opinion of the Justs., No. 2020-0414, 2020 WL

6750797, at *1 (N.H. Nov. 17, 2020).

House leadership has researched various methods to

implement remote participation in full sessions since at least the

summer of 2020. Since March 2020, the House has met five times in

full session, each time in person. Locations for the full sessions

have included the Whittemore Center at the University of New

compromised or suppressed immune systems; cardiac problems; Type 2
Diabetes; Guillain-Barré Syndrome; kidney disease; degenerative
joint disease; asthma and other issues affecting lung capacity and
function; and advanced age. At least one plaintiff lives in a
communal facility that restricts residents from participating in
events involving groups larger than ten individuals, even when
outside the community.

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Hampshire, an athletic field at UNH, and a parking lot -- with

Representatives in their cars -- at UNH. In contrast, a number of

committee meetings and full caucus meetings were conducted

remotely via videoconferencing technology in 2020, with up to 200

people participating in some meetings.

The House is constitutionally mandated to meet on the

first Wednesday in December for Organization Day. House

leadership, comprised of Republican party members, decided to hold

Organization Day outside on an athletic field on December 2, 2020.

The prior day, Republican leadership revealed that an unspecified

number of House Republicans had tested positive for COVID-19 after

an indoor party caucus. Despite this potential exposure, at least

sixty Representatives refused to wear face masks at Organization

Day, where Representative Richard Hinch was elected Speaker. One

week later, Speaker Hinch died of COVID-19. The second-ranking

member in the House, Speaker Pro Tem Kim Rice, also contracted

COVID-19. Defendant Packard became Acting Speaker at that time

and was formally elected as Speaker on January 6, 2021.

In the New Hampshire House, if a given procedure is not

governed by a constitutional provision, another House rule, or

custom, usage, and precedent, the procedure shall be derived from

the 2020 edition of Mason's Manual of Legislative Procedure.

Rule 786 of that manual provides that "[a]bsent specific

authorization by the constitution or adopted rules of the body,

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remote participation in floor sessions by members of the

legislative body is prohibited."

Since the COVID-19 pandemic began, House members have

twice attempted to amend the House rules to permit remote

participation at House sessions. One proposal involved allowing

the Speaker, upon a member's request, to permit remote

participation in committee meetings and legislative sessions; the

other proposal involved allowing virtual meetings of the full

House. The House narrowly rejected both proposals.

Following the announcement that the January 2021 session

would take place in person in a parking lot, each plaintiff

submitted a written request to the Speaker that he or she be

allowed to participate remotely in House sessions. The Speaker

did not grant any member's request for remote participation. Nor

did the Speaker grant remote participation requests made after he

announced that the House would meet inside for the February 2021

session. Further sessions are expected between now and the end of

June.

Plaintiffs then filed this action, alleging violations

of the ADA and Rehabilitation Act. Plaintiffs' complaint also

pled claims under the Fourteenth Amendment to the United States

Constitution and under the New Hampshire Constitution. On appeal,

however, plaintiffs train their attention on their federal

statutory claims, eschewing any argument that either the

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Fourteenth Amendment itself or New Hampshire law provide a

sufficient basis for setting aside the judgment of the district

court.

II.

The district court found that the doctrine of

legislative immunity shielded the Speaker from having to comply

with the ADA and/or Section 504. Cushing v. Packard, Civil No.

21-cv-147-LM, 2021 WL 681638, at *6–7 (D.N.H. Feb. 22, 2021). In

so doing, the district court relied heavily on our opinion in

National Association of Social Workers v. Harwood, 69 F.3d 622

(1st Cir. 1995). There, we considered a state legislative rule

barring private lobbyists from the floor of the Rhode Island House

of Representatives while that House was in session. Id. at 624–

25. In resolving the question presented in Harwood, we held that

"[w]here, as here, a legislative body adopts a rule, not

invidiously discriminatory on its face, that bears upon its conduct

of frankly legislative business, we think that the doctrine of

legislative immunity must protect legislators and legislative

aides who do no more than carry out the will of the body by

enforcing the rule as a part of their official duties." Id. at

631 (internal citation omitted). We further observed that "[a]

rule that colors the very conditions under which legislators engage

in formal debate is indubitably part and parcel of the legislative

process." Id. at 632 (citations omitted). Because the "regulation

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of admission to the House floor comprise[d] 'an integral part of

the deliberative and communicative processes by which Members

participate in . . . House proceedings,'" we concluded that "the

doctrine of legislative immunity pertain[ed]" to the challenged

rule. Id. at 632 (quoting Gravel v. United States, 408 U.S. 606,

625 (1972)).

