The opinion of the court was delivered by: Barbara J. Rothstein United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff LaTaunya Howard brings this action against the Office of the Chief Administrative Officer ("CAO") of the U.S. House of Representatives. She alleges that the CAO*fn1 violated the Congressional Accountability Act of 1995, 2 U.S.C. § 1301 et seq., by demoting her on the basis of her race and for engaging in protected activity, and by paying her less than her counterparts in other racial groups. Howard's two claims related to the termination of her employment were dismissed. See Howard v. Office of Chief Admin. Officer of U.S. House of Representatives, 793 F. Supp. 2d 294, 308--11 (D.D.C. 2011). Howard now asks the Court to certify the order dismissing those claims for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). Upon consideration of Howard's motion [Dkt. # 24], the opposition thereto, and the record of this case, the Court concludes that her motion should be granted.
The facts underlying this action are described in detail in the prior opinion in this case. See Howard, 793 F. Supp. 2d at 296--97. In brief: Howard served in the CAO's office in various capacities from 2003 to 2009. In January 2009, her position was dissolved and she became a senior advisor to the Deputy CAO. Howard, who is a black woman, alleges that during her time in that position she was paid substantially less than the other senior advisors, both white men. She also asserts that this transfer was a demotion based on her race. In March 2009, Howard was fired. She then exhausted her administrative remedies, as required by the Congressional Accountability Act, see 2 U.S.C. § 1408(a), and commenced this action.
In November 2010, the CAO moved to dismiss three of Howard's claims-one regarding her transfer, and two regarding her eventual termination-contending that Howard could not prove these claims without probing into legislative activity protected by the Speech or Debate Clause of the U.S. Constitution.*fn2 See U.S. CONST. art. I, § 6, cl. 1. Applying the framework suggested by the plurality in Fields v. Office of Eddie Bernice Johnson, U.S. Congress, 459 F.3d 1, 13--17 (D.C. Cir. 2006) (en banc), the Honorable Henry H. Kennedy, Jr. in a thoughtful and detailed opinion denied the motion as to Howard's transfer claim but dismissed her two termination claims. Judge Kennedy concluded that Howard might be able to show that the CAO had offered shifting and inconsistent explanations for her transfer, and thereby prove her transfer claim without probing matters protected by the Speech or Debate Clause. Howard, 793 F. Supp. 2d at 302--08. Judge Kennedy granted the motion to dismiss her termination claims, however, finding no way for Howard to prevail on those claims without inquiring into the constitutionally protected internal communications of the legislative branch. Id. at 308--11. In reaching this conclusion, Judge Kennedy was "mindful that," as an employee of the CAO, "Howard [was] several steps removed from any individual legislator." Id. at 309 n.13. He noted that "Speech or Debate Clause concerns may be less acute in [the CAO] than in a Member's personal office or among committee staff," but determined that "there is not a sufficient basis in precedent to conclude that a task is non-legislative merely because it is performed by staff who are several steps removed from the Members themselves." Id. Judge Kennedy went on to find that the disputed assignment at issue in Howard's termination was in fact "legislative in nature." Id. at 309. Because of the assignment's legislative nature, Judge Kennedy reasoned, communications between Howard and her supervisor regarding the assignment are "themselves protected from judicial scrutiny by the Speech or Debate Clause." Id. at 310. "Without being able to probe the content of [her supervisor's] instructions to her, it would be impossible for Howard to prove that she did not 'repeatedly refuse' to perform a task she had been told to undertake. Consequently," Judge Kennedy concluded, "Howard's termination claims cannot succeed without intruding upon territory that lies within the aegis of the Speech or Debate Clause." Id.
Howard now asks the Court to certify the opinion and order discussed above for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), which provides:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.
