Massie v. PelosiMassie v. Pelosi
MEMORANDUM OPINION
The plaintiffs, the Honorable Thomas Massie, the Honorable Marjorie Taylor Greene, and the Honorable Ralph Norman, all members of the United States House of Representatives (the “House“), bring this civil action against the defendants, the Honorable Nancy Pelosi, in her official capacity as Speaker of the House; William J. Walker, in his official capacity as the Sergeant-at-Arms of the House; and Catherine Szpindor, in her official capacity as the Chief Administrative Officer of the House. See Plaintiffs’ Verified Complaint for Declaratory and Injunctive Relief (“Compl.“) ¶¶ 5-10, ECF No. 1. The plaintiffs allege violations of the
I. BACKGROUND
The following allegations are taken from the plaintiffs’ Complaint, unless otherwise noted.
A. Regulatory Background
On May 15, 2020, in response to the COVID-19 pandemic, the 116th Congress “enacted H[ouse] Res[olution] 965, which, among other things, created a ‘covered period,’ during which members of Congress could vote by proxy.” Compl. ¶ 15 n.5. House Resolution 965 stated that
at any time after the Speaker or the Speaker‘s designee is notified by the Sergeant-at-Arms, in consultation with the Attending Physician, that a public health emergency due to a novel coronavirus is in effect, the Speaker or the Speaker‘s designee, in consultation with the Minority Leader or the Minority Leader‘s designee, may designate a period (hereinafter in this resolution referred to as a “covered period“) during which a Member who is designated by another Member as a proxy may сast the vote of such other Members or record the presence of such other Member in the House.
H.R. Res. 965 § 1(a), 116th Cong. (May 15, 2020), https://www.congress.gov/bill/116th-congress/house-resolution/965/text. House Resolution 965 further provided that “a covered period shall terminate [forty-five] days after the Speaker or the Speaker‘s designee designates such period[,]” but that
[i]f, during a covered period, the Speaker or the Speaker‘s designee receives further notification from the Sergeant-at-Arms, in consultation with the Attending Physician, that the public health emergency due to a novel coronavirus remains in effect, the Speaker or the Speaker‘s designee, in consultation with the Minority Leader or the Minority Leader‘s designee, may extend the covered period for an additional [forty-five] days.
1. The House‘s Mask Policy
On January 4, 2021, the Speaker announced the following policies regarding “conduct during a covered period” (“the House‘s mask policy“):
[u]nder clause 2 of rule I, the Chair is required to preserve order and decorum in the [House] Chamber.3 This includes the responsibility to ensure the protection of Member and staff safety and health during proceedings. This responsibility is of paramount importanсe, particularly in the midst of a pandemic. As such, the Chair wishes to stress the importance of safe practices. Members and staff will be required to wear masks at all times in the [House Chamber] without exception, including while Members are under recognition. Members will not be recognized unless they are wearing a mask, and recognition will be withdrawn if they remove their mask while speaking. The Chair expects all Members and staff to adhere to this requirement as a sign of respect for the health, safety, and well-being of others present in the Chamber and surrounding areas. Members and staff will not be permitted to enter the [House Chamber] without wearing a mask. Masks will be available at the entry points for any Member who forgets to bring one. The
Chair views the failure to wear a mask as a serious breach of decorum. The Sergeant-at-Arms is directed to enforce this policy. Based upon the health and safety guidance from the attending physician and the Sergeant-at-Arms, the Chair would further advise that all Members should leave the Chamber promptly after casting their votes. Furthermore, Members should avoid congregating in the rooms leading to the Chamber, including the Speaker‘s lobby. The Chair will continue the practice of providing small groups of Members with a minimum of [five] minutes within which to cast their votes. Members are encouraged to vote with their previously assigned group. After voting, Members must clear the Chamber to allow the next group a safe and sufficient opportunity to vote. It is essential for the health and safety of Members, staff, and the U.S. Capitol Police to consistently practice social distancing and to ensure that a safe capacity be maintained in the Chamber at all times. To that end, the Chair appreciates the cooperation of Members and staff in preserving order and decorum in the Chamber and in displaying respect and safety for one another by wearing a mask and practicing social distancing. All announced poliсies, including those addressing decorum in debate and the conduct of votes by electronic device, shall be carried out in harmony with this policy during the pendency of a covered period.
167 Cong. Rec. H40-41 (daily ed. Jan. 4, 2021) (announcement by the Speaker Pro Tempore), https://www.congress.gov/congressional-record/2021/1/4/house-section/article/H38-7; see Compl. ¶ 17 & n.9.
2. House Resolution 38
On January 12, 2021, the House “enacted H[ouse] Res[olution] 38[,]” Compl. ¶ 15, which stated, inter alia:
SEC. 4. (a) During a covered period designated pursuant to section 3(s) of House Resolution 8—
(1) the Sergeant-at-Arms is authorized and directed to impose a fine against a Member, Delegate, or the Resident Commissioner for the failure to wear a mask in contravention of the Speaker‘s announced policies of January 4, 2021[.]
H.R. Res. 38 § 4(a)(1), 117th Cong. (Jan. 12, 2021), https://www.congress.gov/117/bills/hres38/BILLS-117hres38eh.pdf.
Fines imposed pursuant to House Resolution 38 are “treated as though imposed under clause 3(g) of rule II,”
House Resolution 38 further provides that fines “shall be administered as though pursuant to clause 4(d) of [R]ule II[.]” H.R. Res. 38 § 4(a)(2). Under clause 4(d) of Rule II, “[u]pon notification from the chair of the Committee on Ethics pursuant to clause 3(g)(3)(c)[ of Rule II], the Chief Administrative Officer shall deduct the amount of any fine levied under clause 3(g) from the net salary otherwise due the Member, Delegate, or the Resident Commissioner.” H.R. Rule II, cl. 4(d)(1); see Compl. ¶ 16.
