Case Information
*2 Before: SMITH, WEIS, and NYGAARD , Circuit Judges *3 (Filed: November 29, 2006) Danielle Banks, Esq. (argued) Stradley, Ronon, Stevens & Young 2600 One Commerce Square Philadelphia, PA 19103 Counsel for Appellants George A. Bibikos, Esq.
John P. Krill Jr., Esq.
Linda J. Shorey, Esq.
Kirkpatrick & Lockhart Nicholson Graham 17 North Second Street 18 th Floor
Harrisburg, PA 17101 Counsel for Amicus-Appellant Samuel J. Cordes, Esq. (argued) Ogg, Cordes, Murphy & Ignelzi 245 Fort Pitt Boulevard Pittsburgh, PA 15222 Counsel for Appellees OPINION
SMITH, Circuit Judge .
Amy Fowler-Nash (“Fowler-Nash”) brought suit
pursuant to 42 U.S.C. § 1983 against the Democratic Caucus of
the Pennsylvania House of Representatives (“the Caucus”), state
representative Ted Harhai, and Scott Brubaker, Director of
Staffing and Personnel for the Caucus. Fowler-Nash alleged
that she was discharged from her position as a legislative
assistant to Harhai in violation of her First and Fourteenth
Amendment rights. The Caucus filed a motion for judgment on
the pleadings on the basis of common law legislative immunity.
F ED . R. C IV . P. 12(c). The Caucus argued that it was entitled to
absolute legislative immunity as Fowler-Nash was employed as
a legislative assistant, and her firing was therefore necessarily
“within the sphere of legitimate legislative authority.”
Tenney
v. Brandhove
,
The District Court denied the Caucus’s Rule 12(c)
motion, holding that the Caucus did not exercise a legislative
function when it terminated Fowler-Nash. The Caucus contends
that application of a functional test, derived from the Supreme
Court’s opinion in
Forrester v. White
,
We reject the Caucus’s argument. We will apply Forrester ’s functional test to claims of absolute legislative immunity, and will affirm the District Court’s decision that the Caucus is not entitled to immunity in this case. The “alter ego” test lacks precedential support from the Supreme Court, from *5 our own Court, or from other courts of appeals. Its adoption would open a circuit split. The “alter ego” approach is also a poorer reflection of the purposes of legislative immunity than the functional approach. Though this is a question of first impression before this Court, our own jurisprudence regarding municipal personnel actions strongly suggests that the Caucus should not be shielded by legislative immunity. We will affirm the District Court’s denial of the Caucus’s Rule 12(c) motion.
I. Facts and Procedural History Ted Harhai is an elected Democratic Representative in the Pennsylvania House of Representatives. John J. Harhai, Representative Harhai’s brother, ran for a seat on the City Council of Monessen, Pennsylvania in the 2005 Democratic primary. John Harhai lost by seven votes to Jeffery Gagatko, then filed a Petition to Recanvass in the Court of Common Pleas of Westmoreland County, Pennsylvania. Pursuant to Pennsylvania law, the Petition included 39 affidavits from qualified electors alleging fraud or irregularities. Each of these affidavits was notarized pursuant to state law. Recanvassing yielded a nine vote victory for Harhai.
Fowler-Nash was working at the time as a legislative assistant to Representative Harhai. Fowler-Nash informed counsel for Gagatko that many of the electors’ affidavits had been improperly notarized in the electors’ absence, in violation of state law. Gagatko filed an Emergency Petition to Set Aside the Recanvass. Fowler-Nash was subpoenaed to testify at a *6 hearing on the Emergency Petition. She informed Gagatko’s counsel that many of the electors were meeting with the notary in Representative Harhai’s office so that they would be able to identify the notary at the hearing and falsely state that the notary had been present when the affidavits were signed.
