Fields, Beverly v. Off Eddie Johnson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 30, 2005 Decided August 18, 2006

No. 04-5315

BEVERLY A. FIELDS,
APPELLEE

v.

OFFICE OF EDDIE BERNICE JOHNSON, EMPLOYING OFFICE,
UNITED STATES CONGRESS,
APPELLANT

No. 04-5335

BRAD HANSON,
APPELLEE

v.

OFFICE OF SENATOR MARK DAYTON,
APPELLANT

Appeals from the United States District Court
for the District of Columbia
(No. 04cv00717)
(No. 03cv01149)
 2

William F. Allen, Attorney, Office of House Employment
Counsel, argued the cause for appellant in No. 04-5315. With
him on the briefs was Kimberly Carey Williams, Attorney.
Gloria L. Ferguson, Attorney, entered an appearance.

Geraldine R. Gennet, General Counsel, U.S. House of
Representatives, and Kerry W. Kircher, Deputy General
Counsel, were on the brief for amicus curiae Bipartisan Legal
Advisory Group of the United States House of Representatives
in No. 04-5315.

Henry J. Hyde, pro se, was on the brief for amicus curiae
Congressman Henry J. Hyde in support of appellant in No. 04-
5315.

Wayne Marcus Scriven argued the cause and filed the brief
for appellee in No. 04-5315.

Jean M. Manning, Chief Counsel, Office of Senate Chief
Counsel for Employment, argued the cause for appellant in No.
04-5335. With her on the briefs was Toby R. Hyman, Senior
Counsel. Mary S. Bach, Counsel, entered an appearance.

Richard A. Salzman argued the cause for appellee in No. 04-
5335. With him on the brief were Douglas B. Huron and
Tammany M. Kramer.

Before: GINSBURG, Chief Judge, and SENTELLE,
HENDERSON, RANDOLPH, ROGERS, TATEL, BROWN, and
GRIFFITH, Circuit Judges.*

*
Circuit Judges Garland and Kavanaugh did not participate in
this matter.
 3

Opinion for the Court in part filed by Circuit Judge
RANDOLPH, an opinion in which Chief Judge GINSBURG and
Circuit Judges HENDERSON and TATEL join.

Opinion concurring in part and in the judgment filed by
Circuit Judge ROGERS.

Concurring opinion filed by Circuit Judge TATEL.

Opinion concurring in the judgment filed by Circuit Judge
BROWN, with whom Circuit Judges SENTELLE and GRIFFITH
join.

RANDOLPH, Circuit Judge: Article I, section 6 of the
Constitution provides that “for any Speech or Debate in either
House, [Senators and Representatives] shall not be questioned
in any other Place.” We ordered these two appeals to be argued
together en banc in order to determine whether the Speech or
Debate Clause requires dismissal of these suits brought under
the Congressional Accountability Act of 1995, 2 U.S.C.
§§ 1301-1438, and whether Browning v. Clerk, U.S. House of
Representatives, 789 F.2d 923 (D.C. Cir. 1986), should remain
the law of this circuit.

I.

No. 04-5315 is an appeal from a district court order denying
a motion to dismiss a complaint alleging that the Office of
Representative Eddie Bernice Johnson discriminated against
Beverly A. Fields because of her race and gender and retaliated
against her for objecting to discriminatory conduct. No. 04-
5335 is an appeal from a district court order denying a motion
to dismiss a complaint alleging that the Office of Senator Mark
Dayton discriminated against Brad Hanson because of a
perceived disability and violated the Fair Labor Standards Act.
 4

The Office of Representative Johnson and the Office of Senator
Dayton (collectively, the “Member Offices”) claim that the
Speech or Debate Clause immunizes them from these suits and
that the district court should have dismissed the complaints for
lack of subject matter jurisdiction pursuant to FED. R. CIV. P.
12(b)(1).1

A.

Fields and Hanson each sued under the Accountability Act.
The Act confers on “covered employees” rights and remedies
drawn from various labor and employment statutes not
previously applicable to the legislative branch.2 2 U.S.C.
§ 1302(a); see id. §§ 1311-16, 1331, 1341, 1351. It also
includes an anti-retaliation provision that prohibits “an
employing office” from “intimidat[ing], tak[ing] reprisal
against, or otherwise discriminat[ing] against, any covered
employee because the covered employee has opposed” or

1
Although we do not ordinarily have jurisdiction to review an
order denying a motion to dismiss because such an order is not “final”
under 28 U.S.C. § 1291, Bombardier Corp. v. Nat’l R.R. Passenger
Corp., 333 F.3d 250, 253 (D.C. Cir. 2003), “[i]ssues of Speech or
Debate Clause immunity may be immediately appealed,” Browning,
789 F.2d at 926 n.6 (citing Helstoski v. Meanor, 442 U.S. 500, 506
(1979)).
2
Of particular relevance here, the Accountability Act
incorporates portions of the Fair Labor Standards Act of 1938, 29
U.S.C. §§ 201-219, Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17, the Americans With Disabilities Act of
1990, 42 U.S.C. §§ 12101-12213, the Family and Medical Leave Act
of 1993, Pub. L. No. 103-3, 107 Stat. 6 (codified as amended in
scattered sections of Titles 2, 5, and 29 of the U.S. Code), and the
Rehabilitation Act of 1973, 29 U.S.C. §§ 701-796l. See 2 U.S.C.
§ 1302(a).
 5

reported “any practice made unlawful” by the Accountability
Act. Id. § 1317(a). A “covered employee” is an individual
employed by the House of Representatives, the Senate, or some
other office specifically enumerated in the statute. Id.
§ 1301(3).3

Section 1404(2) creates a cause of action for covered
employees to sue in federal court for violations of the
Accountability Act. Section 1408(a) vests the “district courts of
the United States” with “jurisdiction over any civil action
commenced under section 1404.” Before initiating such an
action, the employee must seek counseling by, and mediation
with, the Office of Compliance, id. § 1408(a); see §§ 1402-1403,
“an independent office within the legislative branch,” id.
§ 1381(a). Thereafter, the employee may bring an action against
“the employing office alleged to have committed the violation,
or in which the violation is alleged to have occurred.” Id.
§ 1408(b). An “employing office” for these purposes includes
“the personal office of a Member of the House of
Representatives or of a Senator.” Id. § 1301(9)(A).

Fields, an African American female and the plaintiff in No.
04-5315, served as Representative Johnson’s chief of staff from
January 2002 until her discharge in early 2004. The parties
agree that as chief of staff, Fields was deeply involved in a wide
array of Representative Johnson’s legislative work. Fields’s
complaint alleged as follows. Elisabeth Howie, a “Black
Latino,” worked as an executive assistant and scheduler for the
Office of Representative Johnson. In April 2003, the office
decided to replace Howie with “an Asian person under the age
of 40.” Fields objected, but her objections were rebuffed, and

3
The statute also protects former employees and applicants for
employment. 2 U.S.C. § 1301(4).
 6

she was directed to give Howie one day’s notice that she was
being terminated.

After Fields made her objections to Howie’s termination
known around the office, her co-workers began falsely accusing
her of poor performance. Fields alleged they did so because
they wanted “a Caucasian male rather than an African American
female” to be Representative Johnson’s chief of staff. Their
efforts eventually succeeded when the Office of Representative
Johnson promoted a non-African American male employee to
chief of staff and demoted Fields to administrative assistant.
The Office of Representative Johnson increased the new chief
of staff’s salary by approximately $10,000 – something it failed
to do for Fields despite promising her a salary increase when she
was chief of staff.

Fields filed an employment discrimination complaint with
the Office of Compliance on December 18, 2003, and began the
required counseling and mediation. While this was going on,
the Office of Representative Johnson “initiated a bad faith and
bogus investigation of plaintiff’s conduct as an employee . . . to
embarrass plaintiff before her co-workers and to force plaintiff
to resign from her employment position.” When Fields refused
either to drop her discrimination claims or to resign, she was
abruptly terminated. In response to this additional retaliation,
Fields filed a second employment discrimination complaint with
the Office of Compliance on March 11, 2004, and again
complied with the counseling and mediation requirements.

After exhausting her administrative remedies, Fields sued
the Office of Representative Johnson under the Accountability
Act. She alleged racial and gender discrimination in violation
of 2 U.S.C. § 1311(a)(1) (incorporating § 703 of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-2), equal pay discrimination in
violation of 2 U.S.C. § 1313(a)(1) (incorporating §§ 6(a)(1) and
 7

(d), 7, and 12(c) of the Fair Labor Standards Act of 1938, 29
U.S.C. §§ 206(a)(1), (d), 207, 212(c)), and two counts of
retaliation in violation of 2 U.S.C. § 1317(a). The Office of
Representative Johnson moved to dismiss the complaint for lack
of subject matter jurisdiction pursuant to FED. R. CIV. P.
12(b)(1), asserting immunity from suit under the Speech or
Debate Clause. The district court denied the motion to dismiss
without explanation. After ordering en banc review, we granted
Representative Johnson’s motion to intervene for the limited
purpose of asserting her Speech or Debate Clause immunity.

Brad Hanson, the plaintiff in No. 04-5335, joined Senator
Dayton’s Senate campaign in July 2000 and began serving as
State Office Manager in Senator Dayton’s Ft. Snelling,
Minnesota, office upon the Senator’s election to office.
Hanson’s complaint alleged as follows. Hanson’s work for
Senator Dayton centered on “setting up the Senator’s three local
offices in Minnesota” and overseeing “the transition of the
Health Care Help Line to Senator Dayton’s personal Senate
office.”4 The Health Care Help Line “offered assistance to
people having difficulties with their health insurance carriers,
HMO’s or physicians.” This work often required Hanson, an
employee entitled to overtime pay under the Fair Labor
Standards Act, to work overtime. The Office of Senator Dayton
never paid him for this overtime, even though the Office
“recognized” his “effectiveness” by increasing his salary and
paying him a bonus in January 2002.

Hanson began experiencing cardiac arrhythmia early in
2002. His physician advised him to undergo a coronary

4
The parties agree that Hanson spent much of his time
working on the Health Care Help Line, but they disagree about
whether this and other assistance Hanson provided to Senator Dayton
constituted legislative activities or merely “constituent services.”
 8

ablation. The surgery would require only a short hospital stay,
but Hanson would need two to three weeks away from work to
recover. Hanson informed his co-workers that he needed heart
surgery and arranged a short meeting with Senator Dayton on
July 3, 2002, in the Ft. Snelling office to share the news with
him. “The meeting had not gone on for more than five minutes
when the Senator abruptly told Hanson, ‘You’re done,’” without
explanation. Senator Dayton told Hanson to stop reporting to
the office and to take medical leave instead. Matt McGowan,
Senator Dayton’s Washington Office Manager, later called
Hanson at home to inform him that “he would be terminated as
of September 30.” Hanson then underwent coronary ablation
and fully recovered.

Hanson sued the Office of Senator Dayton under the
Accountability Act after exhausting his administrative remedies.
His complaint accused the Office of Senator Dayton of violating
2 U.S.C. § 1312(a) (incorporating §§ 101-105 of the Family and
Medical Leave Act of 1993, 29 U.S.C. §§ 2611-2615),
discriminating against him on the basis of a perceived disability
in violation of 2 U.S.C. § 1311(a)(3) (incorporating § 501 of the
Rehabilitation Act of 1973, 29 U.S.C. § 791, and §§ 102-104 of
the Americans With Disabilities Act of 1990, 42 U.S.C.
§§ 12112-12114), and failing to pay him overtime compensation
in violation of 2 U.S.C. § 1313 (incorporating the
aforementioned provisions of the Fair Labor Standards Act).
The Office of Senator Dayton asserted immunity from suit under
the Speech or Debate Clause and moved to dismiss the
complaint for lack of subject matter jurisdiction pursuant to FED.
R. CIV. P. 12(b)(1).5 The district court denied the motion
without explanation.

5
The Office of Senator Dayton later filed an answer denying
Hanson’s allegations.
 9

B.