Additionally, House Resolution 38 provides that the authorization to impose a fine for failure to comply with the House‘s mask policy “establishes a standard of conduct within the meaning of clause 3(a)(2) of [R]ule XI.” H.R. Res. 38 § 4(b). Clause 3(a)(2) of Rule XI authorizes the Committee on Ethics to
investigate, subject to [the limitations set forth in] paragraph (b)[, which proscribe “resolution[s], report[s], recommendation[s], [investigations,] or advisory opinion[s] relating to the official conduct of a Member, Delegate, Resident Commissioner, officer, or employee of the House” except in certain circumstances], an alleged violation by a Member, Delegate, Resident Commissioner, officer, or employee of the House of the Code of Official Conduct or of a law, rule, regulation, or other standard of conduct of such Member, Delegate, Resident Commissioner, officer, or employee in the performance of the duties or the discharge of the responsibilities of such individual.
H.R. Rule XI, cl. 3(a)(2).
3. Subsequent Amendments of the House‘s Mask Policy
On May 11, 2021, the Speaker announced a modification of the House‘s mask policy, see Compl. ¶ 23, which stated that “while masks continue[d] to be required in the Hall of the House, Members [we]re permitted to remove their masks temporarily while under recognition.” 167 Cong. Rec. H2157 (daily ed. May 11, 2021) (announcement by the Speaker), https://www.congress.gov/congressional-record/2021/5/11/house-section/article/H2157-6; see Compl. ¶ 23 (“On or about May 11, 2021, the Speaker unilaterally purported to grant exceptions to the mask mandate for members under recognition[.]” (footnote omitted)). “This announcement [wa]s incorporated within the policy on conduct during a covered period of January 4, 2021[, i.e., the House‘s mask policy,] and the Sergeant-at-Arms [wa]s directed to enforce mask requirements consistent with this announcement.” 167 Cong. Rec. H2157 (daily
Subsequently, on June 11, 2021, the Speaker announced a further modification to the House‘s mask policy, which established “exceptions to the mask mandate for [Members who are] vaccinated[ against the COVID-19 virus].” Compl. ¶ 23; see 167 Cong. Rec. H2715 (daily ed. June 14, 2021) (announcement by the Speaker), https://www.govinfo.gov/content/pkg/ CREC-2021-06-14/pdf/CREC-2021-06-14-house.pdf (announcing on June 14, 2021, that, “[c]onsistent with updated guidance from the Attending Physician, . . . masks are no longer required in the Hall of the House for Members and staff who have been fully vaccinated” and that “[t]his announcement is incorporated within the policy on conduct during a covered period оf January 4, 2021“). According to the plaintiffs, the June 11, 2021 modification to the House‘s mask policy “was transparently reactive to [the p]laintiffs[‘] and other minority members’ position that vaccination status is private medical information that should not need to be shared with the government” because it “came after [the] Speaker [ ] had faced substantial opposition from the House Minority Leader Kevin McCarthy and several other Republican lawmakers over the House masking rules.” Compl. ¶ 38.
B. Factual Background
The plaintiffs allege that, “[o]n May 18, [2021,] and again on May 19, 2021,” they “entered the House [Chamber] to vote without wearing masks[,]”
Following the plaintiffs’ actions on May 18, 2021, and May 19, 2021, “[d]efendant Walker sent correspondence to each of the [p]laintiffs imposing a fine against each [p]laintiff in the amount of $500, which[,] according to H[ouse] Res[olution] 38[,] would be deducted from [that p]laintiff‘s compensation through procedures overseen by [d]efendant Szpindor.”
“On July 22, 2021, [plaintiff Representative] Massie received a Deduction of Fine Imposed Pursuant to House Resolution 38 memorandum, which read in relevant part:
[t]he Office of Members’ Services received correspondence on July 20, 2021, from the House Committee on Ethics upholding a fine imposed pursuant to House Resolution 38 and House Rule II, clause 3(g). The fine was imposed by the House Sergeant[-]at[-]Arms on May 19, 2021. The Chief Administrative Officer is responsible for deducting the amount of any fine levied under House Resolution 38 and House Rule II, clause 3(g) from the net salary otherwise due the Member, Delegate, or Resident Commissioner. I am including a copy of the Committee on Ethics and Sergeant[-]at[-]Arms notices for your records.
The full amount of the fine, $500.00, will be deducted from your July 2021 payroll (to be disbursed August 1).
On May 18, 2021, the same day that the plaintiffs initially appeared in the House Chamber without masks, “the Speaker herself also appeared on the House floor without a mask . . . while under recognition to speak in the [C]hamber[.]”
C. Procedural Background
On July 27, 2021, the plaintiffs filed their Complaint, see
II. STANDARD OF REVIEW
“Federal [district] courts are courts of limited jurisdiction[,]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of Civil Procedure] 12(b)(1) ‘prеsents a threshold challenge to the [C]ourt‘s jurisdiction[,]‘” Morrow v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the Court is obligated to dismiss a claim if it “lack[s] . . . subject-matter jurisdiction.”
“In deciding a [Rule] 12(b)(1) motion, the [C]ourt need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal Ord. of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, the “[C]ourt may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000); see Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005). Additionally, the Court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged[.]‘” Am. Nat‘l Ins. Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). However, “the [p]laintiff‘s factual allegations in the complaint . . . will bear closer scrutiny in resolving a [Rule] 12(b)(1) motion than in
III. ANALYSIS
The defendants move to dismiss the plaintiffs’ Complaint, arguing that (1) the “[p]laintiffs’ suit is barred by the Constitution‘s Speech or Debate Clause[,]” Defs.’ Mem. at 11; and (2) the plaintiffs fail to state a claim upon which relief can be granted, see
Pursuant to the Speech or Debate Clause, “Senators and Representatives . . . for any Speech or Debate in either House . . . shall not be questioned in any other Place.”
