United States Court of Appeals

For the First Circuit

No. 21-1177

ROBERT R. CUSHING, individually and in his capacity as the 

Minority Leader of the N.H. House of Representatives; DAVID 

COTE; KATHERINE D. ROGERS; KENDALL SNOW; PAUL BERCH; DIANE 

LANGLEY; CHARLOTTE DILORENZO; N.H. DEMOCRATIC PARTY,

Plaintiffs, Appellants,

v.

SHERMAN PACKARD, in his official capacity as

Speaker of the House for the N.H. House of Representatives, 

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Landya B. McCafferty, U.S. District Judge]

Before

Howard, Chief Judge,

Lynch, Thompson, Kayatta, and Barron, Circuit Judges.

Israel Piedra, with whom Welts, White & Fontaine, PC, William 

E. Christie, S. Amy Spencer, and Shaheen & Gordon, P.A. were on 

brief, for appellants. 

Anthony J. Galdieri, Senior Assistant Attorney General for 

the State of New Hampshire, with whom Samuel R. V. Garland, 

Assistant Attorney General for the State of New Hampshire, and 

Jennifer S. Ramsey, Assistant Attorney General for the State of 

New Hampshire, were on brief, for appellee. 

Katherine E. Lamm, Attorney, Civil Rights Division, United 

States Department of Justice, with whom Kristen Clarke, Assistant

Attorney General, and Thomas E. Chandler, Attorney, Civil Rights 
Division, United States Department of Justice, were on brief, for 

the United States, amicus curiae. 

Joshua L. Gordon was on brief for ABLE - New Hampshire and 

National Disability Rights Network, amici curiae.

Opinion En Banc

March 25, 2022
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BARRON, Circuit Judge, with whom Howard, Chief Judge,

and Lynch, Circuit Judge, join. Does either Title II of the 

Americans with Disabilities Act ("ADA") or § 504 of the 

Rehabilitation Act ("RHA") authorize a federal court to resolve a 

dispute among members of a state legislative body about whether 

votes on bills may be cast remotely rather than in person? That

question and others closely related to it arise here from a dispute 

among members of the New Hampshire House of Representatives 

("House") over the proper way for that legislative body to conduct 

its official proceedings in the face of the threat to health that

the COVID-19 virus poses.

Procedurally speaking, the questions come to us in 

connection with an interlocutory appeal by members of the House, 

each of whom is alleged to be especially vulnerable to the virus 

due to a medical condition, and the New Hampshire Democratic Party. 

The appeal challenges the denial by the United States District 

Court for the District of New Hampshire of a motion for a 

preliminary injunction against Sherman Packard, the Speaker of the 

House. The motion seeks to require the Speaker to institute 

procedures that would permit the representatives to participate

remotely in House proceedings -- including with respect to the 

casting of votes on bills -- to reduce their risk of being infected 

with the virus.
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The underlying suit names the Speaker, in his official 

capacity, as the defendant and alleges his violation of both Title 

II of the ADA and § 504 of the RHA, among other provisions of 

federal and state law, based on his refusal to grant the

representatives' request for that same accommodation. The motion 

for a preliminary injunction was based on the plaintiffs' ADA- and 

RHA-related claims. 

The District Court denied the motion based on the 

Speaker's assertion of legislative immunity. See Cushing v. 

Packard, No. 21-cv-147, 2021 WL 681638 (D.N.H. Feb. 22, 2021). On 

interlocutory appeal, a panel of our Court unanimously vacated and 

remanded the District Court's ruling on the ground that Title II 

of the ADA abrogated, and § 504 of the RHA in this case effected 

a waiver of, legislative immunity, such that the plaintiffs' claims 

based on those statutes could be considered on their merits.

Cushing v. Packard, 994 F.3d 51 (1st Cir. 2021).

The Speaker at that point petitioned our Court for 

rehearing en banc, which we granted in an order that vacated the 

panel's decision. Cushing v. Packard, No. 21-1177, 2021 WL 2216970 

(1st Cir. June 1, 2021); see 1st Cir. I.O.P. X(D). Thus, we now 

must review anew the District Court's denial of the motion for the 

preliminary injunction. 
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We are mindful of the seriousness of the threat to public 

health that the COVID-19 virus poses. Indeed, we have held our 

proceedings in this case remotely in accord with our own protocols 

for dealing with that threat. But, our task in this appeal is not 

to determine the most advisable means of conducting governmental 

operations during the pandemic. Nor is it to decide how the ADA's 

and the RHA's requirements to provide reasonable accommodations to 

those with medical vulnerabilities apply in the face of the 

peculiar risk that this specific virus presents. It is solely to 

determine whether the District Court erred in holding that the 

Speaker's assertion of legislative immunity prevents the 

plaintiffs from obtaining the preliminary injunctive relief that 

they seek. Because we conclude that the District Court did not 

err in so holding, we affirm the denial of the motion for the

preliminary injunction and remand the case for further proceedings 

consistent with this ruling.

I.

A.

On March 13, 2020, New Hampshire Governor Christopher T. 

Sununu issued an executive order that declared a state of emergency

due to the COVID-19 virus's spread. N.H. Exec. Order 2020-04 (Mar. 

13, 2020) ("Order"). The Order, among other things, encouraged 

State government bodies to "conduct meetings through electronic 
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means while preserving, to the extent feasible, the public's right 

to notice of such meetings and ability to observe and listen 

contemporaneously." Id. at 4, ¶ 8. 

The Order did not direct the House to take any specific 

action. Indeed, the New Hampshire Constitution commits to the 

members of the House the power to "choose their own speaker, 

appoint their own officers, and settle the rules of proceedings in 

their own house." N.H. Const. pt. II, art. 22.

