Dayton v. Hanson - Oral Argument

Argument of Jean M. Manning

Justice Stevens: We will hear argument in No. 06-618, the Office of Senator Mark Dayton against Brad Hanson.

Mr. Manning: Justice Stevens and may it please the Court:

If I may, I would like to quickly frame the merits of the case and then turn to the jurisdictional issue.

In United States vs. Gravel this Court recognized that members of Congress have to delegate some of their legislative authority to employees and these employees are a second self to the member.

They are performing some of the legislative duties the member himself would otherwise perform.

Therefore, they are an integral part of the legislative process of the member's office.

For that reason, the member must have absolute trust and confidence that these employees are in fact performing as his second self, and to do that the member has to have complete discretion in selecting who these employees are and in managing them.

If a court oversees a member's selection of these employees and his management of these employees, then the court and not the member is managing part of his legislative process and that is a violation of the Speech or Debate Clause because the purpose of the clause is to ensure that the legislative process will be performed independently.

Now--

Justice Ginsburg: Do you think... do you think that we owe any special measure of respect to the Congress, that is most intimately concerned with the Speech or Debate Clause, with their view that this is, this legislation is compatible with that clause?

Mr. Manning: --I do not, Justice Ginsburg.

This Court has never deferred to Congress with respect to its interpretation and in fact has disagreed with Congress, for example, in the Gravel case.

But the other reason is that the Congress of course is a political body and because of that it will make decisions that are politically expedient at times, which means that over time their decisions can change, while the Court is uniquely designed and intended to decide cases on something other than what is politically expedient.

This is especially important when we are dealing with the Constitution and interpreting the Constitution.

Justice Ginsburg: But what we are involved with in this case is Congress subjecting itself to the laws that govern all other employers.

Mr. Manning: It did, Justice Ginsburg, subject itself, but it also in Section 413 recognized that there may be Speech or Debate Clause issues and maybe not all of these cases can be adjudicated in a court.

Not that they can't be adjudicated, but maybe not in a court.

So while subjecting itself to the law and doing the best it could to do that, it also cannot trump the Constitution.

Justice Scalia: Which is what the statute says, and so how could the statute possibly be unconstitutional?

Mr. Manning: We are not--

Justice Scalia: I mean, the Constitution... I mean, the statute has within itself a Speech or Debate Clause exception.

Now, I guess you can argue that a lower court might not accurately provide the Speech or Debate Clause protection that is due, but that, that doesn't meet, it seems to me, the, the jurisdictional requirement that, that the constitutionality of the statute be called into question.

Mr. Manning: --Well, Justice Scalia, we are not arguing that the statute is unconstitutional.

Rather, it's an as-applied argument.

What we are arguing is that the issue that was before the circuit court was whether the application of Section 408 to this particular case... and of course 408 is what gives the Court jurisdiction... whether applying that to this case violates the Constitution.

Justice Scalia: Well, that doesn't comply with Section 412, which says that an appeal may be taken directly to the Supreme Court from

"any interlocutory or final judgment decree of order of court upon the constitutionality of any provision of the Act. "

Now, and as-applied challenge is not a challenge to the constitutionality of the provision.

Mr. Manning: Justice Scalia, in the United States versus Eichman, that statute at issue there had statutory direct appeal language that was exactly the language of 412.

Justice Souter: Isn't there a further problem here, though, that the order of the district court gave no explanation?

We have no way of knowing exactly why the court ruled the way it did, and for that reason the appeal, the review, was that the original appeal was taken properly to the court of appeals, so that we are here not on appellate jurisdiction, but cert jurisdiction, if at all.

Mr. Manning: I believe that you can take appellate jurisdiction of this case because, as I was saying, in United--

Justice Souter: Well, there'S no direct appeal.

We have appellate jurisdiction only if there's a direct appeal and there's no direct appeal.

This is coming from the court of appeals.

Mr. Manning: --Oh, Section 412 provides direct appeal from either court, unlike the Flag Protection Act direct appeal language, which must be from the district court.

Section 412 doesn't limit it to an appeal from the district court.

It can be either one.

Justice Souter: What pages are the text of 412 set out on?

You're going to have to help me here.

Mr. Manning: I'm sorry.

With respect to... it's at the jurisdictional statement at page 65a.

And the direct appellate language that was at issue in the Flag Protection Act did limit the appeal to appeals from the district court.

But Section 412 is different from that.

It doesn't--

Justice Alito: Well, why wasn't the ruling of the district court a ruling upon the constitutionality of the statute as applied?

As I understand it, you moved to dismiss the case on the ground that an individual performing the duties that Mr. Dayton performed cannot sue a member of Congress for employment discrimination and the district court denied that.

Why isn't that a ruling on the constitutionality of the, of the statute as applied?

Mr. Manning: --Well, Justice Alito, the argument we made was that to reach that decision there were a couple of sub-arguments the court had to reach.

We had argued that, number one, is there a waiver of sovereign immunity?

If not, then is an employee who meets the I'll call the duties test that we've set out in our brief, is that employee's claim jurisdictionally barred from court review, and if so does Mr. Hanson meet that duties test?

Now, the court could have decided that Mr. Hanson doesn't meet the duties test, therefore we never have to reach the constitutional issue, and that would have been a decision on his duties, not on the Constitution.

Justice Alito: Was there a dispute about the nature of his duties?

Mr. Manning: I'm sorry?

Justice Alito: Not how you characterize his duties, but what his duties actually were.

Was there a dispute about that?

Mr. Manning: He did not dispute his duties.

What he disputed was... what he said was that of the duties we set forth in the affidavit... and that was Mr. Kimball's declaration, which is at the jurisdictional statement at 66a... he said that they represent only 5 percent of his legislative duties over the course of his employment.

Well, of course, we're not setting forth every jurisdictional duty he had over the course of his employment.

So he--

Justice Alito: But didn't the district court rule that somebody performing those duties can constitutionally be tried... bring suit, and it doesn't, and it doesn't violate the Speech or Debate Clause?

So I don't see how that's not a ruling on the constitutionality of the statute as applied.

Mr. Manning: --No, Justice Alito, the court didn't rule that.

The court just gave us a minute order, and there's a possibility that it ruled that, but there is a possibility that it just said it doesn't matter what test you're telling me, counsel, because this particular employee doesn't meet your test to begin with.

So I'm saying, the court could have said, I'm saying he doesn't meet--

Justice Breyer: Don't you agree with Justice Scalia... Justice Alito?

Don't you agree with Justice Alito?

