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05/01/84 Anne W. Walker, v. Honorable Ed Jones

May 1, 1984

ANNE W. WALKER, APPELLANT

v.

HONORABLE ED JONES, CONGRESSMAN OF THE UNITED STATES, ET AL. 1984.CDC.118 DATE DECIDED: MAY 1, 1984



Presented for review by this Court is the district court's dismissal of plaintiff's case against four defendants -- three Members of Congress and one House subcommittee staff director. The three Members named served on the House Administration Committee and constituted a majority of the House Subcommittee on Services. See Complaint para. 17 (JA 12-13). The district court held all aspects of the alleged conduct of the four defendants immune under the Speech or Debate Clause. Although other issues are presented, the chief questions before this Court concern Speech or Debate.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Appeal from the United States District Court for the District of Columbia.

APPELLATE PANEL:

Wilkey and Ginsburg, Circuit Judges, and Mackinnon, Senior Circuit Judge. Opinion for the Court filed by Circuit Judge Ginsburg. Opinion concurring in part and dissenting in part filed by Senior Circuit Judge MacKinnon.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GINSBURG

This case concerns the discharge of a woman who managed the House of Representatives' restaurants; it presents an unsettled issue relating to the Constitution's command that "for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place." U.S. CONST. art. I, ยง 6, cl. 1.

Plaintiff-appellant Anne W. Walker alleged in her complaint that, because she is a woman, and in violation of her fifth amendment rights to due process and the equal protection of the laws, she was discharged from her employment, of approximately ten years' duration, as general manager of the House of Representatives Restaurant System. She asserted that the discharge was effected by defendant-appellee Ed Jones, then Chairman of the Subcommittee on Services of the House of Representatives Committee on House Administration, acting in concert with defendant-appellee Thomas B. Marshall, then Staff Director of the Subcommittee. The District Court dismissed the complaint at the threshold in response to defendant-appellees' motion, which cited Rules 12(b) (1), (2), and (6) of the Federal Rules of Civil Procedure. Walker's discharge was a personnel action "within the 'legislative sphere,'" the District Court concluded; it therefore held that the Speech or Debate Clause wholly immunized the termination of her employment from judicial inquiry. Walker v. Jones, 557 F. Supp. 366, 368 (D.D.C. 1983).

We reverse the judgment to the extent that it dismisses the case against Jones and Marshall, *fn1 and remand for further proceedings. The Speech or Debate Clause, we hold, does not impregnably shield from court consideration allegedly unconstitutional personnel actions taken in the course of managing congressional food service facilities. I. BACKGROUND

The District Court dismissed Walker's action with only her complaint and the Rule 12(b) motion before it. We must therefore assume the truth of Walker's allegations. As the Supreme Court has instructed lower federal courts: "In passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974) (citing as applicable to a motion to dismiss grounded on asserted eleventh amendment and executive immunity barriers to suit the standard set out in Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).2 We summarize first Walker's salient assertions along with related undisputed facts; we next indicate the bases on which defendant-appellees seek affirmance of the District Court's judgment; we then describe the main lines of the District Court's opinion.

The Subcommittee on Services of the House of Representatives Committee on House Administration (hereafter, Subcommittee) operates congressionally-owned food services; other auxiliary facilities within the Administration Committee's province include barber shops, beauty shops, and parking facilities. See Joint Appendix 70, 71. In December 1970, Walker alleges, the Subcommittee engaged her to manage Longworth Cafeteria and shortly thereafter appointed her general manager of the entire House of Representatives Restaurant System (hereafter, HRRS). HRRS encompasses three cafeterias, four carryouts, two catering operations, and one full-service restaurant. Walker had authority to take actions necessary and proper for the efficient operation and sound management of HRRS. Her work, she asserts, entailed no functions relating to the process of lawmaking. Nor does restaurant management involve "other matters" of state "which the Constitution places within the jurisdiction of either House," Gravel v. United States, 408 U.S. 606, 625, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972), such as impeachments and advice and consent to treaties and appointments. Walker states that she expected to retain her position so long as her performance was satisfactory. She attributes this expectation primarily to communications she had with Subcommittee members when she was hired and throughout her employment.

During Walker's tenure as HRRS general manager, defendant-appellee Ed Jones became Chairman of the Subcommittee and defendant-appellee Thomas B. Marshall became its Staff Director. Pursuant to Subcommittee authorization, Jones and Marshall exercised managerial and control functions over HRRS employees, including Walker. In 1980, Walker alleges, Jones indicated approval of her work and informed her he was increasing her salary by $8,000 per annum because of her efficiency in operating HRRS. She further asserts that, until June 1982, Marshall permitted her to run HRRS without intervention. Walker alleges, however, that her situation at work changed around that time. She claims that Jones stated to others, and Marshall repeated to staff members, that because of Walker's sex, she was overpaid; specifically, Walker recites Jones's alleged statement that her salary ($45,000, according to Walker) was "ridiculous for a woman."

