Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-29-2006

Fowler-Nash v. Democratic Caucus
Precedential or Non-Precedential: Precedential

Docket No. 06-1636




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PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                   Case No: 06-1636

               AMY L. FOWLER-NASH

                            v.

THE DEMOCRATIC CAUCUS OF THE PENNSYLVANIA
           HOUSE OF REPRESENTATIVES;
  R. TED HARHAI, Pennsylvania State Representative,
          in his official and individual capacity;
       SCOTT BRUBAKER, Director of Staffing
        and Personnel for the Democratic Caucus
      of the Pennsylvania House of Representatives
          in his official and individual capacity,

                                 Appellants



     On Appeal from the United States District Court
         for the Western District of Pennsylvania
             District Court No.: 05-cv-01672
     District Judge: The Honorable Arthur J. Schwab


              Argued on October 26, 2006

 Before: SMITH, WEIS, and NYGAARD, Circuit Judges
               (Filed: November 29, 2006)

            Danielle Banks, Esq. (argued)
            Stradley, Ronon, Stevens & Young
            2600 One Commerce Square
            Philadelphia, PA 19103
                   Counsel for Appellants

            George A. Bibikos, Esq.
            John P. Krill Jr., Esq.
            Linda J. Shorey, Esq.
            Kirkpatrick & Lockhart Nicholson Graham
            17 North Second Street
            18th Floor
            Harrisburg, PA 17101
                   Counsel for Amicus-Appellant

            Samuel J. Cordes, Esq. (argued)
            Ogg, Cordes, Murphy & Ignelzi
            245 Fort Pitt Boulevard
            Pittsburgh, PA 15222
                   Counsel for Appellees




                        OPINION


SMITH, Circuit Judge.



                            2
        Amy Fowler-Nash (“Fowler-Nash”) brought suit
pursuant to 42 U.S.C. § 1983 against the Democratic Caucus of
the Pennsylvania House of Representatives (“the Caucus”), state
representative Ted Harhai, and Scott Brubaker, Director of
Staffing and Personnel for the Caucus. Fowler-Nash alleged
that she was discharged from her position as a legislative
assistant to Harhai in violation of her First and Fourteenth
Amendment rights. The Caucus filed a motion for judgment on
the pleadings on the basis of common law legislative immunity.
FED. R. CIV. P. 12(c). The Caucus argued that it was entitled to
absolute legislative immunity as Fowler-Nash was employed as
a legislative assistant, and her firing was therefore necessarily
“within the sphere of legitimate legislative authority.” Tenney
v. Brandhove, 

, 376 (1951).

        The District Court denied the Caucus’s Rule 12(c)
motion, holding that the Caucus did not exercise a legislative
function when it terminated Fowler-Nash. The Caucus contends
that application of a functional test, derived from the Supreme
Court’s opinion in Forrester v. White, 

(1988), was
error. The Caucus argues for an “alter ego” test that would look
to the duties of the discharged employee, not to the nature of the
personnel action taken.

        We reject the Caucus’s argument. We will apply
Forrester’s functional test to claims of absolute legislative
immunity, and will affirm the District Court’s decision that the
Caucus is not entitled to immunity in this case. The “alter ego”
test lacks precedential support from the Supreme Court, from
                                3
our own Court, or from other courts of appeals. Its adoption
would open a circuit split. The “alter ego” approach is also a
poorer reflection of the purposes of legislative immunity than
the functional approach. Though this is a question of first
impression before this Court, our own jurisprudence regarding
municipal personnel actions strongly suggests that the Caucus
should not be shielded by legislative immunity. We will affirm
the District Court’s denial of the Caucus’s Rule 12(c) motion.

              I. Facts and Procedural History

        Ted Harhai is an elected Democratic Representative in
the Pennsylvania House of Representatives. John J. Harhai,
Representative Harhai’s brother, ran for a seat on the City
Council of Monessen, Pennsylvania in the 2005 Democratic
primary. John Harhai lost by seven votes to Jeffery Gagatko,
then filed a Petition to Recanvass in the Court of Common Pleas
of Westmoreland County, Pennsylvania.                Pursuant to
Pennsylvania law, the Petition included 39 affidavits from
qualified electors alleging fraud or irregularities. Each of these
affidavits was notarized pursuant to state law. Recanvassing
yielded a nine vote victory for Harhai.

