and procedures of the Capitol Police). Therefore, the defendants argued that they were protected from liability under the doctrine of qualified official immunity.

On April 16, 1982, the plaintiff filed an opposition to the defendants' dismissal/summary judgment motion which disputed each of their arguments in turn. First, with respect to the sovereign immunity question, the plaintiff insisted that the doctrine did not bar a suit which alleged unconstitutional conduct by a Federal officer or agency. Further, the plaintiff maintained, sovereign immunity also did not bar an action in which the injured party sought injunctive and declaratory relief, in addition to money damages. Finally, the plaintiff claimed, the Davis v. Passman case did in fact control the present action and required that the defendants' motion be denied. Next, the plaintiff reiterated that the complaint stated a legitimate claim for relief under the Fifth Amendment. He insisted that the administrative proceedings utilized by the defendants did not contain the proper constitutional safeguards and that therefore he had been deprived of his property interest in his employment without due process. Further, he claimed that his liberty interest in protecting his good name and reputation had been violated by the "voluminous stigmatizing reports" that had been placed in his personnel file by the defendants.

Third, the plaintiff again asserted that defendant Guthrie was "personally involved" in the actions of the Capitol Police against him, and that all decisions concerning him after 1980 were "reviewed and authorized" by Mr. Guthrie. The degree of defendant Guthrie's culpability, the plaintiff argued, was a question of fact inappropriate for resolution through a motion to dismiss or for summary judgment. Similarly, the plaintiff contended, a genuine question of fact existed as to whether the defendants had acted in good faith and therefore could avail themselves of a defense of qualified immunity.

On April 26, 1982, the defendants filed a reply memorandum which dismissed the plaintiff's arguments on sovereign immunity as unsupported by applicable precedent. The defendants noted in particular that the plaintiff had submitted no evidence, beyond his own allegations, to support the claim that the defendants had exercised their authority in an unconstitutional manner. Without such a factual demonstration that the claim was nonfrivolous, the defendants asserted, the bar of sovereign immunity could not be overcome. Further, the defendants claimed that the plaintiff was simply incorrect in asserting that the doctrine had been lifted with respect to declaratory and injunctive relief against Congress.

The defendants also stated once again that the case was not cognizable under the Fifth Amendment. The plaintiff's claim that the administrative procedures employed by the defendants did not contain the proper safeguards was dismissed out of hand; such a claim, the defendants asserted, was rebutted by the extensive documentation which had been submitted and by the administrative record. The plaintiff's contention that his liberty interest had been violated was insufficient, the defendants argued, because he had failed to allege an essential element of the violation-that he had been foreclosed from an employment opportunity by the disclosure of derogatory information about him by the Capitol Police. An affidavit

submitted by the plaintiff was rejected as "conclusory," and characterized as nothing more than a restatement of the allegations of the complaint.

On October 1, 1982, the defendants' dismissal/summary judg ment motion was argued before U.S District Court Judge Thomas P. Jackson and taken under advisement. The plaintiff was given 35 days to supplement the record prior to any decision being handed down.

On December 7, 1982, the case was dismissed by the plaintiff without prejudice.

Status-The case is closed.

Walker v. Jones

Civil Action No. 82-2723 (D.D.C.)

On September 23, 1982, Anne W. Walker, who had formerly been employed as General Manager of the House Restaurant System, filed a complaint in the U.S. District Court for the District of Columbia against the Chairman of the Subcommittee on Services of the Committee on House Administration, Representative Ed Jones, two Members of the Subcommittee, Representatives Robert H. Mollohan and James K. Coyne, and the Subcommittee Staff Director, Thomas B. Marshall. [Civil Action No. 82-2723]

The complaint alleged that Ms. Walker had been wrongfully discharged from her position because of her sex in violation of the Fifth Amendment to the U.S. Constitution and had been deprived of property rights secured by the due process and equal protection components of that Amendment. The five-count complaint sought declaratory and injunctive relief, reinstatement, back pay, and $1,000,000 in compensatory damages and $3,000,000 in punitive damages from each defendant.