At a May 1982 meeting with Jones and Marshall, Walker allegedly detailed HRRS's operations and profit structure. Her accounting, she asserts, elicited no comment; the meeting concluded, she states, without any expression by Jones or Marshall of dissatisfaction with her performance. By letter dated June 22, 1982, however, Jones advised Walker that he was terminating her employment effective June 30, 1982;3 and on June 25, 1982, Marshall circulated a memorandum to "All Managers and Department Heads" announcing that, effective June 26, "the office of General Manager of the House Restaurant System will be vacated." In July 1982, Jones and Marshall engaged a man to occupy the general manager's position formerly held by Walker.4

After Walker's discharge, Jones made public statements, which Walker alleges he knew to be untrue, charging Walker with inefficiency, improper bookkeeping practices, misappropriation, and "skimming" funds from HRRS. Walker asserts that, in addition to loss of her House employment and attendant benefits, the discharge and accusations relating to it caused her to suffer physical and emotional distress, permanently damaged her reputation, and left her unable to obtain employment comparable in nature and salary.

Jones and Marshall claim that the Speech or Debate Clause entirely shields the discharge of Walker from judicial inquiry. Appellees' presentation blends the bases for this claim of blanket legislative immunity. We detect, however, two principal strains in appellees' argument, and an overarching position. Appellees contend in one prominent theme that Walker's high post as manager of a "multimillion dollar food service" organization made her a "ranking aide" or "alter-ego" of the Subcommittee. See Brief for Appellees at 11, 19-20. They also assert repeatedly that the discharge decision qualifies as a legislative act because it was reached and effected "in committee." See id. at 10, 15-16, 25.5 Throughout, they observe that food service caters to a need essential to the chamber's internal functioning. Personnel management for such an essential service, they urge, merits Speech or Debate coverage as fully as passage of a bill. See id. at 10, 17, 20, 22.

In addition to Speech or Debate shelter, Jones and Walker assert that members of Congress have absolute or at least qualified official immunity with respect to legislative branch personnel decisions,6 and that in any event Walker has stated no claim upon which relief can be granted. Id. at 38-44. The District Court did not address these alternatively alleged grounds for dismissal. Nor did it refer to appellees' "alter-ego" and "in committee" arguments. It simply reasoned that internal arrangements Congress makes for its own necessities are "within the 'legislative sphere'"; that food service qualifies as such an arrangement; and that discharging Walker, as an action relating to the internal administration of Congress, is brigaded by Speech or Debate protection in light of precedent instructing broad interpretation of the Clause "to effectuate its purposes." 557 F. Supp. at 367-68 (quoting Eastland v. United States Servicemen's Fund, 421 U.S. 491, 501, 44 L. Ed. 2d 324, 95 S. Ct. 1813 (1975)).

It is the high purpose of the Speech or Debate Clause to secure against executive or judicial interference the processes of the nation's elected representatives leading up to the formulation of legislative policy and the enactment of laws. See Hutchinson v. Proxmire, 443 U.S. 111, 126-27, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979). For the reasons set out below, however, we believe that personnel actions regarding the management of congressional food services are too remote from the business of legislating to rank "within the legislative sphere." II. DECISION

In Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e to 2000e-17 (1976 & Supp. V 1981), Congress prohibited, inter alia, sex discrimination in private and public employment. Congress exempted its own staffs, however, from Title VII's coverage. See id. 2000e-16(a). In Davis v. Passman, 442 U.S. 228, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979), the Supreme Court implied a remedy directly from the fifth amendment for sex discrimination by a member of Congress in dismissing a female staff member. The Court left open for consideration on remand the applicability of the Speech or Debate Clause to congressional employment practices. See id. at 235-36 n.11, 249. This case presents one setting in which that issue arises.

In the discussion that follows, we explain first our reasons for holding that the Speech or Debate Clause does not bar Walker's complaint against Jones and Marshall. We then indicate why we believe Walker's action survives the alternative threshold defenses appellees present -- immunity outside the Speech or Debate Clause, and failure to state a claim upon which relief can be granted.7

A. Constitutional review by courts of the discharge of a congressional employee who performed auxiliary, nonlegislative services for the convenience of members of Congress is not barred by the Speech or Debate Clause.

1. The province of the Speech or Debate Clause.

The Speech or Debate Clause derives from the English Bill of Rights of 1689; it concerns a privilege "recognized [since the Glorious Revolution in Britain, and throughout United States history] as an important protection of the independence and integrity of the legislature." United States v. Johnson, 383 U.S. 169, 177, 178, 15 L. Ed. 2d 681, 86 S. Ct. 749 (1966). The purpose of the protection secured by the Clause "is not to forestall judicial review of legislative action," Powell v. McCormack, 395 U.S. 486, 505, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969), but to free legislators from distraction or hindrance as the process of lawmaking unfolds. "The heart of the clause is speech or debate in either House," Gravel v. United States, 408 U.S. 606, 625, 33 L. Ed. 2d 583, 92 S. Ct. 2614 (1972), but the provision shields more than "words spoken in debate." Kilbourn v. Thompson, 103 U.S. (13 Otto) 168, 204, 26 L. Ed. 377 (1880). It encompasses, beyond speeches on the floor of Congress, such activity integral to lawmaking as voting, id., circulation of information to other Congress members, Doe v. McMillan, 412 U.S. 306, 36 L. Ed. 2d 912, 93 S. Ct. 2018 (1973), and participation in committee investigations, proceedings, 1and reports. Id.; Gravel v. United States, supra; Dombrowski v. Eastland, 387 U.S. 82, 18 L. Ed. 2d 577, 87 S. Ct. 1425 (1967); Tenney v. Brandhove, 341 U.S. 367, 95 L. Ed. 1019, 71 S. Ct. 783 (1951).8