I thought he's saying it's a ruling on constitutionality.

Mr. Manning: --It is a... not the district court ruling.

Not the district court.

The appellate court, yes.

I'm sorry, Justice Breyer.

The appellate court, yes; the district court, no, because the district court was merely a minute order.

And it's a possibility that it could have been unconstitutional and a possibility it could not.

Justice Breyer: I see.

Justice Scalia: My problem is, it's extraordinary.

We have very few direct appeal cases any more and I, I am loathe to read Section 412 as embracing a decision by a court that a particular use of this statute was unconstitutional.

You say it was, the statute was unconstitutional as applied.

That's sloppy language.

It really means that this application of the statute or the use of the statute for this purpose was unconstitutional.

I think that's something different from saying that it was an order of the court upon the constitutionality of any provision.

Which provision of this Act has been held to be unconstitutional?

Mr. Manning: Section 408 as applied to this case is unconstitutional.

Justice Scalia: Which... but it hasn't been held to be unconstitutional.

It's perfectly constitutional.

You're just saying it can't be used in this particular case.

Mr. Manning: Well, when Congress--

Justice Scalia: I mean, read the language.

It says

"The constitutionality of any provision of this act. "

not

"the constitutionality of the application of any provision of this act. "

Mr. Manning: --Yes, and in United States versus Eichman, Justice Scalia, the very same language was at issue.

Justice Kennedy: What is that citation?

I was looking for that.

Is that cited in your brief?

Mr. Manning: Yes, United States versus Eichman is cited at the Appellant's reply brief at page 1.

Justice Kennedy: Thank you.

Mr. Manning: And the statutory section is 18 U.S.C. Section 700(d), and the direct appeal language is exactly the same,

"upon the constitutionality of a provision of this act. "

And this Court accepted direct appeal when the issue was whether the application of the Flag Protection Act was unconstitutional.

In any event, even if this Court were not to take jurisdiction--

Justice Stevens: But in the flag case the whole statute was either valid or not.

There weren't different applications, were there?

Mr. Manning: --Counsel argued both, but this Court did not deal with both.

This Court actually took direct appeal just on the as-applied argument.

Counsel argued the statute was unconstitutional and the second argument was--

Justice Kennedy: You mean we held that the statute was constitutional on its face?

Mr. Manning: --What the Court held was--

Justice Kennedy: I'll look at Eichman, but it's not my recollection of the case, that the whole, the essence of the duty imposed by, under the statute was held void.

Mr. Manning: --It was the application in that particular situation.

Justice Kennedy: Well, but there's always an application or there's no case.

Mr. Manning: Well, the--

Justice Kennedy: Absent some declaratory judgment provision.

Justice Stevens: We simply didn't rule hold was a right to burn flags in some cases and not others.

Mr. Manning: --Well, there were two questions that the parties raised.

One was, is the statute unconstitutional altogether.

And the Court didn't even touch that.

Instead the second argument they raised was well, is it constitutional... unconstitutional, rather, as applied on these facts?

And that is what the Court took the case on, that was what allowed direct jurisdiction.

Justice Scalia: What... what had the lower court held?

It isn't a question of what we held; it's a question of what the lower court had held.

Had the lower court held that it was unconstitutional?

Mr. Manning: I'm sorry, Justice Scalia, I don't remember what the lower court held in that case--

Justice Scalia: I mean, but that can mean... you can always dispose of a, of a facial challenge by just saying we don't have to reach the facial question; we can decide it on an as applied question.

But in order to get here in the first place, it has to be a challenge to the constitutionality of a provision of the Act.

Justice Kennedy: And in Eichman we recite that the district court held the Act unconstitutional as applied to appellees and dismissed the charges.

Mr. Manning: --Right.

Unconstitutional as applied so it was an as applied argument.

And now when the Court wants a statute to mean that it's only an unconstitutional interpretation as opposed to a constitutional interpretation, the Court... I'm sorry, Congress makes that distinction.

So for example in 28 U.S.C. Section 1257, which was a direct appeals statute, and has since been repealed, in that statute Congress did say that there is direct appeal when the statute is found to be constitutional, or when the statute is found to be unconstitutional.

But it used... Congress, that is, used the vague language, more vague and general language in Section 412, which is just upon the constitutionality.

In any event--

Justice Souter: I realize, before you leave that I realize that on a jurisdictional issue like that we have an obligation to raise it ourselves.

But I'm... I'm... I'm curious, was... was jurisdiction contested in that case?

Mr. Manning: --Not that I recall in the Eichman case.

Not that I recall.

Okay.

In any case, this Court should accept the petition, take this case on a petition for writ because the decision of the court of appeals was upon a question of Federal law that is an important question.

Moving to my Speech or Debate Clause argument, with respect to Speech or Debate Clause, this Court has held that all acts that are within the legitimate legislative sphere are protected by Speech or Debate Clause immunity.

And the Court has defined what is inside that sphere as anything that is part of the due functioning of the legislative process.

And when an employee is an alter ego, that is, a second self of a member, that employee by definition is actually performing part of the member's job.

He is performing legislative acts so he is in this sphere.

He is doing something that is part of the due functioning of the legislative process.

He is in that sphere.

Justice Breyer: What does he do?

I mean I looked at what he does in 74, 75, 76a.

He seems to spend a lot of time moving furniture.

He lists that twice.

He runs the office.

And he represents, he is out in the local office somewhere and he talks to constituents.

I mean, he doesn't even appear in the Senate office except very rarely in which case he is doing casework.

So I guess if he is included in that, I mean so is a full-time furniture mover.

Mr. Manning: Justice Breyer, he did significantly more than that.

First--

Justice Breyer: I have the whole list here.

What here suggests, he ever... he doesn't even write a statement for the floor.

There is nothing here that suggests one word of anything he did ever went to a committee meeting, to a floor of the Senate, anything.

Mr. Manning: --Oh, Justice--

Justice Breyer: What?

Mr. Manning: --Justice Breyer--

Justice Breyer: What are the words?

Mr. Manning: --Actually in the Kimball declaration, which is at jurisdictional statement 66a, and the self evaluation of Mr. Hanson which is attached thereto as a jurisdictional statement at 78a, and this is his self evaluation and Mr. Kimball, his supervisor at the time telling what he had done, he being Mr. Hanson.

Some of the things Mr. Hanson did was he did talk to constituents, but remember of course the member is in D.C.; he is supposed to be representing people in the State.

The very people who have contact with--

Justice Breyer: I agree with that one.

