Charles Rangel v. John Boehner , 785 F.3d 19 ( 2015 )

United States Court of Appeals
FOR THE DISTRICT OF C OLUMBIA CIRCUIT
Argued November 13, 2014 Decided May 8, 2015
No. 14-5012
CHARLES B. RANGEL,
APPELLANT
v.
JOHN A. BOEHNER, ET AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-00540)
Jay Goldberg argued the cause and filed briefs for the
appellant.
Isaac B. Rosenberg, Assistant Counsel, United States
House of Representatives, argued the cause for the appellees.
Kerry W. Kircher, General Counsel, William Pittard, Deputy
General Counsel, Todd B. Tatelman, Mary Beth Walker, Eleni
M. Roumel, Assistant Counsel, John M. Faust and Richard
Sauber were with him on brief. Mark T. Stancil entered an
appearance.
Before: HENDERSON, GRIFFITH and MILLETT, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LE CRAFT HENDERSON, Circuit Judge: Public
service has its benefits and its burdens. Congressmen, for
example, enjoy absolute immunity from suit for their conduct
in the legislative arena. That same immunity, however,
prevents them from airing their legislative disagreements in a
judicial forum. Representative Charles Rangel asks this Court
to review his 2010 censure by the United States House of
Representatives. But the Constitution—specifically, the
Speech or Debate Clause—prevents us from doing so. Rangel
must vindicate his reputation in the one court that can hear his
claim: the court of public opinion. We affirm the district
court‘s dismissal of his complaint.
I.
Charles B. Rangel is the United States Representative for
the 13th Congressional District of New York, a position he
has held for more than four decades. In 2007, the Democratic
Party assumed control of the House and Rangel became
chairman of the Ways and Means Committee. Shortly into
his tenure, however, Rangel was accused of numerous ethical
improprieties. The House Committee on Ethics (Ethics
Committee) 1 empanelled investigatory and adjudicatory
subcommittees to look into the allegations. In November
2010, the adjudicatory subcommittee found by ―clear and
convincing‖ evidence that Rangel had committed eleven
ethical violations, including improper solicitation of
1
At the time, the House Committee on Ethics was named the
Committee on Standards of Official Conduct. See Committee
History, COMMITTEE ON ETHICS, https://ethics.house.gov/about/
committee-history (last visited Apr. 15, 2015). For convenience,
we use its current name.
3
donations, failure to disclose financial information, improper
use of House resources, receipt of improper favors and failure
to pay taxes. See H.R. REP. NO. 111-661, pt.1, at 7–14
(2010). The full Ethics Committee adopted these findings and
recommended a punishment of censure. 2 The House agreed
by a vote of 333–79; and on December 2, 2010, the House
Speaker read the censure resolution on the House floor while
Rangel stood in the well. See 156 CONG. REC. H7891–99
(daily ed. Dec. 2, 2010).
Seven months later, POLITICO.COM published an article
that implicated the Ethics Committee‘s investigation of
Rangel. See John Bresnahan, Did Ethics Staff Taint Maxine
Waters Probe?, POLITICO (July 18, 2011 4:40 AM),
http://www.politico.com/news/stories/0711/59225.html. The
article contained a leaked memorandum authored by the
Committee‘s former Chief Counsel. The memorandum
claimed that two Ethics Committee staffers engaged in
impermissible ex parte communications and distributed
damaging information about Rangel to the Republican
Members of the adjudicatory subcommittee. Rangel believes
2
The House disciplines its Members in three main ways:
reprimand, censure and expulsion. See generally JACK MASKELL,
CONG. RESEARCH SERV., RL 31382, EXPULSION, CENSURE,
REPRIMAND, AND FINE: LEGISLATIVE DISCIPLINE IN THE HOUSE OF
REPRESENTATIVES 2 (2013). Reprimand is the mildest punishment:
a majority of the House passes a resolution that disapproves of the
Member‘s conduct. Id. at 13. Expulsion is the harshest sanction
and requires a two-thirds vote of the House. See U.S. CONST. art. I,
§ 5, cl. 2. Censure falls somewhere in the middle. A majority of
the House must approve a censure resolution and, once it does, the
Speaker reads the resolution aloud while the censured Member
stands in the well of the House. MASKELL, supra, at 10. Other
than Rangel, the House has censured only twenty-two of its
Members. Id. at 11.
 4
this back-channeling irrevocably tainted his hearing and,
ultimately, his censure.
