CLYDE et al v. WALKER et al

Filing 22

MEMORANDUM OPINION in support of 21 Order granting Defendants' 14 Motion to Dismiss and denying Plaintiffs' 17 Motion for Hearing. Signed by Judge Timothy J. Kelly on 08/01/2022. (lctjk2)

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANDREW S. CLYDE et al.,
Plaintiffs,
Civil Action No. 21-1605 (TJK)

v.
WILLIAM J. WALKER et al.,
Defendants.

MEMORANDUM OPINION
Three Members of the United States House of Representatives sued the Sergeant at Arms
of the House of Representatives and the Chief Administrative Officer of the House of Representatives—collectively, the “House Officers”—to challenge a House Rule requiring Members to pass
through security screening before entering the House Chamber in the United States Capitol. The
House Officers move to dismiss. As explained further below, the Constitution’s Speech or Debate
Clause bars the Members’ claims, so the Court will grant the House Officers’ motion and dismiss
this case for lack of subject matter jurisdiction.
I.

Background
This Court and others have recounted the details about the attack on the United States Cap-

itol on January 6, 2021. See, e.g., Republican Nat’l Committee v. Pelosi, No. 22-cv-659 (TJK),
2022 WL 1294509, at *1 (D.D.C. May 1, 2022); Trump v. Thompson, 20 F.4th 10, 17–19 (D.C.
Cir. 2021). About a week after that, Acting Sergeant at Arms of the House of Representatives
Timothy Paul Blodgett issued a memorandum requiring House Members, among others, to undergo security screening when entering the House Chamber inside the Capitol. See 167 Cong.
Rec. H119, H119 (daily ed. Jan. 11, 2021); ECF No. 14 at 13 & n.4.

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On February 2, 2021, the House adopted House Resolution 73, formally imposing this security-screening requirement and establishing a protocol for its enforcement. See H.R. Res. 73,
117th Cong. § 1(a)(1), 167 Cong. Rec. H265, H274–75 (daily ed. Feb. 2, 2021). The Resolution
instructs the Sergeant at Arms to fine a Member failing to comply with the security-screening
requirement $5,000 for a first offense and $10,000 for any subsequent offense. Id. § 1(a)(2). Any
Member fined may appeal the fine to the House Committee on Ethics, and such fine will be upheld
“unless the appeal is agreed to by a majority of the Committee.” Id. § 1(b)(1), (b)(2). If the fine
is upheld and the Member does not pay it within a certain period, the Chief Administrative Officer
of the House of Representatives—Catherine Szpindor, at all times relevant here, see 167 Cong.
Rec. H1, H9 (daily ed. Jan. 3, 2021)—is instructed to “deduct the amount of the fine from the net
salary otherwise due the Member.” H.R. Res. 73, § 1(c)(1). The Resolution authorizes the Sergeant at Arms and the Chief Administrative Officer to “establish policies and procedures” to implement it. Id. § 1(e). The Acting Sergeant at Arms allegedly implemented the Resolution by
installing freestanding magnetometers at the entrances to the House Chamber and equipping security personnel stationed at those entrances with handheld magnetometers. ECF No. 9 ¶ 11.
On February 3, Representative Andrew Clyde allegedly entered the House Chamber without passing through a magnetometer or being screened by security personnel, and a few days later
the Acting Sergeant at Arms issued him a $5,000 fine for violating the Resolution. ECF No. 9
¶ 12. On February 5, Representative Clyde allegedly entered the House Chamber by passing
through a magnetometer, but he refused to be “detained for a secondary screening” by security
personnel, and a few days later the Acting Sergeant at Arms issued him a $10,000 fine for violating
the Resolution. Id. ¶ 18. Representative Clyde appealed the fines, but the Committee on Ethics
upheld them. Id. ¶ 19.