I just said he doesn't do anything that gets to the floor of the Senate, that gets to a committee report, that gets to a committee hearing.

Now what in there... and you said it was not contested, so I guess the best source if it's not contested is his affidavit.

Mr. Manning: --Justice Breyer actually he did both of those.

He for example, when talking to the constituents realized that there was a problem with respect to ambulance reimbursement for health care.

He went to the Senator and said we've got a problem here in the State, and the constituents have identified it.

He then said to the Senator, I think you should draft legislation on this and I think you should have a committee hearing on this.

Both of which the Senator did.

Mr. Hanson drafted that legislation.

He--

Justice Breyer: Oh.

Where does it say that?

He drafted legislation that was then introduced?

Mr. Manning: --Yes, he did.

He drafted--

Justice Breyer: Where does it say that?

Mr. Manning: --That is in the Kimball declaration which is jurisdictional statements at page 66a.

And he also prepared the witnesses for the hearings.

Justice... I'm sorry, Senator Dayton had the hearing on the health care issue, and Mr. Hanson identified the witnesses for that, prepared them, wrote the questions for the hearing and--

Justice Scalia: Well, he didn't do exclusively that stuff anyway.

We can certainly all agree on that.

And why isn't it sufficient that when any of those issues are, his activities in any of those capacities are sought to be introduced into evidence, anyone tries to contradict them, then you can bring in your Speech or Debate Clause objection?

Mr. Manning: --Because it is--

Justice Scalia: Why is the whole suit precluded?

Mr. Manning: --The whole suit is precluded because when you have as we do an employee who is in this legislative sphere, that the Court has identified, he is in that sphere because he is performing legislative acts.

So a member who decides, you know, I don't want him in my legislative duties anymore, my sphere, I'm pulling him out.

Taking him out, when the member takes him out of that process, he has done something... he being the member... that is also part of the functioning of the legislative process, which is the test.

So the termination itself is part of the functioning of the legislative process which is the test for a legislative act.

And therefore this case is predicated on a legislative act.

That is, the termination.

And in Doe v. McMillan this Court stated that a case that is predicated on a legislative cannot be adjudicated.

Justice Stevens: I'm puzzled.

Firing somebody is a legislative act?

Mr. Manning: I'm sorry, Justice Stevens?

Justice Stevens: Firing someone is a legislative act?

Mr. Manning: Firing not anyone is a legislative act, but firing your second self is a legislative act.

And the reason for that is that you are doing something that is part of your legislative process.

You created a hole in your legislative process; you have taken out an employee who is your second self.

This is your second self.

And you've decided, you know, I think my legislative process is going to work better with him gone.

Justice Ginsburg: That's part of... how many second selves would there be?

[Laughter]

Mr. Manning: I'm sorry, Justice Ginsburg?

Justice Ginsburg: On the Senator's staff?

Mr. Manning: I'm sorry.

I still didn't hear.

Justice Ginsburg: How many second selves?

Of... what universe are you covering?

Who is not a second self, who works in a Senator's office?

Justice Scalia: Maybe he was the 23rd self.

[Laughter]

I think you have to figure out when he was hired.

Mr. Manning: Well, in Gravel, in United States vs. Gravel, this Court stated not only do you have second selves, but you must... members must delegate and redelegate and redelegate authority.

That implies there are a lot of second selves.

It's not one person.

So there can be--

Justice Breyer: What's wrong with this?

I found what you're talking about here.

It says in paragraph 13, contrary to what he says in his own evaluation, that Senator Dayton's staff, including Mr. Hanson... that's a little uncertain, what they mean by that... introduced a bill and drafted it.

Okay?

And then on paragraph 14 they say on November 15th, 2001, Mr. Hanson... just as you said... planned a Senate Government Affairs Committee meeting, selected hearing witnesses and prepared questions.

Now suppose that we did as the court, lower court wanted to do, say let's just see if that becomes relevant.

Because it's possible, given his other tasks that those two incidents, one on November 15th and the other, whenever help he gave to the drafting, had nothing to do with his being fired and nobody claims that.

So what they said is let's wait and see if that becomes relevant.

Now what's wrong with that solution?

Mr. Manning: --What's wrong with that solution is that when a member, as I was explaining in response to Justice Stevens' questions, when a member has a second self who is in the legislative process and the member says you know, I'm pulling him out of the process because he doesn't perform well, he... I don't think he is my second self, that termination for whatever reason is part of the process because the member has changed the process.

Justice Breyer: All right.

Let's make an absurd case out of it which I'm trying to do a little bit to get you to focus on it.

Let's suppose he got fired because he didn't move the furniture properly.

Mr. Manning: The... it is a whole employee.

When he is removed from the process for whatever reason, he is gone from the process so that is part of the functioning of the process.

If I may give an example, let's say that the Senator is at Union Station and he is buying a gift for someone and he hears someone making very derogatory statements to the cashier, and he turns around and lo and behold, this is his legislative director.

And he says I can't have this person as my second self; I don't talk to individuals that way; this has nothing to do with my legislative process but this is a second self and he is not my second self and I pull him out of the process.

That has affected his legislative process.

He now has a hole in this sphere, this legislative sphere.

The person is gone.

That is a part of his legislative process.

It doesn't matter why he is gone.

He is gone.

Justice Kennedy: Isn't that a... can you give me examples of cases where that Act applies?

Mr. Manning: I'm sorry?

Justice Kennedy: Can you give me instances in which employees of an the office of a Senator are covered by these obligations and cannot invoke the Speech or Debate Clause?

What's the classic example where you can't invoke the Speech or Debate Clause?

Mr. Manning: Where you cannot invoke the Speech or Debate Clause.

Justice Kennedy: Yeah.

Mr. Manning: Was that the question, or can?

Justice Kennedy: Yes.

Because it seems to me that your argument just completely eviscerates the intent of the Congress in passing this Act.

Mr. Manning: If I may answer the second question first, approximately 75 percent of the people who are covered by this Act, the employees who are covered by this Act are not employed by members of Congress or committees.

Now those employees for the most part... and not all of them, because some of those employees do work on the floor, but for the most part--

Justice Kennedy: Well, except the Act itself has a provision for office of Senators.

Mr. Manning: --And those employees--

Justice Kennedy: And so it seems to me you're giving no effect to that.

You say there is a hole in the process the minute the furniture mover is gone?

Mr. Manning: --No, Justice Kennedy, those employees... first of all some of those employees can sue.

For example the Court has said that writing news releases or newsletters to constituents, this is in the Brewster case, are not, that is not a legislative act.