Speaker Packard, the defendant in the instant action,

says this case is just the same as Harwood. Not quite. Harwood

would be more analogous to the case now before us if the

legislature in Harwood had barred lobbyists in wheelchairs from

having access to the House. Such a case would present an issue

not addressed at all in Harwood: Whether either Title II of the

ADA or Section 504 of the Rehabilitation Act abrogates the immunity

relied upon in Harwood.2 To that issue -- apparently a matter of

first impression -- we now turn our attention.

Title II of the ADA provides that "no qualified

individual with a disability shall, by reason of such disability,

be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be

subjected to discrimination by any such entity."3 42 U.S.C.

2 Plaintiffs also argue at length that legislative immunity
does not apply at all because this suit is really an action against
the state, not against a legislator. Because we find that
legislative immunity does not apply, we need not reach this issue.
3 The parties have not made arguments regarding whether
plaintiffs are individuals with disabilities as defined under the

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§ 12132. The ADA defines "public entity" to include "any State or

local government" or "any . . . instrumentality of a State or

States or local government." Id. § 12131(1)(A)–(B). The ADA

further provides that Congress's imposition of obligations on

state governments under Title II may trump even Eleventh Amendment

immunity. See id. § 12202 ("A State shall not be immune under the

[E]leventh [A]mendment . . . from an action in [a] Federal or

State court of competent jurisdiction for a violation of this

chapter."); Tennessee v. Lane, 541 U.S. 509, 533-34 (2004) (holding

that in providing prophylactic relief in the context of a

"fundamental right of access to [state] courts," Title II of the

ADA "constitutes a valid exercise of Congress's § 5 authority to

enforce the guarantees of the Fourteenth Amendment" and abrogates

the states' Eleventh Amendment sovereign immunity).

Similarly, Section 504 of the Rehabilitation Act

provides that "[n]o otherwise qualified individual with a

disability . . . shall, solely by reason of her or his disability,

be excluded from the participation in, be denied the benefits of,

or be subjected to discrimination under any program or activity

receiving [f]ederal" funds. 29 U.S.C. § 794(a); see also Ruskai

v. Pistole, 775 F.3d 61, 77 (1st Cir. 2014). The term "[p]rogram

or activity" includes "all of the operations of" "[an]

ADA and Rehabilitation Act. We, likewise, do not address that
question.

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instrumentality of a State or of a local government" and of

"each . . . State or local government entity[] to which [federal]

assistance is extended." 29 U.S.C. § 794(b)(1)(A)–(B).

Section 504 "requires that a public entity make 'reasonable

modifications' to existing practices . . . to 'accommodate'

disabled persons." Doucette v. Georgetown Pub. Sch., 936 F.3d 16,

23 (1st Cir. 2019) (quoting Alexander v. Choate, 469 U.S. 287, 300

(1985)). Under the Rehabilitation Act, states waive immunity by

receiving funds from a federal program. See 29 U.S.C. § 794(a)–

(b); 42 U.S.C. § 2000d-7(a)(1) ("A State shall not be immune under

the Eleventh Amendment . . . from suit in Federal court for a

violation of [S]ection 504 of the Rehabilitation Act of 1973 [29

U.S.C. § 794] . . . ."); Lane v. Pena, 518 U.S. 187, 200 (1996)

(describing 42 U.S.C. § 2000d-7 as "an unambiguous waiver of the

States' Eleventh Amendment immunity"); Nieves-Márquez v. Puerto

Rico, 353 F.3d 108, 129 (1st Cir. 2003) ("Congress's intent to

require waiver [under the Rehabilitation Act] is clear . . . .

The Commonwealth, by accepting federal funds, has waived its

immunity.").

The Speaker contends that nothing in the ADA or the

Rehabilitation Act abrogates legislative immunity as applied in

Harwood. The Speaker reasons that as a common-law doctrine, see

Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719,

732 (1980), legislative immunity survives federal legislation,

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unless Congress "speak[s] directly" to the matter of abrogating

the doctrine, citing United States v. Texas, 507 U.S. 529, 534

(1993) (quoting Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625

(1978)). See also id. ("[S]tatutes which invade the common

law . . . are to be read with a presumption favoring the retention

of long-established and familiar principles, except when a

statutory purpose to the contrary is evident." (quoting

Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783 (1952))). And the

Speaker points to the fact that both the ADA and the Rehabilitation

Act expressly abrogate or waive Eleventh Amendment sovereign

immunity, see 42 U.S.C. § 12202; 42 U.S.C. § 2000d-7(a)(1), yet

fail to provide any similar express reference to legislative

immunity.