The absolute immunity secured by the Clause, however, is "not all-encompassing." Gravel v. United States, 408 U.S. at 625. It would demean the high purpose of the Speech or Debate privilege to extend it to official activities of Congress members and their aides in "mundane fields" outside "the legislative core." Davis v. Passman, 544 F.2d 865, 880 (5th Cir. 1977), rev'd on other grounds, 571 F.2d 793 (5th Cir. 1978) (en banc), rev'd, 442 U.S. 228, 60 L. Ed. 2d 846, 99 S. Ct. 2264 (1979). As Chief Justice Burger has stated, "the immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process." United States v. Brewster, 408 U.S. 501, 507, 33 L. Ed. 2d 507, 92 S. Ct. 2531 (1972). Activities "casually or incidentally related to legislative affairs," id. at 528, but not "part and parcel of the legislative process," Gravel v. United States, 408 U.S. at 626, are outside the realm of Speech or Debate protection.

Thus, for example, a member's report and vote on holding a witness in contempt are immune, but not subsequent conduct to implement the expressed legislative will. See Kilbourn v. Thompson (supra). Newsletter and press releases circulated by a member to the public are not shielded, for they are "primarily means of informing those outside the legislative forum." Hutchinson v. Proxmire, 443 U.S. 111, 133, 61 L. Ed. 2d 411, 99 S. Ct. 2675 (1979). A member of Congress may be prosecuted for accepting a bribe or for other unlawful conduct so long as the prosecution "does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them." United States v. Brewster, 408 U.S. at 510 (quoting United States v. Johnson, 383 U.S. at 185). Accord United States v. Helstoski, 442 U.S. 477, 61 L. Ed. 2d 12, 99 S. Ct. 2432 (1979); see also Gravel v. United States, 408 U.S. at 618-22. The key consideration, Supreme Court decisions teach, is the act presented for examination, not the actor. Activities integral to the legislative process may not be examined, see id. at 625, but peripheral activities not closely connected to the business of legislating do not enjoy Speech or Debate shelter.

In addition to instruction furnished by High Court precedent, two decisions within this Circuit warrant comment because the District Court relied heavily upon them: Consumers Union of United States v. Periodical Correspondents' Association, 169 U.S. App. D.C. 370, 515 F.2d 1341 (D.C. Cir. 1975), cert. denied, 423 U.S. 1051, 46 L. Ed. 2d 640, 96 S. Ct. 780 (1976); and Parker v. Allen, Civil No. 74-1846 (D.D.C. June 6, 1975), reprinted in J.A. 80-98.

Consumers Union held that arrangements for seating the press in the House and Senate galleries were "integral" to "the legislative machinery," 515 F.2d at 1350, and thus were immune from judicial review by virtue of the Speech or Debate Clause. In contrast to the hiring and firing of a food service manager, the matter at issue in Consumers Union immediately concerned House consideration of proposed legislation. Indeed, the arrangements in question were intended to shield members of Congress from press members' use of their House access to lobby legislators. Id. at 1347 & n.12. Consumers Union, in short, involved, as Walker's discharge surely does not, regulation of the very atmosphere in which lawmaking deliberations occur.

Parker v. Allen, an unpublished District Court decision,9 bears a considerable resemblance to this case. It involved the discharge of the Senate Restaurant's head waiter and his complaint that fifth amendment due process constraints on government action had been ignored. The District Court in Parker characterized restaurant administration as "within the 'legislative sphere,'" slip op. at 9, reprinted in J.A. 88, but it nonetheless granted the head waiter significant relief.

The Parker complaint was dismissed only insofar as it named as defendants members of the Senate Committee on Rules and Administration; nothing in the Parker record indicated that the Senators had done anything beyond considering and voting on the matter in subcommittee. Cf. supra note 1. The actual firing of the head waiter, however, was another matter. It was effected by the Architect of the Capitol. That action, the District Court held, as distinguished from the preceding consideration and vote in subcommittee, was "not within the privilege of the Speech or Debate Clause." Slip op. at 12, reprinted in J.A. 91. The District Court proceeded to find that the conditions under which the firing occurred did infringe upon a liberty interest protected by the due process guarantee, and it ordered the Architect of the Capitol to accord appropriate relief to the former head waiter. Had the District Court in the case at hand in fact followed Parker, as it purported to do, it would have held, as Parker did, that the actual discharge "was not . . . essential to the act of legislating and hence [could] not be deemed within the legislative sphere." Id.

*fn2. Personnel actions in the course of superintending congressional food service facilities are outside the province of ...


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