Thomas Massie v. Nancy Pelosi

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 9, 2022 Decided June 30, 2023
No. 22-5058
THOMAS MASSIE, HON., IN HIS OFFICIAL AND INDIVIDUAL
CAPACITIES, ET AL.,
APPELLANTS
v.
NANCY PELOSI, HON., IN HER OFFICIAL CAPACITY ONLY, ET
AL.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-02023)
Christopher Wiest argued the cause for appellants. With
him on the briefs was Thomas Bruns.
Douglas N. Letter, General Counsel, U.S. House of
Representatives, argued the cause for appellees. With him on
the brief were Todd B. Tatelman, Principal Deputy General
Counsel, Eric R. Columbus and Michelle S. Kallen, Special
Litigation Counsel, and Stacie M. Fahsel, Associate General
Counsel at the time the brief was filed.
2
Before: RAO and CHILDS, Circuit Judges, and TATEL,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: In January 2021, the United States
House of Representatives adopted Resolution 38, which
required wearing a mask when in the Hall of the House and
provided fines for the failure to do so. When three
representatives entered the House chamber without masks, they
were each fined $500. The Representatives sued the Speaker of
the House, the Sergeant-at-Arms, and the Chief Administrative
Officer, challenging the constitutionality of the Resolution and
its enforcement. The district court dismissed the complaint,
holding the Speech or Debate Clause barred the suit. See U.S.
CONST. art. I, § 6, cl. 1.
The Speech or Debate Clause’s immunity from suit
extends to all legislative acts, including matters within the
constitutional jurisdiction of the House. The House adopted the
Resolution pursuant to its authority to “determine the Rules of
its Proceedings,” and it fined the Representatives pursuant to
its authority to “punish its members for disorderly Behaviour.”
U.S. CONST. art. I, § 5, cl. 2. Both the adoption and execution
of the Resolution are legislative acts over which the Speech or
Debate Clause confers immunity. We therefore affirm the
dismissal of the suit.
I.
As part of the response to concerns about the transmission
of the Covid-19 virus, House Resolution 38 authorized and
directed the Sergeant-at-Arms to impose a fine for the failure
to wear a mask in the Hall of the House. H.R. Res. 38, § 4(a)(1),
117th Cong. (2021) (allowing members to remove their masks
only while recognized to speak). A few months after the
3
Resolution took effect, Representatives Marjorie Taylor
Greene, Thomas Massie, and Ralph Norman protested the
Resolution by entering the House floor to vote without wearing
masks. The Sergeant-at-Arms fined the Representatives. After
the House Ethics Committee denied their appeals, the Chief
Administrative Officer deducted the $500 fine from their July
2021 paychecks.
The Representatives sued the Speaker of the House, the
Sergeant-at-Arms, and the Chief Administrative Officer,
claiming the adoption and enforcement of the Resolution
violated the First Amendment, the Twenty-Seventh
Amendment, the Discipline Clause, the Compensation Clause,
and the Presentment Clause. The district court held the suit
barred by the Speech or Debate Clause and dismissed for lack
of subject matter jurisdiction. Massie v. Pelosi, 590 F. Supp. 3d
196, 231 (D.D.C. 2022). The Representatives timely appealed.
II.
We begin with the defendants’ claim that the Speech or
Debate Clause bars the Representatives’ suit. The Clause’s
immunity from suit presents a jurisdictional issue, so we must
consider it at the outset.1 See Ass’n of Am. Physicians &
Surgeons, Inc. v. Schiff, 23 F.4th 1028, 1035 (D.C. Cir. 2022).
Following the reasoning of our recent decision in McCarthy v.
1
This case concerns only the Clause’s immunity from suit and does
not implicate the other protections recognized as flowing from the
Clause, such as its evidentiary and testimonial privileges. These
privileges shield Members against certain forms of questioning, but
do not deprive the court of jurisdiction. See Fields v. Off. of Eddie
Bernice Johnson, 459 F.3d 1, 14 (D.C. Cir. 2006) (en banc)
(explaining that even “[w]hen the Clause does not preclude suit
altogether” members of Congress may still have the protection of
evidentiary and testimonial privilege regarding legislative acts).