We read the ADA otherwise. A statute may express a

congressional intent sufficient to overbear a common-law doctrine

without expressly mentioning the doctrine. See Texas, 507 U.S. at

534 ("Congress need not 'affirmatively proscribe' the common-law

doctrine at issue." (quoting respondents' brief)). The key

question is whether the statute as a whole makes it "evident" that

Congress understood its mandate to control. Id. (quoting

Isbrandtsen Co., 343 U.S. at 783). In this particular instance,

Congress expressly said that the requirements of the ADA apply to

"any State . . . government." 42 U.S.C. § 12131(1)(A). And the

Speaker unsurprisingly makes no argument that the New Hampshire

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House of Representatives is not part of New Hampshire's state

government.

As to the Rehabilitation Act, the mandates in that

statute, too, apply to a "State . . . government." 29 U.S.C.

§ 794(b)(1)(A)–(B). Moreover, the type of abrogation that occurs

under the Rehabilitation Act arises from the state's own action in

deciding to accept federal program funds, thereby waiving its

immunity. Such a waiver may be particularly apt in this case,

given the receipt by New Hampshire's legislature of at least

$190,000 in federal funds from the Coronavirus Aid, Relief, and

Economic Security (CARES) Act. These funds were provided to the

legislature in order to pay for COVID-19-related expenses, such as

"off-site" sessions, subscriptions for videoconferencing

technology, IT equipment for remote work, and sanitation.

We do not find particularly persuasive force in the fact

that the ADA expressly abrogates Eleventh Amendment immunity by

name, yet fails to include a similar mention of legislative

immunity. See 42 U.S.C. § 12202. The former is a more obvious

impediment that is expressly enshrined in the Constitution. So

one can easily see why Congress might expressly mention it, while

relying otherwise on the broad statement applying the statute to

state governments to abrogate any other asserted bar, including

legislative immunity. Compare Kimel v. Fla. Bd. of Regents, 528

U.S. 62, 73 (2000) (requiring Congress to "mak[e] its intention

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unmistakably clear in the language of the statute" when abrogating

Eleventh Amendment immunity (quoting Dellmuth v. Muth, 491 U.S.

223, 228 (1989))), with Texas, 507 U.S. at 534 (declining to

require an affirmative proscription for abrogation of common-law

doctrines when Congress's intent is evident).4

This is not to say that the comity concerns behind

legislative immunity are of no relevance here. Under both the ADA

and the Rehabilitation Act, the decision whether to require an

accommodation must balance the benefits of the accommodation

against the legitimate interests of the affected entity. See

Clackamas Gastroenterology Assocs., P. C. v. Wells, 538 U.S. 440,

446–47 (2003) (cautioning that courts construing the ADA must weigh

its remedial purpose against certain "countervailing

considerations," including exceptions made by Congress); City of

Boerne v. Flores, 521 U.S. 507, 533 (1997) ("Where, however, a

congressional enactment pervasively prohibits constitutional state

action in an effort to remedy or to prevent unconstitutional state

action, limitations [on the enactment] tend to ensure Congress's

means are proportionate to ends legitimate under § 5."); Wynne v.

Tufts Univ. Sch. of Med., 932 F.2d 19, 24–25 (1st Cir. 1991)

(requiring, under the Rehabilitation Act, "reasonable

accommodations," which it distinguished from "substantial" and

4The Speaker points to no other relevant difference between
the two types of immunity that should affect this analysis.

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"fundamental" changes (quoting Choate, 469 U.S. at 300 n.20)); cf.

Nev. Dep't of Hum. Res. v. Hibbs, 538 U.S. 721, 738, 740 (2003)

(finding "significant the many other limitations that Congress

placed on the scope of" the statute at issue and finding that

statute "congruent and proportional to its remedial object"). We

reasonably can expect that a federal court would give considered

weight to the views of a state legislature when considering the

reasonableness of any proposed accommodation affecting the conduct

of that legislature. See, e.g., Harwood, 69 F.3d at 630–32, 634–

35.

III.

In ruling on the plaintiffs' request for preliminary

injunctive relief, the district court concluded that legislative

immunity precluded enforcement of the ADA and the Rehabilitation

Act. Consequently, the record lacks any findings concerning

whether the plaintiffs are persons with disabilities within the

meaning of the ADA or the Rehabilitation Act, whether there has

been any violation of either act, and, if so, what remedy or

remedies should be provided. We therefore vacate the order of the

district court and remand to the district court with instructions

to consider plaintiffs' substantive claims. The district court

should also determine whether -- and to what extent -- changing

circumstances may moot the plaintiffs' claims.

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