Before the hearing was held, however, the parties agreed to a stipulation that the 39 affidavits were not signed in the presence of the notary. The trial judge by an order dated July 11, 2005 then vacated its initial June 22, 2005 order that provided for a recanvassing of the votes. John Harhai appealed. One week after John Harhai’s appeal was decided against him, Brubaker terminated Fowler-Nash, informing her that Representative Harhai could no longer trust her. Fowler-Nash filed suit against the Caucus, Representative Harhai, and Brubaker in federal district court, pursuant to 42 U.S.C. § 1983. The Caucus moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). The Caucus stated in its Rule 12(c) motion that Fowler-Nash had been terminated for “excessive telephone usage, internet privilege abuses and overall job performance.” The District Court denied the motion. The Caucus filed the instant appeal. [1]
II. Discussion
The doctrine of legislative immunity flows from English common law and the many centuries of struggle between the English Crown and Parliament. See Tenney v. Brandhove , 341 U.S. 367, 372 (1951). Various English monarchs condemned parliamentarians to prison for proposing or supporting bills they found unhelpful. Id. The Glorious Revolution ended this practice by codifying legislative immunity–“[t]hat the Freedom of Speech, and Debates or proceedings in Parliament not to be impeached or questioned in any Court or Place out of Parliament”–in the English Bill of Rights of 1689. Id.
A century later, the Framers included a similar clause in
the Articles of Confederation, and then in Article I, Section 6 of
the United States Constitution: “[F]or any speech or debate in
either house [the members] shall not be questioned in any other
place.” U.S. Const. art. I, § 6, cl. 1;
see Tenney
,
concerning the scope of the immunity doctrine,” we exercise
plenary review over the District Court’s denial of the Rule 12(c)
motion on legislative immunity grounds.
Donivan v.
Dallastown Borough
,
The Speech and Debate Clause does not, by its terms,
extend any protection to state legislators or officials.
Nevertheless, the
Tenney
Court extended legislative immunity
to state legislators and officials as federal common law,
extensively referencing the immunity’s deep common law
origins.
Id.
at 372. The Supreme Court has similarly extended
common law legislative immunity to local legislative officials,
see
Bogan v. Scott-Harris
, 523 U.S. 44 (1998) (extending
legislative immunity to members of a city council), and to non-
legislators legitimately engaged in a legislative function.
See
Supreme Court of Va. v. Consumers Union of the United States
,
The Supreme Court has often stated that the purpose of
common law legislative immunity is to reinforce the separation
of powers and safeguard legislative independence.
See, e.g.
,
Eastland v. U.S. Servicemen’s Fund
,
The Supreme Court rejected in Brewster the view that the Speech and Debate Clause protects “all conduct related to the *9 due functioning of the legislative process.” Brewster , 408 U.S. at 513. The Court stated that, “[w]e would not think it sound or wise, simply out of an abundance of caution to doubly insure legislative independence, to extend the privilege beyond its intended scope, its literal language, and its history, to include all things in any way related to the legislative process.” Id. at 516. On the same day that it decided Brewster , the Court took a broad view in Gravel v. United States of who could invoke legislative immunity, holding that a legislative aide could invoke immunity if a legislator could invoke the immunity under the same circumstances. 408 U.S. 606, 608-10 (1972). As to what actions were protected by legislative immunity, the Court took a narrow view, stating that the “heart of the Clause is speech or debate in either House,” and that “[i]nsofar as the Clause is construed to reach other matters, they must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.” Id . at 625.
This Court has held that the federal common law
immunity is “coterminous” with the federal constitutional
legislative immunity, see
Larsen v. Senate of the Commonwealth
of Pa.
,
The Pennsylvania Constitution contains a Speech and Debate Clause that tracks the federal clause, but it cannot shield a legislator from a violation of federal law. See Pa. Const. art. II, sec. 15.
A. The Functional Test is Appropriate for Legislative Immunity
The Caucus contends that the District Court erred in
applying a “functional approach,” in which immunity hangs on
whether an action serves “the due functioning of the legislative
process.”
