By passing the Congressional Accountability Act (CAA) in
1995, Congress made itself legally bound to follow many
of the same employment laws applicable to federal
agencies, such as the Civil Rights Act, the Family
Medical Leave Act, the Rehabilitation Act, the Fair
Labor Standards Act, and others.
To defend against lawsuits in court, the Bipartisan
Legal Advisory Group (BLAG) is trying to limit the CAA’s
scope. BLAG, composed of state Representatives, filed
legal arguments claiming that under certain circumstances,
Congress cannot be sued in court. Specifically, BLAG
claims that when a personnel action relates to an
employee’s legislative duties, the action is excluded
from the CAA’s coverage. The Constitution provides that
members of Congress should be immune from any questioning
“for any Speech or Debate in either House”. BLAG argues
that the Speech or Debate limitation applies to any
personnel actions relating to a congressional employee’s
performance of legislative duties.
Recently, a federal appellate court rejected BLAG’s
arguments. The Tenth Circuit ruled that the Speech or
Debate “Clause protects only ‘legislative’ acts . . .
and only official, formal acts (or perhaps their
functional equivalent) deserve the adjective
‘legislative.’ … Because Plaintiff’s duties were not
legislative and personnel actions allegedly taken
against her were not in themselves legislative, her
CAA claim can proceed.” Bastien v. Office of Senator
Ben Nighthorse Campbell, 390 F.3d 1301, 1305-1306
(10th Cir. 2004).
Even though BLAG lost in the Tenth Circuit, it is
trying again in the D.C. Circuit. In Fields v. Office
of Rep. Eddie Bernice Johnson, D.C. Cir. No. 04-5315,
the trial court rejected arguments similar to those
BLAG made in Bastien. BLAG has filed a brief in
support of Johnson’s appeal of that decision. (Only
BLAG’s Republican Members signed the brief). If the
D.C. Circuit rules differently than the Bastien court,
it is possible that this issue will reach the Supreme
Court.
This information is provided by the attorneys at
Passman & Kaplan, P.C., a law firm dedicated to the
representation of federal employees worldwide. For
more information on Passman & Kaplan, P.C., go to