But, in the immediate wake of the Order, the House, which 

with 400 members is the largest single state legislative body in 

the country, chose of its own accord to suspend all its proceedings

before then resuming them in June. The House did not hold the 

resumed proceedings in the House chamber. Instead, the House held 

proceedings twice in June and once in September at the Whittemore 

Center, the University of New Hampshire's ice hockey arena, to 

facilitate social distancing and thereby reduce the risk that those 

participating in the proceedings would be infected with the virus. 

The House also began to consider conducting its future 

proceedings remotely. As part of that consideration, it sought an 

advisory opinion on September 16, 2020 from the New Hampshire 

Supreme Court as to whether "holding a session of the New Hampshire 

House of Representatives remotely, either wholly or in part, 
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whereby a quorum could be determined electronically, violates Part 

II, Article 20 of the New Hampshire Constitution."1

The House did not thereafter hold any proceedings during 

the remainder of the legislative session. But, before the 

legislative session ended, the New Hampshire Supreme Court, on 

November 17, 2020, issued an opinion in response to the House's 

request. 

The opinion advised the House that holding legislative

proceedings remotely would not prevent the House from discerning 

a quorum. See Opinion of the Justices, 247 A.3d 831, 840 (N.H. 

2020) (discussing N.H. Const. pt. II, art. 20). The opinion 

further explained that, as a result, the New Hampshire Constitution 

did not prohibit remote participation by representatives in House 

proceedings. See id.

B.

The New Hampshire Supreme Court issued its advisory 

opinion soon after elections had been held in the state for seats 

to the House for the upcoming legislative session. Those elections 

1 Part II, Article 20 of the New Hampshire Constitution 

provides that "[a] majority of the members of the House of 

Representatives shall be a quorum for doing business: But when 

less than two thirds of the Representatives elected shall be 

present, the assent of two thirds of those members shall be 

necessary to render their acts and proceedings valid." 
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ushered in the next phase of the House's debate over how to conduct 

its proceedings during the pandemic. 

Under Part II, Article 3 of the New Hampshire 

Constitution, the House for the preceding legislative session is 

dissolved at 12:01 A.M. on the first Wednesday of December in evennumbered years. That portion of the New Hampshire Constitution 

further provides that the House for the subsequent legislative 

session is constituted on that same day. 

That day is recognized by the House as "Organization 

Day," and on it the Governor swears in all members of the House. 

The House on that day also establishes rules for its upcoming 

legislative session.

Organization Day in 2020 fell on December 2, and the 

proceedings of the House on that date took place outdoors, next to 

the Whittemore Center. Because the November elections had resulted 

in a shift of party control in the House from the Democrats to the 

Republicans, the House elected a new Speaker, Representative 

Richard "Dick" Hinch, during the Organization Day proceedings. 

The House also adopted, during those same proceedings, rules to 

govern the upcoming legislative session. 

As part of the debate over those rules, newly elected 

Representative Andrew Bouldin proposed to require the Speaker to 

accommodate members who wished to participate remotely in 
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proceedings of the House and to cast votes on legislation by that 

same means. Representative Sherman Packard spoke against the 

proposal as being premature. The House rejected Rep. Bouldin's 

proposed rule to require such an accommodation by a vote of 182 to 

56. See N.H. House Journal, Vol. 43, No. 1, at 7.

Then, on December 9, 2020, Speaker Hinch died of 

complications related to COVID-19. Representative Packard, who 

was named Deputy Speaker of the House shortly after Speaker Hinch's 

election on December 2, became the Acting Speaker of the House. 

The Acting Speaker announced that, in accord with Part II, Article 

3 of the New Hampshire Constitution, the next proceedings of the 

House would take place on January 6, 2021. He also announced that 

the proceedings would be held in a parking lot on the University 

of New Hampshire's campus. 

In response to the announcement, a number of House 

members, including plaintiffs in this case, sent emails to the 

Acting Speaker in which they requested that he provide them with 

an accommodation, on account of their medical conditions and other 

limitations, to participate in the January 6 proceedings remotely. 

The Acting Speaker rejected the requests. He indicated, however,
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that he would make unspecified accommodations based on medical 

needs for members who did attend the proceedings in person.2 

At the proceedings held on January 6, 2021, the House 

elected Acting Speaker Packard as Speaker. In addition, Majority 

Leader Jason Osborne and Minority Leader Robert R. Cushing 

2 For example, one plaintiff, Representative David Cote, 

emailed the following message to Acting Speaker Packard on December 

24, 2020: "I appreciate yesterday's conversation with you, but 

given the fact that you indicated there would be no remote option 

for the 6th, and given my prior coronary artery disease, diagnosed 

following a heart attack and the implementation of four stents in 

2018, as well as the fact that my attending would require me to 

carpool with at least one other person with no social distancing 

being possible, I cannot see how in the absence of a remote option 

I can safely participate in the session of January 6." He added: 

"I am utterly mystified as to why we can't proceed under a hybrid 

option thus allowing each representative to make individual 

choices based on their individual health and family situation." 

On December 27, 2020, Aaron Goulette, an aide for Speaker Packard, 

responded as follows: "Acting Speaker Packard asked me to let you 

know that if you chose to attend the proposed drive-in session in 

Durham on January 6th, we will make sure you are accommodated. If 

you do plan to attend, let us know, and we can create a plan for 

your attendance." Representative Cote then responded to Goulette 

by email the next day: "Thank you to both yourself and the Acting 

Speaker for the courtesy of a reply. As I hoped I had made clear 

previously, my attendance on January 6 is not a question of my 

choice, but rather a question of the availability of a remote 

attendance option, which would enable me to attend without risk of 

exposure to COVID 19, given my age, existing health challenges, 

and lack of driving capability, to which I have referred 

previously. I continue to be mystified as to why a remote option 

accommodation is not made available. The Acting Speaker explicitly 

stated to me that there would be no remote option on January 6." 