Relying on Browning v. Clerk, U.S. House of
Representatives, 789 F.2d 923 (D.C. Cir. 1986), the Member
Offices argue that the district court lacked jurisdiction and
should have dismissed these suits because the Speech or Debate
Clause immunizes them from suits challenging personnel
decisions concerning employees like Fields and Hanson who
assist Members in performing legislative functions.

In Browning, a former employee of the House of
Representatives sued the Speaker and other House officers for
employment discrimination. Id. at 924 & n.2. Browning was
“the first black Official Reporter employed by the United States
House of Representatives.” Id. at 924. She claimed that despite
some poor performance on the job, “the true reason behind her
dismissal was racial animus.” Id. We held that a Member’s
personnel decision is shielded from judicial scrutiny when “the
[affected] employee’s duties were directly related to the due
functioning of the legislative process.” Id. at 929 (emphasis
removed).

Later decisions cast doubt on Browning. Two years after
Browning, the Supreme Court ruled that a state-court judge did
not have “absolute immunity from a suit for damages under 42
U.S.C. § 1983 for his decision to dismiss a subordinate court
employee.” Forrester v. White, 484 U.S. 219, 220 (1988). The
Court described its “absolute official immunity” jurisprudence
as “quite sparing,” citing as examples legislative immunity
under the Speech or Debate Clause and Presidential immunity
under Nixon v. Fitzgerald, 457 U.S. 731 (1982). Forrester, 484
U.S. at 224-25.6 Consistent with the narrowness of absolute

6
The Court characterized its decisions interpreting the Speech
or Debate Clause as being “careful not to extend the scope of the
 10

immunity in these contexts, the Court explained that judges are
entitled to absolute immunity only for “judicial acts,” not
“administrative, legislative, or executive functions,” id. at 227,
no matter how “essential” such functions may be “to the very
functioning of the courts,” id. at 228. The Court then concluded
that the employment decision in Forrester was an
administrative, not a judicial, act and that the state-court judge
therefore was not entitled to absolute immunity. Id. at 229-30.

Gross v. Winter, 876 F.2d 165 (D.C. Cir. 1989), presented
the question whether common law legislative immunity
exempted a D.C. Councilmember’s personnel decisions from
judicial review. We recognized that Browning’s focus on “the
duties of the employee” as the “ultimate issue” was
“unquestionably [in] tension” with Forrester, “which accords no
weight to the duties of the employee.” Winter, 876 F.2d at 170
(quoting Browning, 789 F.2d at 928) (internal quotation mark
omitted; emphasis removed). We found “Forrester, not
Browning, controlling” and concluded that “the functions judges
and legislators exercise in making personnel decisions affecting
[probation officers and legislative aides, respectively] are
administrative, not judicial or legislative.” Id. at 172.

Now a conflict in the circuits has developed. In Bastien v.
Office of Senator Ben Nighthorse Campbell, 390 F.3d 1301
(10th Cir. 2004), cert. denied, 126 S. Ct. 396 (2005), a case
brought under the Accountability Act, the Tenth Circuit held
that the Speech or Debate Clause bars judicial review of a
Senator’s allegedly discriminatory personnel decision only when
the plaintiff’s claim “question[s] the conduct of official Senate

[Clause’s] protection further than its purposes require.” 484 U.S. at
224. The Court described the President’s absolute immunity as resting
on the President’s “‘unique position in the constitutional scheme.’”
Id. at 225 (quoting Fitzgerald, 457 U.S. at 749).
 11

legislative business.” Id. at 1304 (emphasis added). The court
was “hesita[nt] to embrace th[e] test” we employed in Browning,
which it considered inconsistent with the Supreme Court’s
Speech or Debate Clause jurisprudence. Id. at 1318-19.

II.

The Accountability Act allows an employee of the House or
Senate to recover damages and seek injunctive relief from a
Member’s personal office “alleged to have committed [a]
violation [of the Accountability Act], or in which the violation
is alleged to have occurred.” 2 U.S.C. § 1408(b); id. § 1301(3),
(9); see, e.g., id. §§ 1311(b)(1), 1312(b), 1313(b).7 Congress
thereby unequivocally waived the sovereign immunity of a
Member’s personal office facing such allegations. See Lane v.
Peña, 518 U.S. 187, 192 (1996). Congress also provided in
§ 1413 that § 1408 “shall not constitute a waiver of sovereign
immunity for any other purpose, or of the privileges of any
Senator or Member of the House of Representatives under
article I, section 6, clause 1, [the Speech or Debate Clause] of
the Constitution.” The Accountability Act therefore does
nothing to a Member’s Speech or Debate Clause immunity, and
we must determine how that immunity operates in suits under
the Accountability Act.

7
After midnight of the first day of the 104th Congress, the
House passed the Act with little debate and without a committee
hearing or a committee vote; the Senate passed its version a few days
later, again with scarcely any debate and no hearings; there was no
conference committee; and even the Senate bill’s sponsor lamented the
lack of consideration given to this legislation. See James T. O’Reilly,
Collision in the Congress: Congressional Accountability, Workplace
Conflict, and the Separation of Powers, 5 GEO. MASON L. REV. 1, 3-4
(1996).
 12

The Speech or Debate Clause reinforces the separation of
powers and protects legislative independence. See Eastland v.
U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975) (quoting
United States v. Brewster, 408 U.S. 501, 507 (1972); United
States v. Johnson, 383 U.S. 169, 178 (1966)); Gravel v. United
States, 408 U.S. 606, 616 (1972); Powell v. McCormack, 395
U.S. 486, 503 (1969); Tenney v. Brandhove, 341 U.S. 367, 373
(1951).8 As to the judicial branch, the Clause can protect
Members “from inquiry into legislative acts or the motivation
for actual performance of legislative acts,” Brewster, 408 U.S.
at 508, “from the burden of defending” certain suits,
Dombrowski v. Eastland, 387 U.S. 82, 85 (1967) (per curiam),
and “from the consequences of litigation’s results,” id. See
United States v. Helstoski, 442 U.S. 477, 487, 489 (1979); Doe
v. McMillan, 412 U.S. 306, 318 (1973); Powell, 395 U.S. at 502-
03, 505; Johnson, 383 U.S. at 173; Tenney, 341 U.S. at 377. In
each case, the Clause must be applied “in such a way as to
insure the independence of the legislature without altering the
historic balance of the three co-equal branches of Government.”
Brewster, 408 U.S. at 508.

8
The Speech or Debate Clause was adopted by the Founders
“without discussion and without opposition.” Johnson, 383 U.S. at
177; see 5 THE DEBATES IN THE SEVERAL STATE CONVENTIONS, ON
THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY
THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 378, 406
(Jonathan Elliot ed., 2d ed. William S. Hein & Co. 1996) (1891); 2
THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 246 (Max
Farrand ed., 1966). The historical antecedents of the Clause are
discussed in Justice Frankfurter’s opinion for the Court in Tenney, 341
U.S. at 372-75, and in Justice Harlan’s opinion for the Court in
Johnson, 383 U.S. at 177-83. See also Powell, 395 U.S. at 502-03;
Gravel, 408 U.S. at 652-59 (Brennan, J., dissenting); 2 THE
FOUNDERS’ CONSTITUTION 318-45 (Philip B. Kurland & Ralph Lerner
eds., 1987).
 13

The parties accept these principles and urge us to resolve
broad questions related to suits under the Accountability Act:
can a Member’s personal office invoke the Speech or Debate
Clause on the Member’s behalf, as legislative aides and
committees can?9 is a personnel decision always an
administrative act,10 or could a personnel decision be a
legislative act in certain circumstances?11 and so forth. “These
are perplexing questions. Their difficulty admonishes us to
observe the wise limitations on our function and to confine
ourselves to deciding only what is necessary to the disposition
of the immediate case[s].” Whitehouse v. Ill. Cent. R.R. Co.,
349 U.S. 366, 372-73 (1955); see Longshoremen v. Boyd, 347
U.S. 222, 224 (1954). We therefore begin with the validity of
our decision in Browning.

A.

The Speech or Debate Clause protects a Member’s conduct
if it is an integral “part of . . . the due functioning of the
[legislative] process.” Brewster, 408 U.S. at 516 (emphasis
removed); accord Gravel, 408 U.S. at 625. The Clause
obviously covers core legislative acts – “how [a Member] spoke,
how he debated, how he voted, or anything he did in the
chamber or in committee.” Brewster, 408 U.S. at 526; see also

9
See Gravel, 408 U.S. at 616-18; see also McMillan, 412 U.S.
at 312-13; Tenney, 341 U.S. at 379.
10
Cf. Forrester v. White, 484 U.S. 219, 228-29 (1988); Gross
v. Winter, 876 F.2d 165, 170-72 (D.C. Cir. 1989).
11
Cf. Bogan v. Scott-Harris, 523 U.S. 44 (1998); Rateree v.
Rockett, 852 F.2d 946, 950-51 (7th Cir. 1988).
 14

Bastien, 390 F.3d at 1314.12 But the Supreme Court has long
held that the Clause does more.13 It protects acts that are “an
integral part of the deliberative and communicative processes by
which Members participate in committee and House

12
See, e.g., Gravel, 408 U.S. at 625 (“The heart of the Clause
is speech or debate in either House.”); Brewster, 408 U.S. at 512 (“A
legislative act has consistently been defined as an act generally done
in Congress in relation to the business before it. . . . [T]he Speech or
Debate Clause prohibits inquiry only into those things generally said
or done in the House or the Senate in the performance of official
duties and into the motivation for those acts.”); Kilbourn, 103 U.S. at
204 (protecting “things generally done in a session of the House by
one of its members in relation to the business before it”); see also
Coffin v. Coffin, 4 Mass. (1 Tyng) 1, 31 (1808) (“[I]t must appear that
some language or conduct of his, in the character of a representative,
is the foundation of the prosecution, for in no other character can he
claim the privilege.”).
13
Over the years, the Supreme Court has articulated a number
of different formulations to describe what the Speech or Debate
Clause protects. See, e.g., Helstoski, 442 U.S. at 489 (“The Clause
protects against inquiry into acts that occur in the regular course of the
legislative process and into the motivation for those acts. It precludes
any showing of how [a legislator] acted, voted, or decided.” (alteration
in original; citation and internal quotation marks omitted)); U.S.
Servicemen’s Fund, 421 U.S. at 501 (“The question to be resolved is
whether the actions of the [Member] fall within the ‘sphere of
legitimate legislative activity.’” (footnote omitted)); Johnson, 383 U.S.
at 180 (“[A] charge . . . that the Congressman’s conduct was
improperly motivated . . . is precisely what the Speech or Debate
Clause generally forecloses from executive and judicial inquiry.”);
Tenney, 341 U.S. at 376 (inquiring “whether from the pleadings it
appears that the defendants were acting in the sphere of legitimate
legislative activity”); see also Coffin, 4 Mass. (1 Tyng) at 27
(protecting “every thing said or done by [a Member] in the exercise of
the functions of that office”).
 15

proceedings with respect to the consideration and passage or
rejection of proposed legislation or with respect to other matters
which the Constitution places within the jurisdiction of either
House.” Gravel, 408 U.S. at 625. And the Clause provides
further protection in precluding “inquiry . . . into the motivation
for” acts “that occur in the regular course of the legislative
process.” Helstoski, 442 U.S. at 489 (quoting Brewster, 408
U.S. at 525); accord Johnson, 383 U.S. at 180. In defining these
categories of protected conduct, the Court has been careful not
“to extend the privilege beyond its intended scope, its literal
language, and its history, to include all things in any way related
to the legislative process.” Brewster, 408 U.S. at 516. The
Speech or Debate Clause therefore “does not prohibit inquiry
into illegal conduct simply because it has some nexus to
legislative functions,” id. at 528 (emphasis added), or because
it is merely “related to,” as opposed to “part of,” the “due
functioning” of the “legislative process,” id. at 514 (emphasis
removed).