“The Supreme Court has consistently read the Speech or Debate Clause ‘broadly’ to achieve its purposes[,]” id. (quoting Eastland v. U.S. Servicemen‘s Fund, 421 U.S. 491, 501 (1975)), and thus, “although the Clause speaks of ‘Speech or Debate,’ it extends further to all ‘legislative acts[,]” id. (quoting Doe v. McMillan, 412 U.S. 306, 312 (1973)). See also Gravel v. United States, 408 U.S. 606, 618 (1972) (noting that to “confine the protections of the Speech or Debate Clause to words spoken in debate would be an unacceptably narrow view“). Consequently, “[t]he ‘key consideration . . . is the act presented for examination, not the actor[,]” McCarthy v. Pelosi, 5 F.4th 34, 39 (D.C. Cir. 2021), cert. denied, 142 S.Ct. 897 (2022) (quoting Walker v. Jones, 733 F.2d 923, 929 (D.C. Cir. 1984)), and “[t]he Clause applies to aides and staff ‘insofar as [their] conduct . . . would be a protected legislative act if performed by [a] Member[,]” id. (quoting Gravel, 408 U.S. at 618) (all but the first alteration in original).
Legislative acts include not only “core legislative acts[, e.g.,] ‘how [a
The defendants argue that the “[p]laintiffs’ suit is barred by the [ ] Speech or Debate Clause” because “[t]he Clause provides absolute immunity from civil suit for Members of Congress, Officers, and their aides for all ‘legislative acts‘—a term that the [District of Columbia] Circuit has broadly construed to include execution and implementation of the House‘s internal rules.” Defs.’ Mеm. at 11 (citing McCarthy, 5 F.4th at 38-40; Consumers Union of U.S. v. Periodical Correspondents’ Ass‘n, 515 F.2d 1341, 1351 (D.C. Cir. 1975)). In response, the plaintiffs argue that “the congressional staff functions at issue . . . are purely administrative in nature and not within the Speech or Debate Clause‘s ambit.” Pls.’ Opp‘n at 4. For the following reasons, the Court concludes that the defendants’ actions “are quintessentially legislative acts falling squarely within the Clause‘s ambit[,]” McCarthy, 5 F.4th at 39, because they fall under both Gravel categories: (1) they regulate Members’ conduct in the House Chamber as Members participate in the “consideration and passage or rejection of proposed legislation[,]” and (2) they fall within the House‘s authority to enact rules regarding its legislative process and to discipline Members for non-compliance, which are “matters which the Constitution places within the jurisdiction of [the] House[,]” Gravel, 408 U.S. at 625.
A. The First Gravel Category
The Court begins by considering whether the defendants’ actions fall within the first category of legislative acts recognized in Gravel, namely, whether the defendants’ actions are “an integral part of the deliberative and communicative processes by which Members participate in committee or House proceedings with respect to the consideration and passage or rejection of proposed legislation[.]” See Gravel, 408 U.S. at 625. The defendants argue that their actions are “an integral part of the [House‘s] deliberative and communicative processes[,]” id., because they concern “an internal rule designed to protect the health of all persons in the [House Chamber], where all House-wide debate and voting on legislation occurs,” Defs.’ Mem. at 15. In response, the plaintiffs argue that the “administrative functions of mask enforcement and payroll deductions” do not “constitute ‘legislative acts.‘” Pls.’ Opp‘n at 10. For the following reasons, the Court agrees with the defendants that their actions fall within Gravel‘s first category.
To start, the Court considers the nature of the actions taken by the defendants. See McCarthy, 5 F.4th at 39 (“The ‘key consideration . . . is the act presented for examination[.]‘” (quoting Walker, 733 F.2d at 929)). The plaintiffs’ Complaint challenges the actions taken by the Speaker,7 the Sergeant-at-Arms, and the Chief Administrative Officer in the enforcement of the House‘s mask policy and the issuance of fines for violations of that policy pursuant to House Resolution 38. See Compl. ¶ 75 (stating that the plaintiffs seek “a declaratory judgment that the House . . . may not impose or collect fines” and “an injunction against [d]efendants Walker and Szpindor from imposing or collecting fines by reducing Congressional salaries“). The House‘s mask policy sets forth the circumstances requiring Members and staff to wear masks in the House
In accordance with the Circuit‘s decision in McCarthy v. Pelosi, the Court concludes that the defendants’ actions are part of the process of enabling the legislative processes in the House Chamber to occur. In McCarthy, the Circuit concluded that several administrative steps incident to proxy voting were legislative acts because they were part of the “rules governing how Members can cast their vоtes on legislation and mark their presence for purposes of establishing a legislative quorum.” 5 F.4th at 37. Viewed independently, the administrative steps in McCarthy—which included notification of “the existence of a public health emergency due to COVID-19[,]” “designat[ion of] a covered period[,]” “accept[ance of] proxy letters from Members and maintain[ance of] a proxy list[,]” id. at 39—may not be “integral parts of the deliberative and communicative processes by which Members participate in committee and House proceedings[,]” Gravel, 408 U.S. at 625. However, when considered as components of the scheme that enabled Members to cast votes—i.e., as part of the “administration of voting by Members[,]” McCarthy, 5 F.4th at 40—these actions “concern[ed] core legislative acts[,]” id. at 39.