Rangel filed a complaint in the district court, challenging
his censure as a violation of the House Rules and the Fifth
Amendment Due Process Clause. He sued the former Chair,
Ranking Member and Republican Members of the House
Ethics Committee; the former Chief Counsel and the two
aforementioned Committee staffers; and, ―to effectuate
relief,‖ Compl. 10 ¶ 11, the current Speaker and Clerk of the
House. The defendants responded with a joint motion to
dismiss. The district court granted the motion and dismissed
Rangel‘s complaint, concluding that (1) Rangel lacked Article
III standing, (2) the complaint presented a nonjusticiable
political question and (3) the defendants were immune from
suit under the Speech or Debate Clause. See Rangel v.
Boehner, 20 F. Supp. 3d 148, 159–83 (D.D.C. 2013). Our
review is de novo. Barr v. Clinton, 370 F.3d 1196, 1201
(D.C. Cir. 2004).
II.
The district court dismissed Rangel‘s complaint on three
grounds—all jurisdictional. See Grocery Mfrs. Ass’n v. EPA,
693 F.3d 169, 174 (D.C. Cir. 2012) (Article III standing);
Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1262 (D.C. Cir.
2006) (political question doctrine); Howard v. Office of Chief
Admin. Officer of U.S. House of Reps., 720 F.3d 939, 941
(D.C. Cir. 2013) (Speech or Debate Clause). We can
therefore address them in any order. Sinochem Int’l Co. v.
Malaysia Int’l Shipping Corp., 549 U.S. 422, 431 (2007)
(―there is no mandatory sequencing of jurisdictional issues‖
(quotation marks omitted)). We begin and end with the
simplest ground to affirm the district court: the Speech or
Debate Clause. See La. Envtl. Action Network v. Browner, 87
5
F.3d 1379, 1385 (D.C. Cir. 1996) (―[A]s precedent and
prudence counsel us to avoid unnecessary dicta, . . . we see
substantial reason not to review each element of justiciability
in a dispute that we ultimately conclude does not lie within
our jurisdiction.‖ (citations omitted)).
The Speech or Debate Clause provides:
The Senators and Representatives . . . for any Speech
or Debate in either House . . . shall not be questioned
in any other Place.
U.S. CONST ., art. I, § 6, cl. 1. The English Bill of Rights,
enacted in the wake of the Glorious Revolution of 1688,
contained a nearly identical provision. See Bill of Rights,
1689, 1 W. & M., 2d Sess., c. 2 (―[T]he freedom of speech
and debates or proceedings in Parliament ought not to be
impeached or questioned in any court or place out of
Parliament.‖). On this side of the Atlantic, the Philadelphia
Convention adopted the ―speech or debate‖ clause without
much of either. See United States v. Johnson, 383 U.S. 169,
177 (1966) (―The Speech or Debate Clause of the
Constitution was approved at the Constitutional Convention
without discussion and without opposition.‖); Tenney v.
Brandhove, 341 U.S. 367, 372 (1951) (―Freedom of speech
and action in the legislature was taken as a matter of course
by those who severed the Colonies from the Crown and
founded our Nation.‖).
The Clause reflects the Founders‘ belief in legislative
independence. United States v. Brewster, 408 U.S. 501, 524
(1972) (―[T]he purpose of the Speech or Debate Clause is to
protect the individual legislator, not simply for his own sake,
but to preserve the independence and thereby the integrity of
the legislative process.‖); see also JOSEPH STORY,
COMMENTARIES ON THE CONSTITUTION OF THE UNITED
6
STATES § 863 (1833) (―freedom of speech and debate‖ is a
―great and vital privilege,‖ ―without which all other privileges
would be comparatively unimportant, or ineffectual‖).
Although criminal liability was the ―chief fear‖ of our
forebears, Johnson, 383 U.S. at 182, the Speech or Debate
Clause also provides absolute immunity from civil suit.
Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502–03
(1975); see also Powell v. McCormack, 395 U.S. 486, 502–03
(1969) (―[T]he clause not only provides a defense on the
merits but also protects a legislator from the burden of
defending himself.‖). The prospect of civil liability lessens
the ability of the Members of the Congress to ―represent the
interests of their constituents,‖ Powell, 395 U.S. at 503, and
litigation itself ―creates a distraction and forces Members to
divert their time, energy, and attention from their legislative
tasks,‖ Eastland, 421 U.S. at 503. Such litigation also
undermines the separation of powers. See id.; Johnson, 383
U.S. at 178 (Judiciary should not ―possess directly or
indirectly, an overruling influence over the [Congress] in the
administration of [its] respective powers‖ (quoting THE
FEDERALIST No. 48 (James Madison))).