Fields and Hanson contend that personnel decisions never
can be “an integral part of the deliberative and communicative
processes” in which Members engage as legislators, Gravel, 408
U.S. at 625, because personnel decisions never have more than
merely “some nexus to legislative functions,” Brewster, 408
U.S. at 528; see id. at 513-16. We agree that some personnel
decisions would not qualify. The legislative process at the least
includes “delivering an opinion, uttering a speech, or haranguing
in debate”;14 proposing legislation;15 voting on legislation;16

14
Tenney, 341 U.S. at 374 (quoting Coffin, 4 Mass. (1 Tyng)
at 27); accord Brewster, 408 U.S. at 526 (protecting “how [a Member]
spoke, how he debated”); see also Johnson, 383 U.S. at 180 (“[T]he
Speech or Debate Clause extends at least so far as to prevent
[conspiring to give a speech in the House in exchange for
remuneration] from being made the basis of a criminal charge against
 16

making, publishing, presenting, and using legislative reports;17
authorizing investigations and issuing subpoenas;18 and holding

a member of Congress . . ..”). This, of course, is obvious from the text
of the Speech or Debate Clause. U.S. CONST. art I, § 6.
15
See Kilbourn, 103 U.S. at 204 (protecting “resolutions
offered”); see also Brewster, 408 U.S. at 526 (protecting “anything [a
Member] did in the chamber or in committee”); Tenney, 341 U.S. at
374 (protecting “every other act resulting from the nature, and in the
execution, of the office”) (quoting Coffin, 4 Mass. (1 Tyng) at 27).
16
See Brewster, 408 U.S. at 526 (protecting “how [a Member]
voted”); Tenney, 341 U.S. at 374 (protecting “the giving of a vote”)
(quoting Coffin, 4 Mass. (1 Tyng) at 27); Kilbourn, 103 U.S. at 204
(protecting “the act of voting, whether it is done vocally or by passing
between the tellers”).
17
See McMillan, 412 U.S. at 312 (“[A] published report may,
without losing Speech or Debate Clause protection, be distributed to
and used for legislative purposes by Members of Congress,
congressional committees, and institutional or individual legislative
functionaries.”); id. at 313 (protecting “preparing a report where [the
challenged materials] were reproduced, and authorizing the
publication and distribution of that report”); Tenney, 341 U.S. at 374
(protecting “the making of a written report”); Kilbourn, 103 U.S. at
204 (protecting “written reports presented in [the legislative] body by
its committees”).
18
See U.S. Servicemen’s Fund, 421 U.S. at 504 (“The power
to investigate and to do so through compulsory process plainly falls
within [the definition of legislative activity].”); id. (“Issuance of
subpoenas . . . has long been held to be a legitimate use by Congress
of its power to investigate.”); McMillan, 412 U.S. at 313 (protecting
the “act[] of authorizing an investigation pursuant to which the subject
materials were gathered”); Tenney, 341 U.S. at 377 (“Investigations,
whether by standing or special committees, are an established part of
representative government.”).
 17

hearings and “introducing material at Committee hearings.”19
Many personnel decisions by Members’ personal offices lack
even “some nexus,” Brewster, 408 U.S. at 528, to these types of
legislative acts. Firing an aide for falsifying expense reports, or
disciplining an assistant for harassing others in the office is “not,
by any conceivable interpretation, an act performed as a part of
or even incidental to the role of a legislator.” Brewster, 408
U.S. at 526.

Browning nevertheless held that the Speech or Debate
Clause protects those personnel decisions taken with respect to
employees whose duties are “directly related to the due
functioning of the legislative process.” Browning v. Clerk, U.S.
House of Representatives, 789 F.2d 923, 929 (D.C. Cir. 1986)
(emphasis removed). We now see that an employee’s duties are
too crude a proxy for protected activity. Our holding in
Browning presumes that a personnel decision with regard to an
employee whose duties are “directly related to the due
functioning of the legislative process,” Browning, 789 F.2d at
929 (emphasis removed), is always “an integral part of the
deliberative and communicative processes,” Gravel, 408 U.S. at
625. But the presumption is, at a minimum, overinclusive and
therefore inconsistent with the Court’s practice of being “careful
not to extend the scope of the protection further than its
purposes require.” Forrester v. White, 484 U.S. 219, 224
(1988). Any number of counter-examples reveal as much: a
legislative aide may be discharged because of budgetary

19
McMillan, 412 U.S. at 312 (“[I]t is plain to us that the
complaint in this case was barred by the Speech or Debate Clause
insofar as it sought relief . . . for introducing material at Committee
hearings . . ., for referring the Report that included the material to the
Speaker of the House, and for voting for publication of the report.”);
id. at 313 (protecting the act of “holding hearings where the
[challenged] materials were presented”).
 18

cutbacks; a staff member may be demoted solely for consistent
tardiness; a person seeking a top-level staff position might be
rejected for having a poor college transcript; and so forth. That
the person targeted by the personnel decision performs duties
“directly related to . . . the legislative process,” Browning, 789
F.2d at 929 (emphasis removed), is not enough – conduct must
be “part of,” not merely “related to,” the “due functioning” of
the “legislative process” to be protected by the Speech or Debate
Clause, Brewster, 408 U.S. at 514. At best, that an employee’s
duties are directly related to the legislative process establishes
merely “some nexus” between the personnel decision and that
process. Brewster, 408 U.S. at 528; see Brown & Williamson
Tobacco Corp. v. Williams, 62 F.3d 408, 415 (D.C. Cir. 1995).
We therefore reject Browning’s test for determining when a
legislator’s personnel decision is protected by the Speech or
Debate Clause.

The Office of Senator Dayton defends Browning on the
ground that “[d]irecting one’s alter egos” – that is, legislative
aides with duties directly related to the legislative process, see
Gravel, 408 U.S. at 616-17 – necessarily “is an integral part of
the processes of achieving one’s legislative goals,” because of
the duties such employees perform. Br. for Appellant Office of
Senator Dayton 20. We see several problems with this
formulation. The Speech or Debate Clause protects conduct that
is integral to the legislative process, not a Member’s legislative
goals. It may be integral to a Member’s legislative goals –
indeed, integral even to accomplishing his “constitutionally
delegated duties,” id. – to send newsletters to constituents or
deliver speeches outside of Congress to generate support for
prospective legislation. But such acts are “political,” not
“legislative,” and therefore not protected by the Speech or
Debate Clause. Brewster, 408 U.S. at 512; see Proxmire, 443
U.S. at 131. Another problem with the formulation lies in its
assumption that a Member only directs his alter egos with regard
 19

to constitutionally protected activities. “That Senators generally
perform certain acts in their official capacity as Senators does
not necessarily make all such acts legislative in nature.” Gravel,
408 U.S. at 625. Legislative aides are no different.20

The Office of Senator Dayton also relies on Nixon v.
Fitzgerald, 457 U.S. 731 (1982) – the presidential immunity
case – to defend Browning. In Fitzgerald, the Supreme Court
relied on separation of powers principles to grant the President
“absolute . . . immunity from damages liability for acts within
the ‘outer perimeter’ of his official responsibility.” Id. at 756.
It is true that both legislative and presidential immunity are
animated by separation of powers principles. But this does not
mean that the immunities are coextensive. The President’s
immunity is based on his “unique position in the constitutional
scheme,” id. at 749, and the “singular importance of the
President’s duties,” id. at 751. The Court therefore approaches
presidential immunity differently. Id. at 749; see Forrester, 484
U.S. at 224-25; Bastien, 390 F.3d at 1317. Legislative immunity
under the Speech or Debate Clause is limited to matters that are
part of, or integral to, the due functioning of the legislative
process. It is not enough that a Member’s conduct is within the

20
We have recognized that a “Member’s ability to do his job
as a legislator effectively is tied . . . to the Member’s relationship with
the public and in particular his constituents and colleagues in the
Congress.” Council on Am. Islamic Relations v. Ballenger, 444 F.3d
659, 665 (D.C. Cir. 2006). While there is no doubt a “clear nexus”
between a personnel decision involving an employee with legislative
duties and the Member’s “ability to carry out his representative
responsibilities effectively,” id. at 665-66, a “nexus” alone is
insufficient to trigger the protections of the Speech or Debate Clause,
Brewster, 408 U.S. at 528.
 20

outer perimeter of the legislative process. Cf. Brewster, 408
U.S. at 513-16, 528.21

B.

Without Browning, we are left with the question how the
district court should evaluate the Member Offices’ claims to
Speech or Debate Clause immunity in these suits.

The Speech or Debate Clause operates as a jurisdictional
bar when “the actions upon which [a plaintiff] sought to
predicate liability were ‘legislative acts.’” McMillan, 412 U.S.
at 318 (quoting Gravel, 408 U.S. at 618). To determine on what
actions a plaintiff sought to predicate liability, we examine the
pleadings. See id. at 312 (finding it “plain . . . that the complaint
in this case was barred by the Speech or Debate Clause insofar
as it sought relief” for conduct protected by the Clause); Tenney,
341 U.S. at 376 (inquiring “whether from the pleadings it
appears that the [legislators] were acting in the sphere of
legitimate legislative activity.”); see also Brewster, 408 U.S. at
525 (examining the face of the indictment to determine whether
“inquiry into legislative acts or motivation for legislative acts is
necessary . . . to make out a prima facie case”). In these cases,
it does not appear from Fields’s or Hanson’s complaints that
either sought to predicate liability on protected conduct. Fields
alleges that the Office of Representative Johnson discriminated
against her because of her race and gender and retaliated against

21
There are other differences. Presidential immunity, for
instance, “does not extend indiscriminately to the President’s personal
aides or to Cabinet level officers,” Forrester, 484 U.S. at 225
(citations omitted), while Speech or Debate Clause immunity may be
invoked by a Member’s “aides insofar as the[ir] conduct . . . would be
a protected legislative act if performed by the Member himself,”
Gravel, 408 U.S. at 618.
 21

her when she objected to discriminatory treatment of her co-
worker, Elisabeth Howie, and when she filed a complaint with
the Office of Compliance. Hanson alleges that Senator Dayton
himself discriminated against him because of his heart condition
and that the Office of Senator Dayton denied him deserved
overtime compensation. In neither case is it “necessary to
inquire into how [the Member] spoke, how he debated, how he
voted, or anything he did in the chamber or in committee in
order to make out a violation” of the Accountability Act.
Brewster, 408 U.S. at 526; compare Bastien, 390 F.3d at 1315-
16.22

22
Because the complaints are not predicated on legislative
acts, Judge Brown’s concurrence is mistaken in thinking it necessary
to decide whether the defendant – that is, the personal office of the
Member – is equivalent to the Member for the purpose of invoking the
jurisdictional bar of the Speech or Debate Clause. To prove the lack
of equivalency in the abstract – which misapplies the law for the
reasons Judge Tatel gives in his separate opinion – Judge Brown
writes that “nothing in the Act suggests that the member can make
final litigation decisions on behalf of the employing office.” Op. of
Judge Brown 15. This is not only irrelevant but impossible.
Litigation decisions are made by the client, on the advice of counsel.
The attorney representing the Member’s office is not a free agent. His
client is the personal office of the Member, which consists of the
Member and his staff. Who is in charge of the office and who makes
the decisions for the office? The Member of course.