More specifically, the complaint alleged that the plaintiff had been hired by the Subcommittee on Services in December 1970 and had worked as General Manager of the House Restaurant System until June 30, 1982, at which time she was terminated pursuant to a letter from Rep. Jones. According to the complaint, defendant Reps. Mollohan and Coyne "relinquished their authority to participate in the hiring and firing practices of the Subcommittee, including specifically such authority as it related to plaintiff, and delegated such authority to Defendants Jones and Marshall with knowledge that Defendants Jones and Marshall intended to discharge Plaintiff." [Complaint, September 23, 1982, 17] The firing was done, the complaint continued, despite the objections of other Members of the Subcommittee not named as defendants.

The complaint also alleged that Rep. Jones had "indicated to others that because of plaintiff's sex she was overpaid and that her salary was 'ridiculous for a woman.' " [Id., ¶ 13] Moreover, the complaint averred, subsequent to her firing Rep. Jones "made public statements and representations, contrary to fact, that plaintiff's discharge was based on the operation of the System inefficiently and at a loss. . . . [and] that plaintiff was guilty of improper and/ or illegal bookkeeping practices and had engaged in misappropriation and 'skimming funds from the System.” [Id., ¶ 19] The five re all based on the same allegations and

counts of the comp

did not present alternative causes of action; all were styled as Fifth Amendment claims of discriminatory and wrongful discharge.

On December 13, 1982, the defendants filed a motion to dismiss the complaint and an accompanying memorandum. At the outset, the defendants argued that the plaintiff's discharge was an official act taken solely within the Subcommittee on Services and was therefore absolutely privileged under the Speech or Debate Clause of the U.S. Constitution.1 The defendants noted that the Subcommittee was assigned authority by the House under its constitutional rule making power to appoint staff such as Ms. Walker, and that her termination was an action taken "in the committee" with respect to a matter devolved upon the Subcommittee under the House Rules and was therefore "speech or debate." The defendants explained:

In Gravel v. United States, 408 U.S. 606 (1972) the Supreme Court enunciated the test which establishes whether an action is entitled to the protection of the Speech or Debate Clause: actions which are "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 v. United States, supra at 625 (emphasis added). If that test is applied here, it is clear that plaintiff seeks to impose civil liability upon the Chairman and two members of the Subcommittee together with the Staff Director 5 for activity taken "with respect to a matter" which the House by its constitutionally conferred rulemaking authority has placed in the Committee.

"The Gravel decision held that aides are "so critical to the Members' performance that they must be treated as the latter's alter ego," 408 U.S. at 616-617, and that the aides enjoy the same speech or debate protection when they perform acts within the "legitimate legislative sphere" which if performed by Members would be protected. Here defendant Marshall clearly is an alter ego; his appointment pursuant to H.R. Rule XI, cl. 5(d)(1) Rules of the House, supra, and his performance of duties delegated to him establishes his role as the Member's alter-ego. See also, Tavoulareas v. Piro, 527 F. Supp. 676 (D.D.C. 1981).

[Memorandum of Points and Authorities in Support of Motion to Dismiss, December 13, 1982, at 15]

The defendants pointed out that the very averments of the complaint were grounded in a committee proceeding and in the exercise of authority delegated to the Chairman by a vote of the Subcommittee. "Such a patently direct challenge to the exercise of legislative authority cannot withstand dismissal under the [Speech or Debate] Clause," the defendants asserted. [Id. at 10]

Further, the defendants maintained, the separation of powers doctrine would be offended by judicial intervention in this case, since the decision to fire Ms. Walker clearly involved the internal management of a coordinate branch.

The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, [U.S. Senators and U.S. Representatives] shall not be questioned in any other Place." [art. I, § 6, cl.1]

Even if the action was not barred by the Speech or Debate Clause, the defendants argued that they were immune from suit under the doctrines of absolute and qualified official immunity. With respect to absolute immunity, the defendants reasoned that, since the Supreme Court had held that the President was protected from liability for his official acts in Nixon v. Fitzgerald, 102 S. Ct. 2690 (1982) (for allegedly unconstitutionally and wrongfully ordering a reorganization in which the plaintiff lost his job), Members of Congress should also be absolutely protected for decisions which were "functionally" part of their constitutionally protected duties. Similarly, the defendants contended that the Members and the staff director were entitled to qualified official immunity under the holding of Harlow v. Fitzgerald, 102 S. Ct. 2727 (1982) (for a discussion of that case and a copy of the opinion, see page 689 of Court Proceedings and Actions of Vital Interest to the Congress, September 1, 1982) because "government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 102 S. Ct. at 2738. The defendants insisted:

It is manifest that at the time this action occurred there was no clearly established law, under the constitution or statutes, of which a reasonable person would have known, circumscribing the Subcommittee's authority to discharge and that is because the Supreme Court specifically declined to resolve whether the Speech or Debate Clause might bar an otherwise maintainable fifth amendment cause of action against a Member of Congress. Davis v. Passman, [442 U.S.] at 239, 249. It is a question which remains open to this day. [Memorandum, op. cit. at 26]

Additionally, the defendants argued that the plaintiff had failed to allege any judicially cognizable property interest in a position which had no tenure and dismissal from which did not present a remediable injury. Whatever the plaintiff's expectations of continued employment, the defendants asserted that "without exception, all positions in the House of Representatives are terminable at the will of the employing authority and this is commonly understood and appreciated by staff." [Id. at 29]

Finally, the defendants claimed that the suit was barred by the doctrine of sovereign immunity, since it would "impinge upon the Treasury and would compel the government to act to reappoint Plaintiff." [Id. at 34 (footnote omitted)]

On January 12, 1983, the plaintiff filed on opposition to the defendants' motion to dismiss, which argued that: (1) her firing presented legally cognizable claims under the Fifth Amendment; (2) the action was not barred by the Speech or Debate Clause; and (3) the defendants were not protected from suit under absolute or qualified immunity or the doctrine of sovereign immunity.

With respect to the sufficiency of her claim uner the Fifth Amendment, the plaintiff, citing Davis v. Passman, 442 U.S. 228 (1979), contended that "[c]ontrary to the assertion of defendants..., there is no unfettered right to discharge plaintiff in an arbitrary and discriminatory manner." [Memorandum of Points

and Authorizes in Opposition to Defendants' Motion to Dismiss, January 12, 1983, at 6] This was particularly true in this case, the plaintiff maintained, since she was not engaged in legislative or political work but in a housekeeping function and her position involved "no intimate relationship of political confidences or loyalties. to any member of the House." [Id. at 8] Further, the plaintiff argued, the defendants had clearly implied that because her job did not involve the legislative process her employment would be permanent and that she would be discharged only for cause. Such an understanding endowed her with a property interest in her job and entitled her to due process and to damages, she insisted.

Turning to the Speech or Debate issue, the plaintiff claimed that the Clause was inapplicable because her discharge was not an act within the legitimate legislative sphere. She explained:

In the instant case, deliberations and action by Committee members and staff aides concerning personnel matters was in no way essential to the deliberations of the House of Representatives, nor does the question of hiring and firing of personnel or the delegation of authority to do so by the Chairman of the Subcommittee, threaten the integrity or independence of the House. Discussion of personnel matters at the Subcommittee meeting were not part and parcel of the legislative process. Therefore the actions do not constitute "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." Gravel v. United States, supra at 625. [Id. at 13]

Moreover, the plaintiff asserted, the fact that the House Rules may have authorized the Subcommittee to take personnel actions did not shield the defendants from liability where their actions ignored constitutional restraints or violated fundamental rights.

Finally, the plaintiff rejected the absolute and qualified immunity defenses offered by the defendants, asserting that the Fitzgerald cases did not suggest that Congressional immunity extended beyond the boundaries of the Speech or Debate Clause. With respect to sovereign immunity, the plaintiff concluded that it was inapplicable because the suit was not against the Federal Government.

On February 9, 1983, the motion to dismiss was argued before. U.S. District Court Judge John Lewis Smith, Jr. and taken under advisement.

On February 15, 1983, Judge Smith issued a memorandum and order dismissing the complaint. [Walker v. Jones, 557 F. Supp. 366 (D.D.C. 1983)] Finding that Rep. Jones' discharge of the plaintiff pursuant to authority granted by the Subcommittee was an action within the legislative sphere, Judge Smith held that the defendants were protected from liability under the Speech or Debate Clause. The judge emphasized that the actions of Congress in making "internal arrangements for its own necessities" were within the legislative ambit. He explained: