Anne W. Walker v. Honorable Ed Jones, Congressman of the United States

733 F.2d 923, 236 U.S. App. D.C. 92, 1984 U.S. App. LEXIS 22987, 34 Empl. Prac. Dec. (CCH) 34,427, 34 Fair Empl. Prac. Cas. (BNA) 1097

Opinions

GINSBURG, Circuit Judge:

This case concerns the discharge of a woman who managed the House of Representatives’ restaurants; it presents an unsettled issue relating to the Constitution’s command that “for any Speech or Debate in either House, [Members of Congress] shall not be questioned in any other Place.” U.S. Const, art. I, § 6, cl. 1.

Plaintiff-appellant Anne W. Walker alleged in her complaint that, because she is a woman, and in violation of her fifth amendment rights to due process and the equal protection of the laws, she was discharged from her employment, of approximately ten years’ duration, as general manager of the House of Representatives Restaurant System. She asserted that the discharge was effected by defendant-appellee Ed Jones, then Chairman of the Subcommittee on Services of the House of Representatives Committee on House Administration, acting in concert with defendantappellee Thomas B. Marshall, then Staff Director of the Subcommittee. The District Court dismissed the complaint at the threshold in response to defendant-appellees’ motion, which cited Rules 12(b)(1), (2), and (6) of the Federal Rules of Civil Procedure. Walker’s discharge was a personnel action “within the ‘legislative sphere,’ ” the District Court concluded; it therefore held that the Speech or Debate Clause wholly immunized the termination of her employment from judicial inquiry. Walker v. Jones, 557 F.Supp. 366, 368 (D.D.C.1983).

We reverse the judgment to the extent that it dismisses the case against Jones and Marshall,¹ and remand for further proceedings. The Speech or Debate Clause, we hold, does not impregnably shield from court consideration allegedly unconstitutional personnel actions taken in the course of managing congressional food service facilities.

I. Background

The District Court dismissed Walker’s action with only her complaint and the Rule 12(b) motion before it. We must therefore assume the truth of Walker’s allegations. As the Supreme Court has instructed lower federal courts: “[I]n passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) (citing as applicable to a motion to dismiss grounded on asserted eleventh amendment and executive immunity barriers to suit the standard set out in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)).² We summarize first Walker’s salient assertions along with related undisputed facts; we next indicate the bases on which defendant-appellees seek affirmance of the District Court’s judgment; we then describe the main lines of the District Court’s opinion.

The Subcommittee on Services of the House of Representatives Committee on House Administration (hereafter, Subcommittee) operates congressionally-owned food services; other auxiliary facilities within the Administration Committee’s province include barber shops, beauty shops, and parking facilities. See Joint Appendix (J.A.) 70, 71. In December 1970, Walker alleges, the Subcommittee engaged her to manage Longworth Cafeteria and shortly thereafter appointed her general manager of the entire House of Representatives Restaurant System (hereafter, HRRS). HRRS emcompasses three cafeterias, four carryouts, two catering operations, and one full-service restaurant. Walker had authority to take actions necessary and proper for the efficient operation and sound management of HRRS. Her work, she asserts, entailed no functions relating to the process of lawmaking. Nor does restaurant management involve “other matters” of state “which the Constitution places within the jurisdiction of either House,” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972), such as impeachments and advice and consent to treaties and appointments. Walker states that she expected to retain her position so long as her performance was satisfactory. She attributes this expectation primarily to communications she had with Subcommittee members when she was hired and throughout her employment.

During Walker’s tenure as HRRS general manager, defendant-appellee Ed Jones became Chairman of the Subcommittee and defendant-appellee Thomas B. Marshall became its Staff Director. Pursuant to Subcommittee authorization, Jones and Marshall exercised managerial and control functions over HRRS employees, including Walker. In 1980, Walker alleges, Jones indicated approval of her work and informed her he was increasing her salary by $8,000 per annum because of her efficiency in operating HRRS. She further asserts that, until June 1982, Marshall permitted her to run HRRS without intervention. Walker alleges, however, that her situation at work changed around that time. She claims that Jones stated to others, and Marshall repeated to staff members, that because of Walker’s sex, she was overpaid; specifically, Walker recites Jones’s alleged statement that her salary ($45,000, according to Walker) was “ridiculous for a woman.”

At a May 1982 meeting with Jones and Marshall, Walker allegedly detailed HRRS’s operations and profit structure. Her accounting, she asserts, elicited no comment; the meeting concluded, she states, without any expression by Jones or Marshall of dissatisfaction with her performance. By letter dated June 22, 1982, however, Jones advised Walker that he was terminating her employment effective June 30, 1982;³ and on June 25, 1982, Marshall circulated a memorandum to “All Managers and Department Heads” announcing that, effective June 26, “the office of General Manager of the House Restaurant System will be vacated.” In July 1982, Jones and Marshall engaged a man to occupy the general manager’s position formerly held by Walker.⁴

After Walker’s discharge, Jones made public statements, which Walker alleges he knew to be untrue, charging Walker with inefficiency, improper bookkeeping practices, misappropriation, and “skimming” funds from HRRS. Walker asserts that, in addition to loss of her House employment and attendant benefits, the discharge and accusations relating to it caused her to suffer physical and emotional distress, permanently damaged her reputation, and left her unable to obtain employment comparable in nature and salary.

Jones and Marshall claim that the Speech or Debate Clause entirely shields the discharge of Walker from judicial inquiry. Appellees’ presentation blends the bases for this claim of blanket legislative immunity. We detect, however, two principal strains in appellees’ argument, and an overarching position. Appellees contend in one prominent theme that Walker’s high post as manager of a “multimillion dollar food service” organization made her a “ranking aide[]” or “alter-ego” of the Subcommittee. See Brief for Appellees at 11, 19-20. They also assert repeatedly that the discharge decision qualifies as a legislative act because it was reached and effected “in committee.” See id. at 10, 15-16, 25.⁵ Throughout, they observe that food service caters to a need essential to the chamber’s internal functioning. Personnel management for such an essential service, they urge, merits Speech or Debate coverage as fully as passage of a bill. See id. at 10, 17, 20, 22.

In addition to Speech or Debate shelter, Jones and Walker assert that members of Congress have absolute or at least qualified official immunity with respect to legislative branch personnel decisions,⁶ and that in any event Walker has stated no claim upon which relief can be granted. Id. at 38-44. The District Court did not address these alternatively alleged grounds for dismissal. Nor did it refer to appellees’ “alter-ego” and “in committee” arguments. It simply reasoned that internal arrangements Congress makes for its own necessities are “within the ‘legislative sphere’ that food service qualifies as such an arrangement; and that discharging Walker, as an action relating to the internal administration of Congress, is brigaded by Speech or Debate protection in light of precedent instructing broad interpretation of the Clause “to effectuate its purposes.” 557 F.Supp. at 367-68 (quoting Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 501, 95 S.Ct. 1813, 1820, 44 L.Ed.2d 324 (1975)).

It is the high purpose of the Speech or Debate Clause to secure against executive or judicial interference the processes of the nation’s elected representatives leading up to the formulation of legislative policy and the enactment of laws. See Hutchinson v. Proxmire, 443 U.S. 111, 126-27, 99 S.Ct. 2675, 2683-84, 61 L.Ed.2d 411 (1979). For the reasons set out below, however, we believe that personnel actions regarding the management of congressional food services are too remote from the business of legislating to rank “within the legislative sphere.”

II. Decision

In Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17 (1976 & Supp. V 1981), Congress prohibited, inter alia, sex discrimination in private and public employment. Congress exempted its own staffs, however, from Title VU’s coverage. See id. § 2000e-16(a). In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Supreme Court implied a remedy directly from the fifth amendment for sex discrimination by a member of Congress in dismissing a female staff member. The Court left open for consideration on remand the applicability of the Speech or Debate Clause to congressional employment practices. See id. at 235-36 n. 11, 249, 99 S.Ct. at 2271-72 n. 11, 2279. This case presents one setting in which that issue arises.

In the discussion that follows, we explain first our reasons for holding that the Speech or Debate Clause does not bar Walker’s complaint against Jones and Marshall. We then indicate why we believe Walker’s action survives the alternative threshold defenses appellees present — immunity outside the Speech or Debate Clause, and failure to state a claim upon which relief can be granted.⁷

A. Constitutional review by courts of the discharge of a congressional employee who performed auxiliary, nonlegislative services for the convenience of members of Congress is not barred by the Speech or Debate Clause.

1. The province of the Speech or Debate Clause.

The Speech or Debate Clause derives from the English Bill of Rights of 1689; it concerns a privilege “recognized [since the Glorious Revolution in Britain, and throughout United States history] as an important protection of the independence and integrity of the legislature.” United States v. Johnson, 383 U.S. 169, 177, 178, 86 S.Ct. 749, 753, 754, 15 L.Ed.2d 681 (1966). The purpose of the protection secured by the Clause “is not to forestall judicial review of legislative action,” Powell v. McCormack, 395 U.S. 486, 505, 89 S.Ct. 1944, 1955, 23 L.Ed.2d 491 (1969), but to free legislators from distraction or hindrance as the process of lawmaking unfolds. “The heart of the clause is speech or debate in either House,” Gravel v. United States, 408 U.S. 606, 625, 92 S.Ct. 2614, 2627, 33 L.Ed.2d 583 (1972), but the provision shields more than “words spoken in debate. Kilbourn v. Thompson, 103 U.S. 168, 204, 26 L.Ed. 377 (1880). It encompasses, beyond speeches on the floor of Congress, such activity integral to lawmaking as voting, id., circulation of information to other Congress members, Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), and participation in committee investigations, proceedings, and reports. Id.; Gravel v. United States, supra; Dombrowski v. Eastland, 387 U.S. 82, 87 S.Ct. 1425, 18 L.Ed.2d 577 (1967); Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951).⁸

The absolute immunity secured by the Clause, however, is “not all-encompassing.” Gravel v. United States, 408 U.S. at 625, 92 S.Ct. at 2627. It would demean the high purpose of the Speech or Debate privilege to extend it to official activities of Congress members and their aides in “mundane fields” outside “the legislative core.” Davis v. Passman, 544 F.2d 865, 880 (5th Cir.1977), rev’d on other grounds, 571 F.2d 793 (5th Cir.1978) (en banc), rev’d, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). As Chief Justice Burger has stated, “[t]he immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process.” United States v. Brewster, 408 U.S. 501, 507, 92 S.Ct. 2531, 2535, 33 L.Ed.2d 507 (1972). Activities “casually or incidentally related to legislative affairs,” id. at 528, 92 S.Ct. at 2545, but not “part and parcel of the legislative process,” Gravel v. United States, 408 U.S. at 626, 92 S.Ct. at 2627, are outside the realm of Speech or Debate protection.

Thus> for example, a member’s report and vote on holding a witness in contempt are immune, but not subsequent conduct to implement the expressed legislative wilL See Kilbourn v. Thompson, supra. Newsletter and press releases circuiated by a member to the public are not shielded, for they are “primarily means of informing those outside the legislative forum,” Hutchinson v. Proxmire, 443 U.S. 111, 133, 99 S.Ct. 2675, 2687, 61 L.Ed.2d 411 (1979). A member of Congress may be prosecuted for accepting a bribe or for other unlawful conduct so long as the prosecution “does not draw in question the legislative acts of the defendant member of Congress or his motives for performing them.” United States v. Brewster, 408 U.S. at 510, 92 S.Ct. at 2536 (quoting United States v. Johnson, 383 U.S. at 185, 86 S.Ct. at 758). Accord United States v. Helstoski, 442 U.S. 477, 99 S.Ct. 2432, 61 L.Ed.2d 12 (1979); see also Gravel v. United States, 408 U.S. at 618-22, 92 S.Ct. at 2623-25. The key consideration, Supreme Court decisions teach, is the act presented for examination, not the actor. Activities integral to the legislative process may not be examined, see id. at 625, 92 S.Ct. at 2627, but peripheral activities not closely connected to the business of legislating do not enjoy Speech or Debate shelter.

In addition to instruction furnished by High Court precedent, two decisions within this Circuit warrant comment because the District Court relied heavily upon them: Consumers Union of United States v. Periodical Correspondents’ Association, 515 F.2d 1341 (D.C.Cir.1975), cert. denied, 423 U.S. 1051, 96 S.Ct. 780, 46 L.Ed.2d 640 (1976); and Parker v. Allen, Civil No. 74-1846 (D.D.C. June 6, 1975), reprinted in J.A. 80-98.

Consumers Union held that arrangements for seating the press in the House and Senate galleries were “integral” to “the legislative machinery,” 515 F.2d at 1350, and thus were immune from judicial review by virtue of the Speech or Debate Clause. In contrast to the hiring and firing of a food service manager, the matter at issue in Consumers Union immediately concerned House consideration of proposed legislation. Indeed, the arrangements in question were intended to shield members of Congress from press members’ use of their House access to lobby legislators. Id. at 1347 & n. 12. Consumers Union, in short, involved, as Walker’s discharge surely does not, regulation of the very atmosphere in which lawmaking deliberations occur.

Parker v. Allen, an unpublished District Court decision,⁹ bears a considerable resemblance to this case. It involved the discharge of the Senate Restaurant’s head waiter and his complaint that fifth amendment due process constraints on government action had been ignored. The District Court in Parker characterized restaurant administration as “within the ‘legislative sphere,’ ” slip op. at 9, reprinted in J.A. 88, but it nonetheless granted the head waiter significant relief.

The Parker complaint was dismissed only insofar as it named as defendants members of the Senate Committee on Rules and Administration; nothing in the Parker record indicated that the Senators had done anything beyond considering and voting on the matter in subcommittee. Cf. supra note 1. The actual firing of the head waiter, however, was another matter. It was effected by the Architect of the Capitol. That action, the District Court held, as distinguished from the preceding consideration and vote in subcommittee, was “not within the privilege of the Speech or Debate Clause.” Slip op. at 12, reprinted in J.A. 91. The District Court proeeeded to find that the conditions under which the firing occurred did infringe upon a liberty interest protected by the due process guarantee, and it ordered the Architect of the Capitol to accord appropriate relief to the former head waiter. Had the District Court in the case at hand in fact followed Parker, as it purported to do, it would have held, as Parker did, that the actual discharge “was not ... essential to the act of legislating and hence [could] not be deemed within the legislative sphere.” Id.

2. Personnel actions in the course of superintending congressional food service facilities are outside the province of the Speech or Debate Clause.

It has been argued persuasively that [w]hen members of Congress dismiss employees they are neither legislating nor formulating legislation. The fear of judicial inquiry into dismissal decisions cannot possibly affect a legislator’s decision on matters pending before Congress. The democratic process remains unfettered.

Davis v. Passman, 544 F.2d 865, 880 (5th Cir.1977), rev’d on other grounds, 571 F.2d 793 (5th Cir.1978) (en banc), rev’d, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). This case raises a narrower question. We reserve for another day and case the issue whether Speech or Debate protection attends the hiring and firing of congressional staff members who have “a meaningful input into ... legislative decisionmaking.” Davis v. Passman, 544 F.2d at 880-81 n. 25; see Nixon v. Fitzgerald, 457 U.S. 731, 767 n. 2, 102 S.Ct. 2690, 2711 n. 2, 73 L.Ed.2d 349 (1982) (White, J., joined by Brennan, Marshall, and Blackmun, JJ., dissenting) (dictum) (“a personnel decision allegedly made for unlawful reasons ... does not fall within the ... legislative ... functions to which absolute immunity attaches”).