4
Pelosi, we hold the defendants have immunity from suit
because the adoption and enforcement of the Resolution were
legislative acts within the jurisdiction of the House.2 5 F.4th 34,
40 (D.C. Cir. 2021).
A.
The Speech or Debate Clause states: “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 Clause has long been understood
to immunize “things done in the House in a Parliamentary
course.” 1 THOMAS JEFFERSON, A MANUAL OF
PARLIAMENTARY PRACTICE 23 (2d ed. 1812); see also JOSEPH
STORY, COMMENTARIES ON THE CONSTITUTION § 863 (1833)
(“[T]his privilege is strictly confined to things done in the
course of parliamentary proceedings.”). The Massachusetts
Supreme Court, interpreting an identical state provision, held
the privilege encompassed “act[s] resulting from the nature,
and in the execution, of the [legislator’s] office.” Coffin v.
Coffin, 4 Mass. 1, 27 (1808). In one of the earliest decisions to
address the Clause, the Supreme Court adopted Coffin’s
“authoritative” holding and held the Speech or Debate Clause
immunized Members for matters “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).
Although the Clause refers to “Speech or Debate in either
House,” the Supreme Court has consistently held the Clause’s
2
Because we hold the Speech or Debate Clause bars this suit and the
court lacks jurisdiction to consider it, we have no occasion to
consider whether the Representatives have standing to sue. Cf.
McCarthy v. Pelosi, 5 F.4th 34, 38 (D.C. Cir. 2021) (reaffirming that
“we can take up jurisdictional issues in any order”).
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protections extend to other “legislative acts.” United States v.
Brewster, 408 U.S. 501, 512 (1972); see also, e.g., Tenney v.
Brandhove, 341 U.S. 367, 376 (1951); Dombrowski v.
Eastland, 387 U.S. 82, 84–85 (1967); Hutchinson v. Proxmire,
443 U.S. 111, 126 (1979). Beyond actual speech or debate, an
act is considered “legislative” only if it is “an integral part of
the deliberative and communicative processes by which
Members participate in committee and House proceedings with
respect to” either: (1) “the consideration and passage or
rejection of proposed legislation” or (2) “other matters which
the Constitution places within the jurisdiction of either House.”
Gravel v. United States, 408 U.S. 606, 625 (1972); see also
McCarthy, 5 F.4th at 40. An act may be considered legislative
if it fits within one of Gravel’s categories.
B.
The Representatives challenge the adoption and
enforcement of the Resolution, which required wearing a mask
in the Hall of the House. We cannot consider the merits of the
Representatives’ constitutional arguments because their suit
concerns legislative acts protected by the Speech or Debate
Clause.
The House enacted the Resolution pursuant to its
constitutional authority to “determine the Rules of its
Proceedings” and to “punish its Members for disorderly
Behaviour.” U.S. CONST. art. I, § 5, cl 2. The House is
“expressly empower[ed]” to enact internal rules and punish
members for violating those rules. Kilbourn, 103 U.S. at 189–
90; see also Rangel v. Boehner, 785 F.3d 19, 23–24 (D.C. Cir.
2015) (Congress’ adoption and “execution of internal rules is
legislative.”) (cleaned up). The enactment of the Resolution
and its enforcement are squarely within the jurisdiction of the
House, and therefore are legislative acts.
6
In reaching this conclusion, we rely on the reasoning and
analysis in McCarthy v. Pelosi, which similarly held that the
adoption and implementation of a house resolution were
legislative acts protected by the Speech or Debate Clause. In
McCarthy, several representatives challenged the
constitutionality of House Resolution 965—the so-called
proxy voting rule—and sought an injunction barring the
Speaker, the Sergeant-at-Arms, and the Clerk of the House
from implementing it. 5 F.4th at 38–39. After holding “the acts
presented for examination are quintessentially legislative,” we
explained that the actions also “fall within Gravel’s second
category” because “the House adopted its rules for proxy
voting under its power to ‘determine the Rules of its
Proceedings.’” Id. at 39–40 (quoting U.S. CONST. art. I, § 5, cl.