        Fowler-Nash was working at the time as a legislative
assistant to Representative Harhai. Fowler-Nash informed
counsel for Gagatko that many of the electors’ affidavits had
been improperly notarized in the electors’ absence, in violation
of state law. Gagatko filed an Emergency Petition to Set Aside
the Recanvass. Fowler-Nash was subpoenaed to testify at a
                                4
hearing on the Emergency Petition. She informed Gagatko’s
counsel that many of the electors were meeting with the notary
in Representative Harhai’s office so that they would be able to
identify the notary at the hearing and falsely state that the notary
had been present when the affidavits were signed.

       Before the hearing was held, however, the parties agreed
to a stipulation that the 39 affidavits were not signed in the
presence of the notary. The trial judge by an order dated July
11, 2005 then vacated its initial June 22, 2005 order that
provided for a recanvassing of the votes. John Harhai appealed.
One week after John Harhai’s appeal was decided against him,
Brubaker terminated Fowler-Nash, informing her that
Representative Harhai could no longer trust her. Fowler-Nash
filed suit against the Caucus, Representative Harhai, and
Brubaker in federal district court, pursuant to 42 U.S.C. § 1983.
The Caucus moved for judgment on the pleadings pursuant to
Federal Rule of Civil Procedure 12(c). The Caucus stated in its
Rule 12(c) motion that Fowler-Nash had been terminated for
“excessive telephone usage, internet privilege abuses and overall
job performance.” The District Court denied the motion. The
Caucus filed the instant appeal.1

      1
        The District Court had federal question jurisdiction
pursuant to 28 U.S.C. § 1331. We have jurisdiction under the
Collateral Order Doctrine of an order denying absolute
immunity. In re Montgomery County, 

, 373 (3d
Cir. 2000).
       Because “[t]his appeal presents a purely legal question
                                 5
                         II. Discussion

       The doctrine of legislative immunity flows from English
common law and the many centuries of struggle between the
English Crown and Parliament. See Tenney v. Brandhove, 

, 372 (1951). Various English monarchs condemned
parliamentarians to prison for proposing or supporting bills they
found unhelpful. 

Revolution ended this
practice by codifying legislative immunity–“[t]hat the Freedom
of Speech, and Debates or proceedings in Parliament not to be
impeached or questioned in any Court or Place out of
Parliament”–in the English Bill of Rights of 1689. 

later, the Framers included a similar clause in
the Articles of Confederation, and then in Article I, Section 6 of
the United States Constitution: “[F]or any speech or debate in
either house [the members] shall not be questioned in any other
place.” U.S. Const. art. I, § 6, cl. 1; see 

.
The Tenney Court aptly summed up the purposes of the Speech
and Debate Clause, stating that legislators must be “immune
from deterrents to the uninhibited discharge of their legislative
duty, not for their private indulgence but for the public 

.



concerning the scope of the immunity doctrine,” we exercise
plenary review over the District Court’s denial of the Rule 12(c)
motion on legislative immunity grounds.              Donivan v.
Dallastown Borough, 

, 487 (3d Cir. 1987).
                                 6
        The Speech and Debate Clause does not, by its terms,
extend any protection to state legislators or officials.
Nevertheless, the Tenney Court extended legislative immunity
to state legislators and officials as federal common law,
extensively referencing the immunity’s deep common law
origins. 

The Supreme Court has similarly extended
common law legislative immunity to local legislative officials,
see Bogan v. Scott-Harris, 

(1998) (extending
legislative immunity to members of a city council), and to non-
legislators legitimately engaged in a legislative function. See
Supreme Court of Va. v. Consumers Union of the United States,

, 732 (1980) (extending legislative immunity to
Virginia Supreme Court justices in promulgating a code of
professional responsibility).

        The Supreme Court has often stated that the purpose of
common law legislative immunity is to reinforce the separation
of powers and safeguard legislative independence. See, e.g.,
Eastland v. U.S. Servicemen’s Fund, 

, 502 (1975);
United States v. Brewster, 

, 507 (1972).
Legislative immunity may protect an official exercising a
legislative function “from inquiry into legislative acts or the
motivation for actual performance of legislative acts,” 

, “from the burden of defending” certain suits,
Dombrowski v. Eastland, 

, 85 (1967), and “from the
consequences of litigation’s results.” 

Court rejected in Brewster the view that the
Speech and Debate Clause protects “all conduct related to the
                               7
due functioning of the legislative process.” 

. The Court stated that, “[w]e would not think it sound or
wise, simply out of an abundance of caution to doubly insure
legislative independence, to extend the privilege beyond its
intended scope, its literal language, and its history, to include all
things in any way related to the legislative process.” 

On the same day that it decided Brewster, the Court took a broad
view in Gravel v. United States of who could invoke legislative
immunity, holding that a legislative aide could invoke immunity
if a legislator could invoke the immunity under the same
circumstances. 