Judge Brown argues that a Member’s personal office cannot
invoke the Clause on the Member’s behalf because it “is not a person,
nor a sovereign government, nor a branch of government, nor an
agency created by statute, nor a chartered corporation, nor a trust, nor
a partnership.” Op. of Judge Brown 12. The same could be said of
congressional committees, which fall within the Accountability Act’s
definition of “employing office.” 2 U.S.C. § 1301(9). Yet the
Supreme Court has held that legislative committees may invoke the
Clause. See Tenney, 341 U.S. at 379. Precedent in this circuit is to the
 22

But the fact that Fields and Hanson are able to plead prima
facie cases under the Accountability Act without violating the
Speech or Debate Clause does not mean the Speech or Debate
Clause in no way hinders their suits. When the Clause does not
preclude suit altogether, it still “protect[s] Members from
inquiry into legislative acts or the motivation for actual
performance of legislative acts.” Brewster, 408 U.S. at 508;
Brown & Williamson, 62 F.3d at 415 n.5 (“Even when properly
subject to suit, members of Congress are privileged against the
evidentiary use against them of any legislative act, even if the
act is not claimed to be itself illegal, but is offered only to show
motive . . ..” (citing Helstoski, 442 U.S. at 487-89; Brewster,
408 U.S. at 527; Johnson, 383 U.S. at 169)). This evidentiary
privilege includes a “testimonial privilege.” Brown &
Williamson, 62 F.3d at 418. A Member “may not be made to
answer” questions – in a deposition, on the witness stand, and so
forth – regarding legislative activities. Gravel, 408 U.S. at 616;
see Brown & Williamson, 62 F.3d at 418-21. “Revealing

same effect. See Consumers Union v. Periodical Correspondents
Ass’n, 515 F.2d 1341 (D.C. Cir. 1975). Judge Brown cannot square
her position with Tenney, which the Supreme Court treats as a Speech
or Debate Clause case, Powell, 395 U.S. at 501, or with Consumers
Union.

Judge Brown also thinks it significant that “an employee in
the personal office of a member is in truth an employee of Congress”
because salary payments are administered centrally by the Secretary
of the Senate and the Chief Administrative Officer of the House of
Representatives. See Op. of Judge Brown 12-13. That is also true of
legislative aides, who are able to invoke the Clause in certain
circumstances, see Gravel, 408 U.S. at 621-22 – indeed it is true even
of Members. These matters, as well as the exceedingly odd idea that
a Member’s staffing decisions are made “on behalf of Congress”
rather than the Member, Op. of Judge Brown 12, simply have no
bearing on the issues before us.
 23

information as to a legislative act . . . to a jury” – whether by
testimony or other evidence – “would subject a Member to being
‘questioned’ in a place other than the House or Senate, thereby
violating the explicit prohibition of the Speech or Debate
Clause.” Helstoski, 442 U.S. at 490.

Thus, even if the challenged personnel decisions are not
legislative acts, inquiry into the motivation for those decisions
may require inquiry into legislative acts. For example,
interactions with legislative staff (which may form part of the
basis for personnel actions) are often part of the due functioning
of the legislative process. The Supreme Court recognized this
in Gravel when it approved an order that, among other things,
“forbade questioning any witness including [a congressional
aide] . . . concerning communications between the Senator and
his aides during the term of their employment and related to [a
particular] meeting or any other legislative act of the Senator.”
Gravel, 408 U.S. at 628-29 (footnote omitted). The Speech or
Debate Clause therefore may preclude some relevant evidence
in suits under the Accountability Act.23

Most of the claims in these suits allege discrimination and,
absent direct evidence of discrimination, are subject to the
framework established by McDonnell Douglas Corp. v. Green,

23
Judge Brown’s concurrence states that “there is little reason
to believe that allowing these suits to proceed will threaten legislative
independence or unduly involve the judicial branch in the affairs of
the legislative branch.” Op. of Judge Brown 16. This speculation has
no basis in reality. The Accountability Act authorizes suits based on
conduct occurring in a Member’s personal office, see 2 U.S.C.
§ 1408(b), which necessarily calls into question the actions of
Members or their aides.
 24

411 U.S. 792 (1973).24 That framework – under which a
plaintiff proves a prima facie case of discrimination, which the
employer rebuts by producing evidence that its conduct was
nondiscriminatory, which the plaintiff then seeks to demonstrate
is pretextual, see Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253-56 (1981) – presents special problems in the
context of the Speech or Debate Clause.25 Liability for

24
Fields alleges racial and gender discrimination in violation
of 2 U.S.C. § 1311, which incorporates § 703 of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2, to which the McDonnell Douglas
framework applies, see McDonnell Douglas Corp., 411 U.S. at 802.
She also alleges retaliation under 2 U.S.C. § 1317(a), to which the
McDonnell Douglas framework presumably applies. See Broderick
v. Donaldson, 437 F.3d 1226, 1231-32 (D.C. Cir. 2006). Hanson
alleges disability discrimination in violation of 2 U.S.C. § 1311(a)(3),
which incorporates § 501 of the Rehabilitation Act, 29 U.S.C. § 791,
and §§ 102-104 of the Americans with Disabilities Act, 42 U.S.C.
§§ 12112-12114, both of which are subject to the McDonnell Douglas
framework. See Barth v. Gelb, 2 F.3d 1180, 1185-86 (D.C. Cir. 1993)
(Rehabilitation Act); Duncan v. Wash. Metro. Area Transit Auth., 240
F.3d 1110, 1114 (D.C. Cir. 2001) (en banc) (Disabilities Act).
25
Not all of the claims in the complaints allege discrimination.
Fields and Hanson both allege violations of 2 U.S.C. § 1313, which
incorporates certain provisions of the Fair Labor Standards Act, but to
which the McDonnell Douglas framework does not apply. See, e.g.,
Thompson v. Sawyer, 678 F.2d 257, 270-71 (D.C. Cir. 1982)
(discussing equal pay discrimination in violation of 29 U.S.C.
§ 206(d)); Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 687-88
(1946) (discussing burden allocation in suits seeking overtime
compensation under the Fair Labor Standards Act). (Hanson also
alleges a nondescript violation of 2 U.S.C. § 1312, which incorporates
§§ 101-105 of the Family and Medical Leave Act, 29 U.S.C. §§ 2611-
2615, but the complaint does not give sufficient detail to know
whether the McDonnell Douglas framework will apply to this claim.)
Nondiscrimination claims such as these, which may give rise to
 25

discriminatory personnel decisions rests not on the fact that
action was taken (“you can’t fire me”), nor on the duties of the
employee against whom action was taken (“you can’t fire the
chief of staff”), but on the reason that action was taken (“you
can’t fire me for that reason”). But what happens when the
action was motivated by the employee’s participation in the
legislative process?

Suppose a plaintiff sues a Member’s personal office
claiming her discharge violated the Accountability Act.
Suppose further that she is able to make out a prima facie case
of discrimination of one form or another. If the employing
office produces evidence – by affidavit, for example – that the
personnel decision was made because of the plaintiff’s poor
performance of conduct that is an integral part of “the due
functioning of the [legislative] process,” Brewster, 408 U.S. at
516 (emphasis removed), then for the plaintiff to carry her
burden of persuasion, she must “demonstrate that the proffered
reason was not the true reason for the employment decision,”
Burdine, 450 U.S. at 256; see also Smith v. District of Columbia,
430 F.3d 450, 455-56 (D.C. Cir. 2005); Murray v. Gilmore, 406
F.3d 708, 713 (D.C. Cir. 2005). In many cases, the plaintiff
would be unable to do so without “draw[ing] in question” the
legislative activities and the motivations for those activities
asserted by the affiant – matters into which the Speech or
Debate Clause prohibits judicial inquiry. Brewster, 408 U.S. at
526 (quoting Johnson, 383 U.S. at 185); see also Helstoski, 442
U.S. at 490. For example, if a Senator claimed to have fired an
employee because speeches the employee wrote did not
accurately reflect the Senator’s legislative objectives, the Speech
or Debate Clause would preclude the employee from proving
her case by demonstrating that the speeches she wrote did in fact

liability regardless of the employer’s motivation, are unlikely to
present the problems discussed above.
 26

accurately reflect the Senator’s legislative objectives. In such a
case, if the evidence ultimately bore out the affiant’s account of
the plaintiff’s discharge, then the very inquiry leading to that
conclusion would be unconstitutional. See Helstoski, 442 U.S.
at 489 (“The Clause protects ‘against inquiry into acts that occur
in the regular course of the legislative process and into the
motivation for those acts.’ . . . [R]eferences to past legislative
acts of a Member cannot be admitted without undermining the
values protected by the Clause.” (quoting Brewster, 408 U.S. at
525)).

In employment discrimination cases under the
Accountability Act, then, as in any other employment
discrimination case, the defendant will provide evidence of a
legitimate nondiscriminatory reason for the discharge. To
invoke the Speech or Debate Clause, the employing office
should include with this evidence an affidavit from an individual
eligible to invoke the Speech or Debate Clause recounting facts
sufficient to show that the challenged personnel decision was
taken because of the plaintiff’s performance of conduct
protected by the Speech or Debate Clause. The affiant must
have personal knowledge of the facts underlying his averment
and otherwise must be able to assert a Member’s Speech or
Debate Clause immunity. See Gravel, 408 U.S. at 618; see also
id. 622 n.13 (“[A]n aide’s claim of privilege can be repudiated
and thus waived by the Senator.”).26 The affidavit must indicate
into what “legislative activity” or into what matter integral to the
due functioning of the legislative process the plaintiff’s suit
necessarily will inquire.

26
A plaintiff therefore may challenge a defendant’s eligibility
to invoke the Speech or Debate Clause by arguing that the predicates
for doing so under Gravel are not satisfied.
 27

With that submission, the district court must then determine
whether the asserted activity is in fact protected by the Speech
or Debate Clause. If it is, the action most likely must be
dismissed, as the failure to rebut a defendant’s evidence with
“evidence . . . that the[] proffered justifications were mere
pretext” normally is fatal to a plaintiff’s discrimination
allegations. Smith, 430 F.3d at 455-56. If the lawsuit does not
inquire into legislative motives or question conduct part of or
integral to the legislative process, or if the district court
determines that the asserted activity is not in fact part of or
integral to the legislative process, then the case can go forward.
Cf. Minker v. Baltimore Annual Conference of United Methodist
Church, 894 F.2d 1354, 1360-61 (D.C. Cir. 1990) (noting, in a
different context, that where inquiry into a matter was forbidden
“even for the purpose of showing it to be pretextual,” the claim
need not be dismissed because “it may turn out that the
potentially mischievous aspects . . . are not contested . . . or are
subject to entirely neutral methods of proof” and “[o]nce
evidence is offered, the district court will be in a position to
control the case”). We need not decide today whether a case in
which the plaintiff uses evidence unrelated to legislative acts –
such as direct evidence of discrimination or evidence that at the
time of discharge the Senator offered a different reason for the
employment action from the one alleged in the affidavit – to
demonstrate that the defendant’s legislative explanation is
pretext requires more questioning of the defendant’s legislative
motives than the Speech or Debate Clause allows. We merely
note that a plaintiff who seeks to prevail by quarreling with the
defendant’s statements about activity protected by the Speech or
Debate Clause must fail.

We recognize that in operating this way the Clause
effectively may preclude a plaintiff’s discrimination suit. But
this does not deprive the Accountability Act of all force, as
Fields and Hanson suggest. Just as “a Member of Congress may
 28

be prosecuted under a criminal statute provided that the
Government’s case does not rely on legislative acts or the
motivation for legislative acts,” Brewster, 408 U.S. at 512, so
too a Member’s personal office may be liable under the
Accountability Act for misconduct provided that the plaintiff
can prove his case without inquiring into “legislative acts or the
motivation for legislative acts,” id. And a plaintiff whose suit
cannot proceed in federal court by operation of the Speech or
Debate Clause still may avail himself of the Accountability
Act’s administrative complaint procedure. See 2 U.S.C. § 1405.

Accordingly, we now reject the Browning framework and
affirm the judgments below because the Speech or Debate
Clause does not bar jurisdiction in these cases.

Affirmed.
 R OGERS , J., concurring in part and in the judgment:
For reasons stated in the opinions of Judge Randolph and
Judge Brown, I agree that the employee-duties test of
Browning v. Clerk, U.S. House of Representatives, 789
F.2d 923 (D.C. Cir. 1986), is overbroad and must be
rejected. See Op. of Judge Randolph 17-20; Op. of Judge
Brown 9-10.