The Supreme Court has consistently read the Speech or
Debate Clause ―broadly‖ to achieve its purposes. Eastland,
421 U.S. at 501; see also Hutchinson v. Proxmire, 443 U.S.
111, 124 (1979) (―the Court has given the Clause a practical
rather than a strictly literal reading‖). Although the Clause
refers to ―Senators and Representatives,‖ it also covers
legislative aides. See Gravel v. United States, 408 U.S. 606,
618 (1972). And although the Clause speaks of ―Speech or
Debate,‖ it extends further to all ―legislative acts.‖ Doe v.
McMillan, 412 U.S. 306, 312 (1973). An act is ―legislative‖
if it is ―generally done in a session of the House by one of its
members in relation to the business before it.‖ Kilbourn v.
Thompson, 103 U.S. 168, 204 (1880). More specifically:
7
The heart of the Clause is speech or debate in either
House. Insofar 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.
Gravel, 408 U.S. at 625.
We look to Rangel‘s complaint to determine whether he
challenges legislative or nonlegislative conduct. Mitchell v.
Forsyth, 472 U.S. 511, 528 (1985). Broadly speaking, Rangel
asks us to review a congressional disciplinary proceeding—a
―legislative‖ matter that ―the Constitution places within the
jurisdiction of [the] House,‖ Gravel, 408 U.S. at 625. See
U.S. CONST., art. I, § 5, cl. 2 (―Each House may . . . punish its
Members for disorderly Behaviour.‖); Consumers Union of
U.S., Inc. v. Periodical Correspondents’ Ass’n, 515 F.2d
1341, 1351 (D.C. Cir. 1975) (Congress‘s ―execution of
internal rules‖ is ―legislative‖). Even at the atomic level, the
specific conduct that Rangel challenges is also legislative.
See Hutchinson, 443 U.S. at 133 (preparing committee
reports); id. (voting); McMillan, 412 U.S. at 311 (conducting
hearings); Eastland, 421 U.S. at 504 (conducting
investigations); McSurely v. McClellan, 553 F.2d 1277, 1296–
97 (D.C. Cir. 1976) (en banc) (―use of . . . documents by the
committee staff in the course of official business,‖
―[Congressman‘s] or his aide‘s conduct at [a] subcommittee
meeting,‖ ―communications between the [Congressman] and
his aide . . . related to [a] meeting or any other legislative
act‖); Howard, 720 F.3d at 946 (―staff members‘ preparations
for legislative activities‖). Accordingly, the defendants‘
8
actions fall comfortably within the scope of the Speech or
Debate Clause.
Rangel offers two responses. Both, however, are plainly
foreclosed by Supreme Court precedent.
First, Rangel contends that the defendants‘ conduct
cannot be ―legislative‖ because it was, in his view, illegal.
This ―familiar‖ argument—made in almost every Speech or
Debate Clause case—has been rejected time and again.
Eastland, 421 U.S. at 510; see also id. at 508–10 (surveying
cases). An act does not lose its legislative character simply
because a plaintiff alleges that it violated the House Rules,
Kilbourn, 103 U.S. at 203, or even the Constitution,
McMillan, 412 U.S. at 312–13; Eastland, 421 U.S. at 509–10.
Such is the nature of absolute immunity, which is—in a
word—absolute. See Bogan v. Scott-Harris, 523 U.S. 44, 54–
55 (1998) (―The privilege of absolute immunity would be of
little value if legislators could be subjected to the cost and
inconvenience and distractions of a trial upon a conclusion of
the pleader.‖ (brackets and quotation mark omitted));
Eastland, 421 U.S. at 508–09 (―If the mere allegation that a
valid legislative act was undertaken for an unworthy purpose
would lift the protection of the Clause, then the Clause simply
would not provide the protection historically undergirding
it.‖). Although absolute immunity creates ―a potential for
abuse,‖ that potential ―was the conscious choice of the
Framers buttressed and justified by history.‖ Eastland, 421
U.S. at 510 (quotation marks omitted); see also Brewster, 408
U.S. at 516 (―[T]he Clause is a very large, albeit essential,
grant of privilege. It has enabled reckless men to slander and
even destroy others with impunity.‖). Instead of looking into
the defendants‘ ―motive or intent,‖ the standard for
determining whether an act is legislative ―turns on the nature
of the act‖ itself. Bogan, 523 U.S. at 54; see also Johnson,
9
383 U.S. at 180 (―[A] charge . . . that the Congressman‘s
conduct was improperly motivated . . . is precisely what the
Speech or Debate Clause generally forecloses from . . .
judicial inquiry.‖). As earlier discussed, the conduct here was
legislative in nature.