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On February 4, Representative Louie Gohmert allegedly went through security screening
“without incident” before entering the House Chamber, later exited the House Chamber briefly “in
full view” of the security personnel stationed at that exit, then reentered the House Chamber without submitting to another security screening. ECF No. 9 ¶ 21. The next day, the Acting Sergeant
at Arms issued him a $5,000 for violating the Resolution. Id. ¶ 22. Representative Gohmert appealed the fine, but the Committee on Ethics upheld it. Id. ¶ 23.
On May 19, Representative Lloyd Smucker allegedly entered the House Chamber hurriedly
to vote on a bill he feared he had “only seconds” left to vote on, telling security personnel stationed
at the entrance he passed through that he would vote “within their line of sight” and then return to
go through security screening. ECF No. 9 ¶ 24. 1 The next day, the Sergeant at Arms—by then,
William J. Walker had been sworn into the office, see 167 Cong. Rec. H2111, H2111 (daily ed.
Apr. 26, 2021)—issued him a $5,000 fine for violating the Resolution. ECF No. 9 ¶ 25. Representative Smucker appealed the fine, but the Committee on Ethics upheld it. Id. ¶ 26.
Representatives Clyde, Gohmert, and Smucker then sued the Sergeant at Arms and the
Chief Administrative Officer in their official capacities. ECF No. 9 at 1–2; id. ¶¶ 4–5. They
brought three constitutional claims to challenge implementation of the Resolution: (1) a claim
against the Sergeant at Arms under the Arrest Clause, id. ¶¶ 38, 40–41 (discussing U.S. Const. art.
I, § 6, cl. 1); (2) a claim against the Sergeant at Arms under the Discipline Clause, id. ¶¶ 37, 39,
41 (discussing U.S. Const. art. I, § 5, cl. 2); and (3) a claim against both the Sergeant at Arms and
the Chief Administrative Officer under the Twenty-Seventh Amendment, id. ¶¶ 30–31, 34 (discussing U.S. Const. amend. XXVII). They sought declaratory and injunctive relief. Id. ¶¶ 35, 41.

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Several Members, including Representative Clyde, have allegedly missed votes because the security screening delayed their entry into the House Chamber. ECF No. 9 ¶¶ 28–29.

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The House Officers move to dismiss, arguing that the Speech or Debate Clause of Article
I, Section 6 of the Constitution deprives this Court of subject matter jurisdiction over the Members’
claims and that, even if not, the Members have failed to state a claim. See ECF No. 14. The
Members oppose the motion. See ECF No. 15. 2
II.

Legal Standard
“Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins., 511

U.S. 375, 377 (1994). “It is to be presumed that a cause lies outside this limited jurisdiction,” and
the “party asserting jurisdiction” bears the burden of “establishing the contrary.” See id.; Moran
v. U.S. Capitol Police Bd., 820 F. Supp. 2d 48, 53 (D.D.C. 2011) (citing Lujan v. Def. of Wildlife,
504 U.S. 555, 561 (1992)). The Court must dismiss an action if it lacks subject matter jurisdiction.
See Fed. R. Civ. P. 12(b)(1), (h)(3). When a defendant raises a jurisdictional immunity from suit
as a bar to claims, the plaintiff must overcome that defense to avoid dismissal. See Jackson v.
Bush, 448 F. Supp. 2d 198, 200 (D.D.C. 2006).
III.

Analysis
The House Officers move to dismiss the Members’ claims against them for lack of subject

matter jurisdiction under the Speech or Debate Clause. The Clause bars the Members’ claims, so
the Court will grant the motion and dismiss the case for lack of subject matter jurisdiction.
The Speech or Debate Clause provides that “for any Speech or Debate in either House,
[Senators and Representatives] shall not be questioned in any other Place.” U.S. Const. art. I, § 6,

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The Members also move for a hearing on the motion. ECF No. 15 at 43; ECF No. 17; see LCvR
7(f). Whether to conduct one is “within the discretion of the Court.” LCvR 7(f). Here, holding a
hearing will not assist the Court’s resolution of the motion because the parties’ filings sufficiently
address the clear, purely legal issues presented. See Ndoromo v. Barr, 486 F. Supp. 3d 388, 395
(D.D.C. 2020); Borum v. Brentwood Vill., LLC, No. 16-cv-1723 (RC), 2020 WL 1508906, at *15
n.25 (D.D.C. Mar. 30, 2020). Thus, the Court will deny the Members’ motion.