So if we have an employee in a member's office like the deputy press secretary who does those kind of things, that person is not performing legislative acts.

But in addition to that these employees still have a... a forum; their forum is the Office of Compliance, which is unique to the Congressional Accountability Act.

And the Office of Compliance has cases heard before retired judges; the employees get the same remedies as they would in court.

It is the same procedure except that it is an expedited procedure and it is a confidential procedure.

So these employees are, it's not that they can't sue; it's that they cannot sue in Federal court.

Justice Alito: If this statute--

Justice Souter: Wouldn't they get into... no, you.

Justice Alito: --If this statute was set up so that the defendant here was the Senate, as opposed to the office of a Senator, would you still say that this suit couldn't go forward?

Mr. Manning: With respect to the abatement issue, I would... this is with respect to the abatement issue... I would say that the case would not be abated, because the defendant would still exist.

But with respect to the Speech or Debate Clause issue I would say it could not still go forward, and the reason for that is the immunity is, as this Court stated in Gravel, is not like a badge that attaches to different people and different entities.

It's an expression of a policy, which means that whenever a case is going to infringe into this legislative sphere, irrespective of who the defendant is, then the case could not be adjudicated in a Federal court.

And so for example in Eastland versus Servicemen's Fund this Court stated that a committee of the Senate is covered by the Speech or Debate Clause.

And in Tenney although that was a State case, the Court did apply the Speech or Debate Clause jurisprudence.

The Court there said that a committee of the State is covered by the Speech or Debate Clause and the case would be dismissed.

And then in Doe vs. McMillan, in that case there was a consultant to Congress and he was sued.

There was functionaries of Congress that did not work for a member, did not work for a committee and the Court held in that case that if those, if the consultant and the functionaries were performing duties that were within this legislative sphere, the Speech or Debate Clause clause applies and the case was dismissed.

Justice Alito: In what sense would the member be called to answer under those circumstances, if the member isn't a defendant and has no financial liability and is able to invoke the clause as an evidentiary privilege?

In what sense would the Speech or Debate Clause be applicable?

Mr. Manning: In the scenario where the Congress is the defendant?

Justice Alito: Yes.

Mr. Manning: Well, what we are arguing is that the termination itself, the termination itself is a legislative act because the termination itself is part of the due functioning of the legislative process.

And in Doe v. McMillan the Court stated that when a case is predicated on a legislative act, court jurisdiction is barred.

Now also in answer to your question it doesn't matter who the defendant is.

The member, let's say Congress was--

Justice Souter: Well why doesn't it matter who the defendant is?

Because I don't, this so-called office of Senator Mark Dayton is a construct that I understand, and there is no immunity problem there.

But if, if that office is gone now and getting to your hypothesis, if the, if... if the true party is the Senate of the United States, has there been any unequivocal waiver of immunity with respect to the entire Senator or the Senate of the United States as an institution?

Mr. Manning: --No Justice Ginsburg, there has been no waiver--

Justice Souter: I'm Justice Souter.

Mr. Manning: --I'm sorry.

Justice Souter, sorry.

Justice Souter--

Justice Souter: You're very flattering.

[Laughter]

Mr. Manning: --Sorry.

Justice Souter, sorry, Justice Souter.

There has been no waiver for the Senate as a defendant.

Section 1408 of the CAA which of course gives the Court jurisdiction--

Justice Souter: Yes, but I was just going to say if this case continues we've got to accept the proposition that the Office of Senator Mark Dayton is still a, some kind of an entity that has got to be accorded reality by the judiciary, right.

Mr. Manning: --That is correct, because--

Justice Souter: And how do we do it?

I mean, you've said... I don't want to go too far with a metaphor, but you spoke a moment ago of there being sort of a, what did you say, a hole or a space in the legislative sphere when somebody is fired.

In the sphere at the moment is totally empty.

The Senator's gone.

Everybody knows that this, this office of Senator Mark Dayton is a totally fictional construct.

And in reality, as you point out, the money is going to come out of the Senate or some Senate fund.

If we allow this to go forward, we've got to face the reality that it's the Senate which is the defendant and there hasn't been a waiver of immunity.

Mr. Manning: --I agree with that, Justice Souter.

There is no defendant that exists any more.

The only defendant in the CAA, and the language is very express, is the employing office and the employing office is defined in Section 1301(9) as, for purposes of this case,

"the personal office of a member of Congress. "

And there is no member of Congress--

Justice Souter: Yes, but at this point that's silly.

There's no Senator.

There's no office in any sense.

Mr. Manning: --I agree with you that there is no defendant any more.

This defendant has ceased to exist and this case has abated.

There is no successor and when there is no successor there are not two adversarial parties in the case.

There's no case or controversy, case is moot, and the case should be dismissed on that basis alone.

Why... the Court does not even have to reach the jurisdictional issue with respect to the Speech or Debate Clause because this case became moot in January when the function of the office, which was solely to support Senator Dayton... when there was no Senator Dayton there was no office of Senator Dayton.

There is no defendant that is extant in this case and therefore the case--

Justice Scalia: There's never an office.

I mean, I think the office is just a fictional construct anyway.

So what you say now has nothing to do with whether, whether this current Senator has, has departed from the scene.

Even if he were still on the scene, there still wouldn't be any such thing as that office.

It's just a fiction, and it would always be a suit against Congress, and so you say none of these suits can ever be brought.

Mr. Manning: --Justice Scalia, it is not just a fiction.

The office--

Justice Scalia: Why isn't it a waiver of sovereign immunity when you set up a system that envisions a suit which will be paid off by the Senate?

Why isn't that a waiver of sovereign immunity?

Mr. Manning: --It is, Justice Scalia, a waiver of sovereign immunity that has a condition on it.

Justice Souter: Is it unequivocal?

Mr. Manning: It is unequivocal--

Justice Souter: I mean, when it's done on the basis of this fiction, is that what we should accept as an unequivocal waiver?

Mr. Manning: --Well, first, I disagree with the premise in that I don't think it is a fiction that this office never existed.

The office, the personal office of a member of Congress... members of Congress didn't work out in the hallway before the CAA was passed.

There was always a personal office of a member of Congress.

So in that sense it is not a fiction.

I would like to reserve the balance of my time.

Justice Scalia: A physical, a physical office, yes.

I mean, they didn't work in the hallway.

But their staff salary was not paid out of their, quote, "office".

It was paid out of the Senate.

Mr. Manning: Well, actually the structure doesn't support that.

