Cushing v. Packard
30 F.4th 27
1st Cir.2022Background
- During COVID-19, several New Hampshire House members with medical vulnerabilities requested remote participation (including remote voting); Speaker Sherman Packard denied the requests.
- Plaintiffs (several members and the N.H. Democratic Party) sued the Speaker in his official capacity under Title II of the ADA and §504 of the Rehabilitation Act, seeking declaratory relief and a preliminary injunction requiring remote participation accommodations.
- The District Court denied the preliminary injunction on the ground that legislative immunity barred the requested relief; a First Circuit panel initially vacated that ruling but the court granted en banc rehearing and vacated the panel decision.
- The en banc majority held legislative immunity bars the requested injunction: the suit was treated as against the officer in his official capacity (not necessarily the State), and Consumers Union permits legislators to assert legislative immunity against prospective equitable relief.
- The court applied Tenney’s clear-statement principle: Title II and the RHA do not clearly abrogate or waive legislative immunity, and the Kilbourn “extraordinary character” exception was not satisfied on this record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether legislative immunity bars ADA and RHA claims for prospective injunctive relief against the Speaker in his official capacity | Cushing: immunity doesn’t apply because plaintiffs seek accommodation, not liability for legislative acts; equitable relief permissible | Packard: voting and adoption/enforcement of House rules are quintessential legislative acts entitled to absolute immunity | Held: Legislative immunity applies; plaintiffs unlikely to succeed because their requested relief targets legislative acts (rules/voting) |
| Whether official-capacity ADA/RHA claims must be treated as claims against the State (so legislative immunity unavailable) | Plaintiffs/United States: ADA/RHA sue “States/public entities,” so official-capacity claims should be treated as suits against the State | Packard: Official-capacity suits may be treated as suits against the state officer; Consumers Union allows officer to assert legislative immunity against injunctive claims | Held: Claims are treated as against the named officer in his official capacity; Consumers Union permits assertion of legislative immunity by state legislators in such suits |
| Whether Title II of the ADA abrogates legislative immunity | Plaintiffs: ADA’s broad text and §12202 (remedies against States) show Congress intended to abrogate immunities including legislative immunity | Packard: Under Tenney, abrogation of legislative immunity requires a clear statement; §12202 addresses Eleventh Amendment remedies, not conduct-based legislative immunity | Held: No abrogation; Tenney’s clear-intent rule applies and Title II does not clearly abrogate legislative immunity |
| Whether §504/RHA waiver (via acceptance of federal CARES funds) waives legislative immunity | Plaintiffs: New Hampshire’s acceptance of federal funding effected a waiver of immunity under §2000d-7 and the RHA | Packard: Waiver provisions address Eleventh Amendment waivers and do not clearly waive legislative immunity; Tenney applies equally to waiver inquiry | Held: No waiver; acceptance of federal funds does not clearly waive legislative immunity |
| Whether the Kilbourn “extraordinary character” exception removes immunity here | Plaintiffs: Excluding disabled members from meaningful participation is extraordinary and violates statutory and constitutional rights | Packard: Kilbourn’s standard is very demanding; Speaker adhered to House rules and no extraordinary, flagrantly unlawful act is shown | Held: Kilbourn exception not satisfied on this record; immunity stands |
Key Cases Cited
- Tenney v. Brandhove, 341 U.S. 367 (U.S. 1951) (establishes legislative immunity and requires clear congressional intent to abrogate it)
- Sup. Ct. of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719 (U.S. 1980) (holds legislative immunity can be asserted against official-capacity suits seeking declaratory or injunctive relief)
- Will v. Michigan Dep't of State Police, 491 U.S. 58 (U.S. 1989) (discusses treatment of official-capacity suits as suits against the State and limits on remedies)
- Kentucky v. Graham, 473 U.S. 159 (U.S. 1985) (addresses the nature of official-capacity suits and available immunities)
- Kilbourn v. Thompson, 103 U.S. 168 (U.S. 1880) (articulates narrow “extraordinary character” exception to legislative immunity)
- Powell v. McCormack, 395 U.S. 486 (U.S. 1969) (permitted suit against House employees in exclusion-of-member context; left open whether suit solely against legislators would be allowed)
- Bogan v. Scott-Harris, 523 U.S. 44 (U.S. 1998) (applies legislative immunity to municipal and state legislators for legislative acts)
- Eastland v. U.S. Servicemen's Fund, 421 U.S. 491 (U.S. 1975) (Speech or Debate Clause bars judicial inquiry into certain legislative acts such as subpoenas)