Walker alleges that her job as general manager of food services entailed no func tion relating to the process of making laws. Appellees insistently urge, however, that she was indeed a “ranking aide[ ],” and “alter-ego” of the Subcommittee. See Brief for Appellees at 11, 19-20. They compare her to the aide who helped Senator Gravel prepare for and conduct the Senate subcommittee hearing at which the Senator read from the Pentagon Papers, and placed them in the public record. Id. at 19-20; see Gravel v. United States, 408 U.S. 606, 609 & n. 3, 92 S.Ct. 2614, 2619 & n. 3, 33 L.Ed.2d 583 (1972). We find the comparison far-fetched.

Personnel who attend to food service, medical care, physical fitness needs, parking, and haircutting for members of Congress no doubt contribute importantly to our legislators’ well-being and promote their comfort and convenience in carrying out Article I business. But these staff members, unlike those who help prepare for hearings or assist in the composition of legislative measures, cater to human needs that are not “intimately cognate,” Davis v. Passman, 544 F.2d at 879, to the legislative process. The “fundamental purpose” of the Speech or Debate Clause is to “free[ ] the legislator from executive and judicial oversight that realistically threatens to control his conduct as a legislator.” Gravel v. United States, 408 U.S. at 618, 92 S.Ct. at 2623 (emphasis added). Auxiliary services attending to human needs or interests not peculiar to a Congress member’s work qua legislator may advance a member’s general welfare. To characterize personnel actions relating to such services as “legislative” in character, however, is to stretch the meaning of the word beyond sensible proportion. Selecting, supervising, and discharging a food facilities manager, we believe, is not reasonably described as work that significantly informs or influences the shaping of our nation’s laws.

Nor do we grasp why consideration or a vote “in committee” should place all personnel superintendence of auxiliary services of a nonlegislative character inside a “legislative sphere.” Assuming arguendo that anything done “in committee” is necessarily a “legislative act[],” see Brief for Appellees at 10, Walker’s complaint against Jones and Marshall nonetheless survives a 12(b) motion.

We note initially that Walker’s eomplaint, far from alleging that her discharge was effected “in committee,” states: “During June 1982, Defendants Jones and Marshall discharged plaintiff from employment ____” Complaint 1116, reprinted in J.A. 12. She does not center her case on any vote, resolution, hearing, report, or proceeding in the House or a committee or subcommittee thereof. Instead, she dominantly charges illegal conduct beyond the protection of the Speech or Debate Clause — the carrying out or execution of a constitutionally flawed decision.¹⁰

ln two respects, we believe, appellees misread the High Court precedent they cite. First, they do not separate whatever may have occurred “in committee” from ensuing activity to execute a committee vote. Second, they appear to assume that only aides, not members of Congress themselves, are answerable for carrying out an unlawful or unconstitutional directive. See Brief for Appellees at 16.

The Supreme Court has drawn a key distinction, not squarely faced by appellees, between “legislative speech or debate and associated matters such as voting and committee reports and proceedings,” on the one hand, and “executing a legislative order,” or “carrying out [legislative] directions,” on the other hand. Gravel v. United States, 408 U.S. at 620-21, 92 S.Ct. at 2624-25; see also Doe v. McMillan, 412 U.S. 306, 314-15, 93 S.Ct. 2018, 2025-26, 36 L.Ed.2d 912 (1973). The former, the Supreme Court has emphasized, is what the Speech or Debate Clause shields. But its precedent, the Court has cautioned, “reflect[s] a decidedly jaundiced view toward extending the Clause” to shield the latter. Gravel v. United States, 408 U.S. at 620, 92 S.Ct. at 2624.