The Senate, within the Senate, each member does pay the salary, sets the salary.

We can have legislative directors and do have legislative directors in two different offices, different salaries, different numbers of paid days, different number of annual leave days.

Justice Scalia: Setting it is quite different from paying it.

Mr. Manning: It is paid for--

Justice Scalia: The Senator sets it and the Senate pays it.

Mr. Manning: Justice Scalia, actually the Senate is given an appropriation and all of his salaries must be paid from the appropriation.

Justice Scalia: Right.

The Senate puts a limit on how much money it will spend for a particular Senator.

That's all that amounts to.

It doesn't hand him the money.

It's still the Senate's money, isn't it?

And what the Senate says is each office will have so much of a call upon our fund and no more.

Mr. Manning: It is the appropriated fund for the Senator and the Senator is the one who pays the fund.

If I may, I'd like to reserve the rest of my time.

Justice Stevens: Mr. Salzman.

Argument of Richard A. Salzman

Mr. Salzman: Justice Stevens and may it please the Court:

The motion to dismiss in this case raised a single issue, the issue of absolute immunity; more specifically, whether the employing office created by Congress as the defendant in these kinds of cases can be sued by a member of a Senator or a House of Representatives staff.

The Dayton office argues that a Senator's personnel decisions are always a legislative act that are always absolutely immunized by the Speech or Debate Clause.

That argument is untenable and it was rejected by every one of the eight judges of the D.C. Circuit en banc.

This case doesn't involve any legislative acts.

Mr. Hanson didn't work on Capitol Hill.

He was in the Minnesota office.

His, the nature of his claim is that he was a valued employee until he became ill and disclosed his illness and need for surgery, at which point he was fired.

Senator Dayton's office first says that they were not even aware, that Senator Dayton was unaware of the need for surgery at the time he made the decision to fire Mr. Hanson, and then says that the reason for the firing was Mr. Hanson's work on a classic constituent service.

This case presents exactly the hypothetical that Justice Breyer was asking about.

Although Mr. Hanson had a very small, he says 5 percent of his duties, that were in some way related to the legislative process, no one contends, not Mr. Kimball, not Senator Dayton's office, that that had anything to do with the reason for his firing.

In fact, the only evidence in the record, in this record so far, is that on that small amount of work that Mr. Hanson did with respect to ambulance legislation, he did a, quote unquote, "great job".

Justice Scalia: The other side's contention is that the firing is itself a legislative act and so when you challenge the firing you are challenging the legislative act.

What do you say to that?

Mr. Salzman: We say that's absolutely wrong Justice Scalia, that is absolutely wrong.

The reason is that this Court has said that conduct that is related to the legislative process, that may in fact be important to the legislative process, is not itself a part of the legislative process.

That is the fundamental holding of Brewster.

And this Court has found that some actions that affect an employee, for example in the Bogan case, where a decision that resulted in the termination of a person was clearly legislative in nature because it was made in a legislative proceeding, it was voted upon by the legislators, and it was based upon either budgetary or policy determinations.

That is a legislative act.

But this Court in Bogan specifically distinguished that circumstance from a classic personnel action firing such as happened to Mr. Hanson here.

There was no legislative act involved in Mr. Hanson's firing.

He was just fired.

The reason for the firing is at issue in this case.

A jury can sort out issues like whether or not Senator Dayton had notice of the need for surgery, whether or not Mr. Hanson's performance of classic constituent services was bad or good, as we contend.

But none of that involves legislative activity as this Court has described it under the speech or debate act.

So our contention is that the only issue in this case is absolute immunity and there is no absolute immunity in this case.

This case does not involve a legislative act, as Judge Randolph below and all of the judges below recognized.

Justice Stevens: What if his dissent... or defense, rather, to the charge is that he was very inefficient in giving me help in legislative hearings and so forth, or words of that kind which might be arguably a legislative act, and that Speech or Debate Clause forbids inquiry into the quality of his performing those duties?

Mr. Salzman: Justice Stevens, certainly the Speech or Debate Clause does incorporate... I'm sorry.

The Congressional Accountability Act does incorporate the Speech or Debate Clause with respect to the evidentiary privilege and that is clear from Section 413.

In that instance, district courts will have to deal with the proffered evidence on a case-by-case basis.

Obviously, the context matters with respect to any evidentiary privilege.

Justice Stevens: But maybe the Senator might argue that this is all privileged: It's the reason I fired him, but I can't go into it because I don't want to invade my own privilege not to discuss matters that are covered by the immunity.

Mr. Salzman: Well, Justice Stevens, again if the reason for the firing would shed light if the district court would show that the allowing the evidence that is proffered in would so intrude upon a real legislative act, then the district court can excise that evidence from the case.

It either can be taken out, as in the Helstoski case.

Justice Kennedy: What's the test for intruding?

If it would chill his exercise of the function in future cases, or if it requires him to talk about legislative decisions, or what?

Mr. Salzman: I think, as this Court has described it, Justice Kennedy, if it would compel the Senator to testify about his motives for legislation or for a legislative act, then a district court could decide that that evidence would not come in.

The firing itself, however, is not a legislative act and the motivation behind the firing is not precluded by the Speech or Debate Clause.

Justice Kennedy: What if it required him to say how he allocated his resources, that he allocate his resources 10 percent to foreign affairs issues, 50 percent to health care issues?

Would that involve is... is that a Speech or Debate Clause problem?

Mr. Salzman: I don't believe that it would, be Justice Kennedy.

I don't think that that would intrude so much on his goals with respect to a particular piece of legislation or with respect to a general legislative agenda.

I'm not sure I would see that his testifying about how he has allocated money in the office, for example, would be anything other than testimony about an administrative decision.

If he were... for example, if a plaintiff certainly attempted to introduce evidence in a case about a speech that the Senator gave on the floor of the Senate in which he was accused of making maybe a bigoted or a sexist remark, Section 413 would clearly preclude that.

And there may be circumstance, for example, where if a plaintiff wanted to introduce a draft of the speech or a draft of legislation, that a court, district court, could in those circumstances say that that intrudes so much on a true legislative act that the court could preclude that testimony from going in.

We don't believe that in the, in the run of these cases, that will be difficult for the district courts to handle.

Justice Stevens: That doesn't quite capture the problem that I'm having.

It's not that the plaintiff can't inquire.

Usually they can't.

But my thought is that the defendant cannot put in his own defense without waiving the privilege that would otherwise be applicable.

So he's sort of in a dilemma.