I also agree that the Speech or Debate Clause does not
pose a jurisdictional bar to Fields’ and Hanson’s lawsuits
under the Congressional Accountability Act (“CAA”).
Neither the history of the Clause nor Supreme Court
precedent provides a basis on which to conclude that
personnel decisions are “legislative acts” because, even
when motivated by legislative considerations, the
personnel decisions themselves are not “an integral part of
the deliberative and communicative processes by which
Members participate in [congressional] proceedings.”
Gravel v. United States, 408 U.S. 606, 625 (1972); see
Bastien v. Office of Senator Ben Nighthorse Campbell, 390
F.3d 1301, 1315 (10th Cir. 2004); cf. Forrester v. White,
484 U.S. 219, 229 (1988). Further, consistent with
Supreme Court jurisprudence indicating the court should
examine the pleadings to determine “whether it is
necessary to inquire into how [the Member] spoke, how he
debated, how he voted, or anything he did in the chamber
or in committee in order to make out a violation of this
statute,” United States v. Brewster, 408 U.S. 501, 526
(1972), an examination of the complaints makes clear that
neither plaintiff must rely on legislative acts to make a
prima facie case. See Op. of Judge Randolph 20-21.

I further agree that the Clause’s evidentiary privilege,
see, e.g., United States v. Helstoski, 442 U.S. 477, 487-90
(1979), has a role to play. See Op. of Judge Randolph 22-
 2

23; Op. of Judge Brown 19; Op. of Judge Tatel 3.
Defining that role presents potentially difficult questions,
particularly as the Supreme Court has yet to speak to the
question in this context, and its statements in other
contexts can be understood to point in different directions,
as the opinions of Judge Randolph and Judge Brown
reflect. Compare Op. of Judge Randolph 25-26 (citing
Helstoski, 442 U.S. at 489-90), with Op. of Judge Brown
20-21 (citing Gravel, 408 U.S. at 629 n.18).

For the reasons stated in Judge Brown’s opinion, it is
tempting to interpret the unique statutory scheme created
by Congress in the CAA in a manner that allows
discrimination and other claims to proceed against the
Member’s personal office largely unfettered by the
protections afforded by the Speech or Debate Clause when
Members or their alter egos are personally sued, see Op. of
Judge Brown 11-17, 21; see also Op. of Judge Tatel 4. But
Supreme Court jurisprudence has yet to so limit the reach
of the Clause. See Op. of Judge Randolph 12-13 (citing
cases); Op. of Judge Tatel 4. Nevertheless, it is not self-
evident that the Clause’s safeguards of legislative
independence would be threatened by an approach that
permitted CAA suits such as those before us to proceed
subject only to protection of evidence of legislative acts
produced by Members and their alter egos upon proper
invocation of the privilege.

Because these are appeals of denials of motions to
dismiss under Federal Rule of Civil Procedure 12(b)(1),
the court need not address what happens when legislative
acts arise as potential evidence in varying contexts in CAA
litigation. It is unclear whether or precisely how these
questions may arise upon the remand of the cases on
appeal. The court would benefit from briefing based on the
 3

application of the evidentiary privilege by the district court
in a particular context. Attempts to signal the answers to
such questions are fraught with problems. Hence, I would
leave open the question of how the Clause may limit
evidence offered by parties in CAA litigation and whether
the role of the Member’s personal office as the defendant
under the CAA affects the application of the Clause.

Accordingly, I join Judge Randolph’s opinion to the
extent it is consistent with the views I have expressed.
 TATEL, Circuit Judge, concurring: Though disappointed
at our failure to reach consensus in this important case, I take
some solace from the fact that the commonalities of our
opinions exceed their differences—differences that relate to
questions more easily answered after further factual
development. I write separately to point out the
commonalities, to briefly discuss the differences, and to
suggest how the cases should proceed on remand.

First, the commonalities. All of us agree that Browning
v. Clerk, U.S. House of Representatives, 789 F.2d 939 (D.C.
Cir. 1986), extends further than the Speech or Debate Clause
requires. See Op. of Judge Randolph 17; Op. of Judge Brown
10; Op. of Judge Rogers 1. All of us also agree, however, that
the Speech or Debate Clause still has some role to play in
employment discrimination cases, Op. of Judge Randolph 22;
Op. of Judge Brown 19; Op. of Judge Rogers 1, and that the
question of what precisely the Clause precludes is best
resolved on a case-by-case basis, Op. of Judge Randolph 25-
27; Op. of Judge Brown 21; Op. of Judge Rogers 2-3. And all
of us agree that the two district court orders should be
affirmed.

What, then, divides us? After dispensing with Browning,
the two principal opinions diverge. Judge Randolph’s opinion
for the court holds that because neither of the cases before us
rests on legislative acts, we have no basis for dismissing them.
Judge Randolph then points out that the Speech or Debate
Clause may preclude some evidence, that in many
employment cases it may preclude the very evidence upon
which plaintiffs seek to rely, and that if it does, the suit may
not proceed. The principal concurrence focuses on whether
the defendant functions as a Member’s alter ego, arguing that
wide variations in Speech or Debate Clause protection hinge
on the answer to that question. This approach would apply
one version of the Speech or Debate Clause if the defendant is
a Member’s alter ego and another if the defendant is not.
 2

Not only do I find this distinction unworkable, but I do
not understand what it means for a defendant to “be” a
Member’s alter ego. No one acts as a Member’s alter ego all
the time: even a Member’s primary legislative aide does not
act as the Member’s alter ego when brushing her teeth.
Whether an aide acted as a Member’s alter ego turns on the
particular act the aide performed on the Member’s behalf.
Reinforcing this point, Gravel v. United States, the first case
to have used the term “alter ego,” focuses on the aide’s
actions: “the Speech or Debate Clause applies not only to a
Member but also to his aides insofar as the conduct of the
latter would be a protected legislative act if performed by the
Member himself.” 408 U.S. 606, 618 (1972) (emphasis
added); see also id. at 621-22 (“the privilege applicable to the
aide [must be] viewed . . . as the privilege of the Senator, and
invocable only by the Senator or by the aide on the Senator’s
behalf, and . . . in all events the privilege available to the aide
is confined to those services that would be immune legislative
conduct if performed by the Senator himself” (footnote
omitted) (emphasis added)); id. at 622 (noting that an aide can
testify “at trials or grand jury proceedings involving third-
party crimes” only if “the questions do not require testimony
about or impugn a legislative act”).

Of course, the person who performed the challenged
action and the defendant in the litigation are often the same
person (e.g., if the aide faces criminal or civil liability), so it is
a convenient shorthand to say that only an alter ego can
exercise the privilege to preclude litigation about particular
conduct. But that shorthand refers to whether the person
acted as the Member’s alter ego when performing the
(possibly) legislative act at issue, not to whether the aide “is”
an alter ego at the time of the litigation. Even language from
Gravel, upon which the principal concurrence relies, comes
from a section of the opinion emphasizing the conduct at issue
 3

over the defendant’s identity. The statement “relief could be
afforded without proof of a legislative act or the motives or
purposes underlying such an act,” id. at 621, quoted in Op. of
Judge Brown 20, appears in a paragraph beginning “[n]one of
these three cases [Kilbourn v. Thompson, 103 U.S. 168
(1881), Dombrowski v. Eastland, 387 U.S. 82 (1967), and
Powell v. McCormack, 395 U.S. 486 (1969)] adopted the
simple proposition that immunity was unavailable to
congressional or committee employees because they were not
Representatives or Senators; rather, immunity was unavailable
because they engaged in illegal conduct that was not entitled
to Speech or Debate Clause protection,” Gravel, 408 U.S. at
620.

Focusing on particular actions rather than on the
defendant’s “status” as an alter ego suggests a simple rule: no
Member or alter ego can be held liable for the performance of
a legislative act. As Judge Randolph points out, however,
these cases do not implicate that rule because neither Fields
nor Hanson must prove the performance of a legislative act in
order to prevail. Op. of Judge Randolph 20-21.

But the Speech or Debate Clause does not end there. We
all agree that the Clause also precludes introduction of certain
evidence and that this aspect of the privilege will come into
play in these cases if a Member or an appropriate aide asserts
it. See id. at 26 (“The affiant . . . must be able to assert a
Member’s Speech or Debate Clause immunity.”); Op. of
Judge Brown 21 (“[T]he Clause functions only as a
testimonial and documentary privilege, to be asserted by
members and qualified aides if they are called upon to
produce evidence.”). Still, we differ on how broad a role the
Clause plays. The principal concurrence suggests that so long
as aides are neither producing the evidence nor defending the
case, litigation can center on the motivation for legislative
 4

acts. See Op. of Judge Brown 20-22. According to Judge
Randolph, the Speech or Debate Clause precludes litigation in
which a plaintiff seeks to meet the McDonnell Douglas
burden by challenging the veracity of an aide’s testimony
about the motivation for legislative acts. See Op. of Judge
Randolph 23-27 (citing McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)). Because judicial assessment of the
aide’s testimony would constitute “inquiry into legislative
acts or the motivation for actual performance of legislative
acts,” United States v. Brewster, 408 U.S. 501, 509 (1972), I
agree with Judge Randolph.

To be sure, I might prefer a more limited view of the
Speech or Debate Clause’s reach were I writing on a blank
slate, but several Supreme Court decisions make clear that we
must tread carefully in this area. See Op. of Judge Randolph
12 (citing cases). Indeed, “[r]ather than giving the [Speech or
Debate] Clause a cramped construction, the [Supreme] Court
has sought to implement its fundamental purpose of freeing
the legislator from executive and judicial oversight that
realistically threatens to control his conduct as a legislator.”
Gravel, 408 U.S. at 618. For this reason, I believe we must
leave it to the Supreme Court to narrow the Speech or Debate
Clause’s reach. See Rodriguez de Quijas v. Shearson/Am.
Exp., Inc., 490 U.S. 477, 484 (1989) (“[T]he Court of Appeals
should . . . leav[e] to [the Supreme] Court the prerogative of
overruling its own decisions.”).

Thus, although I agree that suits against congressional
offices—as authorized by the Congressional Accountability
Act—place less pressure on Members than would suits
against Members personally, I cannot agree that the Clause’s
protection extends only to cases in which Members (or their
aides) are witnesses or defendants. Nor do I share the
principal concurrence’s confidence that CAA cases will not
 5

“unduly involve the judicial branch in the affairs of the
legislative branch.” Op. of Judge Brown 16. Certainly the
language from Gravel upon which the principal concurrence
relies—“We do not intend to imply . . . that in no grand jury
investigations or criminal trials of third parties may third-
party witnesses be interrogated about legislative acts of
Members of Congress,” Gravel, 408 U.S. at 629 n.18, quoted
in Op. of Judge Brown 20—stands for no such proposition;
Gravel states only that some testimony about legislative acts
by third-party witnesses may be admissible, not that all such
testimony is admissible.

For these reasons, I join Judge Randolph’s opinion. Still,
I emphasize that despite our differences, we all agree that on
remand the district courts must determine whether particular
aspects of these two cases implicate Speech or Debate Clause
concerns. In my view, the district courts should focus on
determining whether the cases may proceed without undue
judicial “inquiry into acts that occur in the regular course of
the legislative process and into the motivation for those acts.”
Brewster, 408 U.S. at 525. Because such determinations will
necessarily be fact-bound, it is appropriate that we announce
no blanket rule today. Once the district courts develop the
factual records, the issues that divide this court may become
clearer.
 BROWN, Circuit Judge, with whom SENTELLE and
GRIFFITH, Circuit Judges, join, concurring in the judgment: The
Congressional Accountability Act of 1995 (the “Act”), 2 U.S.C.
§§ 1301-1438, was the first legislation of the 104th Congress,
adopted in the Senate by a vote of 98 to 1, and adopted unani-
mously in the House. Section 102(a) of the Act lists several
federal laws that “shall apply . . . to the legislative branch of the
Federal Government,” including (1) the Fair Labor Standards
Act of 1938, (2) Title VII of the Civil Rights Act of 1964, (3)
the Americans with Disabilities Act of 1990, (4) the Age
Discrimination in Employment Act of 1967, (5) the Family and
Medical Leave Act of 1993, and (6) the Occupational Safety and
Health Act of 1970. 2 U.S.C. § 1302(a). President Clinton
described the Act as “a reform that requires Congress to live
under the laws it imposes on the American people,” commenting
that “Washington has too often isolated itself from the every day
experience of ordinary Americans.” Remarks on Signing the
Congressional Accountability Act of 1995, 31 Weekly Comp.
Pres. Doc. 91, 91 (Jan. 22, 1995). In these cases, we address
whether, and in what circumstances, the defendant in an action
brought pursuant to the Act may assert the Speech or Debate
Clause as a jurisdictional bar, thereby requiring summary
dismissal of the action.