He added: "I have the greatest respect for my constituents, but 

I cannot imagine that they would expect me to risk my life to 

represent them. To give me or any member similarly situated such 

a Hobson's choice is to my mind utterly unsatisfactory." 
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introduced a proposed amendment to the House Rule governing the 

House's procedures for conducting legislative business. 

That rule establishes an order of precedence in the event 

that the House's adopted rules are silent on a given procedural 

matter, such that the authorities in the designated order of 

precedence are treated as the House Rules. The order of precedence 

under the House rule prior to its amendment was "Constitutional 

provisions"; the House Rules; "[c]ustom, usage, and precedent";

the House's adopted parliamentary manual, which was the 2010 

edition of Mason's Manual of Legislative Procedure; and relevant 

statutory provisions. The amendment, approved by the House in a 

316 to 4 vote, reflects just one change: the House's adoption of 

the 2020 edition of Mason's Manual as its parliamentary manual, 

substituting it for the 2010 edition. See N.H. House Journal, 

Vol. 43, No. 2, at 4-5. 

The 2020 edition of Mason's Manual is the only one of 

the authorities in the order of precedence that speaks to whether 

remote participation in legislative proceedings can take place. 

The 2020 edition of the manual provides, in relevant part: "Absent 

specific authorization by the constitution or adopted rules of the 

body, remote participation in floor sessions by members of the 

legislative body is prohibited." Mason's Manual of Legislative 

Procedure, § 786 (2020). The 2010 edition, according to the 
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parties, was silent on whether remote participation in floor 

proceedings was allowed. 

A proposal was introduced at the House proceedings to 

amend the House rules to permit virtual proceedings of the full 

House.3 The House rejected the proposed rule by a vote of 187 to 

149. N.H. House Journal Vol. 43, No. 2, at 8 (Jan. 6, 2021); see

Holly Ramer, American Idle: New Hampshire House Holds Drive-In 

Session, Associated Press (Jan. 6, 2021).4 

3 The Clerk's Note on the January 6, 2021 legislative session 

reads in part: 

On the session day of January 6, the House 

utilized a voting device system whereby 

members entered their votes via keypad and 

were recorded utilizing a radio-frequencybased receiver. Unfortunately, through 

circumstances beyond the control of staff and 

the system, some votes were not captured for 

a variety of reasons, including interference 

from other electronic devices, vehicles acting 

as Faraday shields, and the like. Following 

the session, members notified the Clerk of 

missed votes and their preferences are entered 

in this Journal at the conclusion of recorded 

votes. 

N.H. House Journal Vol. 43, No. 2, at 4. 

4 We note that the New Hampshire Senate held its proceedings 

on January 6, 2021 remotely. In doing so, the Senate had relied 

on the authority of Governor Sununu's Executive Order encouraging 

the State's government bodies to "conduct meetings through 

electronic means." N.H. Exec. Order 2020-04, at 4, ¶ 8; see N.H. 

Senate Journal No. 2, at 25 (Jan. 6, 2021). 
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C.

On January 29, 2021, Cushing, in his role as Minority 

Leader of the House, sent a letter to the Speaker in which he 

requested reasonable accommodations that would allow House members 

with a medical condition that made them especially vulnerable to 

the virus to attend House proceedings remotely. The Speaker held 

a meeting with Cushing days later to discuss concerns related to 

the next legislative session, scheduled to take place on February 

24, 2021.

On February 8, 2021, Cushing sent another letter to the 

Speaker in which Cushing again requested reasonable accommodations

for himself and other legislators that would permit their remote 

participation in House proceedings. The Speaker replied on 

February 12, 2021, thanking Cushing for his "continued dialogue on 

remote session participation," and asserting that his office 

"continue[s] to research if a reasonable remote solution exists 

that will meet the unique logistical and security requirements of 

our 400 member House of Representatives," as "[a] solution that 

would meet our unique needs has not yet been identified." 

On that same day, Representative Charlotte DiLorenzo 

sent a letter to Jennifer Becker, the ADA Representative for the 
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New Hampshire General Court.5 In that letter, she sought a 

reasonable accommodation in the form of being "allowed to attend 

House Session and House Committee Hearings virtually via Zoom or 

a similar platform." DiLorenzo stated that her medical condition

made her "vulnerable to contracting the [COVID-19] virus and 

jeopardize[d her] ability to fulfill [her] duty as a State 

Representative, to the best of [her] ability and according to the 

New Hampshire Constitution." 

D.

On February 15, 2021, Cushing, DiLorenzo, five other 

members of the House, and the New Hampshire Democratic Party filed 

this suit in the District of New Hampshire, against Speaker Packard 

"in his official capacity only."6 No other defendant was named. 

The complaint alleges, among other things, that the 

Speaker is in violation of Title II of the ADA and § 504 of the 

RHA by failing to grant a reasonable accommodation that would 

permit the House members bringing the suit to participate remotely 

5 The New Hampshire General Court is the formal name of the 

state's bicameral legislative branch, of which the House of 

Representatives is one part. 

6 The Court understands that Robert R. Cushing passed away 

during the pendency of this appeal. No party has submitted any 

filings concerning the effect, if any, of his untimely death. 
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in the proceedings of the House.7 In support of those claims, the 

complaint alleges that the representatives bringing the suit are 

eligible to participate fully in the activities of the House by 

virtue of their election to it and that they are qualified 

individuals with a disability. They further allege that the 

Speaker's failure to provide their requested accommodation "denies 

[the plaintiffs] basic health and safety protection . . . and has 

a disparate impact on [the plaintiffs], whose disabilit[ies] place 

them at greater risk than the general public for serious 

complications or death from COVID-19." The suit seeks, in addition 

to declaratory relief, an order that would enjoin the Speaker to 

allow the House members bringing the suit to participate remotely 

in legislative proceedings, including with respect to the casting 

of votes on bills. 

The plaintiffs then filed an emergency motion for a 

preliminary injunction "and/or" temporary restraining order to 

secure the same relief based on the ADA- and RHA-related claims. 

The Speaker filed a motion in opposition -- without also moving to 

7 Throughout the opinion, we refer to the plaintiffs' request 

as a request for a reasonable accommodation, but we note that we 

adopt the language of the RHA in doing so. See 29 U.S.C. § 701. 

The ADA refers to such requests as a request for a "reasonable 

modification." See 42 U.S.C. § 12131(2). "[T]here is no material 

difference between the terms." Nunes v. Mass. Dep't of Corr., 766 

F.3d 136, 145 n.6 (1st Cir. 2014). 
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dismiss -- on the ground that the plaintiffs could not show a 

likelihood of success on the merits, in part due to the legislative 

immunity enjoyed by the Speaker. 

The District Court held a four-hour hearing on the 

motion, at which it considered declarations and affidavits 

submitted by the defendants. The District Court then issued an 

opinion denying the motion on the ground that due to legislative 

immunity the plaintiffs had failed to show a substantial likelihood 

of success on the merits as to the claims at issue, notwithstanding 

the plaintiffs' contention that the Speaker was not entitled to 

legislative immunity with respect to their ADA and RHA claims even 

if that immunity would bar other of their claims. See Cushing, 

2021 WL 681638, at *6-7. 

The plaintiffs then sought expedited appellate review of 

the District Court's denial of its motion for a preliminary 

injunction. A panel of this Court issued a judgment vacating the 

District Court's order denying the motion and remanding the case

for further proceedings consistent with its ruling, on the ground 

that the ADA abrogated and the RHA effected a waiver of legislative 

immunity. Cushing, 994 F.3d at 55-56. The Speaker petitioned 

this Court for en banc review of the panel's judgment. We granted 
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the petition, withdrew the panel opinion, and vacated its judgment. 

Cushing, 2021 WL 2216970, at *1; see 1st Cir. I.O.P. X(D).8 

II.

A request for a preliminary injunction is a request for 

extraordinary relief. It may be granted only if "the district 

court [finds] that all four of the relevant factors (that is, '(1) 

the movant's likelihood of success on the merits; (2) the 

likelihood of the movant suffering irreparable harm; (3) the 

balance of equities; and (4) whether granting the injunction is in 

the public interest') weigh[] in favor of granting the request." 

Comcast of Me./N.H., Inc. v. Mills, 988 F.3d 607, 611 (1st Cir. 

2021) (quoting Shurtleff v. City of Bos., 928 F.3d 166, 171 (1st 

Cir. 2019)). 

The District Court determined that the plaintiffs were 

not likely to succeed on the merits of their claims concerning the 

ADA and the RHA due to the Speaker's assertion of legislative 

immunity. See New Comm Wireless Services, Inc. v. SprintCom, Inc., 

287 F.3d 1, 9 (1st Cir. 2002) ("The sine qua non of this four-part 

inquiry is likelihood of success on the merits: if the moving party 

8 In addition to granting Speaker Packard's petition to rehear 

the case en banc on June 1, 2021, we requested supplemental 

briefing from the parties, and invited such briefing from amici,

on the contours of legislative immunity and whether legislative 

immunity applies in a civil action seeking injunctive relief under 

the ADA and RHA. Cushing, 2021 WL 2216970, at *1-2. 
- 18 -

cannot demonstrate that he is likely to succeed in his quest, the 

remaining factors become matters of idle curiosity."); see also

Am. Freedom Def. Initiative v. Mass. Bay Transp. Auth., 781 F.3d 

571, 578 (1st Cir. 2015) (establishing that a plaintiff seeking a 

preliminary injunction must show a "strong likelihood that they 

will ultimately prevail on the merits of their" claims (quoting 

Sindicato Puertorriqueño de Trabajadores, SEIU Local 1996 v. 

Fortunato, 699 F.3d 1, 10 (1st Cir. 2012)) (emphasis added)

(internal quotation marks omitted)). The parties in their briefing 

have asked us to address only that ruling in this appeal, and we 

follow suit. Our review of the legal issues that the District 

Court's ruling presents is de novo. See Nieves-Marquez v. Puerto 

Rico, 353 F.3d 108, 120 (1st Cir. 2003) (citing Langlois v. 

Abington Hous. Auth., 207 F.3d 43, 47 (1st Cir. 2000)). 

As we will explain, the plaintiffs advance several 

grounds for concluding that the District Court erred in finding 

that legislative immunity stands in the way of their obtaining the 

extraordinary relief that they seek. We begin by describing the 

nature of the immunity itself. We will then address each of the

plaintiffs' arguments in turn, though we conclude that none of 

them warrants our overturning the District Court's denial of the

plaintiffs' motion for preliminary injunctive relief.
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III.

The Supreme Court of the United States has repeatedly 

affirmed that legislative immunity is an analogue to the Speech 

and Debate Clause of the federal Constitution that reflects the 

importance that Anglo-American law traditionally has placed on 

protecting "legislators acting within their traditional sphere" 

from being subject to suit. Tenney v. Brandhove, 341 U.S. 367,

376 (1951). The Court has explained in that regard that the

"privilege of legislators to be free from . . . civil process for 

what they do or say in legislative proceedings has taproots in the 

Parliamentary struggles of the Sixteenth and Seventeenth 

Centuries" and "was deemed so essential for representatives of the

people that it was written into the Articles of Confederation and 

later into the Constitution['s]" Speech and Debate Clause. Id. at 

372; see also id. at 373 ("The provision in the United States 

Constitution was a reflection of political principles already 

firmly established in the States. Three State Constitutions 

adopted before the Federal Constitution specifically protected the 

privilege." (quoting 2 Works of James Wilson 38 (James DeWitt 

Andrews ed., 1896))). 

The Court has further explained that this "privilege" 

from suit is "indispensabl[e]" to "enable and encourage a 

representative of the public to discharge his public trust with 
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firmness and success." Id. at 373. In other words, according to 

the Court, the reason to keep government officials "immune from 

deterrents to the uninhibited discharge of their legislative 

dut[ies is] not for their private indulgence but for the public 

good." Lake Country Ests., Inc. v. Tahoe Reg'l Plan. Agency, 440 

U.S. 391, 405 (1979) (quoting Tenney, 341 U.S. at 377)). 

For that reason, the Court has made clear that, unlike 

some other common law immunities, legislative immunity may be 

asserted even against claims that seek only declaratory or 

prospective injunctive relief, see Sup. Ct. of Va. v. Consumers 

Union of the U.S., Inc., 446 U.S. 719, 732 (1980), and exists to 

protect those engaged in legislative activities from the burdens 

of defending against a suit and not merely from being held liable 

in one, see Tenney, 341 U.S. at 377. In addition, the immunity is 

absolute rather than qualified, insofar as it applies. See id. at 

372. 

IV.

We start with the plaintiffs' threshold contention, 

supported by the United States as amicus, that legislative immunity 

does not apply to the claims concerning the ADA and the RHA that 

are at issue, because those claims are brought against the State 

itself and not against the state officer named in the complaint as 

the sole defendant. The argument depends on two related 
- 21 -

assertions: that (1) the plaintiffs' official capacity state 

officer claims -- even though the claims seek only declaratory and 

injunctive relief -- must be treated as claims against the State 

and not the officer named despite the fact that the State itself 

is not named; and (2) legislative immunity is a "personal 

immunity," which, unlike an "official" immunity like the sovereign 

immunity that a State may assert under the Eleventh Amendment to 

the United States Constitution, may only be asserted by an 

individual officer and not by the State itself. As we will 

explain, even if we may assume for present purposes that the second 

of these assertions is sound,9 we cannot accept the first, at least 

on this record, given that the plaintiffs are the masters of their 

own complaint. Cf. Holmes Grp., Inc. v. Vornado Air Circulation 

Sys., Inc., 535 U.S. 826, 831 (2002). 

A.

The plaintiffs and the United States base the contention

that the claims regarding the ADA and the RHA that they bring 

9 We note that neither the plaintiffs nor the United States 

addresses any of the seeming complexities that would appear to 

arise from naming the State alone as the defendant, given that the 

injunctive relief sought is directed solely against the Speaker. 

Nor do they cite any authority to support the contention that a 

suit that merely names the State but then seeks such equitable 

relief against a state legislative officer and no other actor or 

entity is not a suit to which legislative immunity applies. We 

will return to these points below. 
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against the Speaker in his official capacity must be treated as 

claims against the State itself in part on Will v. Michigan Dep't 

of State Police, 491 U.S. 58 (1989), and Kentucky v. Graham, 473 

U.S. 159 (1985). But, neither case supports our doing so here. 

Those two cases do make clear that suits against state 

officers in their official capacity often must be treated as suits 

against the State, notwithstanding that such suits do not 

specifically name the State as the defendant. See Will, 491 U.S. 

at 71; Graham, 473 U.S. at 166-67. But, the Court expressly 

recognized in Graham and Will that, at least when such an official 

capacity state officer suit is brought under § 1983 for the kind 

of relief that is at issue here, it must not be treated as a suit 

against the State itself. See Will, 491 U.S. at 71 n.10 (holding 

that official capacity state officer suits for prospective 

injunctive relief are suits against a "person" under § 1983 even 

though a "State" is not a "person" under that statute); Graham, 

473 U.S. at 167 n.14 ("[I]mplementation of state policy or custom 

may be reached in federal court only because official-capacity 

suits for prospective relief are not treated as actions against 

the state.").

The plaintiffs and the United States go on to assert, 

however, that even if an official capacity state officer suit for 

prospective injunctive relief need not be treated as a suit against 
- 23 -

the State under § 1983, it must be so treated when it is brought

to enforce Title II of the ADA and § 504 of the RHA. Thus, the

plaintiffs argue, the claims concerning the ADA and the RHA at 

issue here must be so treated, despite the fact that the plaintiffs

did not name the State as the defendant as to those claims and 

instead named only a state legislative officer.

To flesh out this contention, the plaintiffs and the 

United States explain that each of those underlying statutes, 

unlike § 1983, purports to make a "State" suable. They further 

explain that each of those statutes, also unlike § 1983, expressly 

imposes liability on, respectively, only a "public entity" and a 

"program or activity," neither of which is defined to include a 

state officer (or, for that matter any officer at all). See 42 

U.S.C. § 12132; 29 U.S.C. § 794. 

But, insofar as the plaintiffs and the United States 

mean to suggest that those features of the two statutes in and of 

themselves require us to treat the plaintiffs' claims as claims 

against the State, and not a state officer (despite the fact that 

the claims name the officer and not the State as the sole 

defendant), we cannot agree. To see why, though, it is necessary 

to consider the claims before us pertaining to each statute 

separately. 
- 24 -

1.

With respect to the plaintiffs' claims to enforce Title 

II of the ADA, we note at the outset that the Supreme Court has 

made clear that an official-capacity suit against a state officer 

for injunctive relief may be brought to enforce the duties imposed 

by Title I of the ADA. See Bd. of Trs. of Univ. of Ala. v. Garrett, 

531 U.S. 356, 374 n.9 (2001). It has further made clear that,

when such a suit is brought, it is properly treated as a suit 

against the officer and not the State itself, because such a suit 

would otherwise implicate the jurisdictional bar imposed by the 

Eleventh Amendment and thereby raise issues concerning Congress's

constitutional power to effect an abrogation of sovereign 

immunity. See id. Moreover, the Court has so held notwithstanding 

both that a provision of the ADA purports to abrogate Eleventh 

Amendment immunity and that, unlike § 1983, Title I of the ADA 

imposes liability on States. See 42 U.S.C. § 12202.10 That is 

significant for present purposes because a uniform body of lower 

court precedent holds for essentially the same reasons that such 

10 Graham does not itself support the notion that Congress's 

expressed intention to abrogate Eleventh Amendment immunity in 

enacting a statute in and of itself requires that we treat an 

official-capacity, state-officer claim brought under that statute 

for prospective injunctive relief as if it were against the State 

itself. See 473 U.S. at 167 n. 14 (noting the relevance of whether 

"Congress has overridden" Eleventh Amendment immunity) (emphasis 

added).
- 25 -

an official capacity state officer suit also may be brought to 

enforce Title II of the ADA and that, when it is brought, it also 

is properly treated as a suit against the officer named and not 

the State itself. See, e.g., Henrietta D. v. Bloomberg, 331 F.3d 

261, 288-89 (2d Cir. 2003); Miranda B. v. Kitzhaber, 328 F.3d 1181, 

1187-88 (9th Cir. 2003) (per curiam); Carten v. Kent State Univ., 

282 F.3d 391, 397 (6th Cir. 2002); Randolph v. Rodgers, 253 F.3d 

342, 348 (8th Cir. 2001).

Against this backdrop, we fail to see why we must treat 

the plaintiffs' claims to enforce Title II of the ADA as if they 

are not what they purport to be, such that we must treat them as 

if they are claims against the State of New Hampshire rather than 

a state officer (albeit in his official capacity only). After 

all, the plaintiffs do not suggest that we must treat their 

Fourteenth Amendment claims against the Speaker in his official 

capacity as if they are claims against the State itself, yet the 

plaintiffs name the Speaker, in his official capacity, as the sole 

defendant in those claims. And, as we have just explained, their 

claims to enforce the ADA are no less permissibly brought -- and 

treated -- as claims against the officer named (even though he is 

named only in his official capacity) and not the State than are 

their claims under the Fourteenth Amendment, despite the 
- 26 -

distinctive features of Title II of the ADA that the plaintiffs 

and the United States highlight. 

The plaintiffs and the United States, in arguing 

otherwise, do assert that a state officer sued in his official 

capacity may not assert legislative immunity precisely because 

that officer is not being sued in his individual capacity. Here, 

they rely on the statement in Graham that "the only immunities 

that can be claimed in an official capacity action are forms of 

sovereign immunity that the entity, qua entity, may possess, such 

as the Eleventh Amendment." 473 U.S. at 167. 

But, that dictum cannot control our analysis here, given 

the Court's express holding in Consumers Union that legislative 

immunity may be asserted as a defense against an official capacity 

suit against a state officer for the kind of relief that is at 

issue here. See 446 U.S. at 737 n.16, 738-39; id. at 732 ("Although 

Tenney involved an action for damages under § 1983, its holding is 

equally applicable to § 1983 actions seeking declaratory or 

injunctive relief."); Colon Berrios v. Hernandez Agosto, 716 F.2d 

85, 88 (1st Cir. 1983) (relying on Consumers Union in holding that 

"the Supreme Court has clearly held that state legislators acting 

in a legislative capacity are absolutely immune from the imposition 

of equitable remedies in a suit brought under 42 U.S.C. § 1983").

Indeed, Graham itself seems to have recognized Consumers Union's 
- 27 -

holding on this very point. 473 U.S. at 167 n.14. Thus, if we 

must take the plaintiffs' claims at their word and understand them 

to be claims against the Speaker in his official capacity and not 

claims against the State itself, there is no inherent bar to the 

defendant -- owing to the nature of that defendant -- asserting 

the immunity at issue here.

The plaintiffs and the United States do respond by 

pointing to Board of Commissioners, Wabaunsee County v. Umbehr, 

518 U.S. 668 (1996), which was decided after Consumers Union. They 

contend that precedent shows that the Speaker, insofar as he is 

being sued in his official capacity, cannot assert legislative 

immunity, notwithstanding what Consumers Union says on that score. 

They note that Umbehr states that legislative immunity "extends to 

public servants only in their individual capacities," 518 U.S. at 

677 n.*, and holds on that basis in that case that "the legislative 

immunity claim is moot," because "only claims against the Board 

members in their official capacities" were before the Court. Id.

But, here, too, we disagree. Umbehr does not purport to 

overrule Consumers Union, as Umbehr does not even mention Consumers 

Union, and we do not see how we may read Umbehr to overrule 

Consumers Union by implication. Umbehr involved an official 

capacity claim against municipal rather than state officers under 

§ 1983. The Court has long treated § 1983 claims against municipal 
- 28 -

defendants differently from § 1983 claims against state ones. See,

e.g., Graham, 473 U.S. at 167 n.14. Neither the plaintiffs nor 

the United States identifies any authority that supports a contrary 

conclusion, despite the substantial body of authority that rejects 

the notion that Umbehr overrides Consumers Union with respect to 

official capacity suits against an officer of the State. See, 

e.g., State Empls. Bargaining Agent Coal. v. Rowland, 494 F.3d 71, 

86 (2d Cir. 2007) ("While legislative immunity is available to 

local officials who are sued in their individual capacities, the 

Supreme Court has made clear that, due to the historical 

unavailability of various immunity defenses to local governments, 

those governments (or, 'municipal corporations') are not entitled 

to the benefit of any immunities that might be available to local

officials sued under § 1983. The Supreme Court has never reached 

a similar conclusion with respect to suits against states, or 

against state agents in their official capacities." (internal 

citations omitted)); Scott v. Taylor, 405 F.3d 1251, 1255 n.6 (11th 

Cir. 2005) ("Umbehr involved a § 1983 official capacity claim 

against local governmental officials. Accordingly, the general 

rule of Graham applied whereby the official capacity claim was to 

be treated as a claim against the entity and personal immunities 
- 29 -

would not be available. Umbehr, like Graham, is entirely 

consistent with the holding of Consumers Union.").11 

Thus, the plaintiffs fail to persuade us that their 

claims in which they seek to enforce Title II of the ADA are 

properly understood to be claims against the State, despite how 

they were pleaded.12 Accordingly, we proceed on the understanding 

that the named defendant is the Speaker in his official capacity

rather than the State and that, as such, he is entitled to assert 

11 We note that Umbehr was decided prior to Bogan v. Scott 

Harris, 523 U.S. 44 (1998). There, the Court resolved that 

municipal officials were entitled to assert legislative immunity 

when sued in their individual capacity, see id. at 53-54, which 

was an open question at the time that the Court handed down its 

decision in Umbehr. Moreover, Umbehr cited as support for its 

treatment of the official capacity claims at issue, Leatherman v. 

Tarrant County Narcotics Intelligence and Coordination Unit, 507 

U.S. 163 (1993), which concerned the proper treatment of official 

capacity claims only against municipal officers. See Umbehr, 518 

U.S. at 677 n.*. 

12 Notably, the ADA's operative provisions refer to a "public 

entity," see 42 U.S.C. § 12132, and the parties do not dispute 

that the House would qualify as one no less than the State itself 

would. Yet, the plaintiffs at no point explain why their claims 

to enforce Title II of the ADA, insofar as they must be treated as 

claims against a "public entity" and not an officer, must be 

treated as claims against the State rather than the House, even 

though the plaintiffs named an officer of that legislative body as 

the defendant for those claims. That failure on the plaintiffs' 

part is problematic in its own right, because Consumers Union

expressly states that legislative bodies may themselves assert 

legislative immunity. See 446 U.S. at 733-34.
- 30 -

the immunity at issue per Consumers Union, absent there being some 

bar to his doing so.13

2.

The problems with treating the plaintiffs' claims to 

enforce the RHA as being against the State rather than the officer 

named in the complaint are somewhat different, though related. 

Like Title II of the ADA, and unlike § 1983, § 504 of the RHA does 

expressly provide that "State[s]" are liable for violating its 

terms. See 29 U.S.C. § 794(b)(1)(A)-(B). And, § 504 of the RHA, 

13 The plaintiffs, in arguing that their claims to enforce the 

ADA are claims against the State, even though their Fourteenth 

Amendment claims are not, do not develop an argument that those 

claims pertaining to Title II of the ADA simultaneously also are 

not claims against the State for purposes of determining whether 

they implicate Eleventh Amendment immunity. See United States v. 

Zannino, 895 F.2d 1, 16 (1st Cir. 1990) (discussing waiver). Thus, 

if we were to treat the plaintiffs' ADA-related claims as if they 

were claims against the State and no other defendant, then those 

claims would be subject to an assertion of Eleventh Amendment 

immunity that they otherwise would not implicate. See Garrett, 

531 U.S. at 374 n.9 (establishing that, with respect to Title I of 

the ADA, an official capacity suit for injunctive relief may 

proceed under the fiction of Ex parte Young, 209 U.S. 123 (1908)). 

In consequence, the plaintiffs' claims would then raise questions 

regarding Congress's constitutional authority to abrogate Eleventh 

Amendment immunity that otherwise would not arise. See

Tennessee v. Lane, 541 U.S. 509, 520 (2004) (detailing a 

"congruence and proportionality" test for determining whether a

suit under Title II of the ADA against the State may proceed

(quoting City of Boerne v. Flores, 521 U.S. 507, 520 (1997))); see 

also Scott v. Taylor, 405 F.3d at 1255 n.5 (11th Cir. 2005) ("If 

official capacity actions against state legislators were treated 

as actions against the State, they would be barred by states' 

Eleventh Amendment sovereign immunity.").
- 31 -

like Title II of the ADA, does not expressly provide that any 

officer of a state is subject to suit. Section 504 of the RHA

imposes liability on "program[s] or activit[ies] receiving Federal 

financial assistance," which the provision then defines to include 

governmental entities. See 29 U.S.C. § 794(a)-(b). 

But, as with Title II of the ADA, neither the plaintiffs 

nor the United States points to any precedent that holds that suits 

against state officers -- even when sued in their official capacity 

-- to enforce the provisions of § 504 of the RHA through relief of 

the kind at issue here may not be brought. Nor do they suggest 

that there is a reason to conclude that such suits, insofar as 

those suits may be brought to enforce the RHA, must be treated as 

suits against the State, even if those suits need not be so treated 

when brought to enforce Title II of the ADA. Moreover, as with 

Title II of the ADA, there is authority that holds that such suits 

may be brought to enforce § 504 of the RHA and that, when they are 

so brought, they are properly treated as suits against the officer 

and not the State. See Henrietta D., 331 F.3d at 289. And, as we 

have already explained, given Consumers Union, the dictum in Graham

regarding the distinction between official and personal immunities 

provides no basis for our concluding that we must treat such suits 

as suits against the State for purposes of assessing assertions of 

legislative immunity. Accordingly, the plaintiffs fail to explain 
- 32 -

why we cannot take their RHA-predicated claims, as pleaded, to be, 

like their claims regarding the ADA, just what they purport to be. 