, 608-10 (1972). As to what
actions were protected by legislative immunity, the Court took
a narrow view, stating that the “heart of the Clause is speech or
debate in either House,” and that “[i]nsofar as the Clause is
construed to reach other matters, they must be an integral part of
the deliberative and communicative processes by which
Members participate in committee and House proceedings with
respect to the consideration and passage or rejection of proposed
legislation or with respect to other matters which the
Constitution places within the jurisdiction of either House.” 

        This Court has held that the federal common law
immunity is “coterminous” with the federal constitutional
legislative immunity, see Larsen v. Senate of the Commonwealth
of Pa., 

, 249 (3d Cir. 1998), though the Supreme
Court has expressed particular reluctance about extending a
common law immunity. See Forrester v. White, 

,
220 (1988) (describing the Court’s “absolute official immunity”
                                 8
jurisprudence as “quite sparing”).

        The Pennsylvania Constitution contains a Speech and
Debate Clause that tracks the federal clause, but it cannot shield
a legislator from a violation of federal law. See Pa. Const. art.
II, sec. 15.

       A. The Functional Test is Appropriate for
       Legislative Immunity

       The Caucus contends that the District Court erred in
applying a “functional approach,” in which immunity hangs on
whether an action serves “the due functioning of the legislative
process.” United States v. Brewster, 

, 516 (1972).
The Supreme Court applied this “functional” approach to a
personnel decision in Forrester v. White, 

, 224
(1988).

       The Caucus, however, argues for an “alter ego” test for
the application of legislative immunity. Under this approach,
the Court should determine if the person fired, demoted, or
otherwise affected by the legislator’s decision was so closely
linked to the legislative process that any actions taken towards
them were, in effect, legislative.

       The Caucus contends that the District Court’s application
of the Forrester “functional” test was error for several reasons.
The Caucus contends that (1) Forrester concerned a personnel
decision made by a judge and should not therefore be applied to
                                9
legislative immunity, and that (2) a circuit split exists on the
question of which test is appropriate. We reject the first
contention. The second is simply wrong.

       1. Forrester has been applied to legislative
       immunity by every Court of Appeals to
       consider the issue

        The Caucus contends that the “functional” test laid out by
the Supreme Court in Forrester should be limited to judicial
immunity, as Forrester concerned a state judge’s claim of
immunity after firing a probation officer. We reject this sharp
limitation of Forrester. The Court’s opinion in Forrester
strongly suggests that it intended the “functional” test to be
applied broadly. Forrester v. White, 

, 227 (1988).
Every court of appeals to consider the issue has followed the
Court’s suggestion and applied the Forrester test to legislative
immunity.

       In Forrester, an Illinois state judge demoted, then
discharged, a female adult probation officer. 

The
discharged officer alleged that she had been discriminated
against because of her sex, in violation of the Fourteenth
Amendment. 

argued that this personnel action
was protected by absolute judicial immunity. 

Court unanimously rejected this claim. 

      The Forrester Court noted that “[d]ifficulties have arisen
primarily in attempting to draw the line between truly judicial
                               10
acts, for which immunity is appropriate, and acts that simply
happen to have been done by judges,” and that “[h]ere, as in
other contexts, immunity is justified and defined by the
functions it protects and serves, not by the person to whom it
attaches.” 

(emphasis added) (citing many cases
concerning legislators and executive officials). The Court noted
that “[r]unning through our cases, with fair consistency, is a
‘functional’ approach to immunity questions other than those
that have been decided by express constitutional or statutory
enactment.” 

The Court responded to the threat of
“vexatious” lawsuits by former employees by pointing out that
this factor in “no way serves to distinguish judges from other
public officials who hire and fire subordinates.” 

The Forrester Court did not perceive its decision as announcing
a new test, but rather restating and clarifying a “functional”
approach that it had articulated in prior cases, many of which
concerned legislative immunity. 

most recently applied the functional approach
to a claim of common law legislative immunity from a personnel
action claim in Bogan v. 

(“Absolute immunity for local legislators under § 1983 finds
support not only in history, but also in reason.”). The Bogan
Court clarified that the functional inquiry is purely objective,
holding that, “[w]hether an act is legislative turns on the nature
of the act, rather than on the motive or intent of the official
performing it. . . . This leaves us with the question whether,
stripped of all considerations of intent and motive, petitioners’
actions were legislative.” 

The Court unanimously
                               11
held that the city officials who had eliminated plaintiff’s
position by passage of a new budget had acted legislatively as
“acts of voting for an ordinance were, in form, quintessentially
legislative.” 

