United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 9, 2022 Decided June 30, 2023

No. 22-5058

THOMAS MASSIE, HON., IN HIS OFFICIAL AND INDIVIDUAL 

CAPACITIES, ET AL.,

APPELLANTS

v.

NANCY PELOSI, HON., IN HER OFFICIAL CAPACITY ONLY, ET 

AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-02023)

Christopher Wiest argued the cause for appellants. With 

him on the briefs was Thomas Bruns.

Douglas N. Letter, General Counsel, U.S. House of 

Representatives, argued the cause for appellees. With him on 

the brief were Todd B. Tatelman, Principal Deputy General 

Counsel, Eric R. Columbus and Michelle S. Kallen, Special 

Litigation Counsel, and Stacie M. Fahsel, Associate General 

Counsel at the time the brief was filed.
2

Before: RAO and CHILDS, Circuit Judges, and TATEL, 

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: In January 2021, the United States 

House of Representatives adopted Resolution 38, which 

required wearing a mask when in the Hall of the House and 

provided fines for the failure to do so. When three 

representatives entered the House chamber without masks, they 

were each fined $500. The Representatives sued the Speaker of 

the House, the Sergeant-at-Arms, and the Chief Administrative 

Officer, challenging the constitutionality of the Resolution and

its enforcement. The district court dismissed the complaint, 

holding the Speech or Debate Clause barred the suit. See U.S.

CONST. art. I, § 6, cl. 1.

The Speech or Debate Clause’s immunity from suit

extends to all legislative acts, including matters within the 

constitutional jurisdiction of the House. The House adopted the 

Resolution pursuant to its authority to “determine the Rules of 

its Proceedings,” and it fined the Representatives pursuant to 

its authority to “punish its members for disorderly Behaviour.”

U.S. CONST. art. I, § 5, cl. 2. Both the adoption and execution

of the Resolution are legislative acts over which the Speech or

Debate Clause confers immunity. We therefore affirm the

dismissal of the suit.

I.

As part of the response to concerns about the transmission

of the Covid-19 virus, House Resolution 38 authorized and 

directed the Sergeant-at-Arms to impose a fine for the failure

to wear a mask in the Hall of the House. H.R. Res. 38, § 4(a)(1), 

117th Cong. (2021) (allowing members to remove their masks 

only while recognized to speak). A few months after the 
3

Resolution took effect, Representatives Marjorie Taylor 

Greene, Thomas Massie, and Ralph Norman protested the

Resolution by entering the House floor to vote without wearing

masks. The Sergeant-at-Arms fined the Representatives. After 

the House Ethics Committee denied their appeals, the Chief 

Administrative Officer deducted the $500 fine from their July 

2021 paychecks.

The Representatives sued the Speaker of the House, the 

Sergeant-at-Arms, and the Chief Administrative Officer,

claiming the adoption and enforcement of the Resolution

violated the First Amendment, the Twenty-Seventh

Amendment, the Discipline Clause, the Compensation Clause,

and the Presentment Clause. The district court held the suit 

barred by the Speech or Debate Clause and dismissed for lack 

of subject matter jurisdiction. Massie v. Pelosi, 590 F. Supp. 3d 

196, 231 (D.D.C. 2022). The Representatives timely appealed.

II.

We begin with the defendants’ claim that the Speech or 

Debate Clause bars the Representatives’ suit. The Clause’s

immunity from suit presents a jurisdictional issue, so we must 

consider it at the outset.1See Ass’n of Am. Physicians &

Surgeons, Inc. v. Schiff, 23 F.4th 1028, 1035 (D.C. Cir. 2022). 

Following the reasoning of our recent decision in McCarthy v. 

1 This case concerns only the Clause’s immunity from suit and does 

not implicate the other protections recognized as flowing from the 

Clause, such as its evidentiary and testimonial privileges. These 

privileges shield Members against certain forms of questioning, but 

do not deprive the court of jurisdiction. See Fields v. Off. of Eddie

Bernice Johnson, 459 F.3d 1, 14 (D.C. Cir. 2006) (en banc) 

(explaining that even “[w]hen the Clause does not preclude suit 

altogether” members of Congress may still have the protection of 

evidentiary and testimonial privilege regarding legislative acts).
4

Pelosi, we hold the defendants have immunity from suit 

because the adoption and enforcement of the Resolution were

legislative acts within the jurisdiction of the House.25 F.4th 34, 

40 (D.C. Cir. 2021).

A.

The Speech or Debate Clause states: “Senators and 

Representatives ... for any Speech or Debate in either 

House ... shall not be questioned in any other Place.” U.S.

CONST. art. I, § 6, cl. 1. The Clause has long been understood

to immunize “things done in the House in a Parliamentary

course.” 1 THOMAS JEFFERSON, A MANUAL OF

PARLIAMENTARY PRACTICE 23 (2d ed. 1812); see also JOSEPH 

STORY, COMMENTARIES ON THE CONSTITUTION § 863 (1833) 

(“[T]his privilege is strictly confined to things done in the

course of parliamentary proceedings.”). The Massachusetts 

Supreme Court, interpreting an identical state provision, held 

the privilege encompassed “act[s] resulting from the nature, 

and in the execution, of the [legislator’s] office.” Coffin v. 

Coffin, 4 Mass. 1, 27 (1808). In one of the earliest decisions to 

address the Clause, the Supreme Court adopted Coffin’s 

“authoritative” holding and held the Speech or Debate Clause 

immunized Members for matters “generally done in a session 

of the House by one of its members in relation to the business 

before it.” Kilbourn v. Thompson, 103 U.S. 168, 204 (1880).

Although the Clause refers to “Speech or Debate in either 

House,” the Supreme Court has consistently held the Clause’s 

2 Because we hold the Speech or Debate Clause bars this suit and the 

court lacks jurisdiction to consider it, we have no occasion to 

consider whether the Representatives have standing to sue. Cf. 

McCarthy v. Pelosi, 5 F.4th 34, 38 (D.C. Cir. 2021) (reaffirming that 

“we can take up jurisdictional issues in any order”).
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protections extend to other “legislative acts.” United States v.

Brewster, 408 U.S. 501, 512 (1972); see also, e.g., Tenney v.

Brandhove, 341 U.S. 367, 376 (1951); Dombrowski v.

Eastland, 387 U.S. 82, 84–85 (1967); Hutchinson v. Proxmire, 

443 U.S. 111, 126 (1979). Beyond actual speech or debate, an 

act is considered “legislative” only if it is “an integral part of 

the deliberative and communicative processes by which 

Members participate in committee and House proceedings with 

respect to” either: (1) “the consideration and passage or 

rejection of proposed legislation” or (2) “other matters which 

the Constitution places within the jurisdiction of either House.”

Gravel v. United States, 408 U.S. 606, 625 (1972); see also 

McCarthy, 5 F.4th at 40. An act may be considered legislative 

if it fits within one of Gravel’s categories.

B.

The Representatives challenge the adoption and 

enforcement of the Resolution, which required wearing a mask

in the Hall of the House. We cannot consider the merits of the 

Representatives’ constitutional arguments because their suit 

concerns legislative acts protected by the Speech or Debate 

Clause.

The House enacted the Resolution pursuant to its 

constitutional authority to “determine the Rules of its 

Proceedings” and to “punish its Members for disorderly 

Behaviour.” U.S. CONST. art. I, § 5, cl 2. The House is

“expressly empower[ed]” to enact internal rules and punish

members for violating those rules. Kilbourn, 103 U.S. at 189–

90; see also Rangel v. Boehner, 785 F.3d 19, 23–24 (D.C. Cir. 

2015) (Congress’ adoption and “execution of internal rules is

legislative.”) (cleaned up). The enactment of the Resolution

and its enforcement are squarely within the jurisdiction of the

House, and therefore are legislative acts.
6

In reaching this conclusion, we rely on the reasoning and 

analysis in McCarthy v. Pelosi, which similarly held that the 

adoption and implementation of a house resolution were 

legislative acts protected by the Speech or Debate Clause. In 

McCarthy, several representatives challenged the 

constitutionality of House Resolution 965—the so-called

proxy voting rule—and sought an injunction barring the 

Speaker, the Sergeant-at-Arms, and the Clerk of the House 

from implementing it. 5 F.4th at 38–39. After holding “the acts

presented for examination are quintessentially legislative,” we

explained that the actions also “fall within Gravel’s second

category” because “the House adopted its rules for proxy

voting under its power to ‘determine the Rules of its

Proceedings.’” Id. at 39–40 (quoting U.S. CONST. art. I, § 5, cl.

2). As with the proxy voting rule, the Resolution here was a 

rule of proceeding committed to the jurisdiction of the House.

3

And, like the proxy voting rule, it regulates the conduct of

Members on the House floor. Therefore, its adoption was a 

legislative act protected by the Speech or Debate Clause.

The enforcement of the Resolution was also a legislative 

act. The Speech or Debate Clause protects the “execution of 

legislation when the executing actions themselves constitute 

legislative acts.” Id. at 41. Fining members for the violation of 

a House rule is an aspect of Congress’ power to “punish its 

Members for disorderly Behaviour.” U.S. CONST. art. I, § 5, 

3 Although McCarthy held the proxy voting rule was a legislative act 

within the meaning of both Gravel categories, it made clear that 

immunity may attach under either category. Id. at 40; see also Barker 

v. Conroy, 921 F.3d 1118, 1126–27 (D.C. Cir. 2019). We decide this 

case solely under Gravel’s second category, concluding the 

challenged acts are committed by the Constitution to the House.
7

cl. 2. Here, the imposition of a fine for violating the Resolution

is a legislative act that may not be questioned in this court.

In sum, the Speaker, Sergeant-at-Arms, and Chief 

Administrative Officer have immunity from suit because the 

adoption and execution of the Resolution are legislative acts 

protected by the Speech or Debate Clause.

C.

The Representatives raise familiar arguments against the 

application of Speech or Debate Clause immunity to their suit, 

but these are foreclosed by our case law.

The Representatives maintain the Clause does not 

immunize the execution of the Resolution because the 

“execution or carrying out” of a resolution “is not cloaked with 

Speech or Debate immunity” even though its adoption and 

ratification may be. This argument fails because as we recently 

explained, “[t]he salient distinction under the Speech or Debate 

Clause is not between enacting legislation and executing it,” 

but rather “between legislative acts and non-legislative acts.” 

McCarthy, 5 F.4th at 41. The execution of the Resolution falls 

within the House’s power to punish its members for disorderly 

behavior—a matter the Constitution committed to the House,

and therefore a legislative act protected by the Speech or 

Debate Clause.

To the extent the Representatives contend that the 

defendants who are House employees are not immune from 

suit, their argument is also barred by our precedent. By its 

terms, the Speech or Debate Clause references only “Senators 

and Representatives,” U.S. CONST. art. I, § 6, cl. 1, but we have 

repeatedly explained that it protects staff who perform 

legislative acts. See McCarthy, 5 F.4th at 39; Rangel, 785 F.3d 

at 25. The adoption and enforcement of the Resolution here are 
8

legislative acts. The Sergeant-at-Arms engaged in a legislative

act when he fined the Representatives for violating the

Resolution, and the Chief Administrative Officer engaged in a

legislative act when she deducted those fines from the

Representatives’ salaries. As a result, both officials are entitled

to immunity from suit.

Finally, the Representatives claim immunity does not 

extend to the enactment and enforcement of House rules that 

are allegedly unconstitutional. Similar arguments have been 

“rejected time and again” because immunity from suit is 

“absolute” as to legislative acts. Rangel, 785 F.3d at 24. 

Immunity attaches even if a plaintiff alleges that a member has 

violated internal rules or the Constitution. Id; see also

Kilbourn, 103 U.S. at 202 (“[W]hatever is done within the 

walls of either assembly must pass without question in any 

other place.”). Immunity for legislative acts reinforces the 

separation of powers by protecting the independence of 

Congress and “prevent[ing] intimidation of legislators by the

Executive and accountability before a possibly hostile 

judiciary.” Gravel, 408 U.S. at 617; United States v. Johnson, 

383 U.S. 169, 181 (1966) (same). “If the mere allegation that a

valid legislative act was undertaken for an unworthy purpose

would lift the protection of the Clause, then the Clause simply

would not provide the protection historically undergirding it.”

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 508–09

(1975). Because the adoption and enforcement of the

Resolution were legislative acts, we cannot pass on their

constitutionality.

* * *

For the foregoing reasons, the judgment of the district 

court is affirmed.

So ordered.