Our determination of this issue calls into question the
framework we articulated in Walker v. Jones, 733 F.2d 923
(D.C. Cir. 1984), and Browning v. Clerk, U.S. House of Repre-
sentatives, 789 F.2d 923 (D.C. Cir. 1986), concerning applica-
bility of the Speech or Debate Clause in employment litigation
involving congressional employees. I conclude that the rule
stated in those cases distorts the Speech or Debate Clause
beyond its natural contours, and therefore I, too, would repudiate
it and refocus our analysis on the terms of the Constitution and
the relevant statements of the Supreme Court, but I would
approach the case in a somewhat different way than Judge
Randolph.
 2

I

A

Fields v. Office of Eddie Bernice Johnson, Employing Office,
United States Congress, No. 04-5315: From January 2002 until
March 2004, Beverly Fields was the chief of staff in the
congressional office of Eddie Bernice Johnson, a member of the
United States House of Representatives. On June 3, 2004, Fields
brought an employment discrimination action under the Act,
naming the “Office of Eddie Bernice Johnson” as the defendant
as section 408 of the Act requires. See 2 U.S.C. § 1408. In her
amended complaint, Fields claims the office actively sought an
Asian person under the age of forty to replace a dark-skinned
Latino employee. When the office selected a suitable Asian
employee, it terminated the Latino employee, giving the
employee only one day’s notice. Fields objected and asked the
office to allow the Latino employee to continue working for two
more months, but the office allegedly rejected this request.
About the same time, according to the complaint, the office
began efforts to replace Fields, who is African American, with
a white man. To that end, the office allegedly made false
accusations against Fields regarding her job performance and
her relationships with coworkers and then demoted Fields by
taking away her supervisory responsibilities. Fields claims the
demotion was based on her race and gender and that it was also
in retaliation for her having intervened on behalf of the Latino
employee. In addition, Fields alleges discrimination in regards
to pay. Finally, Fields claims the office initiated a bad faith
investigation of her conduct as an employee, seeking thereby to
force her to resign, and when Fields refused to resign, the office
allegedly terminated her. Fields claims the investigation and
subsequent termination were retaliatory.
 3

The office moved to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(1), claiming lack of jurisdiction
based on the Speech or Debate Clause. According to a declara-
tion filed by the office, Fields was integrally involved in
executing Johnson’s legislative agenda. Though many of her
duties were administrative, Fields was also involved in formulat-
ing legislative strategy, advising Johnson on how to vote,
approving Johnson’s floor statements, drafting legislation, and
conferring with staff of other legislative offices about various
legislative initiatives.

On August 25, 2004, the district court denied the motion to
dismiss in a two-line order, which stated no reasons, and on
August 27, 2004, the office filed this interlocutory appeal.

B

Hanson v. Office of Senator Mark Dayton, No. 04-5335: From
January 2001 until September 2002, Brad Hanson held various
positions in the congressional office of Mark Dayton, a member
of the United States Senate. Throughout this time, Hanson was
located in Fort Snelling, Minnesota. On May 29, 2003, Hanson
brought an employment discrimination action under the Act,
naming the “Office of Senator Mark Dayton” as the defendant.
See 2 U.S.C. § 1408. In his complaint, Hanson claims he was
hired as a “State Office Manager.” His job allegedly involved
setting up three local offices in Minnesota and overseeing a
“Health Care Help Line,” which assisted people with their
healthcare coverage problems. He alleges he worked consider-
able overtime, for which he was not paid. In 2002, according to
the complaint, Hanson developed a medical condition that
required surgery and a few weeks’ recovery time. Hanson claims
he met with Dayton on July 3, 2002, to tell Dayton of his need
for this surgery. Five minutes into the meeting, Dayton allegedly
said, “You’re done,” and he told Hanson he should no longer
 4

report to the office and should instead go on immediate medical
leave. On July 17, 2002, a senior staff member allegedly called
Hanson at home and told him he would be terminated as of
September 30, 2002. The complaint alleges Dayton fired Hanson
because Hanson needed time off to recover from surgery, in
violation of the Family and Medical Leave Act of 1993, and also
because Dayton erroneously perceived Hanson to be disabled,
in violation of the Americans with Disabilities Act of 1990. The
complaint further alleges that the failure to compensate Hanson
for overtime violated the Fair Labor Standards Act of 1938.

The office moved to dismiss the complaint under Federal
Rule of Civil Procedure 12(b)(1), claiming lack of jurisdiction
based on the Speech or Debate Clause. According to a declara-
tion filed by the office, Hanson’s work included meeting with
constituents, briefing the Senator on constituent concerns
regarding healthcare and law enforcement, overseeing the
“Health Care Help Line,” and identifying possible legislative
initiatives. The declaration asserts that Hanson’s work enabled
him to identify a problem regarding reimbursements to ambu-
lance service providers, and it claims Hanson was part of a team
that investigated this problem and advised Dayton, proposing
legislative solutions. As a result of this advice, Dayton intro-
duced a bill entitled the Medicare Ambulance Payment Reform
Act of 2001, and Dayton also initiated a committee hearing to
address this issue. The declaration states that Hanson helped
plan the committee hearing, selected topics and witnesses, and
developed questions for Dayton to ask at the hearing.

Hanson responded to this declaration with his own declara-
tion stating that the office “exaggerates my role in legislation”
and “[o]verall, I estimate that I did not spend more than five
percent of my time on the type of legislative duties described in
Senator Dayton’s motion.”
 5

On September 7, 2004, the district court denied the motion
to dismiss in a minute order, which stated no reasons, and on
September 21, 2004, the office filed this interlocutory appeal.

C

In most circumstances, our jurisdiction to hear appeals from
district court orders only extends to “final decisions.” 28 U.S.C.
§ 1291. Under the collateral order doctrine, we also have
jurisdiction to hear immediate appeals of certain interlocutory
orders, see Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541
(1949), namely those orders that “conclusively determine the
disputed question, resolve an important issue completely
separate from the merits of the action, and [are] effectively
unreviewable on appeal from a final judgment,” Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978). Such orders must
“present[] a serious and unsettled question” to be immediately
appealable. Cohen, 337 U.S. at 547. “[T]he denial of a substan-
tial claim of absolute immunity is an order appealable before
final judgment, for the essence of absolute immunity is its
possessor’s entitlement not to have to answer for his conduct in
a civil damages action.” Mitchell v. Forsyth, 472 U.S. 511, 525
(1985). This framework applies to claims of immunity under the
Speech or Debate Clause. See, e.g., Helstoski v. Meanor, 442
U.S. 500, 506 (1979). Because we have not yet had occasion to
determine whether the personal offices of members of Congress
may assert the protections of the Speech or Debate Clause, these
cases present “serious and unsettled” questions arising out of
“substantial” claims of absolute immunity. We therefore have
jurisdiction to consider these appeals under the collateral order
doctrine.
 6

II

The Constitution provides: “[F]or any Speech or Debate in
either House, [the Senators and Representatives] shall not be
questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. The
historical record does not indicate any debate or controversy
with respect to this provision. Very similar provisions appear in
the Articles of Confederation and the English Bill of Rights of
1689. The Clause has its roots in centuries of struggle between
the English Parliament and the Crown—struggle that sometimes
erupted in armed conflict, with both Parliament and the Crown
commanding independent armies. In more than one instance,
royal troops arrested or attempted to arrest members of Parlia-
ment in reaction to speeches made and actions taken in Parlia-
ment. Coming in response to these confrontations, the Bill of
Rights of 1689 established a bedrock legal foundation for the
freedom of ideas within Parliament. Nearly a hundred years
later, the Speech or Debate Clause established the same princi-
ple in American government. As the Supreme Court has
explained, “the purpose of the Speech or Debate Clause is . . . to
preserve the independence and thereby the integrity of the
legislative process.” United States v. Brewster, 408 U.S. 501,
524 (1972).

[T]he privilege was . . . born primarily of a desire . . . to
prevent intimidation by the executive and accountability
before a possibly hostile judiciary. . . . There is little doubt
that the instigation of criminal charges against critical or
disfavored legislators by the executive in a judicial
forum . . . is the predominate thrust of the Speech or Debate
Clause.

United States v. Johnson, 383 U.S. 169, 181-82 (1966).
 7

The Supreme Court first interpreted the Speech or Debate
Clause in Kilbourn v. Thompson, 103 U.S. 168 (1881). Kilbourn
involved a false imprisonment claim based on the plaintiff’s
arrest by the Sergeant at Arms of the House of Representatives.
Id. at 170. The Sergeant at Arms was acting pursuant to a
contempt finding of the House, id. at 176-77, but the Supreme
Court ruled the contempt finding improper, id. at 199-200.
While the Court allowed the false imprisonment action against
the Sergeant at Arms to proceed, it concluded that House
members could claim immunity under the Speech or Debate
Clause. Id. at 200-05. The Court adopted a principle of liberal
construction as regards the Clause, extending its scope to
legislative votes, reports, committee proceedings, and “‘every-
thing said or done . . . as a representative, in the exercise of the
functions of that office.’” Kilbourn, 103 U.S. at 203 (quoting
Coffin v. Coffin, 4 Mass. 1, 27 (1808)).

Though Kilbourn made clear that the reach of the Speech or
Debate Clause extends beyond a literal reading of its terms,
several later Supreme Court decisions have carefully circum-
scribed the scope of the clause, holding that it applies only to
core legislative acts, not incidental or peripheral activities of
congressional offices. For example, in Brewster, the Supreme
Court concluded that the Speech or Debate Clause “prohibits
inquiry only into those things generally said or done in the
House or the Senate in the performance of official duties and
into the motivation for those acts.” 408 U.S. at 512. The Court
rejected a rule that anything “in any way related” to the legisla-
tive process was privileged, id. at 516, and it listed a variety of
“political” activities that are not privileged, such as
“‘errands’ performed for constituents, the making of appoint-
ments with Government agencies, assistance in securing
Government contracts, preparing so-called ‘news letters’ to
constituents, news releases, and speeches delivered outside the
 8

Congress,” id. at 512. See also Hutchinson v. Proxmire, 443
U.S. 111, 131 (1979).

In Gravel v. United States, 408 U.S. 606 (1972), decided the
same day as Brewster, the Supreme Court considered whether
the clause protected the private publication of classified govern-
ment documents. Senator Mike Gravel had placed the classified
documents into the public record of a subcommittee meeting,
but the Court concluded that a subsequent arrangement for
private publication of the documents was not a protected
legislative act. Id. at 625-26. The Court described the clause as
covering only matters “integral [to] the deliberative and commu-
nicative processes by which Members participate in committee
and House proceedings with respect to the consideration and
passage or rejection of proposed legislation or with respect to
other matters which the Constitution places within the jurisdic-
tion of either House.” Id. at 625. The Court then added that the
protection “extend[s] . . . beyond pure speech or debate . . . , but
only when necessary to prevent indirect impairment of such
deliberations.” Id. (emphasis added, internal quotation marks
and citation omitted). In other words, the Court’s relatively
broad formulation of the Clause’s scope was cabined by the
requirement that the Clause should only apply to the extent
necessary to protect actual speech or debate.