(observing that introduction of a budget
and signing into law an ordinance are “formally legislative” and
“integral steps in the legislative process.”).

        We have applied Forrester outside the context of judicial
immunity. See Schrob v. Catterson, 

, 1409 (3d
Cir. 1991) (stating that the “Supreme Court has outlined a
functional approach to immunity issues,” and applying
Forrester to prosecutorial immunity (internal quotes omitted)).
Other courts of appeals have uniformly adopted this view of
Forrester and expressly applied the case to legislative immunity.
See Kamplain v. Curry County Bd. of Comm’rs, 

,
1251 (10th Cir. 1998) (“In order to determine whether
Defendants should be cloaked in legislative immunity, we look
to the function that the Board members were performing when
the actions at issue took place and we examine the nature of
those actions.”); Chateaubriand v. Gaspard, 

, 1220
(9th Cir. 1996) (“To determine whether legislative immunity
applies, courts look to ‘the nature of the function performed, not
the identity of the actor who performed it.’”); Alexander v.
Holden, 

, 65 (4th Cir. 1995) (“Under Forrester v.
White, the functions of the [Brunswick County] commissioners
determine whether their actions are legislative or administrative
for purposes of immunity.”); Hansen v. Bennett, 

,
401 (7th Cir. 1991) (“We look only to the function [Mayor]
Bennett was performing when he ejected Hansen. We apply this
                               12
functional approach even when evaluating conduct that takes
place within a meeting which includes some legislative
business.”); Gross v. Winter, 

, 170 (D.C. Cir. 1989)
(applying Forrester to a firing by a Washington, D.C. city
council member). No court to have considered the issue has
limited Forrester in the manner the Caucus proposes.

       The Caucus urges a radical limitation on the functional
test that is unsupported by Supreme Court or lower court
precedent. We reject this proposed narrowing of the Forrester
test.

       2. The “alter ego” approach to legislative
       immunity has been rejected by every Court of
       Appeals to consider the issue

        The Caucus repeatedly states that a circuit split exists as
to whether the “alter ego” or “functional” test applies to
legislative immunity for personnel actions. The Caucus relies
on two cases, Agromayer v. Colberg and Browning v. U.S.
House of Representatives, of the First Circuit and D.C. Circuit,
respectively, to support this proposition. See Agromayer v.
Colberg, 

, 60 (1st Cir. 1984); Browning v. U.S.
House of Representatives, 

, 929 (D.C. Cir. 1986).
No such split exists. The Court of Appeals for the First Circuit
has repeatedly undermined or ignored Agromayer and the Court
of Appeals for the D.C. Circuit recently repudiated Browning in
an en banc decision that unanimously rejected the “alter ego”
approach. See Fields v. Office of Eddie Bernice Johnson, 459
                               

, 6-7 (D.C. Cir. 2006).

       i. Agromayer is no longer applied in the First
       Circuit

        The First Circuit held in Agromayer that the politically
motivated refusal to hire a member of the opposing political
party as a legislative press officer was protected by common law
legislative immunity. Agromayer v. Colberg, 

, 60
(1st Cir. 1984). The Agromayer Court held that “an employee
dealing with the deliberative and communicative processes must
be of direct legislative importance.” 

v. United
States, 

, 625 (1972)) (internal quotes and citations
omitted). The Court stated that, “in applying the immunity we
decline to inquire deeply into the functions performed by a
particular personal legislative aide, inasmuch as such an inquiry
itself threatens to undermine the principles that absolute
immunity was intended to protect.” 

.
The Court held that personnel actions concerning employees
with “enough opportunity for ‘meaningful input’ into the
legislative process” should be immunized. 

Court relied on Chief Justice Burger’s
dissent in Davis v. Passman for this approach. 

(citing
Davis v. Passman, 

, 249-50 (1979) (Burger, C.J.,
dissenting)). The Davis Court declined to reach the legislative
immunity issue raised by a United States congressman who fired
a female aide, allegedly on account of her sex. 

. However, Justices Burger, Powell, and Rehnquist
                                14
wrote separately to argue that the Court should have reached the
issue and that it should have been decided in favor of immunity.

The dissent stated that a

       Member of Congress has a right to expect that
       every person on his or her staff will give total
       loyalty to the political positions of the Member,
       total confidentiality, and total support. . . .
       lead[ing] a Member to employ a particular person
       on a racial, ethnic, religious, or gender basis
       thought to be acceptable to the constituency
       represented, even though in other branches of
       Government–or in the private sector–such
       selection factors might be prohibited.