Further, the Supreme Court has indicated that the Speech or Debate Clause immunity of the Congress member is no different from that of the member’s ranking aides. Id. at 616-22, 92 S.Ct. at 2622-25. Specifically, the Court has observed that lines drawn in its opinions do not “involve[] distinguishing between a [member of Congress] and his personal aides with respect to legislative immunity.” Id. at 621, 92 S.Ct. at 2625. “[B]oth aide and Member should be immune with respect to committee and House action leading to [an] illegal resolution.” Id. But no case “[holds] that Members of Congress would be immune if they [personally] executed an invalid resolution.” Id. “Neither [members of Congress] nor their aides should be immune from liability or questioning in such circumstances.” Id.11 Walker complains of Jones’s execution, in concert with Marshall, of what appellees term a legislative order. As we read the High Court’s instruction, neither Jones’s status as a Congressman nor characterization of the underlying decision as “legislative” affords Jones or his aide, Marshall, absolute immunity from liability for carrying out that decision.¹²

In sum, appellees’ “in committee” argument cannot carry the weight appellees would place upon it. The argument fails to advert to the Supreme Court’s instruction that execution of a decision, even if the decision itself is properly called “legislative,” is not cloaked with Speech or Debate immunity, for execution or carrying out directions post-dates what the Clause protects — the process leading up to the issuance of legislative directions.

B. Official immunity does not support the threshold dismissal of Walker’s action.

Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982), held the President absolutely immune from suit based on his personnel decisions. Appellees invite us to declare the same rule applicable to members of Congress. Lower courts are not positioned to entertain such argument; the Supreme Court has instructed that absolute immunity for members of Congress does not extend beyond the scope of the Speech or Debate Clause. See Harlow v. Fitzgerald, 457 U.S. 800, 810-11, 102 S.Ct. 2727, 2734-35, 73 L.Ed.2d 396 (1982); Davis v. Passman, 442 U.S. 228, 235 n. 11, 246, 99 S.Ct. 2264, 2272 n. 11, 2277, 60 L.Ed.2d 846 (1979).

Members of Congress may assert the same qualified immunity available to executive officials; officials can prevail on this ground if they establish that “their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. at 818, 102 S.Ct. at 2738; see also id. at 807, 102 S.Ct. at 2732. Appellees center their argument for qualified immunity on the less than crystalline state of the law regarding the Speech or Debate Clause. Their argument is misguided. Under the heading of qualified immunity, they should not have addressed the question whether they are subject to suit at all, however clear the charge that their conduct violated an alleged right. Instead, the relevant inquiry is whether the conduct complained of — for example, the alleged sex discriminatory discharge,¹³ or the alleged liberty-depriving job termination accompanied by reputation-damaging public utterances ¹⁴ — violated a clearly established constitutional right. The blank record and misdirected argument now before us, in short, supply no justification for dismissing this action on a qualified immunity ground.¹⁵

C. Walker’s complaint is not susceptible to dismissal for failure to state any claim upon which relief can be granted.

Appellees ultimately argue that Walker has stated no claim upon which relief can be granted. High Court precedent precludes the District Court from tying instant dismissal of Walker’s action to that defensive plea.

Walker’s complaint alleges she was dismissed from her post as HRRS general manager because of her sex. In Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979), the Supreme Court held that a claim for damages based on a sex discriminatory congressional employment decision can be presented directly under the fifth amendment. Walker has stated just such a claim.

Moreover, Walker asserts that Jones, in accounting for Walker’s discharge, publicly uttered reputation-damaging statements about her, knowing those statements to be false. In particular, Jones allegedly said Walker had misappropriated and “skimm[ed]” funds from HRRS. In Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), the Supreme Court held that defamation by a public official, without more, does not intrude on a liberty or property interest protected by the due process guarantee. But Paul suggested that when discharge from government employment accompanies an utterance stigmatizing a person's - good name, a due process claim may well lie. See 424 U.S. at 710, 96 S.Ct. at 1165 (Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), “recognized that governmental action defaming an individual in the course of declining to rehire him could entitle the person to notice and an opportunity to be heard as to the defamation.”).¹⁶ Walker’s complaint is lean with respect to the facts of her employment-plus-reputation claim, but she has said enough to enter the court’s door and receive a focused answer. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957).