Either I give up my constitutional right not to talk about this stuff or I've got to waive that right in order to give a full explanation of why I discharged the plaintiff.

Mr. Salzman: Understood, Justice Stevens.

I think that in most cases that will not present a dilemma.

Even if the Senator's explanation is, I assigned a real legislative aide to research a piece of legislation and I was dissatisfied for whatever reason, suppose the reason is that the aide simply didn't turn in the memo that that he was assigned to do.

The Senator testifying about, I gave an assignment to this person, the due date was September 1st, I never got it or he was late or it was riddled with errors--

Justice Stevens: Or he just wrote a lousy memo.

In order to demonstrate it's lousy, I've got to talk about legislative matters.

Mr. Salzman: --If that is truly the situation and if a district court assessing, once all of the information is presented to the district court, that requiring the Senator in that circumstance to discuss really his legislative goals, we think that maybe that evidence would not be permitted.

Now, the, this court has recognized--

Justice Stevens: Even if the Senator did not have a defense?

Mr. Salzman: --Well, in Brewster, Your Honor, this Court recognized that there may be situations where the court permits an indictment to go forward, in which the indictment itself and the proof that the prosecutor will be presenting does not so intrude on the legislative process that it would be precluded but that the Defendant may decide that in order to explain the accusation he needs to rely on legislative acts.

And the court recognized that that may be the situation that the Senator is in.

I believe the Third Circuit in a decision written by Justice Alito, the McDade case, talks about that circumstance, where the Senator at that point can choose to put in his explanation and be subject to cross-examination simply with respect to that explanation, but that the prosecution is not precluded in its entirety.

And certainly that's what we are talking about here.

Justice Souter: Yes, but what if the Senator doesn't want to put it in?

I mean, what if he does not want to waive the privilege?

Is his only choice in effect to sit moot and lose the case?

Mr. Salzman: Well, if he chooses to sit moot and if the evidence--

Justice Souter: "Mute" I guess I should have said.

Mr. Salzman: --Mute, I'm sorry.

Justice Souter: Yes.

Mr. Salzman: If he chooses to stay silent, then perhaps the case just goes forward without an explanation.

The defendant--

Justice Souter: Well, why don't, why doesn't that... why doesn't being placed in that dilemma in effect implicate the clause, and why can't he invoke the clause as a basis for dismissal?

Mr. Salzman: --Well, Judge Randolph below thought that there may be circumstances where the evidence is so, all of the evidence is so bound up in a legislative act that the case might not go forward.

We respectfully disagree with that.

We think that that will rarely be the circumstance.

But this is the system that Congress set up and Congress created the system in a, in a careful way.

The defendant is not the member.

The member faces no financial liability whatsoever from a finding of discrimination or unlawful behavior.

Justice Souter: Well, yes, so far as the member's immediate financial concern, they took care of it.

But I'm not sure about the careful way.

They in effect said, you know, if this gets into Speech or Debate Clause issues they prevail.

And that kind of just leaves us with no solution for the problem that Justice Stevens raised and that I'm concerning with, unless there's, there's going to be an automatic dismissal when the member says, look, I cannot respond to this without getting into, into acts within the legislative process which are privileged.

Unless you want to recognize that as kind of an absolute defense upon its invocation, I don't see how we get out of the problem.

Mr. Salzman: Well, Justice Souter, our argument is that the decision itself is certainly not a legislative act, and the most... and that is in accordance with this Court's view of the judicial privilege in Forrester that the decision itself is not a judicial act.

The reasons behind the decision in the legislative context could be shielded by the evidentiary privilege, but we think there's a clear difference between the employees performing a duty that is related to the legislative process being different than a legislative act itself.

It may be that in some rare circumstances the Senator in order to fully defend himself feels the need to actually testify about real legislative acts, such as votes on something or his conduct in a committee proceeding.

But his assessment of an employee's performance, just as Judge White's assessment in the Forrester case of Miss Forrester's performance, is not legislative activity.

It may be activity that is important to the legislative process.

It may provide for a sound legislative arena, just as in the judicial sphere.

But when this Court found unanimous, unanimously that when Judge White was assessing the performance of Miss Forrester in the judicial context and deciding, I don't think she did a good job on delegated judicial functions, that's not a judicial act.

And we would say the same with respect to a legislative act, so--

Justice Ginsburg: That would go for a stenographer in a committee hearing?

Mr. Salzman: Yes, Your Honor, and I believe that's the Browning case, that the D.C. Circuit originally had found would be considered a legislative act.

And we do believe that, yes, the assessment by the, whoever supervised Miss Browning that her performance was inadequate is not itself a legislative activity.

Miss Browning's performance obviously was involved, was closely tied to the legislative process because she was a stenographer at hearings.

If the committee, if the committee decided in a committee proceeding and took a vote that they were not going to use stenographers any more and Miss Browning had brought a challenge with respect to that, alleging that it was focused personally on her and racially motivated, then we think a legislative immunity might apply as it did in the Bogan case.

But absent that, it's our belief that an assessment of an employee's performance, even if the employee is performing duties that are related to the legislative process, is not itself a legislative act.

Justice Breyer: Well, it could or couldn't be.

I mean, I mean if the legislator, the Senator, says, I think relevant to my dismissal of this individual is the individual's performance that revealed itself in a speech or debate that I gave in the House, and if that's relevant, then why isn't that the end of the case, they can't bring it?

Mr. Salzman: Justice Breyer, I think that that is one of the rare circumstances where the, the Senator's assessment of the performance is very tied up with a legislative act.

Justice Breyer: Well, all he'd have to say is it's relevant to my decision to fire the person.

Now, surely a jury or whoever... it's probably a jury matter, I guess, on this... is entitled to take that into account.

If it's something the jury is entitled to take into account, you are questioning what that Senator did in the speech or debate and you are questioning it in another place, namely, a court.

Mr. Salzman: You are, Justice Breyer.

The employee's performance, we believe, of the speech writing would not be considered a legislative act.

This Court said in Gravel that there is a difference between a legislative act which goes on in a committee proceeding and preparation for that proceeding, and the employee's performance getting the Senator ready to give his speech would not itself be considered a legislative act, but in that circumstance the district court might say that because the Senator's explanation is so clearly tied to a real legislative act, a speech that he actually gave on the floor of the Congress, perhaps that might be a circumstance where judge Randolph's view that that case could not go forward might apply.

That's not this case.

This case deals with threshold immunity issues, where the Senator's office is saying that any personnel decision that it engages in is by definition a legislative act if it relates to anybody who works in their office.