Burger concluded that “long-accepted concepts
of separation of powers dictate, for me, that until Congress
legislates otherwise as to employment standards for its own
staff, judicial power in this area is circumscribed.” 

Circuit Court of Appeals began to move away
from the Agromayer approach even before Forrester called the
decision into question. A year after Agromayer, the First Circuit
turned toward a more functional analysis in Cutting v. Muzzey,
in which the Court held that a town board’s imposition of
“outrageous conditions” on a subdivision proposal was not
protected by legislative immunity. 

, 262 (1st Cir.
1984). The Cutting Court laid out a two part test “for
distinguishing between legislative and administrative activity.”

The Court asked first whether the decision was based
                               15
on “legislative facts,” generalizations or considerations of
policy, and second, whether the decision had a legislative
impact, extending prospectively and beyond one person or a
small group. 

Circuit continued to apply this strain of
functional analysis after Forrester. The Court stated in 1992
that, “[u]nder current legal theory, immunity attaches or does
not attach depending on what kind of action was performed
rather than on who performed the action,” referring to a decision
to eliminate several civil service positions occupied by political
opponents. Acevedo-Cordero v. Cordero-Santiago, 

, 23 (1st Cir. 1992). The Court then explicitly applied the
Cutting legislative facts/legislative effects test to the firing of a
legislative librarian, extensively referencing Forrester in the
process. Negron-Gaztambide v. Hernandez-Torres, 

,
28 (1st Cir. 1994) (“The issue is thus whether defendants were
acting in a legislative or administrative capacity when they
discharged Negron.”). The Court reiterated its commitment to
a functional test in a case concerning various personnel actions
against 88 civil service employees, stating that “[e]mployment
decisions generally are administrative except when they are
accomplished through traditional legislative functions such as
policymaking and budgetary restructuring that strike at the heart
of the legislative process.” Acevedo-Garcia v. Vera-Monroig,

, 8 (1st Cir. 2000) (internal quotes omitted). See also
Romero-Barcelo v. Hernandez-Agosto, 

, 29 (1st Cir.
1996) (“Acts . . . that are administrative in nature do not give
rise to absolute immunity from liability in damages under §
                                16
1983.”) (quoting 

); Nat’l Ass’n of
Social Workers v. Harwood, 

, 643 (1st Cir. 1995)
(“Because immunity is defined by the functions it serves, even
legislators themselves are not immune for actions taken in an
administrative capacity.”) (quoting 

).

      The First Circuit has never explicitly overturned
Agromayer. It has, instead, abandoned altogether the “alter ego”
approach to legislative immunity.

       ii. The D.C. Circuit unanimously rejected the
       “alter ego” approach in Fields v. Johnson

        The Caucus relied on the D.C. Circuit’s decision in
Browning v. U.S. House of Representatives as a second case
demonstrating a circuit split over which test should govern
legislative immunity. See Browning v. U.S. House of
Representatives, 

, 929 (D.C. Cir. 1986). However,
that Court unanimously and explicitly overturned Browning in
its en banc decision in Fields v. Office of Eddie Bernice
Johnson, and unanimously applied Forrester’s functional test to
personnel actions. 

, 6-7 (D.C. Cir. 2006).

        The D.C. Circuit held in Browning that “the standard for
determining Speech or Debate Clause immunity is best
expressed as whether the employee’s duties were directly related
to the due functioning of the legislative process.” 

. The Court concluded that the official reporter
for the House was directly related to the legislative process and,
                               17
therefore, his firing was shielded by absolute legislative
immunity. 

decision reconsidered Browning in light of
Forrester. 

. Fields was the consolidated
appeals of two Congressional employees seeking redress for
firings allegedly based on racial and disability discrimination.

The discharged employees availed themselves of the
Congressional Accountability Act of 1995, 2 U.S.C. §§
1301-1438, which, by its terms, does not displace Speech and
Debate Clause immunity. 

. The D.C.
Circuit noted that Forrester “cast doubt” on Browning. 

The Court stated that its decision in Gross v. Winter had
narrowed Browning, as the Court had found that Forrester, not
Browning, controlled in a personnel action by a D.C. Council
member. 

v. Winter, 

, 170 (D.C. Cir.
1989) (observing that Browning is “unquestionably [in] tension”
with Forrester, “which accords no weight to the duties of the
employee”). The Court noted with dismay that the Tenth
Circuit’s decision in Bastien had created a circuit split. 