28 U.S.C. § 1292(b).*fn3 The CAO opposes this request, contending that certification is not appropriate.
Section 1292(b) creates an exception to the usual rule that only final judgments can be appealed. See 28 U.S.C. § 1291. It "'is meant to be applied in relatively few situations and should not be read as a significant incursion on the traditional federal policy against piecemeal appeals.'" Tolson v. United States, 732 F.2d 998, 1002 (D.C. Cir. 1984) (quoting 10 CHARLES ALAN WRIGHT, ARTHUR R. MILLER, & MARY KAY KANE, FEDERAL PRACTICE & PROCEDURE § 2658.2, at 80 (2d ed. 1983)) (footnote omitted in original). Courts have understood section 1292(b) to state a three-part test for certification, requiring a movant to show: (1) that the order involves a controlling question of law, (2) as to which a substantial ground for difference of opinion exists, and (3) that an immediate appeal would materially advance the disposition of the litigation. See Vila v. Inter-Am. Inv. Corp., 596 F. Supp. 2d 28, 30 (D.D.C. 2009) (citing 28 U.S.C. § 1292(b)); APCC Servs., Inc. v. Sprint Commc'ns Co., 297 F. Supp. 2d 90, 95 (D.D.C. 2003)). Applying the statutory criteria to the case at hand, the Court concludes that certification is appropriate.
The order dismissing the two termination claims as barred by the Speech or Debate Clause involves a controlling question of law. Under section 1292(b), a question of law is controlling if it "would require reversal if decided incorrectly." In re Vitamins Antitrust Litig., 2000 WL 673936, at *2 (D.D.C. Jan. 27, 2000); see also Elkins v. District of Columbia, 685 F. Supp. 2d 1, 6 (D.D.C. 2010); Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Grp., 233 F. Supp. 2d 16, 19 (D.D.C. 2002). The decision to dismiss those claims because they trench on territory protected by the Speech or Debate Clause obviously requires reversal if it has been decided incorrectly: if the claims are not constitutionally barred, then they must be permitted to go forward.
That question of law, moreover, is one as to which a substantial ground for difference of opinion exists. Judge Kennedy analyzed the CAO's motion to dismiss as the Fields plurality suggested he should. Contrary to the CAO's argument, however, that plurality opinion is not the law of this circuit. Rather, when a multi-judge panel issues fragmented opinions (as was the case in Fields) the opinion necessary to form a majority and "concurring in the judgment on the '"narrowest grounds"' should be regarded as the Court's holding." King v. Palmer, 950 F.2d 771, 780 (D.C. Cir. 1991) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)) (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell, and Stevens, J.J.)); see also, e.g., Stephens v. US Airways Grp., 644 F.3d 437, 442 n.1 (D.C. Cir. 2011) (Kavanaugh, J., concurring in the judgment) (applying the Marks framework to D.C. Circuit decisions).
The eight judges who heard Fields en banc produced four opinions, with no consensus as to the role that the Speech or Debate Clause plays in litigation under the Congressional Accountability Act. A four-judge plurality focused its constitutional analysis on the question of whether a given suit required inquiry into legislative acts and the motivations for those acts. If it did, the plurality said, the suit would have to be dismissed. Fields, 459 F.3dat 17 (plurality opinion) (suggesting that any "plaintiff who seeks to prevail by quarreling with the defendant's statements about activity protected by the Speech or Debate Clause must fail") (emphasis added).
In contrast to the plurality's focus on legislative acts-an inquiry into what is shielded by the Speech or Debate Clause-a concurrence supported by three judges focused on who the Clause protects. According to the principal concurrence, the Clause can only be invoked by members of Congress and aides acting as a member's "alter ego." Id. at 26 (Brown, J., concurring in the judgment). Because suits brought under the Congressional Accountability Act are directed at the "employing office," 2 U.S.C. §§ 1301(9), 1408(b), and not at a member or her alter ego, the principal concurrence concluded that the Speech or Debate Clause would never function as a jurisdictional bar but "only as a testimonial and documentary privilege, to be asserted by members and qualified aides if they are called upon to produce evidence." Fields, 459 F.3d at 32 (Brown, J., concurring in the judgment). As noted by one judge who joined the plurality but also wrote separately to "point out the commonalities, [and] to briefly discuss the differences" between the several opinions, id. at 18 (Tatel, J., concurring), the principal concurrence seemed to suggest "that so long as aides are neither producing the evidence nor defending the case, litigation can center on the motivation for legislative acts." Id. at 20. Finally, another judge concurred in the judgment and in the plurality opinion only "to the extent it is consistent with the views" that she expressed in a brief opinion. Id. at 18 (Rogers, J., concurring in part and in the judgment). That judge ...