Unlike the Supreme Court, we have interpreted the Speech
or Debate Clause in the employment litigation context. In
Walker, 733 F.2d at 934, we held that the Clause permitted a
general manager of the House restaurant to sue for sex discrimi-
nation. In that case, we posited a distinction between “staff . . .
who help prepare for hearings or assist in the composition of
legislative measures” and those who provide “[a]uxiliary
services attending to human needs,” and we held that the latter
group are not “‘legislative’ in character.” Id. at 931. Judge
MacKinnon concurred in part and dissented in part, arguing that
 9

the Speech or Debate Clause immunizes members of Congress
from liability with respect to all employment decisions so long
as those decisions are treated as legislative by Congress itself.
Id. at 938 (MacKinnon, J., concurring and dissenting). Judge
MacKinnon expressly rejected the court’s measurement of
Congress’s actions against “some Platonic ideal of the ‘legisla-
tive’ process,” arguing that Congress itself defines what is a
legitimate subject of legislative decisionmaking. Id. In this
regard, Judge MacKinnon noted that the restaurant manager had
been terminated on the authority of a vote taken by a congressio-
nal subcommittee. Id. at 941-43.

Two years later, in Browning, 789 F.2d 923, we held that
the Speech or Debate Clause precluded any “judicial scrutiny”
into the discharge of a House reporter whose job was to tran-
scribe committee proceedings, id. at 924, and therefore it
immunized Congress, its members, and their aides from liability,
id. at 931. The court distinguished Walker on the ground that
Walker involved an employee whose duties were not “directly
related to the due functioning of the legislative process.” Id. at
929 (emphasis omitted). The court articulated the following rule:
“Where the duties of the employee implicate Speech or Debate
Clause concerns, so will personnel actions respecting that
employee.” Id. at 928. Put another way, “[p]ersonnel decisions
are an integral part of the legislative process to the same extent
that the affected employee’s duties are an integral part of the
legislative process.” Id. at 928-29.

The line we drew in Walker and Browning, focusing on the
complaining employee’s duties, has some superficial appeal; its
glaring flaw, however, is that it lacks any basis in the Speech or
Debate Clause. Moreover, by defining very broadly the type of
duties that might constitute “an integral part of the legislative
process”—even including within that definition a House reporter
who lacked discretionary authority—we gave the immunity an
 10

unduly expansive scope. A rule of decision that more closely
reflects the language and purpose of the Speech or Debate
Clause would need to focus on the subject matter of the em-
ployee’s lawsuit and the evidence the parties would need to
present to the court, because the complaining employee’s duties
are an imperfect metric for probing whether the lawsuit will in
fact force the court to inquire into protected matters. For
example, even if a complaining employee’s duties are central to
the legislative process, as in the case of an employee who drafts
legislation and floor speeches, the employee’s lawsuit may turn
factually on a series of overt requests for sexual favors and
crude remarks, and therefore it may have nothing to do with the
member’s legislative activities. In short, by focusing on the
duties of the complaining employee, Walker and Browning
established a much broader immunity than necessary to protect
legislative independence, and nothing in the Speech or Debate
Clause or the Supreme Court’s precedents compelled this broad
immunity. Therefore, like Judge Randolph, Op. of Judge
Randolph 18, I also would repudiate the reasoning used in
Walker and Browning and proceed to the issue before us without
the constraint of the framework imposed by those precedents.

III

In enacting the Congressional Accountability Act, Congress
in effect sidestepped Browning’s broad formulation of immunity
by designating the “employing office,” rather than the member,
as the defendant. 2 U.S.C. §§ 1301(9), 1408(b). Nevertheless,
appellants in the two cases before us argue that the “employing
office” can invoke the Speech or Debate Clause on behalf of the
member and thereby gain the benefit of the privilege. I reject
this view.

First, it seems highly implausible, in light of Congress’s
unambiguous intention to open itself to liability under federal
 11

employment laws, that Congress designated a defendant that
could invoke the member’s Speech or Debate Clause rights.
Why would Congress go to the trouble of designating the
employing office as the defendant merely to create a bureau-
cratic redundancy able to assert the same privileges as the
member?

Second, the Supreme Court has determined that a member’s
aide is permitted to invoke the Clause on the member’s behalf
because the aide acts as an alter ego of the member, working
under the member’s authority and subject to his direction.
Gravel, 408 U.S. at 616-18. The same cannot be said of the
employing office. This second point requires us to analyze
exactly what the “employing office” is. Unfortunately, the law
is not as clear in this regard as it could be, but it is at least clear
enough to say what the employing office is not; it is not an alter
ego of the member.

The Act defines the “employing office” as

(A) the personal office of a Member of the House of
Representatives or of a Senator; (B) a committee of the
House of Representatives or the Senate or a joint commit-
tee; (C) any other office headed by a person with the final
authority to appoint, hire, discharge, and set the terms,
conditions, or privileges of the employment of an employee
of the House of Representatives or the Senate; or (D)
[various specifically named offices within the legislative
branch].

2 U.S.C. § 1301(9). For purposes of the cases before us, an
“employing office” is the personal office of a member.

The personal office of a member, however, is not an
independent legal entity, nor does it have any independent
 12

interests. It is not a person, nor a sovereign government, nor a
branch of government, nor an agency created by statute, nor a
chartered corporation, nor a trust, nor a partnership.1 It is an
organizational division within Congress, established for Con-
gress’s administrative convenience, analogous to a department
within a large corporation. Therefore, an employee in the
personal office of a member is in truth an employee of Con-
gress, as to whom the member (acting on behalf of Congress)
has supervisory control.

Title 2 of the United States Code is entitled “The Con-
gress,” and it deals generally with the administrative organiza-
tion of Congress. Chapter 4 of Title 2, entitled “Officers and

1
The same, of course, might be said of a congressional
committee, which would also qualify as an “employing office” under
2 U.S.C. § 1301(9). We are not here presented with a case involving
a congressional committee as a defendant, but a committee arguably
has a stronger claim to independent legal existence than a member’s
personal office in that a committee is formally established for certain
express purposes and carries out actions in its own name, whereas a
personal office exists only as a shell defendant to be sued under the
Act. According to Judge Randolph, “the Supreme Court has held that
legislative committees may invoke the [Speech or Debate] Clause.”
Op. of Judge Randolph 21 n.22 (citing Tenney v. Brandhove, 341 U.S.
367, 379 (1951)). Tenney did not so hold. Tenney held that Congress
did not intend 42 U.S.C. § 1983 to supplant common law principles of
legislative independence by imposing possible civil liability on state
legislative committees. See 341 U.S. at 376; see also Supreme Court
of Va. v. Consumers Union of the United States, Inc., 446 U.S. 719,
732 (1980). Judge Randolph also relies on Consumers Union of the
United States, Inc. v. Periodical Correspondents’ Ass’n, 515 F.2d
1341 (D.C. Cir. 1975). Consumers Union did not even involve a
legislative committee as a defendant. Rather, it involved a private
association, id. at 1345, that—like a legislative aide—acted on behalf
of members of Congress, id. at 1350.
 13

Employees of Senate and House of Representatives,” governs
employment-related administrative issues. Nothing in chapter 4
suggests that employees in member offices are anything other
than congressional employees, or that member offices are
anything other than administrative divisions within the two
Houses of Congress. It is certainly true that Congress has chosen
to adopt an administrative structure that gives great independ-
ence to its members. For example, each member of the Senate
has a budget for employee compensation, 2 U.S.C.
§ 61–1(d)(1)(A); within the limits of that budget, “Senators may
fix the number and the rates of compensation of employees in
their respective offices” and “[a] Senator may establish such
titles for positions in his office as he may desire to designate, by
written notification to the disbursing office of the Senate,” id.
§ 61–1(d)(2). Nevertheless, salary payments to these employees
are administered centrally by the Secretary of the Senate. Id.
§ 60c–1. Similarly, members of the House of Representatives
are authorized to employ as many as 18 permanent employees,
id. § 92(a), but again, salary payments are administered centrally
by the Chief Administrative Officer of the House of Representa-
tives, id. §§ 60d–1, 95–1.

Thus, Congress has delegated to its individual members
discretion in hiring, firing, and managing employees in their
personal offices, but it did not make each of those offices into an
independent government agency, and the employees remain
employees of Congress as a whole. Congress could certainly
choose to structure its administrative affairs in a different
manner and may decide that stricter branch-wide personnel
policies are warranted in order to limit violations of the Act. In
any case, its current supervisory structure does not imply that
the personal offices of its members are anything other than
convenient administrative divisions.
 14

For this reason, if we are to be legally precise, we cannot
speak in terms of the “office” of a member taking a particular
personnel action, because the “office” of the member is not a
legal person. If a member hires or fires a legislative aide, the
member makes a decision on behalf of the Congress, exercising
power Congress has delegated to the member. Cf. 2 U.S.C.
§ 1301(9)(C) (designating as an “employing office” “any other
office headed by a person with the final authority” to make
personnel decisions (emphasis added)). The office of the
member only gains some sort of quasi-legal existence when a
dispute rises to the level of a suit under the Act. Then, the
complaining employee has no choice but to name the member’s
office as the defendant because that is precisely what the Act
instructs the employee to do. Id. § 1408(b). In sum, the “em-
ploying office” exists as a prescribed label for the defendant in
a lawsuit under the Act, and it has no prior existence as an
independent entity that took any specific action against the
employee.

Therefore, though Congress has expressly designated the
employing office as the name of the defendant, the question
remains: Who is the real defendant behind the name? The
answer to that question is not a simple one, but what is simple
is that the member is not the real defendant, nor is the real
defendant an alter ego of the member. First, Congress intended
to subject the legislative branch to liability for violation of
federal employment laws, not to subject its members personally
to such liability. See id. § 1302. Second, Congress’s attorneys
defend the action. See id. § 1408(d); see also James J. Brudney,
Congressional Accountability and Denial: Speech or Debate
Clause and Conflict of Interest Challenges to Unionization of
Congressional Employees, 36 HARV. J. ON LEGIS. 1, 10 n.46
(1999). Third, Congress’s Office of Compliance has final
settlement authority. See 2 U.S.C. § 1414. Fourth, funds
 15

appropriated to Congress’s Office of Compliance pay any
settlement or judgment. See id. §§ 1381(a), 1415(a).

Moreover, nothing in the Act suggests that the member can
make final litigation decisions on behalf of the employing office.
It is true that the Executive Director of the Office of Compliance
only has authority to approve or reject settlements “entered into
by the parties,” id. § 1414, implying that the employing office
separately negotiates the settlement. However, it is not clear that
the employing office would be under the direction of the
member in this regard, especially because the member arguably
has a personal interest in the litigation that is at odds with that
of the employing office. Furthermore, this provision at most
gives the member, acting as Congress’s agent, an active role in
the litigation; it clearly leaves the Office of Compliance as the
final decisionmaker. It is also true that the Office of Compliance
is to some extent an independent office within the legislative
branch, subject to limited congressional oversight, id. § 1381,
but if the Office of Compliance is not directly within Congress’s
control, it is certainly not within the member’s control.

In short, the “employing office” is nothing like a member’s
aide, who can invoke the Speech or Debate Clause privilege on
the member’s behalf. Rather, by way of the Act, Congress
sought to subject the legislative branch as an institution to
federal employment laws. Id. § 1302(a). Cf. Bastien v. Office of
Senator Ben Nighthorse Campbell, No. 01-cv-799, 2005 WL
3334359, at *4 (D. Colo. Dec. 5, 2005) (“[T]he term ‘employing
office’ actually refers to Congress and Congress is the responsi-
ble entity under the CAA.”), quoted in --- F.3d ----, 2006 WL
1756043, at *1 (10th Cir. June 28, 2006). Even if it is not quite
apt to describe the “employing office” as an alter ego of
Congress, it is far less appropriate to describe it as an alter ego
 16

of the member.2 Most accurately put, the “employing office” is
an administrative division within Congress, designated to be
named as the defendant in these actions. Nothing in that status
suggests that an employing office can invoke a member’s
Speech or Debate Clause rights.