. See Bastien v. Office of Senator Ben Nighthorse
Campbell, 

(10th Cir. 2004). In explicitly
rejecting the Browning test, the Bastien Court held that Speech
and Debate Clause immunity protected a U.S. Senator in a
personnel action only when the plaintiff “questioned the conduct
of official Senate legislative business.” 

.

       The Fields Court stated that many personnel actions lack
                               18
even “some nexus” to a protected legislative activity and that,
“[f]iring an aide for falsifying expense reports, or disciplining an
assistant for harassing others in the office is not, by any
conceivable interpretation, an act performed as a part of or even
incidental to the role of a 

(quoting
United States v. Brewster, 

, 507(1972)). The
majority opinion written by Judge Randolph overturned
Browning:

       We now see that an employee’s duties are too
       crude a proxy for protected activity. Our holding
       in Browning presumes that a personnel decision
       with regard to an employee whose duties are
       “directly related to the due functioning of the
       legislative process,” is always “an integral part of
       the deliberative and communicative processes.”
       But the presumption is, at a minimum,
       overinclusive and therefore inconsistent with the
       Court’s practice of being “careful not to extend
       the scope of the protection further than its
       purposes require.”            Any number of
       counter-examples reveal as much: a legislative
       aide may be discharged because of budgetary
       cutbacks; a staff member may be demoted solely
       for consistent tardiness; a person seeking a
       top-level staff position might be rejected for
       having a poor college transcript; and so forth.
       That the person targeted by the personnel decision
       performs duties “directly related to . . . the
       legislative process,” is not enough–conduct must


                                19
       be “part of,” not merely “related to,” the “due
       functioning” of the “legislative process” to be
       protected by the Speech or Debate Clause. At
       best, that an employee’s duties are directly related
       to the legislative process establishes merely
       “some nexus” between the personnel decision and
       that process. We therefore reject Browning’s test
       for determining when a legislator's personnel
       decision is protected by the Speech or Debate
       Clause.

(internal citations omitted). The Court then rejected
the argument that “[d]irecting one’s alter egos–that is, legislative
aides with duties directly related to the legislative
process–necessarily is an integral part of the processes of
achieving one’s legislative goals, because of the duties such
employees perform.” 

(internal quotes omitted). The
Court noted that “[t]he Speech or Debate Clause protects
conduct that is integral to the legislative process, not a
Member’s legislative goals,” and that many activities that are
integral to “legislative goals,” such as sending newsletters or
delivering speeches to constituents, are “political,” not
“legislative,”–and are therefore beyond the scope of legislative
immunity. 

also noted that, “[a]nother problem
with the formulation lies in its assumption that a Member only
directs his alter egos with regard to constitutionally protected
activities.” 

Court emphasized Gravel’s
conclusion that simply because a Senator performs certain duties
in his official capacity does not make those duties legislative.

v. United States, 

, 625 (1972)).
                                20
The Fields Court held that, “[l]egislative aides are no different.”

.

        The Fields Court was splintered on some issues, but not,
as Judge Tatel pointed out in his concurrence, on the issues
discussed above. 

(“I take some solace
from the fact that the commonalities of our opinions exceed their
differences.”) (Tatel, J., concurring). The principal concurrence,
authored by Judge Brown, focuses on who may invoke
derivative legislative immunity, arguing that only “alter ego[s]”
of the representative may do so. 

(Brown, J.,
concurring). This line of debate is not germane to the instant
case, as Judge Brown was concerned with who may invoke
legislative immunity, not with what actions are immune. 

Tatel’s attack on the very concept of
legislative alter egos is instructive:

       No one acts as a Member’s alter ego all the time:
       even a Member’s primary legislative aide does
       not act as the Member’s alter ego when brushing
       her teeth. Whether an aide acted as a Member’s
       alter ego turns on the particular act the aide
       performed on the Member’s behalf. Reinforcing
       this point, Gravel v. United States, the first case to
       have used the term “alter ego,” focuses on the
       aide’s actions: “the Speech or Debate Clause
       applies not only to a Member but also to his aides
       insofar as the conduct of the latter would be a
       protected legislative act if performed by the
       Member himself.”

                                21


(quoting 

). Judge Tatel makes
the same point as Fowler-Nash: that the Caucus’s “alter ego”
theory is essentially an inapposite analogy to Gravel.

        In its supplemental brief, the Caucus and its amicus, the
Republican Caucus, urge several distinctions from Fields that
are not persuasive. The Caucus urges that the application of the
Congressional Accountability Act in Fields makes it
distinguishable and that we must resolve the instant case without
regard to the Congressional intent behind the Congressional
Accountability Act. However, the Fields Court acknowledged
at the outset that the Accountability Act, by its terms, does not
disturb Speech and Debate Clause immunity. 