United States v. Brewster
,
The Caucus, however, argues for an “alter ego” test for the application of legislative immunity. Under this approach, the Court should determine if the person fired, demoted, or otherwise affected by the legislator’s decision was so closely linked to the legislative process that any actions taken towards them were, in effect, legislative.
The Caucus contends that the District Court’s application of the Forrester “functional” test was error for several reasons. The Caucus contends that (1) Forrester concerned a personnel decision made by a judge and should not therefore be applied to *11 legislative immunity, and that (2) a circuit split exists on the question of which test is appropriate. We reject the first contention. The second is simply wrong.
1. Forrester has been applied to legislative immunity by every Court of Appeals to consider the issue
The Caucus contends that the “functional” test laid out by
the Supreme Court in
Forrester
should be limited to judicial
immunity, as
Forrester
concerned a state judge’s claim of
immunity after firing a probation officer. We reject this sharp
limitation of
Forrester
. The Court’s opinion in
Forrester
strongly suggests that it intended the “functional” test to be
applied broadly.
Forrester v. White
,
In Forrester , an Illinois state judge demoted, then discharged, a female adult probation officer. Id. at 221. The discharged officer alleged that she had been discriminated against because of her sex, in violation of the Fourteenth Amendment. Id . The judge argued that this personnel action was protected by absolute judicial immunity. Id. The Forrester Court unanimously rejected this claim. Id. at 229-30.
The Forrester Court noted that “[d]ifficulties have arisen primarily in attempting to draw the line between truly judicial *12 acts, for which immunity is appropriate, and acts that simply happen to have been done by judges,” and that “[h]ere, as in other contexts , immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.” Id . at 227 (emphasis added) (citing many cases concerning legislators and executive officials). The Court noted that “[r]unning through our cases, with fair consistency, is a ‘functional’ approach to immunity questions other than those that have been decided by express constitutional or statutory enactment.” Id . at 224. The Court responded to the threat of “vexatious” lawsuits by former employees by pointing out that this factor in “no way serves to distinguish judges from other public officials who hire and fire subordinates.” Id . at 330-31. The Forrester Court did not perceive its decision as announcing a new test, but rather restating and clarifying a “functional” approach that it had articulated in prior cases, many of which concerned legislative immunity. Id.
The Court most recently applied the functional approach to a claim of common law legislative immunity from a personnel action claim in Bogan v. Scott-Harris. 523 U.S. at 52 (“Absolute immunity for local legislators under § 1983 finds support not only in history, but also in reason.”). The Bogan Court clarified that the functional inquiry is purely objective, holding that, “[w]hether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it. . . . This leaves us with the question whether, stripped of all considerations of intent and motive, petitioners’ actions were legislative.” Id . at 54-55. The Court unanimously *13 held that the city officials who had eliminated plaintiff’s position by passage of a new budget had acted legislatively as “acts of voting for an ordinance were, in form, quintessentially legislative.” Id . at 55 (observing that introduction of a budget and signing into law an ordinance are “formally legislative” and “integral steps in the legislative process.”).
We have applied
Forrester
outside the context of judicial
immunity.
See Schrob v. Catterson
,
The Caucus urges a radical limitation on the functional test that is unsupported by Supreme Court or lower court precedent. We reject this proposed narrowing of the Forrester test.
2. The “alter ego” approach to legislative
immunity has been rejected by every Court of
Appeals to consider the issue
The Caucus repeatedly states that a circuit split exists as
to whether the “alter ego” or “functional” test applies to
legislative immunity for personnel actions. The Caucus relies
on two cases,
Agromayer v. Colberg
and
Browning v. U.S.
House of Representative
s, of the First Circuit and D.C. Circuit,
respectively, to support this proposition.
See Agromayer v.
Colberg
, 738 F.2d 55, 60 (1st Cir. 1984);
Browning v. U.S.
House of Representatives
,
i. Agromayer is no longer applied in the First Circuit
The First Circuit held in
Agromayer
that the politically
motivated refusal to hire a member of the opposing political
party as a legislative press officer was protected by common law
legislative immunity.