In addition, because the defendant in these suits is so
differently situated than a member’s aide, there is little reason
to believe that allowing these suits to proceed will threaten
legislative independence or unduly involve the judicial branch
in the affairs of the legislative branch. Of course, the precise
rationale of the Supreme Court in Gravel—that aides must be
treated as members’ alter egos because “the day-to-day work of
such aides is so critical to the Members’ performance,” Gravel,
408 U.S. at 616-17—does not apply here because, under the Act,
the employing office serves no role in a member’s daily
legislative work, functioning only as a defendant in employment
suits. Nevertheless, Gravel also requires the court to extend
Speech or Debate Clause protection if failing to do so “will
inevitably . . . diminish[] and frustrate[]” the Clause’s purpose
of “prevent[ing] intimidation of legislators by the Executive and
accountability before a possibly hostile judiciary,” id. at 617, or
if “judicial oversight . . . realistically threatens to control [a
member’s] conduct as a legislator,” id. at 618. I do not believe,

2
Judge Tatel contends that “[w]hether an aide acted as a
Member’s alter ago turns on the particular act the aide performed on
the Member’s behalf.” Op. of Judge Tatel 2. Statutorily, a member’s
personal office only exists as a defendant to be sued under the Act. As
the office is not an entity—actual or juridical—that can take actions,
a fortiori it cannot act on behalf of the member; it is therefore
precluded from qualifying as an alter ego of the member. Given that
conclusion, I see no need to determine whether particular acts alleged
in the complaint were “legislative,” as those acts were not performed
by the office itself.
 17

however, that the limited judicial oversight the Act permits will
contravene these standards.

To begin, the pressures the Act places on the member are
slight: The member bears no financial risk—either from a
judgment or attorneys’ fees. The member, through invocation of
the evidentiary privilege, which I discuss below, can avoid
distractions by refusing to testify or provide evidence regarding
legislative acts. The member may face some embarrassment by
having his or her personnel decisions placed under the micro-
scope, but little more than he would due to any other publicity-
generating event. The conduct at issue in these suits must be
considered to be at or beyond the outer edge of what is “integral
[to] the deliberative and communicative processes by which
Members participate in committee and House [or Senate]
proceedings with respect to the consideration and passage or
rejection of proposed legislation or with respect to other matters
which the Constitution places within the jurisdiction of either
House.” Id. at 625; cf. Forrester v. White, 484 U.S. 219, 229
(1988). Taken together, these considerations suggest that suits
under the Act against the employing office do not “realistically
threaten[] to control [a member’s] conduct as a legislator.”
Gravel, 408 U.S. at 618.

Thus, I see no reason to conclude that the employing office
in an action brought pursuant to the Act is entitled to invoke the
Speech or Debate Clause, either on its own behalf or on behalf
of a member. Clarifying this point is critical because it estab-
lishes that appellants in these cases cannot assert the Clause as
a jurisdictional bar, regardless of whether the actions are
predicated on legislative acts, and it also impacts how the Clause
applies as an evidentiary rule.

Under the Supreme Court’s cases, the Speech or Debate
Clause often operates as an immunity from suit—or, more
 18

precisely, as a jurisdictional bar depriving courts of the power to
hear the suit. In Dombrowski v. Eastland, 387 U.S. 82, 85
(1967), for example, the Court stated that, when the Speech or
Debate Clause applies, members of Congress “should be
protected not only from the consequences of litigation’s results
but also from the burden of defending themselves.” Id. at 85
(emphasis added). Similarly, in Gravel, the Court said that
members of Congress are “shielded by the Speech or Debate
Clause both from liability for their illegal legislative act and
from having to defend themselves with respect to it.” 408 U.S.
at 620. And, in Doe v. McMillan, 412 U.S. 306, 318 (1973), the
Court stated that certain acts “may not serve as a predicate for
a suit” against members and aides, requiring dismissal of the
complaint. Appellants here hope to gain the benefit of this
jurisdictional bar, but allowing the suits to proceed will not force
the members of Congress to bear the burden of defending the
suits, nor will it subject the members to civil or criminal liability
that might undermine their independence as legislators. Because
appellants are not members of Congress, or alter egos of
members, and therefore have no Speech or Debate Clause
protection, the jurisdictional bar is not applicable.3

3
Because I conclude that members’ offices cannot assert the
protections of the Speech or Debate Clause, I do not reach the
subsequent questions of whether the acts alleged in the complaints in
these cases are “legislative” and the jurisdictional significance of that
determination. Cf. Op. of Judge Randolph 20-21. However, if the
defendants here could assert the Speech or Debate Clause, I believe
the jurisdictional application of the clause might be broader than Judge
Randolph suggests. For the purposes of the Speech or Debate Clause
to be fulfilled, it arguably ought to bar as a jurisdictional matter not
only lawsuits in which the complaints are predicated on legislative
acts, but also suits that will inevitably necessitate an inquiry into such
acts and motivations, even where such inquiry would arise due to an
affirmative defense. Cf. Davis v. Passman, 442 U.S. 228, 235 n.11
(1979) (“Defenses based upon the Clause should thus ordinarily be
 19

That conclusion does not, however, suggest the Clause can
play no part in these actions. The Supreme Court has also
articulated an evidentiary application of the Speech or Debate
Clause for those cases not requiring dismissal of the complaint
on jurisdictional grounds. In Brewster, 408 U.S. 501, the Court
stated that “a Member of Congress may be prosecuted under a
criminal statute provided that the Government’s case does not
rely on legislative acts or the motivation for legislative acts.” Id.
at 512. Applying this rule, the Court permitted a bribery
prosecution of a member of the Senate to go forward, because
the prosecution focused only on whether the member received
compensation in exchange for a promise to vote a certain way,
and not on how the member actually voted or why. Id. at 525-
27. Hence, the Court concluded that no “inquiry into a legisla-
tive act or the motivation for a legislative act [is] necessary to a
prosecution under this statute or this indictment.” Id.

In United States v. Helstoski, 442 U.S. 477 (1979), the court
made clear that the holding in Brewster—permitting criminal
prosecutions that do not rely on proof of legislative acts or the
motives for such acts—should be applied as an evidentiary rule
governing proceedings at trial. Helstoski concerned a criminal
prosecution of a former member of the House in relation to
“allegations that aliens had paid money for the introduction of
private bills which would suspend the application of the
immigration laws so as to allow them to remain in this country.”
Id. at 479. The Supreme Court instructed the trial court to apply
the Speech or Debate Clause as a rule of evidence: “[Johnson

given priority, since federal legislators should be exempted from
litigation if their conduct is in fact protected by the Clause.”
(emphases added)). If, for example, a member is a named defendant
in a state law tort action alleging wrongful termination, limiting the
member to an evidentiary application of the Clause seems too
restrictive.
 20

and Brewster] leave no doubt that evidence of a legislative act
of a Member may not be introduced by the Government in a
prosecution . . . .” Id. at 487. “Nothing [however] in our
opinion . . . prohibits excising references to legislative acts, so
that the remainder of the evidence would be admissible.” Id. at
488 n.7. “As to what restrictions the Clause places on the
admission of evidence, . . . [the Court’s] concern is whether
there is mention of a legislative act.” Id. at 490.

In Gravel, 408 U.S. 606, as already discussed, the Court
extended Speech or Debate Clause protections to congressional
aides. The Court distinguished Kilbourn, noting that in Kilbourn
(and other cases permitting civil actions against aides), “relief
could be afforded [against the aide] without proof of a legisla-
tive act or the motives or purposes underlying such an act.” Id.
at 620-21. By contrast, if the lawsuit requires proof of a legisla-
tive act or the motive for such an act, then the aide can assert the
Speech or Debate Clause protections. Id. at 621-22. Notably, the
Court clarified in a footnote that its holding did not apply to
cases in which the defendant was neither a member of Congress
nor an alter ego of a member: “We do not intend to imply,
however, that in no grand jury investigations or criminal trials
of third parties may third-party witnesses be interrogated about
legislative acts of Members of Congress.” Id. at 629 n.18
(emphasis added).

The cases now before us present the situation contemplated
in the footnote in Gravel, because the defendants in these cases
are neither members of Congress nor aides of members, and as
the Gravel footnote suggests, this fact is significant as regards
the evidentiary application of the Clause.4 In a civil or criminal

4
Under Judge Randolph’s approach, a “case can go forward” if
it “does not inquire into legislative motives or question conduct part
of or integral to the legislative process,” but should be dismissed if it
 21

suit against a member or an aide, any inquiry into legislative acts
amounts to an impermissible “question[ing],” in violation of the
Speech or Debate Clause. See Helstoski, 442 U.S. at 489;
Brewster, 408 U.S. at 525. This rule makes sense because, in
order to defend the suit fully, the member or aide would have to
respond to any evidence of legislative acts introduced against
him, no matter the source of the evidence, and the member’s
silence might work to his disadvantage. In these cases, on the
other hand, the defendants are not members or aides but
employing offices, entities that cannot themselves assert the
protections of the Speech or Debate Clause. The purposes
behind the Speech or Debate Clause are not implicated by an
inquiry into legislative acts in such cases, as the suits threaten
neither the independence of the legislature as a whole nor of the
individual members. Because the members are not defendants,
the suits do not burden them with defense costs nor place them
at any risk of personal liability, and as long as members and
their aides are not themselves “questioned,” an inquiry into
legislative acts does not implicate the Speech or Debate Clause.
Cf. Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429
U.S. 252, 266-68 (1977). Thus, where the member is not a party,
the Clause functions only as a testimonial and documentary
privilege, to be asserted by members and qualified aides if they
are called upon to produce evidence. We need not explore the
precise contours of this privilege today; the district court may
address these problems as they arise. Of course, when the

would require any inquiry into legislative acts. Op. of Judge Randolph
27. While Judge Tatel purports to join Judge Randolph’s opinion in
full, he admits that, according to the Gravel footnote, at least some
evidence of legislative acts may be admitted against third-party
defendants. See Op. of Judge Tatel 5. Such a concession effectively
undermines Judge Randolph’s approach; the possibility of admitting
such evidence means that many suits may proceed even if they would
entail some inquiry into legislative acts.
 22

privilege makes relevant evidence unavailable, the parties will
have to present their cases as best they can without the evidence,
as would occur in other instances when non-parties possess
privileged information.

IV

The Supreme Court has liberally construed the Speech or
Debate Clause, but it still remains tethered to its underlying
purpose. Brewster, 408 U.S. at 516. Its purpose is not to
immunize Congress from all liability; rather, its purpose is to
ensure free and unrestrained discussion, debate, and decision
relating to legislative matters. We can always hypothesize long
cause-and-effect chains by which remote events somehow affect
legislative decisions, but these remote events were not the
concern of the Framers of our Constitution when they included
in that document a clause protecting legislative speech and
debate. Rather, they were concerned with much more immediate
threats to legislative independence. They were concerned that
members of Congress would be arrested or held liable specifi-
cally on account of arguments they had voiced in the course of
heated debates over pending legislative issues. Johnson, 383
U.S. at 182. They were concerned about the political rivalries
that naturally arise among the several branches of government,
rivalries that might cause a hostile executive or judiciary to
harass a member of Congress who had been outspoken about
some abuse of power. Id. at 179-81. In addressing these con-
cerns, they did not intend “to make Members of Congress super-
citizens,” Brewster, 408 U.S. at 516, who could block all
judicial inquiry into their personnel practices and workplace
conduct.

Appellants in these actions are not members of Congress
entitled to invoke the Speech or Debate Clause, nor are they
alter egos of members. Therefore, the Speech or Debate Clause
 23

does not provide a basis for dismissing these actions; rather, it
operates as an evidentiary protection for members of Congress
and their aides who might be asked to provide evidence in these
actions. For these reasons, I agree that we should affirm the
district court’s orders denying defendants’ motions to dismiss.