Accordingly, the intent behind the Accountability Act appears
to have played no role in the Court’s decision. 

the Forrester functional test

        This Court will apply the functional test articulated in
Forrester. The Democratic Caucus was not acting in a
legislative capacity when it fired Fowler-Nash and should not be
protected by absolute legislative immunity.

       This Court has relied on a functional approach since well
before Forrester was handed down. See Aitchison v. Raffiani,

, 99 (3rd Cir. 1983) (“We look to the function the
individual performs rather than his location within a particular
branch of government.”). After Forrester, this Court reaffirmed
its commitment to a functional approach and articulated a two
                               22
prong test for determining whether a particular action is
legislative. See Ryan v. Burlington County, N.J., 

,
1290 (3rd Cir. 1989) (“It is only with respect to the legislative
powers delegated to them by the state legislatures that the
members of local governing boards are entitled to absolute
immunity.”).

        The two part test developed by this Court inquires into
whether an action was both “substantively” and “procedurally”
legislative when undertaken by municipal legislators and
officials. 

(holding that staffing
decisions regarding county jails were not legislative).2 We did

    2
     The Ryan Court echoed the two part test articulated by
several other courts:

        There are two requirements which an act must
        meet in order to be regarded as legislative for
        immunity purposes. First, the act must be
        “substantively” legislative, i.e., legislative in
        character. Legislative acts are those which
        involve policy-making decision[s] of a general
        scope or, to put it another way, legislation
        involves line-drawing. Where the decision affects
        a small number or a single individual, the
        legislative power is not implicated, and the act
        takes on the nature of administration. In addition,
        the act must be “procedurally” legislative, that is,
        passed by means of established legislative
        procedures.      This principle requires that
                                23
not, however, apply the test developed at the municipal level to
the allegedly unconstitutional impeachment of a state Supreme
Court justice by the Pennsylvania Senate because “[t]he
line-drawing between administrative and legislative acts at issue
in these cases has no bearing under the situation before us
because neither party suggests that the Senators were acting in
an administrative capacity,” and, “because concerns for the
separation of powers are often at a minimum at the municipal
level.” Larsen v. Senate of Commonwealth of Pa., 

, 252 (3d Cir. 1998). The Larsen Court extended immunity
to the state senators because “power was consciously assigned
to the Senate primarily as a function of the separation of
powers,” therefore the senators were acting within “the sphere
of legitimate legislative activity.” 

recently
expanded on this analysis, holding that “allocating the total
appropriation for office staffing among the Democratic house
members [is] within the sphere of legitimate, legislative
activity.” Youngblood v. DeWeese, 

, 841 (3d Cir.
2003) (quoting 

) (internal quotes
omitted). Accordingly, the allegedly punitive passage by state


       constitutionally accepted procedures of enacting
       the legislation must be followed in order to assure
       that the act is a legitimate, reasoned decision
       representing the will of the people which the
       governing body has been chosen to serve.

.


                               24
legislators of an appropriation bill that cut back an opponent’s
staff was entitled to immunity. 

Court held that the two part test developed
for municipal immunity did not apply to state 

. This Court has, however, developed an extensive
jurisprudence exploring the distinction between legislative and
administrative actions at the municipal level. Although these
cases are not controlling in this context, their reasoning is
instructive. This Court has repeatedly stated that “decisions
affecting a single individual or a small number of people do not
implicate legislative power and, thus, such actions are
administrative in nature,” whereas decisions affecting the
community at large are likely legislative–though this inquiry is
not necessarily conclusive. Acierno v. Cloutier, 

,
610 (3d Cir. 1994); see also Donivan v. Dallastown Borough,

, 487 (3d Cir.1987), Rogin v. Bensalem Twp., 

, 693-94 (3d Cir. 1980). The Acierno panel refined this
test and added that an appropriate inquiry includes whether the
legislator had acted to promulgate new law or policy, or was
merely enforcing existing policy. 

. We
applied this test to a personnel action in Carver, in which
several high-level municipal employees were fired and their
positions eliminated, allegedly due to their political affiliation.
Carver v. Foerster, 

, 100 (3d Cir. 1996). The Court
assumed that “a legislative body’s decision to eliminate a
government position, in contrast to the mere termination of a
person’s employment, is legislative activity,” but that neither the
county nor the county commissioner was necessarily immune
                               25
from suit as they “acted in various capacities–legislative,
executive and administrative.” 

commissioner
had given “a unilateral order” to have political opponents fired,
which was not “engaging in policy-making of general
application regarding the expenditure of County funds, but []
making either an executive decision on how the anticipated
cutback should be implemented or an administrative decision
that certain individuals should be fired.” 

also
noted that an “unconstitutional or illegal course of conduct by
county government does not fall within the doctrine of absolute
immunity merely because it is connected to or followed by a
vote of a county board.” 