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cl. 1. Its purpose is “to preserve the independence and thereby the integrity of the legislative
process.” United States v. Brewster, 408 U.S. 501, 524 (1972). It “serves the additional function
of reinforcing the separation of powers so deliberately established by the Founders.” Eastland v.
U.S. Servicemen’s Fund, 421 U.S. 491, 502 (1975) (internal quotation marks omitted). When it
applies, the Clause provides “absolute immunity from civil suit,” including suits seeking only declaratory or injunctive relief, even in the face of allegations that the challenged actions were nefariously motivated or violated the Constitution. See Rangel v. Boehner, 785 F.3d 19, 23 (D.C.
Cir. 2015); Eastland, 421 U.S. at 496, 502–03, 508–10. And in our Circuit, the Clause is a subject
matter jurisdictional bar. See Judicial Watch, Inc. v. Schiff, 998 F.3d 989, 993 (D.C. Cir. 2021).
It is “well established that the Clause’s protections extend to Congressional aides and
staff.” McCarthy v. Pelosi, 5 F.4th 34, 39 (D.C. Cir. 2021), cert. denied, 142 S. Ct. 897 (2022);
see also Eastland, 421 U.S. at 495, 512; Rangel, 785 F.3d at 25. This is because the “key consideration” under the Clause “is the act presented for examination, not the actor.” McCarthy, 5 F.4th
at 39 (internal quotation marks omitted).
As for the acts protected by the Clause, the “Supreme Court has consistently read the
Speech or Debate Clause ‘broadly’ to achieve its purposes.” See Rangel, 785 F.3d at 23 (quoting
Eastland, 421 U.S. at 501). Thus, although the Clause speaks of “Speech or Debate,” it protects
all “legislative acts.” Doe v. McMillan, 412 U.S. 306, 312 (1973). And “legislative acts for purposes of Speech-or-Debate-Clause immunity include both (i) matters pertaining ‘to the consideration and passage or rejection of proposed legislation,’ and (ii) ‘other matters which the Constitution
places within the jurisdiction of either House.’” McCarthy, 5 F.4th at 40 (quoting Gravel v. United
States, 408 U.S. 606, 625 (1972)). In other words, whether an act is protected by the Clause turns

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on whether the act is “integral” to the “business” constitutionally committed to the House—legislating, of course, but also other matters such as executing internal rules and disciplining Members.
See Walker v. Jones, 733 F.2d 923, 929 (D.C. Cir. 1984); see also Consumers Union of U.S., Inc.
v. Periodical Correspondents’ Ass’n, 515 F.2d 1341, 1343, 1351 (D.C. Cir. 1975) (citing the Rulemaking Clause, U.S. Const. art. I, § 5, cl. 2); Rangel, 785 F.3d at 23 (citing the Discipline Clause,
U.S. Const. art. I, § 5, cl. 2).
Here, each challenged act of the House Officers qualifies as a legislative act. See Gravel,
408 U.S. at 625. Thus, the Speech or Debate Clause bars the Members’ claims.
First, the Members assert that the security screening violates the Arrest Clause because it
is an “arrest” absent “treason,” “felony,” or “breach of the peace.” See U.S. Const. art. I, § 6, cl. 1
(“The Senators and Representatives . . . shall in all cases, except treason, felony and breach of the
peace, be privileged from arrest during their attendance at the session of their respective Houses,
and in going to and returning from the same . . . .”). But this security screening is a legislative act.
For one, being performed at the entrances to the House Chamber, the security screening regulates
“the very atmosphere in which lawmaking deliberations occur,” which courts have found makes
an act legislative. See Walker, 733 F.2d at 930 (discussing Consumers Union, 515 F.2d at 1347 &
n.12, 1350); see also Massie v. Pelosi, --- F. Supp. 3d ----, 2022 WL 703942, at *12–14 (D.D.C.
Mar. 9, 2022), appeal docketed, No. 22-5058 (D.C. Cir. Mar. 14, 2022) (concluding the same about
a House mask mandate inside the House Chamber). Also, the screening is done in “execution of
internal rules” of the House—the Resolution. See Consumers Union, 515 F.2d at 1351. And the
“‘execution of internal rules’” like this one “is ‘legislative.’” See Rangel, 785 F.3d at 24 (quoting
Consumers Union, 515 F.2d at 1351). Thus, the security screening qualifies as a legislative act,

