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Employees May Sue Congressional Offices:

A splintered en banc panel of the U.S. Court of Appeals for the D.C. Circuit unanimously concluded that the Speech and Debate Clause does not require the dismissal of suits against Congressional offices filed under the Congressional Accountability Act. Judge Randolph delivered the opinion of the court and wrote an opinion joined by Chief Judge Ginsburg and Judges Tatel and Henderson. Judge Rogers wrote a separate opinion concurring in part and concurring in the judgment, and Judge Brown wrote an opinion concurring in the judgment joined by Sentelle and Griffith. Judge Tatel also wrote a concurrence stressing the commonalities among the opinions. No single rationale commanded a majority of the court, but the decision allows employment lawsuits against the offices of Representative Eddie Bernice Johnson and Senator Mark Dayton to proceed.

Per Son:
I just do not get this. Legislators think that the Speech or Debate Clause gives them immunity from everything! A pox on Capital Hill!!!
8.18.2006 11:55am
markm (mail):
Why a splintered opinion? It seems like the alleged Constitutional issue ought to be a slam-dunk for the plaintiff. I can see no way a Congressman's employment practices come under the Speech and Debate clause, so I don't see why a court would even have to think about the amount of deference to give Congress when it passed a law allowing such suits.

Or maybe the law is badly written and unclear. Hmm, which party to the suit is responsible for that...
8.18.2006 3:33pm
Per Son:
The more conservative judges (Brown and Randolph) feel that one should considerthe types of functions the employee performs when performing the analysis. The others were like - no, personnel decisions are not legislative at all!
8.18.2006 3:49pm
blackdoggerel (mail):
Why a splintered opinion? Why not read them and see for yourself. They all agree that the previous benchmark for assessing these types of claims was wrong. (Thus, Per Son, your comment is completely off the mark.) But the major opinions differ as to how to handle such claims going forward. Randolph wants to treat it as jurisdictional, so that the case barely makes it into court upon invocation of the Clause; Brown wants to treat it as evidentiary, so that the case makes it into court, but the defendant can invoke the Clause if forced to testify about matters the Clause touches upon.
8.18.2006 6:01pm