Along the same lines, in Consumers Union v. Periodical Correspondents’ Ass‘n, the Circuit concluded that the Periodical Correspondents’ Association‘s regulation of admission to the press galleries located in the House Chamber was a legislative act because it was a “delegated legislative function[]” that was “an integral part of the legislative machinery” and, therefore, an “act[] generally done in relation to the business before Congress.” 515 F.2d at 1350. By managing admission to the press galleries, the Association was “regulati[ng] [ ] the very atmosphere in which lawmaking deliberations occur[ed].” Walker, 733 F.2d at 930 (discussing Consumers Union). By adopting and implementing
Here, the defendants’ actions constitute part of the scheme that regulates “order and decorum in the Chamber[,]” 167 Cong. Rec. H40-41 (daily ed. Jan. 4, 2021) (announcement by the Speaker Pro Tempore), i.e., how Members must act in the House Chamber—the very place where Members engage in the legislative process by introducing, considering, and voting on proposed legislation. See History, Art & Archives: Tour the House Chamber, U.S. House of Representatives, https://history.house.gov/Education/Capitol-Tour/House-Chamber-Tour/ (last visited Mar. 9, 2022) (noting that, “[a]s the central space for the House, [the House Chamber is] the location where Members introduce, debate, and vote on legislation“). From the House‘s mask policy through the Chief Administrative Officer‘s deduction of the fines from the plaintiffs’ paychecks, the defendants’ actions sought to ensure that Members would comply with the code of conduct set forth in the House‘s mask policy while Members were engaging in the legislative process. Thus, similar to the ways in which the notification of “the existence of a public health emergency due to COVID-19[,]” “designat[ion of] a covered period[,]” “accept[ance of] proxy letters from Members[,] and maintain[ance of] a proxy list[,]” McCarthy, 5 F.4th at 39, served as part of the “administration of voting by Members” in McCarthy, id. at 40-41, the defendants’ actions are merely “part and parcel[,]” Gravel, 408 U.S. at 626, of the overall scheme to “preserve order and decorum in the Chamber[,]” 167 Cong. Rec. H40-41 (daily ed. Jan. 4, 2021) (announcement by the Speaker Pro Tempore), when the House conducts its legislative business. Accordingly, because the defendants’ actions “squarely concern ‘the direct business of passage or rejection of proposed legislation[,]‘” McCarthy, 5 F.4th at 39 (quoting Consumers Union, 515 F.2d at 1351), they fall under Gravel‘s first category.
The plaintiffs present several arguments in opposition to this conclusion. First, they argue that the defendants’ actions fall within “the vast array of administrative functions performed by the House [that] do not fall within the Speech or Debate Clause[,]” Pls.’ Opp‘n at 10, analogizing this case to Walker v. Jones, see
[p]ersonnel who attend to food service, medical care, physical fitness needs, parking, and haircutting for members of Congress no doubt contribute importantly to our legislators’ well-being and promote their comfort and convenience in carrying out Article I business. But these staff members, unlike those who help prepare for hearings or assist in the composition of legislative measures, cater to human needs that are not “intimately cognate,” Davis v. Passman, 544 F.2d at 879, to the legislative process.
In this case, however, the challenged actions are not analogous to “food service, medical care, physical fitness needs, parking, and haircutting[,]” id. See Pls.’ Opp‘n at 9-10. As the Circuit noted in Walker, the only link between those functions and the legislative process is the extent to which they “promote[d legislators‘] comfort and convenience in carrying out Article I business.” Walker, 733 F.2d at 931. Here, in contrast, the defendants’ actions can only be characterized as “administrative[,]” Pls.’ Opp‘n at 10, to the extent that they concern the actual administration of the “legislative process” itself, Walker, 733 F.2d at 931, namely how Members must conduct themselves while participating in the legislative process in the House Chamber.9 Cf. McCarthy, 5 F.4th at 40-41 (concluding that the steps taken to enable proxy voting were part of the “administration of voting by Members“).
Second, the plaintiffs point to the Circuit‘s decision in Barker v. Conroy, see Pls.’ Opp‘n at 12, in which the Circuit concluded that the House Chaplain‘s “administration of the guest chaplain program is not an integral part of the House‘s deliberative and communicative processes[,]” Barker, 921 F.3d at 1128 (internal quotation marks omitted). The plaintiffs argue that, “[j]ust as a chaplain‘s prayer prior to House deliberations does not ‘regulate the very atmosphere in which lawmaking deliberations occur’ and ‘poses no threat to the integrity of the legislative process,’ neither does enforcing mask wearing or the administration of payroll deductions.” Pls.’ Opp‘n at 12 (quoting Barker, 921 F.3d at 1128). In Barker, the Circuit considered whether the House Chaplain was entitled to immunity under the
Here, however, as in Consumers Union, there is no question that the defendants’ actions “regulate the very atmosphere in which lawmaking deliberations occur.” Id. (quoting Walker, 733 F.2d at 930). As the Court noted above, the defendants’ actions are part of the scheme that regulates Members’ behavior as they engage in “lawmaking deliberations[,]” id., as well as other quintessentially legislative activities such as voting. Therefore, unlike in Barker, which noted that “[t]he Supreme Court itself has described legislative prayer not as a part of the legislative process, but rather as a ‘symbolic expression’ that simply ‘lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society[,]” id., the defendants’ actions are not so plainly divorced from the legislative process. Furthermore, unlike in Barker, which concluded that “opening prayer” is “an event that occurs at the very beginning of the legislative session before any deliberating whatsoever[,]” id., there is no clear temporal distinction between the behavior for which the plaintiffs were fined and lawmaking deliberations. See Compl. ¶ 26 (noting that the “[p]laintiffs entered the House floor to vote without wearing masks[,]” along with a photograph taken from C-SPAN television coverage, depicting the House in session while the plaintiffs posed for a photograph without wearing masks).