Second, Rangel asserts—in a single sentence with no
citation to authority—that the two committee staffers ―are not
entitled to congressional immunity.‖ Appellant‘s Br. 30. But
this argument runs headlong into Gravel. See 408 U.S. at 618
(―[T]he 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.‖).3 In Gravel, the Supreme Court
determined that a Senator‘s personal staffer qualified for
Speech or Debate Clause immunity because
it is literally impossible, in view of the complexities
of the modern legislative process, with Congress
almost constantly in session and matters of
legislative concern constantly proliferating, for
Members of Congress to perform their legislative
tasks without the help of aides and assistants; that the
day-to-day work of such aides is so critical to the
Members‘ performance that they must be treated as
the latter‘s alter egos; and that if they are not so
recognized, the central role of the Speech or Debate
Clause—to prevent intimidation of legislators by the
Executive and accountability before a possibly
3
Of course, the Speech or Debate Clause is technically ―the
privilege of the [Member]‖ and congressmen can therefore
―waive[]‖ the immunity of their aides. Gravel, 408 U.S. at 621–22
& n.13. Rangel does not allege any such waiver here.
10
hostile judiciary—will inevitably be diminished and
frustrated.
Id. at 616–17 (citation omitted). This observation rings
equally true for committee staffers. See generally WALTER J.
OLESZEK , CONGRESSIONAL PROCEDURES AND THE POLICY
PROCESS 145 n.55 (2014) (―Members of Congress rely heavily
on committee staff for assistance in organizing hearings,
selecting witnesses, and drafting bills, as well as for many
other key support functions.‖); CQ PRESS, G UIDE TO
CONGRESS 698 (7th ed. 2013) (―[M]embers of the Senate and
House need the support and advice of staff, both on
committees and in their own offices, to carry out their jobs.‖).
Indeed, the Supreme Court has extended the Speech or Debate
Clause to aides from all walks of legislative life, including
committee staffers. See, e.g., Eastland, 421 U.S. at 507 (chief
counsel to Senate subcommittee); McMillan, 412 U.S. at 309,
312 (clerk, staff director, counsel, consultant and investigator
of House committee). Then-Judge Ruth Bader Ginsburg
summarized the case law well: ―The key consideration,
Supreme Court decisions teach, is the act presented for
examination, not the actor.‖ Walker v. Jones, 733 F.2d 923,
929 (D.C. Cir. 1984) (emphases added); see also Harlow v.
Fitzgerald, 457 U.S. 800, 810 (1982) (―in general our cases
have followed a ‗functional‘ approach to [legislative]
immunity‖). Because their conduct was legislative, the
Speech or Debate Clause protects the Committee staffers in
this case just as much as it does the Members.
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In sum, the Speech or Debate Clause prevents us from
entertaining this action. The same legislative immunity
would presumably protect Rangel if he ever found himself on
the other side of the ―v.‖ For now, it compels dismissal of his
suit. We affirm the district court‘s decision on this ground
and have no call to consider the other defects it found in
Rangel‘s complaint.4
So ordered.
4
We also affirm the dismissal of Rangel‘s complaint with respect
to the Speaker and the Clerk. Rangel concedes that they committed
no wrongdoing, Compl. 17 ¶ 28; he instead names them as nominal
defendants only ―to effectuate relief, should it be ordered by this
court.‖ Id. at 10 ¶ 11. Because relief is unavailable here due to the
other defendants‘ immunity, there is nothing for the Speaker or the
Clerk to effectuate and, by Rangel‘s own admission, they should be
dismissed. We take no position on whether the relief sought from
these two defendants—removal of Rangel‘s censure ―from The
[House] Journal . . . and . . . any other records of the House,‖ id.
at 34 ¶ 108—might be barred by the Speech or Debate Clause. See
Gregg v. Barrett, 771 F.2d 539, 542–43 (D.C. Cir. 1985).