Agromayer v. Colberg
,
The
Agromayer
Court relied on Chief Justice Burger’s
dissent in
Davis v. Passman
for this approach.
Id
. at 60 (citing
Davis v. Passman
,
Member of Congress has a right to expect that every person on his or her staff will give total loyalty to the political positions of the Member, total confidentiality, and total support. . . . lead[ing] a Member to employ a particular person on a racial, ethnic, religious, or gender basis thought to be acceptable to the constituency represented, even though in other branches of Government–or in the private sector–such selection factors might be prohibited.
Id . Chief Justice Burger concluded that “long-accepted concepts of separation of powers dictate, for me, that until Congress legislates otherwise as to employment standards for its own staff, judicial power in this area is circumscribed.” Id .
The First Circuit Court of Appeals began to move away
from the
Agromayer
approach even before
Forrester
called the
decision into question. A year after
Agromayer
, the First Circuit
turned toward a more functional analysis in
Cutting v. Muzzey
,
in which the Court held that a town board’s imposition of
“outrageous conditions” on a subdivision proposal was not
protected by legislative immunity.
The First Circuit continued to apply this strain of
functional analysis after
Forrester
. The Court stated in 1992
that, “[u]nder current legal theory, immunity attaches or does
not attach depending on what kind of action was performed
rather than on who performed the action,” referring to a decision
to eliminate several civil service positions occupied by political
opponents.
Acevedo-Cordero v. Cordero-Santiago
, 958 F.2d
20, 23 (1st Cir. 1992). The Court then explicitly applied the
Cutting
legislative facts/legislative effects test to the firing of a
legislative librarian, extensively referencing
Forrester
in the
process.
Negron-Gaztambide v. Hernandez-Torres
,
The First Circuit has never explicitly overturned Agromayer . It has, instead, abandoned altogether the “alter ego” approach to legislative immunity.
ii. The D.C. Circuit unanimously rejected the
“alter ego” approach in
Fields v. Johnson
The Caucus relied on the D.C. Circuit’s decision in
Browning v. U.S. House of Representatives
as a second case
demonstrating a circuit split over which test should govern
legislative immunity.
See Browning v. U.S. House of
Representatives
,
The D.C. Circuit held in
Browning
that “the standard for
determining Speech or Debate Clause immunity is best
expressed as whether the employee’s duties were directly related
to the due functioning of the legislative process.”
Browning,
The
Fields
decision reconsidered
Browning
in light of
Forrester
.
See
The
Fields
Court stated that many personnel actions lack
*20
even “some nexus” to a protected legislative activity and that,
“[f]iring an aide for falsifying expense reports, or disciplining an
assistant for harassing others in the office is not, by any
conceivable interpretation, an act performed as a part of or even
incidental to the role of a legislator.”
We now see that an employee’s duties are too crude a proxy for protected activity. Our holding in Browning presumes that a personnel decision with regard to an employee whose duties are “directly related to the due functioning of the legislative process,” is always “an integral part of the deliberative and communicative processes.” But the presumption is, at a minimum, overinclusive and therefore inconsistent with the Court’s practice of being “careful not to extend the scope of the protection further than its purposes require.” Any number of counter-examples reveal as much: a legislative aide may be discharged because of budgetary cutbacks; a staff member may be demoted solely for consistent tardiness; a person seeking a top-level staff position might be rejected for having a poor college transcript; and so forth. That the person targeted by the personnel decision performs duties “directly related to . . . the legislative process,” is not enough–conduct must *21 be “part of,” not merely “related to,” the “due functioning” of the “legislative process” to be protected by the Speech or Debate Clause. At best, that an employee’s duties are directly related to the legislative process establishes merely “some nexus” between the personnel decision and that process. We therefore reject Browning ’s test for determining when a legislator's personnel decision is protected by the Speech or Debate Clause.
Id.
at 11-12 (internal citations omitted). The Court then rejected
the argument that “[d]irecting one’s alter egos–that is, legislative
aides with duties directly related
to
the
legislative
process–necessarily is an integral part of the processes of
achieving one’s legislative goals, because of the duties such
employees perform.”