Third, the plaintiffs argue that Consumers Union is distinguishable because that case implicated concerns about lawmakers’ independence from the press, whereas this case implicates the plaintiffs’ independence from the majority party in the House. See Pls.’ Opp‘n at 11-12 (arguing that “no such consideration of lawmakers’ independence exists; indeed, the opposite is true” because the “[d]efendants are using H[ouse] Res[olution] 38 to dissuade and punish Republican members of Congress from being able to speak or debate based on viewpoint“). As the plaintiffs correctly note, see id. at 11-12 (quoting Barker, 921 F.3d at 1128), the Circuit has described lawmakers’ independence as one “essential” part of its decision in Consumers Union:
[In Consumers Union, we] conclud[ed] that the [Periodical Correspondents‘] Association‘s denial of the [plaintiff] organization‘s application “fell within the sphere of legislative activity” protected by the Clause[. Consumers Union, 515 F.2d] at 1350 (internal quotation marks omitted). Essential to that determination was the fact that Congress itself had developed the press gallery rules to protect legislators’ independence: Congress designed the rules to ensure that the galleries would “be used by bona fide reporters who [would] not abuse the privilege of accreditation by importuning Members on behalf of private interests or causes.” Id. at 1347. As [] explained in a later case, because the Association‘s denial of the organization‘s application
involved “regulation of the very atmosphere in which lawmaking deliberations occur,” the Speech or Debate Clause barred [the Circuit] from hearing the suit. Walker[ ], 733 F.2d [at] 930[.]
Barker, 921 F.3d at 1128 (fifth alteration and some emphasis in original).10 However, in arguing that “no such considerations of lawmakers’ independence exist” in this case, Pls.’ Opp‘n at 11-12, the plaintiffs fail to acknowledge that the
based on viewpoint[,]”11 Pls.’ Opp‘n at 12, neither Barker, Consumers Union, nor any other case cited by the plaintiffs recognizes concerns for an individual lawmaker‘s independence from other lawmakers as pertinent to the inquiry under the
Fourth, the plaintiffs argue that “the deliberations, communications,
House‘s exclusion of an elected representative were not entitled to
In sum, by delegating authority to the Speaker to “preserve order and decorum[,]” H.R. Rule I, cl. 2 (117th Cong.), and passing House Resolution 38 to compel Members to abide by the House‘s mask policy, see H.R. Res. 38 § 4(a)(1), the House is regulating “the very atmosphere in which lawmaking deliberations occur[,]” Walker, 733 F.2d at 930. Accordingly, the Court concludes that all of the defendants’ actions “implicate[] Gravel‘s first category” because they “concern ‘the direct business of passage or rejection of proposed legislation[,]‘” McCarthy, 5 F.4th at 40 (quoting Consumers Union, 515 F.2d at 1351).12
B. The Second Gravel Category
The Court now turns to Gravel‘s second category, namely, whether the defendants’ actions fall within “other matters which the Constitution places within the
its own rules and discipline its Members.” Defs.’ Mem. at 13. In response, the plaintiffs argue that the defendants’ actions are not “within the jurisdiction of [the] House[,]” Gravel, 408 U.S. at 625, because “the House has ignored the constitutional restraints upon its rulemaking authority[,]” Pls.’ Opp‘n at 5. For the following reasons, the Court concludes that the defendants’ actions also constitute “other matters which the Constitution places within the jurisdiction of either House[,]” Gravel, 408 U.S. at 625, because the House‘s authority to establish the rules of the House and to discipline Members for non-compliance with those rules, including through the actions challenged in this case, stems from the Constitution itself.
Under
(noting that “the institution of the House has the right to discipline those who breach its privileges or decorum, or who damage its integrity or reputation“); and this authority extends to fining Members, see Kilbourn, 103 U.S. at 190 (noting “the power of punishment in either House by fine“); Lewis Deschler, Deschler‘s Precedents of the United States House of Representatives, H. Doc. 94-661, 94th Cong., 2d Sess., Ch. 12 § 17 (1979) (noting that “[a] fine may be levied by the House against a Member pursuant to its constitutional authority to punish its Members“); cf. Maskell, supra, at 14 (noting that the House “fined a Member in 1969 the sum of
Despite what the Court has just outlined, the plaintiffs argue that, although the “House certainly has the constitutional authority to enact rules for discipline and safety, it may not do so by violating the Constitution.” Pls.’ Opp‘n at 7 (citing United States v. Ballin, 144 U.S. 1, 5(1892));14 see id. at 4-7. Specifically, the plaintiffs identify three constitutional provisions that they contend “limit[] the [House‘s] rulemaking power” in this case, id.: (1) the Twenty-Seventh Amendment, see Compl. ¶¶ 49-54; (2) Article I, Sections 6 and 7, see id. §§ 60-67; and (3) the First Amendment, see id. §§ 68-75.15 For the following reasons, the Court concludes that none of these constitutional provisions limit the House‘s authority under
Article I, Section 5, Clause 2 to Adopt the Mask Policy and House Resolution 38
The Court begins by assessing the plaintiffs’ argument regarding the
‘compensation’ for [his or her] ‘services.‘” Defs.’ Reply at 8. For the following reasons, the Court concludes that the plaintiffs’ compensation, as the term is used in the
Pursuant to the
As the parties both note, this amendment was originally “proposed in the First Congress on June 8, 1789[,] by Representative James Madison[,]” but was not ratified until May 7, 1992, when “Michigan became the thirty-eighth state to ratify [the] amendment[.]” Bernstein, supra, at 498. “According to Madison, and to all the ratifying states that stated their understanding, the
purpose of the amendment is to ensure that a congressional pay increase ‘cannot be for the particular benefit of those who are concerned with determining the value of the service.‘” Boehner v. Anderson, 30 F.3d 156, 159 (D.C. Cir. 1994) (quoting James Madison, Speech in the House of Representatives (June 8, 1789), in The Congressional Register, June 8, 1789, reprinted in Creating the Bill of Rights, supra, at 84; 138 Cong. Rec. S6836 (May 19, 1992) (documents supplementing remarks of Senator Byrd) (text of state resolutions concerning Madison amendment)). Furthermore, as acknowledged by the plaintiffs, see Pls.’ Opp‘n at 19-25, the background of the
To determine the meaning of the term “compensation” as used in the
States v. Sprague, 282 U.S. 716, 731 (1931) (“The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning; where the intention is clear there is no room for construction and no excuse for interpolation or addition.“). These definitions demonstrate that the meaning of “compensation” from the time of the drafting of the Ascertainment Clause and what would become the
Furthermore, the history of congressional salaries demonstrates that the amount of the compensation referred to in the Ascertainment Clause and the
changed over time through the passage of legislation. Initially, “[b]itter argument in the summer
Congress has denied itself the annual adjustment, see Salaries of Members of Congress, supra, at 2, and, thus, a Representative‘s annual salary has remained at $174,000 per year, see id. at 19.