Conclusion

We have limited this examination to the question whether Walker’s complaint tenders any claim which, if proved, could entitle her to relief. The answer to that question is “yes.” We hold simply and only that personnel actions of the kind Jones and Marshall are alleged to have taken, if effected for unlawful reasons, do not fall within the legislative functions to which the absolute immunity of the Speech or Debate Clause attaches.¹⁷

For the reasons stated, the judgment of the District Court is reversed to the extent that it dismisses Walker’s complaint against Jones and Marshall, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Footnotes

1

. Walker also named as defendants, in addition to the Subcommittee’s Chairman and Staff Director, two other persons, then Representatives Mollahan and Coyne, who served as Subcommittee members at the time of the episode in suit; these Representatives allegedly delegated their authority to participate in the hiring and termination of employees to Jones and Marshall, and knew that Jones and Marshall intended to discharge Walker. The complaint attributes no actual participation in the termination of Walker’s employment to Mollahan and Coyne. See infra pp. 931-932. We find the allegation concerning their delegation too peripheral and insubstantial to warrant retaining them as parties-defendant. Walker, if her claim has merit, can achieve full relief without drawing in persons uninvolved in carrying out her discharge. We uphold the District Court’s judgment to the limited extent that it dismisses the action against Mollahan and Coyne, and to that extent only.

2

. In near total disregard of this instruction, the dissenting opinion reads the complaint’s allegations in the light least favorable to Walker, accepts as fact unsworn, undocumented contention presented by a pre-answer motion to dismiss, and apparently would bar Walker’s recourse to the discovery process to obtain any information or evidence relevant to her opponents’ allegations.

3

. Jones wrote (J.A. 64):

It is with regrets that I must terminate your employment as General Manager of the House Restaurant System effective June 30, 1982.

By copy of this letter to the Administrative Office, I am authorizing them to pay you for one month as separation pay plus any accrued annual leave you may have not used.

....

4

. For lack of specificity, the dissenting opinion [at 943-944] would hold the complaint inadequate to state a claim against Marshall. But Walker plainly identifies Marshall, acting together with Jones, as a prime mover in her discharge. To survive dismissal under Rule 12(b), she was not required to plead further particulars. See supra text accompanying note 2.

5

. In support of this assertion, a page, unaccompanied by any affidavit, is attached to the motion to dismiss, see J.A. 63, indicating that the Subcommittee met in executive session on May 26, 1982. The page provides no information on Walker's discharge. In addition to the heading "Executive Session,” the date, Subcommittee name, and list of persons present, it states in its entirety: "The subcommittee met, pursuant to call at 9 a.m., in Room H-328, The Capitol, Hon. Ed Jones (chairman of the Subcommittee) presiding." Walker questions whether the discharge decision was even discussed at the May 26, 1982, meeting; she points out that the actions of Jones and Marshall, terminating her employment, occurred almost a month later. See Brief for Appellant at 17; Reply Brief for Plaintiff-Appellant at 9.

6

. Brief for Appellees at 25-37. Appellees further contend that "insofar as appellant sought to compel back pay and reinstatement, appellant sought, in reality, to compel the United States to remedy the alleged wrong, and therefore, the action was barred by sovereign immunity." Id. at 5. Appellant's compensatory and punitive damage claims seek no money from the United States Treasury; instead, in suing individual defendants, appellant is simply following the private right of action path first marked in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979). We note also that, in 1976, Congress eliminated sovereign immunity as a defense in all equitable actions for specific, non-monetary relief against a United States agency or officer acting in an official capacity. See 5 U.S.C. § 702, as amended by Pub.L. No. 94-574, 90 Stat. 2721 (1976); S.Rep. No. 996, 94th Cong., 2d Sess. 7-8 (1976); H.R.Rep. No. 1656, 94th Cong., 2d Sess. 7-9 (1976), U.S.Code Cong. & Admin.News 1976, p. 6121. See also Sea-Land Serv., Inc. v. Alaska R.R., 659 F.2d 243, 244 (D.C.Cir.1981), cert. denied, 455 U.S. 919, 102 S.Ct. 1274, 71 L.Ed.2d 459 (1982).