Id
. at 12 (internal quotes omitted). The
Court noted that “[t]he Speech or Debate Clause protects
conduct that is integral to the legislative
process
, not a
Member’s legislative
goals
,” and that many activities that are
integral to “legislative goals,” such as sending newsletters or
delivering speeches to constituents, are “political,” not
“legislative,”–and are therefore beyond the scope of legislative
immunity.
Id.
The Court also noted that, “[a]nother problem
with the formulation lies in its assumption that a Member only
directs his alter egos with regard to constitutionally protected
activities.”
Id.
The
Fields
Court emphasized
Gravel
’s
conclusion that simply because a Senator performs certain duties
in his official capacity does not make those duties legislative.
Id
. (citing
Gravel v. United States
,
The
Fields
Court was splintered on some issues, but not,
as Judge Tatel pointed out in his concurrence, on the issues
discussed above.
Fields
,
No one acts as a Member’s alter ego all the time: even a Member’s primary legislative aide does not act as the Member’s alter ego when brushing her teeth. Whether an aide acted as a Member’s alter ego turns on the particular act the aide performed on the Member’s behalf. Reinforcing this point, Gravel v. United States , the first case to have used the term “alter ego,” focuses on the aide’s actions: “the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.”
Id.
at 19 (quoting
Gravel
,
In its supplemental brief, the Caucus and its amicus, the Republican Caucus, urge several distinctions from Fields that are not persuasive. The Caucus urges that the application of the Congressional Accountability Act in Fields makes it distinguishable and that we must resolve the instant case without regard to the Congressional intent behind the Congressional Accountability Act. However, the Fields Court acknowledged at the outset that the Accountability Act, by its terms, does not disturb Speech and Debate Clause immunity. Id . at 8-9. Accordingly, the intent behind the Accountability Act appears to have played no role in the Court’s decision. Id .
B. Applying the Forrester functional test This Court will apply the functional test articulated in Forrester . The Democratic Caucus was not acting in a legislative capacity when it fired Fowler-Nash and should not be protected by absolute legislative immunity.
This Court has relied on a functional approach since well
before
Forrester
was handed down.
See Aitchison v. Raffiani
,
The two part test developed by this Court inquires into
whether an action was both “substantively” and “procedurally”
legislative when undertaken by municipal legislators and
officials.
Ryan
, 889 F.2d at 1290-91 (holding that staffing
decisions regarding county jails were not legislative).
[2]
We did
*25
not, however, apply the test developed at the municipal level to
the allegedly unconstitutional impeachment of a state Supreme
Court justice by the Pennsylvania Senate because “[t]he
line-drawing between administrative and legislative acts at issue
in these cases has no bearing under the situation before us
because neither party suggests that the Senators were acting in
an administrative capacity,” and, “because concerns for the
separation of powers are often at a minimum at the municipal
level.”
Larsen v. Senate of Commonwealth of Pa.
, 152 F.3d
240, 252 (3d Cir. 1998). The
Larsen
Court extended immunity
to the state senators because “power was consciously assigned
to the Senate primarily as a function of the separation of
powers,” therefore the senators were acting within “the sphere
of legitimate legislative activity.”
Id.
This Court recently
expanded on this analysis, holding that “allocating the total
appropriation for office staffing among the Democratic house
members [is] within the sphere of legitimate, legislative
activity.”
Youngblood v. DeWeese
,
Ryan
,
legislators of an appropriation bill that cut back an opponent’s staff was entitled to immunity. Id.
The
Larsen
Court held that the two part test developed
for municipal immunity did not apply to state legislators. 152
F.3d at 252. This Court has, however, developed an extensive
jurisprudence exploring the distinction between legislative and
administrative actions at the municipal level. Although these
cases are not controlling in this context, their reasoning is
instructive. This Court has repeatedly stated that “decisions
affecting a single individual or a small number of people do not
implicate legislative power and, thus, such actions are
administrative in nature,” whereas decisions affecting the
community at large are likely legislative–though this inquiry is
not necessarily conclusive.