Therefore, the “compensation” received by Members in return for their “services[,]”
Having determined the constitutional meaning of what constitutes “compensation[,]” the Court concludes that this “compensation[,]”
The plaintiffs muster only conclusory arguments to the contrary, asserting that, “[w]hile the fines may not change the underlying salary level of $174,000 per annum, it defies logic (and math) to suggest that deducting money does not vary, i.e., reduce, those Members’ actual compensation for their services.” Pls.’ Opp‘n at 30 (underline added). As an initial matter, the Court notes that, although the plaintiffs refer to their “actual compensation[,]” id., the term “actual” is not found in either the
. . . from the net salary otherwise due the Member[,]” H.R. Rule II, cl. 4(d)(1)—occurred before the plaintiffs received their paychecks.18
Accordingly, the Court concludes that the deduction of fines from the plaintiffs’ paychecks pursuant to House Resolution 38 does not violate the
Article I, Sections 6 and 7 Limit the House‘s Authority under Article I, Section 5, Clause 2 to Adopt the Mask Policy and House Resolution 38
Second, the Court turns to the plaintiffs’ argument regarding
which requires passage by both chambers of Congress and presentment to the President[.]” Pls.’ Opp‘n at 5.
In light of the Court‘s prior conclusion that neither the House‘s mask policy nor House Resolution 38 affects the plaintiffs’ “compensation for their services” within the purview of the
3. Whether the First Amendment Limits the House‘s Authority under Article I, Section 5, Clause 2 to Adopt the Mask Policy and House Resolution 38.
Third and finally, the plaintiffs argue that the House‘s mask policy and House Resolution 38 “punish[ M]embers for contrary viewpoint-based symbolic speech, in contravention of the
because the interest underlying the policy is “important” and “unrelated to the suppression of expression[,]” and “the incidental restriction on [the plaintiffs‘] alleged First Amendment freedoms is no greater than is essential to the furtherance of [the stated] interest[s].” Defs.’ Mot. at 28 (internal quotation marks omitted). For the following reasons, the Court agrees with the defendants.
Although “[t]he First Amendment literally forbids the abridgment only of ‘speech[,]” courts “have long recognized that its protection does not end at the spoken or written word.” Texas v. Johnson, 491 U.S. 397, 404 (1989). Accordingly, “conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First . . . Amendment[],‘” provided that (1) “‘[a]n intent to convey a particularized message was present” and (2) “‘the likelihood was great that the message would bе understood by those who viewed it.‘” Id. (quoting Spence v. Washington, 418 U.S. 405, 409 (1974)). However, “[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word[,]” although “[i]t may not, however, proscribe particular conduct because it has expressive elements.” Id. at 406 (emphasis in original). If a law is “directed at the communicative nature of [the] conduct[, it] must, like a law directed at speech itself, be justified by the substantial showing of need that the
alternative channels for communication[,]” id. (citing Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984)).21
mask[-]wearing is not scientifically based, [ ] mask[-]wearing is not necessary for the vaccinated or naturally immune, [ ] mask[-]wearing is merely political theater, [] one‘s bodily integrity should be free from government control, [] individuals should have the liberty to choose what they wear on their face, . . . individuals should be free to make their own medical decisions[, and] . . . the use of face coverings has no appreciable effect on slowing or halting the spread of COVID-19.
Compl. ¶ 27. See Defs.’ Mot. at 28 (conceding that the “[p]laintiffs allege an intent to convey a particularized message” (internal quotation marks omitted)). However, even assuming that “the likelihood was great that the message [that the plaintiffs contend they intended to convey by their actions] would be understood by those who viewed it[,]” Johnson, 491 U.S. at 404, which would entitle the plaintiffs’ conduct to
Under United States v. O‘Brien,
a government regulation is sufficiently justified if [(1)] it is within the constitutional power of the [g]overnment; [(2)] if the governmental interest is unrelated to the suppression of free expression; and [(3)] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Id. at 377. Regarding the first O‘Brien factor, as noted above, see supra Section III.B, the House has the authority under
Regarding the second O‘Brien factor, the reasons underlying both the House‘s mask policy and House Resolution 38 are “unrelated to the suppression[,]” O‘Brien, 391 U.S. at 377, of the messages the plaintiffs claim they intended to convey by refusing to wear masks. The House‘s mask policy expressly references its underlying reasoning, namely, the Speaker‘s “responsibility to ensure the protection of Member and staff safety and health during proceedings[,]” which “is of paramount importance, particularly in the midst of a pandemic.”