7

. Because the District Court dismissed Walker’s complaint on Speech or Debate Clause grounds, it did not reach these alternative defenses. Ordinarily, a federal appellate court will not consider issues left undecided by the trial court; here, however, the nature of the issues and the posture of the case justify our departure from that general rule. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). The defenses present questions of law fully briefed by the parties. Their adjudication now, informed by an adversarial airing, should occasion no surprise. Reference of these initial issues to the District Court, when that tribunal would not be better positioned than we are at this juncture to address the questions, "would be a waste of judicial resources.” Grace v. Burger, 665 F.2d 1193, 1197 n. 9 (D.C.Cir.1981) (quoting United States v. Aulet, 618 F.2d 182, 186 (2d Cir.1980)), aff'd in part and vacated in part on other grounds sub nom. United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1983). See also Railroad Yardmasters of America v. Harris, 721 F.2d 1332, 1337 (D.C.Cir.1983).

8

. See also Eastland v. United States Servicemen’s Fund, 421 U.S. 491, 95 S.Ct. 1813, 44 L.Ed.2d 324 (1975) (Clause covers issuance of subpoenas pursuant to committee investigation).

9

. An unpublished opinion may not be cited to this court as precedent. See D.C.Cir.R. 8(f). Because the District Court relied on Parker, however, discussion of it here is unavoidable.

10

. Assiduously reading a plaintiffs opening pleading, on a threshold motion to dismiss, in the light most favorable to the defendants, see supra note 2 and accompanying text, the disscnling opinion [at 941-942] picks out a piece of the complaint to avoid fair description of the full pleading.

11

. We recognize that the Supreme Court has not to date had occasion to hold a member of Congress unprotected by the Speech or Debate Clause on the ground that the challenged action executed an illegal, but sheltered, legislative decision. The Court has several times held legislative aides unprotected on that ground. See Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973) (public distribution of materials allegedly invading plaintiffs’ privacy); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (refusal to admit, pay, and perform services for Congressman illegally excluded by the House); Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377 (1880) (imprisonment of plaintiff for defiance of illegal congressional subpoena).

12

. As to the qualified immunity defense proffered for Jones and Marshall, see infra pp. 941-942.

13

. See Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982); Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973).

14

. See Paul v. Davis, 424 U.S. 693, 709-10, 96 S.Ct. 1155, 1164-65, 47 L.Ed.2d 405 (1976); Board of Regents v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972).

15

. In any case, qualified immunity presents no bar to Walker's claim for injunctive relief. See Wood v. Strickland, 420 U.S. 308, 314-15 n. 6, 95 S.Ct. 992, 996-97 n. 6, 43 L.Ed.2d 214 (1975); Gannon v. Daley, 561 F.Supp. 1377, 1387 n. 27 (N.D.Ill.1983) (collecting cases); see also NTEU v. Nixon, 492 F.2d 587, 609 (D.C.Cir.1974); supra note 6.

16

. The force of the cilcd precedent is essentially conceded by appellees. See Brief for Appellees at 42. Appellees contend, however, that Walker had a "hearing [before the Subcommittee] sufficient to meet the notice and hearing requirements of due process.” Id. at 43. Walker’s complaint, in contrast to appellees’ misreading of it, refers only to a meeting with Jones and Marshall in May 1982, not to any meeting with the Subcommittee. Indeed, Walker flatly denies ever receiving a hearing before the Subcommittee, Jones, Marshall, or anyone else on the adequacy of her performance or her discharge. Reply Brief for Plaintiff-Appellant at 9; see also supra note 5. The issue thus entails a dispute as to the facts; it plainly is not susceptible to resolution on a threshold motion to dismiss the complaint.

17

. Our holding rests on the sole pleading thus far presented — Walker's complaint. We foreclose no ruling further development of the facts may warrant.