Acierno v. Cloutier
,
This approach to distinguishing administrative from legislative functions is particularly appealing as it tracks exactly the Supreme Court’s analysis in Bogan v. Scott-Harris :
Respondent, however, asks us to look beyond petitioners’ formal actions to consider whether the ordinance was legislative in substance . We need not determine whether the formally legislative character of petitioners’ actions is alone sufficient to entitle petitioners to legislative immunity, *28 because here the ordinance, in substance, bore all the hallmarks of traditional legislation. The ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office. And the city council, in eliminating [the Department of Health and Human Services], certainly governed in a field where legislators traditionally have power to act. Thus, petitioners’ activities were undoubtedly legislative.
523 U.S. 44, 55-56 (1998) (internal quotes omitted). The
Supreme Court refused to insist that formally legislative acts,
such as passing legislation, also be “legislative in
substance.
”
Id
. This aspect of
Bogan
prompted this Court in
Larsen
to drop
the two part legislative facts/procedure test when considering
absolute immunity claims by state legislators.
This Court’s approach to distinguishing administrative
from legislative functions is consistent with the approach
*29
adopted by other courts of appeals in reviewing personnel
actions by state legislators. The First Circuit Court of Appeals
adopted essentially the same distinction between administrative
and legislative acts, holding that termination of a legislative
librarian by state legislators was an administrative act and
therefore not entitled to immunity from suit under 42 U.S.C. §
1983.
Negron-Gaztambide v. Hernandez-Torres
,
Neither Harhai nor Brubaker nor the Caucus were acting in a legislative capacity when they terminated Fowler-Nash. Harhai’s decision did not reach beyond a single employee. It did not eliminate Fowler-Nash’s position, thereby affecting future employees. Harhai’s decision, according to the Caucus’s pleadings, did not rely on any broad consideration of policy, neither was it directed to creating a new policy. It was a textbook example of a legislator performing an administrative function. The Caucus argues that this Court should hold that it is inappropriate for a court to even inquire after a pre-textual legislative purpose. However, this argument is inapposite as the Caucus did not offer even a legislative pretext for Fowler- Nash’s termination.
The Caucus, Harhai, and Brubaker clearly exercised an *30 administrative function when they terminated Fowler-Nash. Common law legislative immunity does not apply.
III. Conclusion
The Caucus’s argument lacks any precedent to support it. The functional approach applied by the District Court is an accurate reflection of the Supreme Court’s approach, this Court’s precedents, and is compatible with our sister courts of appeals’ decisions. The Caucus urges us to adopt a position that would re-create a circuit split that the D.C. Circuit has recently labored mightily to close. The “alter ego” approach is a poor reflection of the purposes of common law legislative immunity.
Notwithstanding the above, common law legislative immunity may still have a role to play in Fowler-Nash’s suit. Harhai may well be able to invoke evidentiary protections if Fowler-Nash seeks to inquire into activities that are directly within the legislative sphere. However, the Caucus’s Rule 12(c) motion for judgment on the pleadings on the grounds of legislative immunity was properly denied in the District Court. We will affirm the District Court’s judgment.
Notes
[1] The District Court had federal question jurisdiction
pursuant to 28 U.S.C. § 1331. We have jurisdiction under the
Collateral Order Doctrine of an order denying absolute
immunity.
In re Montgomery County
,
[2] The Ryan Court echoed the two part test articulated by several other courts: There are two requirements which an act must meet in order to be regarded as legislative for immunity purposes. First, the act must be “substantively” legislative, i.e., legislative in character. Legislative acts are those which involve policy-making decision[s] of a general scope or, to put it another way, legislation involves line-drawing. Where the decision affects a small number or a single individual, the legislative power is not implicated, and the act takes on the nature of administration. In addition, the act must be “procedurally” legislative, that is, passed by means of established legislative procedures. This principle requires that