167 Cong. Rec. H40-41 (daily ed. Jan. 4, 2021) (announcement by the Speaker Pro Tempore). Similarly, although House Resolution 38 does not expressly set forth the reasons for its adoption, it applies only “[d]uring a covered period[,]” H.R. Res. 38 § 4(a), as designated by House Resolutions 8 and 965, i.e., during “a public health emergency due to a novel coronavirus[,]” H.R. Res. 965 § 1(a). Thus, the conduct of not wearing a mask in the House Chamber is “singl[ed] out . . . for proscription[,]” Johnson, 491 U.S. at 406 (internal quotation marks omitted), not for the purpose of restricting the plaintiffs’ intended messages, but rather because of “the importance of [requiring] safe practices” “in the midst of a pandemic[,]” 167 Cong. Rec. H40-41 (daily ed. Jan. 4, 2021) (announcement by the Speaker Pro Tempore). Accordingly, the Court concludes that the House‘s mask policy and House Resolution 38 were implemented in order to help prevent the spread of COVID-19, not “because [the failure to wear a mask in the House Chamber may] ha[ve] expressive elements[,]” Johnson, 491 U.S. at 406 (emphasis in original), and O‘Brien‘s second factor is satisfied.
Finally, concerning the third O‘Brien factor, the Court сoncludes that “the incidental restriction” on the plaintiffs’ “alleged First Amendment freedoms is no greater than is essential to the furtherance of [the House‘s] interest[,]” id., in preventing the spread of the COVID-19 virus amongst Members of the House and their staff. Since March 2020, the United States has been grappling with the devastating effects of the COVID-19 pandemic, including an ever-rising death toll from the virus. See, e.g., Ctrs. for Disease Control & Prevention (“CDC“), COVID Data Tracker: Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by State/Territory, https://covid.cdc.gov/covid-data-tracker/#trends_totaldeaths (last visited March 9, 2022) (“CDC COVID-19 Death Tracker“) (reflecting the number of COVID-19
related cases and deaths in the United States since January 23, 2020);23 Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 73 (2020) (Kavanaugh, J., dissenting from denial of application for injunctive relief) (“[T]he COVID-19 pandemic remains extraordinarily serious and deadly.“); Agua Caliente Band of Cahuilla Indians v. Mnuchin, No. 20-01136, 2020 WL 2331774, at *1 (D.D.C. May 11, 2020) (noting “the devastating impacts of the COVID-19 pandemic“). Although “[m]ost people with COVID-19 have mild symptoms, [ ] some people become severely ill.” CDC, Basics of COVID-19, https://www.cdc.gov/coronavirus/2019-ncov/your-health/about-covid-19/basics-covid-19.html (“CDC COVID-19 Basics Factsheet“) (last visited March 7, 2022). This includes “[o]lder adults and people who have certain underlying medical conditions[,]” who “are at increased risk of severe illness from COVID-19[,]” but also people “with minor or no symptoms [who] suffer from post-COVID conditions[,] or [so-called] ‘long COVID.‘” Id. On January 4, 2021, when the Speaker announced the House‘s mask policy, the CDC reported the deaths of 2,092 people on that day in the United States due to COVID-19, which brought the nation‘s cumulative total of deaths from the virus to 370,527. See CDC COVID-19 Death Tracker. By January 12, 2021, when the House adopted House Resolution 38, the number had risen to 3,602 deaths reported on that day and 397,752 total deaths across the country. See id. By May 18, 2021, and May 19, 2021, when the plaintiffs appeared in the House Chamber without masks, although the nation‘s daily death rate had decreased substantially to 604 and 607, respectively, the total number of deaths in the country had increasеd to 588,764. See id.
Additionally, as acknowledged by articles cited by the plaintiffs in their Complaint, the virus is “a highly infectious disease[,]” Costa v. Bazron, 456 F. Supp. 3d 126, 129 (D.D.C. 2020). See Compl. at 10 n.12 (collecting articles); Amanda D‘Ambrosio, Droplets vs Aerosols: What‘s More Important in COVID-19 Spread?, MedPage Today (May 13, 2021), https://www.medpagetoday.com/specialreports/exclusives/92564 (“D‘Ambrosio“) (noting that “inhalation of aerosols—which are tiny, lightweight viral particles that can float and linger in the air for extended periods of time—is one way [in which] COVID-19 spreads” and, “[e]ven when an infectious person is more than [six] feet away, aerosols have the ability to travel and infect others“); see also CDC COVID-19 Basics Factsheet, supra (noting that COVID-19 “is very contagious and has quickly spread around the world“).
