Cushing v. Packard, 994 F.3d 51

Background:

Seven New Hampshire state representatives (all over 60) with serious medical conditions sued after Speaker Packard refused their requests to participate remotely in full House sessions due to COVID-19 exposure risks.
The N.H. House (400 members) met in person for sessions; leadership declined repeated rule changes to permit remote participation and relied on Mason’s Manual rule prohibiting remote floor participation absent authorization.
Plaintiffs sued under Title II of the ADA and Section 504 of the Rehabilitation Act seeking accommodations (remote participation); district court denied a preliminary injunction, holding legislative immunity barred the suit.
The district court relied on this circuit’s precedent in Nat’l Ass’n of Social Workers v. Harwood, which afforded legislative immunity to enforcement of internal floor-access rules.
On expedited appeal, the First Circuit vacated the district court’s denial and remanded for consideration of the plaintiffs’ statutory claims, concluding legislative immunity did not automatically preclude ADA/Rehab Act enforcement.

Issues:

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether legislative immunity bars enforcement of ADA/Rehab Act against Speaker enforcing in-person rule	ADA and Rehab Act require accommodations; legislative immunity does not shield the Speaker from these federal statutory obligations	Legislative immunity protects legislators and aides enforcing internal legislative rules; statutes don’t expressly abrogate that common‑law immunity	Legislative immunity does not categorically bar consideration of ADA/Rehab Act claims; remand to decide merits
Whether ADA/Section 504 abrogate or overcome common‑law legislative immunity	Statutes apply to any state government and thus can reach legislative actors and procedures	Congress did not expressly mention legislative immunity; common‑law doctrines survive unless Congress clearly intended otherwise	Court held statutory language and structure can make Congress’s intent evident; ADA/Rehab Act can overcome legislative immunity in appropriate circumstances
Role of comity and respect for legislative functioning in assessing accommodations	Plaintiffs need accommodation due to grave health risks; courts should provide relief when justified	Legislative autonomy and internal rules warrant great deference; courts must weigh legislative interests	Court acknowledged comity concerns are relevant and must inform reasonableness balancing, but do not preclude adjudication of statutory claims
Appropriate remedy/procedure at preliminary‑injunction stage	Plaintiffs sought immediate remote participation relief	Speaker relied on district court’s immunity ruling to block any relief	Court vacated the preliminary‑injunction denial and remanded for factual findings on disability, reasonable accommodation, and possible mootness or changed circumstances

Key Cases Cited

National Ass'n of Social Workers v. Harwood, 69 F.3d 622 (1st Cir. 1995) (legislative immunity protects enforcement of internal floor‑access rules)
Gravel v. United States, 408 U.S. 606 (1972) (legislative process protections inform immunity analysis)
United States v. Texas, 507 U.S. 529 (1993) (statutory abrogation of common‑law doctrines need not use magic words; court looks to congressional intent)
Tennessee v. Lane, 541 U.S. 509 (2004) (Title II of the ADA can abrogate state sovereign immunity when congruent with §5 enforcement)
Lane v. Pena, 518 U.S. 187 (1996) (Rehabilitation Act waiver of Eleventh Amendment via federal funding)
Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) (clear‑statement rule for abrogating state sovereign immunity under certain statutes)
Alexander v. Choate, 469 U.S. 287 (1985) (Rehabilitation Act requires reasonable modifications, not fundamental alterations)
City of Boerne v. Flores, 521 U.S. 507 (1997) (congruence and proportionality limits on Congress's §5 enforcement powers)