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and the Members’ Arrest Clause claim against the Sergeant at Arms is barred. See McCarthy, 5
F.4th at 40.
Second, the Members assert that fining them for violating the Resolution amounts to “punish[ment]” absent any “disorderly behavior” and thus is unconstitutional under the Discipline
Clause. See U.S. Const. art. I, § 5, cl. 2 (“Each House may . . . punish its members for disorderly
behavior . . . .”). But imposing these fines also qualifies as a legislative act. At the very least, this
is so because the fines are imposed in “execution of internal rules” of the House and to discipline
Members for violating those internal rules. See Consumers Union, 515 F.2d at 1351; Rangel, 785
F.3d at 24. Also, the fines are an integral “part of the scheme” that the House has adopted to
regulate “Members’ behavior” in the lawmaking “‘atmosphere’”—it is the mechanism that the
House has chosen to enforce the security-screening requirement. See Massie, 2022 WL 703942,
at *11–12, *14 (quoting Walker, 733 F.2d at 930). That the fines at issue were subsequently “ratified” by the House Committee on Ethics confirms “their occurrence within the scope of the legislative process.” See Consumers Union, 515 F.2d at 1351. Thus, the imposition of these fines is
a legislative act, and the Members’ Discipline Clause claim against the Sergeant at Arms is barred.
See McCarthy, 5 F.4th at 40.
Third, the Members assert that imposing fines on them and then deducting those fines from
their salaries “var[ies]” their “compensation” before an “election of Representatives . . . intervened” following adoption of the “law” under which the fines are imposed and deducted, violating
the Twenty-Seventh Amendment. See U.S. Const. amend. XXVII (“No law varying the compensation for the services of the Senators and Representatives shall take effect, until an election of
Representatives shall have intervened.”). But these actions too qualify as legislative acts. As just
discussed, the fines are imposed in “execution of internal rules” of the House and to discipline

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Members for violating those internal rules, as is the assessment of the fines. See Consumers Union,
515 F.2d at 1351; Rangel, 785 F.3d at 24. Further, the imposition and deduction of these fines are
an integral “part of the scheme” that the House has adopted to regulate “Members’ behavior” in
the lawmaking “‘atmosphere’”—they are the mechanisms that the House has chosen to enforce
the security-screening requirement. See Massie, 2022 WL 703942, at *11–12, *14 (quoting
Walker, 733 F.2d at 930). Thus, the House Officers’ imposition and assessment of fines are “legislative acts,” and the Members’ Twenty-Seventh Amendment claim against the House Officers is
barred. See McCarthy, 5 F.4th at 40.
The Members raise several counterarguments, but all are foreclosed by precedent.
First, the Members contend that the acts they challenge—“security screening” and “administering payroll”—are not legislative acts for Speech or Debate Clause purposes because they are
“administrative functions.” ECF No. 15 at 16, 19. Without question, “[a]uxiliary services” provided by congressional staff that are “not closely connected to the business” constitutionally committed to the House—for example, attending to “food service, medical care, physical fitness needs,
parking, and haircutting” for Members—do not qualify as legislative acts even though they “promote [legislators’] comfort and convenience in carrying out Article I business.” See Walker, 733
F.2d at 929, 931. But in characterizing the acts they challenge as generic “administrative functions
of security and payroll,” the Members ignore their context. See ECF No. 15 at 19. As discussed
above, the security screening, fining, and salary deductions challenged here have a direct nexus to,
and are part of an overall scheme regulating, Members’ behavior in the lawmaking atmosphere on
the House floor. See also Massie, 2022 WL 703942, at *12–14. Thus, these acts qualify as legislative acts even though, considered at a high degree of generality and divorced from their context,
they are “administrative functions.”

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Second, invoking a line of authority, the Members assert that the Court should distinguish
between “legislative acts and execution thereon” in determining whether the Clause applies. ECF
No. 15 at 22–25 (discussing Gravel, 408 U.S. 606; Powell v. McCormack, 395 U.S. 486 (1969);
Dombrowski v. Eastland, 387 U.S. 82 (1967) (per curiam); Kilbourn v. Thompson, 103 U.S. 168
(1880); and Walker, 733 F.2d 923). They argue that while “Members of Congress may have immunity for discussing and voting for an unconstitutional rule,” “congressional employees . . . are
not immune from a judicial order forbidding the implementation of such a rule.” ECF No. 15 at
25.
Recently, however, other House Members relied on this same line of cases to make this
same argument—unsuccessfully. See, e.g., McCarthy, 5 F.4th at 40–41; Massie, 2022 WL
703942, at *13. In McCarthy, for instance, in the face of a constitutional challenge brought by
some House Members to another House resolution, the D.C. Circuit rejected the argument that
“the acts of voting on and adopting the Resolution lie within the Clause’s zone of immunity, but
acts undertaken in implementing the Resolution do not.” 5 F.4th at 40–41. It did so because, it
held, the “salient distinction under the Speech or Debate Clause is not between enacting legislation
and executing it” but between “legislative acts and non-legislative acts.” Id. at 41. The McCarthy
court thus concluded that the Clause encompasses the “execution” of congressional directives so
long as the “executing actions themselves constitute legislative acts.” Id. And it explained that
the line of authority in question establishes only that “conduct carrying out” congressional directives “is beyond the Speech or Debate Clause’s compass when it is not itself a legislative act.” See
id. 3 As discussed above, the steps the House Officers took to carry out the Resolution qualify as