And Congress clearly was not of that view.

It defined every employee of the Senate, including those who worked in a Senator's office, to be a covered employee and all covered employees under Section 408 have the right to go to court.

Justice Ginsburg: Have any cases gone through a district court on the merits under this Act?

Mr. Salzman: I'm sorry, Justice Ginsburg?

Justice Ginsburg: Have any cases under this Act gone to a district court to judgment on the merits?

Mr. Salzman: No, Justice Ginsburg.

The closest... my understanding is the closest we have gotten is the companion case in this case, the Fields case, is scheduled for trial in October and it is my understanding that they have gone through some discovery in that case.

I don't believe that there have been any, any cases under the Congressional Accountability Act in court, that have made it past that.

If there are no further questions--

Justice Kennedy: I have one question.

The Appellants here were the ones that appealed to the court of appeals?

Did they appeal from the district court?

Mr. Salzman: --Yes.

Justice Kennedy: But under 1291, the United States Court of Appeals does not have jurisdiction where direct review may be had in the Supreme Court.

So it seems to me that their position contradicts their own basis for jurisdiction here.

Do you agree with that?

Mr. Salzman: Not entirely, Justice Kennedy.

We do... we had thought that initially and then upon reflection it seemed to us that because the minute order of the district... because the order of the district court was a minute order that did not explain its reasoning, perhaps there was some ambiguity about whether he was simply finding that Mr. Hanson had so little contact with the legislative process that, that the case should go forward or whether he was in essence--

Justice Kennedy: Well, but my point is that the Appellants are telling us that this is appealable here directly, but if that's so they shouldn't have gone to court of appeals, they shouldn't have gone to the court of appeals; they're untimely when they come here.

Mr. Salzman: --That is our understanding of the way it generally works.

We believe that the GYRA statute, which was the predecessor to the Congressional Accountability Act, may have permitted appeals directly from the court of appeals to this court.

So there appears to be some ambiguity.

When we first responded with respect to the appeal, we did argue that if Senator Dayton's office wanted to appeal directly they needed to do that two years ago when the district court had ruled.

Upon further research, we were not sure that that was correct, Your Honor.

Justice Stevens: Thank you, Mr. Salzman.

Mr. Caballero.

Argument of Thomas E. Caballero

Mr. Caballero: Justice Stevens and may it please the Court:

We agree that there is no jurisdiction in this Court under Section 412.

But I first would like to correct one of the answers regarding cases under this Congressional Accountability Act.

Two cases have been finally adjudicated by the district courts.

One was two cases against offices of members or committees where an employee worked for a member.

One of those involved a finding that it was outside the limitations in the statute.

The other case was a summary judgment finding of an employee who was a legislative employee of the Committee on Ways and Means and the Court found that the dismissal there was on an allowable ground under the statute and there was no violation of the employee's rights.

Justice Souter: And there's no jurisdiction under 412 because?

Mr. Caballero: Because, as we said in our brief, the decision of the court of appeals was a decision on the scope of the Speech or Debate Clause as that clause is preserved in Section 413 of the act and therefore there would be no appeal under Section 412.

If the court does go to the merits in this matter, I think it's important to effectuate Congress' intent in enacting the statute along with its concerns with the Speech or Debate Clause.

The Speech or Debate Clause provides senators and representatives with a constitutional privilege that is critical to securing the independence of the legislative branch in our system of government.

Certainly, Congress is the institution that has the greatest interest in and is most sensitive to maintaining a robust speech or debate privilege under this Court's precedence.

In enacting the Congressional Accountability Act, however, Congress concluded that it could provide its own employees with the same employment law protections that it had already provided Executive Branch employees and private sector employees, including the critical right of action for victims of illegal discrimination to bring suit in the Federal court; and that a suit under the Act would not infringe upon the Speech or Debate Clause.

Congress relied on this Court's own precedent in making that determination.

Under the Speech or Debate Clause, this Court has made clear that the clause is robust, protects activities outside of just speech and debate on the floor of either House, but that it shouldn't be extended beyond what is necessary to preserve the independence of the legislative process.

Justice Breyer: Can we go back a step.

I just... you said this is appealable and your reason for it being appealable was because the statute itself... you said it was not appealable and the reason not is because the statute itself said that this has to be applied consistent with the Speech or Debate Clause?

Mr. Caballero: Correct.

Justice Breyer: That's your reason.

So I take it, what about the reason that's been given, that this is an as-applied challenge instead of on its face?

What about that as a reason for it not being appealable?

Mr. Caballero: Well, that is an application of Section 413, the preservation of Speech or Debate Clause in the statute.

Justice Breyer: No, no, no, I'm not asking about the argument you are making.

I want to ask about an argument you aren't making, that the reason... I'll ask about the one you are making in a second.

The reason I want to know about... I want to know about the other possible reason for not being appealed, namely that this is as applied and not on its face.

They don't strike down any provision.

What's your view about that one?

Mr. Caballero: Our view is that that is correct, Your Honor.

Justice Breyer: That is correct.

And what you do about this case, what is it, Eichman?

Mr. Caballero: The Eichman case they cited.

Justice Kennedy: In Eichman, I was able to get out the district court and the last part of the district court, the last line of the district court, it says the law under which these three... let me begin again... the law under which these three defendants have been prosecuted is unconstitutional, which seems to me to contradict what Appellant's counsel told us about what happened in the district court.

Mr. Caballero: I think that's correct.

Justice Scalia: It wouldn't matter anyway, because our prior decisions that do not explicitly refer to jurisdictional questions are not authority on jurisdiction.

Mr. Caballero: That's correct.

Justice Scalia: We have that firm rule: When we take a case and don't get into the jurisdictional question, it is not precedent for the fact--

Mr. Caballero: For a finding of jurisdiction later, that's correct.

I would say--

Justice Breyer: So then a holding of a district court in your opinion, the holdings say, imaginary, is that no one who actually works in an office of a Senator and who ever worked on any matter having to do with legislation falls within this Act because that would violate the speech and debate clause.

That would be quite major in its implication.

But you're saying there is no appeal on that because it's as applied.

Mr. Caballero: --Right.

Based on the court of appeals decision, I would say the two arguments as applied in the preservation of Section 413 aren't wholly separate.

Justice Breyer: Does that mean if I go to your argument... I mean, the problem with your argument it seems to me is that that leaves no room for this appellate provision at law, because the only reason that anything is likely to be unconstitutional in this area, at least 99 percent of it, would be Speech or Debate Clause violation.

So in that interpretation of the statute there is no direct appeal, or hardly ever.