Contrary to the plaintiffs’ assertion regarding the existence of “recent scientific findings that the use of face coverings has no appreciable effect on slowing or halting the spread of COVID-19[,]” Compl. ¶ 27,24 the consensus within the scientific
masks—and, in particular, well-fitting, protective masks—are effective in slowing the spread of the COVID-19 virus, as demonstrated by the very articles cited by the plaintiffs in their Complaint, see id. at 10 n.12 (citing articles); CDC, SARS-CoV-2 Transmission (updated May 7, 2021), https://www.cdc.gov/coronavirus/2019-ncov/science/science-briefs/sars-cov-2-transmission.html#:~:text=People%20release%20respiratory%20fluids%20during,across%20a%20spectrum%20of%20sizes.&text=These%20droplets%20carry%20virus%20and,rapidly%2C%20within%20seconds%20to%20minutes (“CDC COVID-19 Transmission Factsheet“) (stating that “the available evidence continues to demonstrate that existing recommendations to prevent [COVID-19] transmission remain effective[,]” including, inter alia, “community use of well-fitting masks (e.g., barrier face coverings, procedure/surgical masks” (underline added)); D‘Ambrosio, supra (noting a statement by “Monica Gandhi, MD, MPH, an infectious disease expert at the University of California San Francisco” that “wearing a tight-fitting mask in poorly ventilated spaces, as well as spending time outdoors—where ventilation is about as good as it gets—have proven to be critical infection prevention approaches“). For these reasons, the Court concludes that any “incidental restriction
on [the plaintiffs‘] alleged First Amendment freedoms” by requiring them to wear masks while in the House Chamber and imposing fines for their failure to do so “is no
In response, the plaintiffs argue that “[t]he protest in this case was not actually disruptive to any proceedings (any more than wearing white to a State of the Union [ ] to protest the President), and therefore it was protected[.]” Pls.’ Opp‘n at 42 (emphasis in original). The plaintiffs analogize this case to Tinker v. Des Moines Independent Community School District, in which the Supreme Court held that a school violated the
The plaintiffs present no other response to the defendants’ arguments that the purpose of the House‘s mask policy and House Resolution 38 is “unrelated to the suppression of expression[,]” Defs.’ Mot. at 28
Therefore, neither the
In summary, because the defendants’ actions fall under both Gravel categories, the defendants are entitled to the protection of the
IV. CONCLUSION
For the foregoing reasons, the Court concludes that it must grant the defendants’ motion and dismiss the plaintiffs’ Complaint.
SO ORDERED this 9th day of March, 2022.26
REGGIE B. WALTON
United States District Judge
Notes
Defs.’ 2d Notice at 1 (quoting 168 Cong. Rec. H1151 (daily ed. Feb. 28, 2022)). According to the defendants, “[t]his announcement does not affect fines previously assessed to any Members for violations of the [version of] the [House‘s] mask policy [ ] in effect[ at the time the fines were issued].”[c]onsistent with updated guidance from the Attending Physician, the Chair wishes to inform Members that masks are no longer required in the Hall of the House. The Chair would further note that all Members and staff may continue to wear masks at their discretion. This announcement is incorporated within the policy on conduct during a covered period of January 4, 2021, and supersedes all other announced policies that are in conflict.
Pls.’ Opp‘n at 18. Consistent with their position, according to the plaintiffs, the scope of their suit against the Speaker is limited to “administrative directives” issued by the Speaker that were not “official directives from the floor[.]”is a proper [d]efendant [so long as]: (a) she is not sued in connection with the enactment or passage of any challenged legislation itself (and she is nоt); (b) she is not questioned in connection with such enactment or passage of legislation (and she will not be); but rather (c) is sued solely in connection with administrative directives she gave to [defendants] Walker or Szpindor to engage in enforcement of mandates outside of official directives from the floor (which is the scope of her involvement in this matter).
If the House‘s mask policy and House Resolution 38 satisfy the O‘Brien factors, then there is no constitutional violation and the House has acted within its rulemaking authority—which, in turn, would satisfy the first O‘Brien factor. See O‘Brien, 391 U.S. at 377 (listing the first factor as whether the regulation “is within the constitutional power of the [g]overnment“). Conversely, if the policy and the resolution do not satisfy the O‘Brien factors, then the House has not acted within its rulemaking authority (because the
It is unclear whether the plaintiffs have accurately consumed the content of the three articles they cite to support their assertion of the existence of “recent scientific findings that the use of face coverings has no appreciable effect on slowing or halting the spread of COVID-19[,]” Compl. ¶ 27. See id. at 10 n.12. The CDC article, which states that COVID-19 is spread through droplets, including aerosol particles, specifically states that “the available evidence continues to demonstrate that existing recommendations to prevent [COVID-19] transmission remain effective[,]” including, inter alia, “community use of well-fitting masks (e.g., barrier face coverings, (continued...)
(...continued) procedure/surgical masks)[.]” CDC COVID-19 Transmission Factsheet, supra (underline added). Similarly, the MedPage Today article contains a statement by “Monica Gandhi, MD, MPH, an infectious disease expert at the University of California San Francisco” that “wearing a tight-fitting mask in poorly ventilated spaces, as well as spending time outdoors—where ventilation is about as good as it gets—have proven to be critical infection prevention approaches.” D‘Ambrosio, supra. Finally, although Chen and Willeke do conclude that “surgical mask[s] [] may not be sufficient to remove the submicrometer-size aerosols containing pathogens to which [] health[-]care workers are potentially exposed[,]” Chen, supra, at 177, they address only one type of mask—surgical masks—and do not specifically refer to COVID-19 or coronaviruses, see generally id. Furthermore, the Court questions whether the Chen and Willeke article, which was published in 1992, see id., could plausibly be called a “recent scientific finding[,]” Compl. ¶ 27. Finally, as noted by the CDC, healthcare personnel have been using respirators—not surgical masks—during the COVID-19 pandemic, see CDC, Summary of N95 Respirator Strategies (updated Apr. 9, 2021), https://www.cdc.gov/coronavirus/2019-ncov/hcp/checklist-n95-strategy.html, which are a more protective type of mask, see CDC, Types of Masks and Respirators (updated Jan. 28, 2022), https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/types-of-masks.html. Accordingly, the plaintiffs offer no credible support for their allegation that there are “recent scientific findings that the use of face coverings has no appreciable effect on slowing or halting the spread of COVID-19[,]” Compl. ¶ 27.