3

The McCarthy court discussed Walker, see McCarthy, 5 F.4th at 40, but it did not explicitly
address the Walker court’s observation, relied on by the Members here, that the “execution of a

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“legislative acts” themselves. See McCarthy, 5 F.4th at 41. Thus, the Clause “encompasses the[ir]
execution” of the Resolution. See id.; see also Massie, 2022 WL 703942, at *13–14.
Third, the Members argue that “House rules are susceptible to judicial review” under
United States v. Ballin, 144 U.S. 1 (1892), and its progeny whenever a House rule is alleged to
“ignore constitutional restraints,” “violate fundamental rights,” or lack “a reasonable relation between the mode or method of proceeding established by the rule and the result which is sought to
be attained.” ECF No. 15 at 13–15 (quoting Ballin, 144 U.S. at 5). This is true, at times—but not
when the Speech or Debate Clause bars the challenge. Consumers Union— on which the Members
rely to make this argument, see ECF No. 15 at 13—shows as much. 515 F.2d 1341. 4 There, the

decision, even if the decision itself is properly called ‘legislative,’ is not cloaked with Speech or
Debate immunity” because “execution or carrying out directions post-dates what the Clause protects—the process leading up to the issuance of legislative directions,” see Walker, 733 F.2d at
932. That said, the McCarthy court considered the same line of cases from which the Walker court
derived that observation and concluded that it did not establish the per se decision/execution distinction that the Members urge here. Compare McCarthy, 5 F.4th at 40–41, with Walker, 733 F.2d
at 931–32 & n.11. The Court reads Walker consistently with McCarthy to mean only that acts that
execute legislative acts are not automatically protected under the Clause “merely because” the
executing acts “relate to the underlying decision.” See Walker, 733 F.2d at 943 (MacKinnon, J.,
concurring in part and dissenting in part) (agreeing with and restating the “majority’s distinction”).
However, acts that execute legislative acts are protected under the Clause when the executing acts
themselves are also legislative acts. See McCarthy, 5 F.4th at 41. Further, reading Walker this
way reconciles it with Consumers Union, which considered the same line of authority yet “spoke
of the Clause’s applicability to conduct ‘enforcing internal rules of Congress’ or ‘executing . . .
internal rules,’” thus precluding a per se decision/execution distinction. See McCarthy, 5 F.4th at
41 (brackets omitted) (quoting Consumers Union, 515 F.2d at 1350–51). In any event, Consumers
Union predates Walker, so the Court must follow Consumers Union to the extent Walker conflicts
with it on this point. See, e.g., Sierra Club v. Jackson, 648 F.3d 848, 854 (D.C. Cir. 2011).
4

The Members also rely on Boehner v. Anderson, 30 F.3d 156, 160 (D.C. Cir. 1994), to argue that
their claims are “judicially cognizable.” See ECF No. 15 at 14, 19–20. The Boehner court held
that a Member of Congress had standing to bring a Twenty-Seventh Amendment claim against the
Clerk of the House of Representatives (among others), and it did not exercise its “equitable discretion” to decline jurisdiction. 30 F.3d at 160–61. But it did not hold that the claim was justiciable even though the Speech or Debate Clause applied. In fact, the Clerk apparently never invoked
the Clause because the Boehner court never even considered whether it applied. Id. at 161.

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court suggested that the plaintiff’s constitutional challenge to a congressional rule might have been
justiciable under Ballin—but even so, it could “not reach the merits” of that challenge because
“despite the claim of constitutional violation,” the Clause rendered the matter “yet nonjusticiable.”
See id. at 1347–48, 1348 n.16. McCarthy reinforces this point. 5 F.4th 34. The McCarthy court
held that the Clause barred the suit without considering the merits of the House Members’ constitutional challenge to the House resolution at issue in that case. Id. at 38–41; see also Rangel, 785
F.3d at 23–24 (holding that the Clause barred a constitutional challenge to a House disciplinary
proceeding because the proceeding was “a ‘legislative’ matter that ‘the Constitution places within
the jurisdiction of [the] House,’” without addressing the merits of the challenge (quoting Gravel,
408 U.S. at 625)). Thus, where, as here, the Clause applies, judicial review is precluded even if it
would otherwise be available under Ballin.
IV.

Conclusion
For these reasons, the Court will dismiss this case for lack of subject matter jurisdiction.

A separate order will issue.
/s/ Timothy J. Kelly
TIMOTHY J. KELLY
United States District Judge
Date: August 1, 2022

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