2). As with the proxy voting rule, the Resolution here was a
rule of proceeding committed to the jurisdiction of the House.3
And, like the proxy voting rule, it regulates the conduct of
Members on the House floor. Therefore, its adoption was a
legislative act protected by the Speech or Debate Clause.
The enforcement of the Resolution was also a legislative
act. The Speech or Debate Clause protects the “execution of
legislation when the executing actions themselves constitute
legislative acts.” Id. at 41. Fining members for the violation of
a House rule is an aspect of Congress’ power to “punish its
Members for disorderly Behaviour.” U.S. CONST. art. I, § 5,
3
Although McCarthy held the proxy voting rule was a legislative act
within the meaning of both Gravel categories, it made clear that
immunity may attach under either category. Id. at 40; see also Barker
v. Conroy, 921 F.3d 1118, 1126–27 (D.C. Cir. 2019). We decide this
case solely under Gravel’s second category, concluding the
challenged acts are committed by the Constitution to the House.
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cl. 2. Here, the imposition of a fine for violating the Resolution
is a legislative act that may not be questioned in this court.
In sum, the Speaker, Sergeant-at-Arms, and Chief
Administrative Officer have immunity from suit because the
adoption and execution of the Resolution are legislative acts
protected by the Speech or Debate Clause.
C.
The Representatives raise familiar arguments against the
application of Speech or Debate Clause immunity to their suit,
but these are foreclosed by our case law.
The Representatives maintain the Clause does not
immunize the execution of the Resolution because the
“execution or carrying out” of a resolution “is not cloaked with
Speech or Debate immunity” even though its adoption and
ratification may be. This argument fails because as we recently
explained, “[t]he salient distinction under the Speech or Debate
Clause is not between enacting legislation and executing it,”
but rather “between legislative acts and non-legislative acts.”
McCarthy, 5 F.4th at 41. The execution of the Resolution falls
within the House’s power to punish its members for disorderly
behavior—a matter the Constitution committed to the House,
and therefore a legislative act protected by the Speech or
Debate Clause.
To the extent the Representatives contend that the
defendants who are House employees are not immune from
suit, their argument is also barred by our precedent. By its
terms, the Speech or Debate Clause references only “Senators
and Representatives,” U.S. CONST. art. I, § 6, cl. 1, but we have
repeatedly explained that it protects staff who perform
legislative acts. See McCarthy, 5 F.4th at 39; Rangel, 785 F.3d
at 25. The adoption and enforcement of the Resolution here are
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legislative acts. The Sergeant-at-Arms engaged in a legislative
act when he fined the Representatives for violating the
Resolution, and the Chief Administrative Officer engaged in a
legislative act when she deducted those fines from the
Representatives’ salaries. As a result, both officials are entitled
to immunity from suit.
Finally, the Representatives claim immunity does not
extend to the enactment and enforcement of House rules that
are allegedly unconstitutional. Similar arguments have been
“rejected time and again” because immunity from suit is
“absolute” as to legislative acts. Rangel, 785 F.3d at 24.
Immunity attaches even if a plaintiff alleges that a member has
violated internal rules or the Constitution. Id; see also
Kilbourn, 103 U.S. at 202 (“[W]hatever is done within the
walls of either assembly must pass without question in any
other place.”). Immunity for legislative acts reinforces the
separation of powers by protecting the independence of
Congress and “prevent[ing] intimidation of legislators by the
Executive and accountability before a possibly hostile
judiciary.” Gravel, 408 U.S. at 617; United States v. Johnson,
383 U.S. 169, 181 (1966) (same). “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.”
Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 508–09
(1975). Because the adoption and enforcement of the
Resolution were legislative acts, we cannot pass on their
constitutionality.
***
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.