This Court provided a
useful counterexample in Gallas v. Supreme Court of
Pennsylvania, where Pennsylvania Supreme Court justices were
held immune after issuing an order for “administrative
reorganization of the First Judicial District,” that eliminated the
position of Executive Administrator. 

, 766 (3d Cir.
2000).

        This approach to distinguishing administrative from
legislative functions is particularly appealing as it tracks exactly
the Supreme Court’s analysis in Bogan v. Scott-Harris:

       Respondent, however, asks us to look beyond
       petitioners’ formal actions to consider whether the
       ordinance was legislative in substance. We need
       not determine whether the formally legislative
       character of petitioners’ actions is alone sufficient
       to entitle petitioners to legislative immunity,

                                26
       because here the ordinance, in substance, bore all
       the hallmarks of traditional legislation. The
       ordinance reflected a discretionary, policymaking
       decision implicating the budgetary priorities of
       the city and the services the city provides to its
       constituents.      Moreover, it involved the
       termination of a position, which, unlike the hiring
       or firing of a particular employee, may have
       prospective implications that reach well beyond
       the particular occupant of the office. And the city
       council, in eliminating [the Department of Health
       and Human Services], certainly governed in a
       field where legislators traditionally have power to
       act.      Thus, petitioners’ activities were
       undoubtedly legislative.

, 55-56 (1998) (internal quotes omitted). The
Supreme Court refused to insist that formally legislative acts,
such as passing legislation, also be “legislative in substance.”

of Bogan prompted this Court in Larsen to drop
the two part legislative facts/procedure test when considering
absolute immunity claims by state 

.
However, the Bogan Court also unanimously endorsed this
Court’s approach to identifying administrative 

.

      This Court’s approach to distinguishing administrative
from legislative functions is consistent with the approach

                               27
adopted by other courts of appeals in reviewing personnel
actions by state legislators. The First Circuit Court of Appeals
adopted essentially the same distinction between administrative
and legislative acts, holding that termination of a legislative
librarian by state legislators was an administrative act and
therefore not entitled to immunity from suit under 42 U.S.C. §
1983. Negron-Gaztambide v. Hernandez-Torres, 

, 28
(1st Cir. 1994). The Ninth Circuit Court of Appeals has taken
the same approach, holding that the Washington State
Democratic Caucus acted administratively when it demoted and
terminated a Senate information officer for allegedly refusing to
engage in inappropriate campaign work. Chateaubriand v.
Gaspard, 

, 1221 (9th Cir. 1996).

        Neither Harhai nor Brubaker nor the Caucus were acting
in a legislative capacity when they terminated Fowler-Nash.
Harhai’s decision did not reach beyond a single employee. It
did not eliminate Fowler-Nash’s position, thereby affecting
future employees. Harhai’s decision, according to the Caucus’s
pleadings, did not rely on any broad consideration of policy,
neither was it directed to creating a new policy. It was a
textbook example of a legislator performing an administrative
function. The Caucus argues that this Court should hold that it
is inappropriate for a court to even inquire after a pre-textual
legislative purpose. However, this argument is inapposite as the
Caucus did not offer even a legislative pretext for Fowler-
Nash’s termination.

       The Caucus, Harhai, and Brubaker clearly exercised an
                               28
administrative function when they terminated Fowler-Nash.
Common law legislative immunity does not apply.

                        III. Conclusion

        The Caucus’s argument lacks any precedent to support it.
The functional approach applied by the District Court is an
accurate reflection of the Supreme Court’s approach, this
Court’s precedents, and is compatible with our sister courts of
appeals’ decisions. The Caucus urges us to adopt a position that
would re-create a circuit split that the D.C. Circuit has recently
labored mightily to close. The “alter ego” approach is a poor
reflection of the purposes of common law legislative immunity.

        Notwithstanding the above, common law legislative
immunity may still have a role to play in Fowler-Nash’s suit.
Harhai may well be able to invoke evidentiary protections if
Fowler-Nash seeks to inquire into activities that are directly
within the legislative sphere. However, the Caucus’s Rule 12(c)
motion for judgment on the pleadings on the grounds of
legislative immunity was properly denied in the District Court.
We will affirm the District Court’s judgment.




                               29