Mr. Caballero: Well, there was a lot of discussion in the legislative history about the separation of powers generally.

Justice Alito: We were told that 75 percent of the employees who were covered by the Act do not work for an individual member.

So how could, how could a provision held to be facially unconstitutional under the Speech or Debate Clause?

Mr. Caballero: Well, I think the provision wasn't held facially unconstitutional.

Justice Alito: What could it possibly be?

And if it couldn't possibly be then what did Congress have in mind when it provided it for an interlocutory appeal from a ruling on the constitutionality of the statute.

Mr. Caballero: Again, there was major debate in the Congress over whether or not the provision of judicial hearing of suits over congressional employment decisions, separate from the Speech or Debate Clause, just a separation of powers concern of having the judiciary oversee the workings of Congress, and there was a concern about that separation of powers issue, which would be a facial issue.

Can you hear any suits by employees of Congress who are employed in a separate branch?

And that was where this provision has life, and is meant to protect the ability for a litigant to bring it before this Court immediately; it would be a facial challenge.

Justice Scalia: --Yes.

That, that may make sense.

I, I wondered why... why they would provide for an appeal on constitutionality if they had in mind the Speech or Debate Clause stuff, when the legislation itself says that nothing herein shall be deemed a violation of speech.

Mr. Caballero: Right.

It preserves a member's... exactly.

It preserves a member's speech or debate.

Justice Scalia: Yeah.

Mr. Caballero: And when Congress did provide these rights under the statute, it was very important for the Congress under the previous regime affecting the Senate, employees had employment protections and they had administrative processes that they could go to.

But they lacked a judicial right.

And Congress made a specific decision that providing that right of action was an important employment law protection employees needed.

And again it relied on this Court's decisions both under the Speech or Debate Clause as to the scope of the clause and under Forrester where this Court held that a judge's employment decision as to an employee who did judicial duties was not a judicial act, did... achieve absolute immunity.

It was a... it was an administrative act, an employment act.

And similarly here what is brought before the courts is an employment act.

Again this case is before the Court on a motion to dismiss.

There has been no discovery.

There has been no litigation over the claims involved.

There is just a question presented does the Speech or Debate Clause bar the jurisdiction of Federal courts when a legislative, an employee with any legislative duties brings a suit under the Act?

And I think the question, the answer to that question has to be no.

Indeed in the case here, you could have litigation over whether the Senator knew of the alleged disability.

That's one of the disputes that's been laid out in the pleadings, whether that was the basis for the, for the decision to terminate the employee.

These are all the types of issues that play out in district courts.

District courts receive evidence.

They make these judgments; they see the specific context and they make specific rulings.

To try to decide in the abstract how you would apply an employment law case with the Speech or Debate Clause in an evidentiary sense is very difficult.

And that's why a more full record would be necessary.

But to decide the question on appeal, I think the Court can easily decide if these cases go forward.

One last point I would like to make is to address the issue of the existence of the office.

It's not a mere creation of the Act.

Senators have personal offices.

Those offices incur liabilities or obligations.

They buy paper; they make contracts and the like.

When a Senator leaves office, the employing office still has to pay the bills that were incurred when the Senator was in office.

And the Senate allows employing offices under the approval of the former member to submit the vouchers and receive payment.

The employing office has life afterwards.

Similarly here, if it incurs an employment liability it has life sufficient to litigate whether or not that liability exists and a judgment will be paid under Government funds under the Act.

Justice Souter: But it will... the money is simply Senate money.

Mr. Caballero: Yes.

The money is an appropriation of Senate... and under the fund, the money is an appropriation for the specific fund under the Act for paying judgements in these cases.

Justice Souter: But none of those funds are, as I understand it, are somehow subtracted from or contributed by the funds of individual senatorial offices while a Senator is in office.

I am assuming that those, that there is a separate appropriation for the payment of... of any such judgment, is that correct?

Mr. Caballero: Under the Act there is.

Congress decided to not have any personal liability for a member to shield them from that, and also not to require the member's office in cases such as illegal discrimination cases, to pay the awards or judgments.

Justice Souter: Okay.

In the real world then at this point isn't the Senate the... the party?

Mr. Caballero: Perhaps it's a party in interest, but I would say again that the named party is not a party without any life except under the Act.

I thank the Court.

Justice Stevens: Ms. Manning, you have about a minute left.

Rebuttal of Jean M. Manning

Mr. Manning: There are four instances in which the Court has found that jurisdiction is barred in Speech or Debate Clause cases.

The first is when the case is predicated on a legislative act.

The second is when the case cannot, that is cannot be adjudicated without questioning a legislative act or the motive for the act.

And the third is when the member will be made to answer in terms of his defense for a legislative act.

This goes to the question that Justice Stevens asked.

In Gravel the Court made it clear that if the member is made to answer in his defense for a legislative act, that violates the Speech or Debate Clause.

Under the, these types of cases the member does, would have to come forward and explain a legislative act: that is, why did I terminate this employee?

That is the explanation, because the termination itself is a legislative act, he is being questioned about a legislative act.

Justice Kennedy: Right.

I have one... one question.

Could the Senate direct you to pay this judgment?

Mr. Manning: Direct me... I'm sorry.

Me personally?

Justice Kennedy: Direct your office to... to do that.

Mr. Manning: To pay the judgment?

Justice Kennedy: Because it... suppose they thought there was liability and if you say yes, then I need to know why you and counsel who just addressed this are on different sides of the case, if you're both representing the Senate.

Mr. Manning: They cannot direct us to pay.

It of course comes out of the Treasury fund and the Senate has had absolutely no control or involvement at all for 12 years in any of these cases.

They do not know--

Justice Kennedy: Could it, if it chose?

Mr. Manning: --Well, I believe that it cannot because the defendant in this case is the employing office.

Justice Kennedy: All right.

Mr. Manning: So for that reason the Senate has never, doesn't even know the cases exist.

Doesn't know that we are negotiating settlement.

Doesn't review settlement agreements.

Is not involved in strategy.

In fact the CAA in Section 403 states that the, that the mediation and then the counseling in the case is strictly confidential.

The Senate cannot even know that they are happening.

Only the employing office can know.

In no sense has the Senate been the defendant.

If the Senate has been defendant--

Justice Stevens: Ms. Manning--

Mr. Manning: --Where this they been for twelve years?

They have not been in these cases for twelve years.

Justice Stevens: --Thank you, Ms. Manning.

The case is submitted.

Mr. Manning: Thank you.