That being so, we understand the plaintiffs' RHA-related claims to 

be, like their ADA-related claims, against a kind of defendant who 

is not -- inherently -- incapable of asserting the immunity that 

is at issue. 

The United States argues that the Eleventh Amendment 

concerns that might arise from treating the plaintiffs' claims to 

enforce Title II of the ADA as claims against the State itself 

would not arise from so treating their RHA-related claims. The 

plaintiffs and the United States emphasize that the State itself 

is a "recipient of Federal financial assistance" within the meaning 

of § 504 of the RHA. 29 U.S.C. § 794(a). The United States thus 

contends that, given the State of New Hampshire's acceptance of 

"Federal financial assistance" to support legislative operations 

during the pandemic, there was a clear waiver of Eleventh Amendment 

immunity here, and so no Eleventh Amendment concern that the 

plaintiffs would have needed to avoid by suing only a state officer 

and not the State itself. See 42 U.S.C. § 2000d-7(a)(1) ("A State 

shall not be immune under the Eleventh Amendment . . . for a 

violation of section 504 of the Rehabilitation Act of 1973 . . . or

. . . any other Federal statute prohibiting discrimination by 

recipients of Federal financial assistance."). 
- 33 -

But, there could be a question of whether the State had 

waived its Eleventh Amendment immunity by that receipt of funds,

given that the relief that the plaintiffs seek would run against 

a state legislative, rather than a state executive, officer. Cf.

Koslow v. Commonwealth of Pennsylvania, 302 F.3d 161, 171 (3d Cir. 

2002) ("Under the statutory definition in the Rehabilitation Act, 

the state, as a whole, cannot be a 'program or activity.' As other 

courts have noted, if the entire state government were subject to 

§ 504 whenever one of its components received federal funds, 

section (b)(1)(B) would be redundant."). By contrast, no such 

question arises if the plaintiffs' claims to enforce the RHA are 

taken at their word and treated as claims against the named state 

officer in his official capacity rather than the State. For, in 

that event, Eleventh Amendment immunity is not in play. 

In addition, the plaintiffs do not explain why if their 

claims regarding the RHA must be understood to be against an entity 

rather than an officer, they must be understood to be against the 

State rather than the House, given that the officer named in the 

complaint as the sole defendant is a member of the House, which 

the parties do not dispute is a covered entity under § 504 of the 

RHA. See 29 U.S.C. § 794. And, as we have explained, Consumers 

Union expressly states that a legislative body may itself assert 

legislative immunity. So, had the plaintiffs named the State in 
- 34 -

their complaint, a question would then have arisen in relation to 

the relief sought as to whether the right entity had been named, 

given that if the House were the proper entity (insofar as an 

officer suit was not being brought) legislative immunity would 

have remained as a viable defense. See Consumers Union, 446 U.S. 

at 732.14

3.

In sum, neither the plaintiffs nor the United States 

persuasively explains why the official capacity state officer 

claims regarding the ADA and the RHA that are before us must be 

treated as if they are claims against the State itself and thus 

against a defendant that the plaintiffs assert to be, by its 

nature, incapable of asserting legislative immunity. Accordingly, 

we take the complaint at its word. We thus understand it to be 

14 We note that the plaintiffs disclaimed any intention to 

have sued any defendant other than the State only after having 

been confronted with a defense of legislative immunity based on 

Consumers Union in response to their motion for preliminary 

injunctive relief. But, that otherwise previously unarticulated 

position does not effectively amend the complaint. Nor is this a 

case in which the entity of which the officer sued is a part "had 

no greater separate identity from the" State -- which is a suable 

entity under the ADA and the RHA -- than many executive departments 

do. Brandon v. Holt, 469 U.S. 464, 472 (1985). Rather, it is a 

case in which the officer named in the complaint serves in one of 

the two houses of a coordinate branch of state government and thus 

is not, for purposes of enforcing either statute, obviously "the 

State" -- insofar as the officer named is a stand-in for any 

entity -- rather than either the House or the state legislature as 

a whole.
- 35 -

alleging claims that seek to enforce Title II of the ADA and § 504 

of the RHA against the state officer (in his official capacity) 

who is named, which, as Consumers Union holds, is an officer who 

is entitled even in that capacity to assert the defense of 

legislative immunity, at least insofar as that officer is not 

otherwise barred from doing so.

V.

The plaintiffs do also assert -- this time, without the 

support of the United States -- that their ADA-predicated claims 

may go forward, despite the Speaker's assertion of legislative 

immunity, even if they are understood to be claims against a state 

officer rather than the State itself, despite the Speaker's 

assertion of legislative immunity. That is in part because the 

plaintiffs contend that, in enacting Title II of the ADA, Congress

abrogated any legislative immunity that such a defendant otherwise 

could assert. But here, too, we disagree. 

As an initial matter, it is not obvious how Title II of

the ADA could bring about such an abrogation, insofar as the suit 

is against a state legislative officer and not any "public entity" 

under that statute. Nonetheless, a legislative body, like the 

House, appears to be a "public entity" under Title II of the ADA 

and to be capable of asserting legislative immunity in certain 

circumstances per Consumers Union. See 446 U.S. at 733-34. In 
- 36 -

addition, the plaintiffs appear to be of the view that Title II of 

the ADA -- through its various provisions -- may be understood to 

abrogate legislative immunity even when asserted by a state 

legislative officer as a defense to a claim to enforce the statute 

that is brought against that officer in his official capacity and 

not against any "public entity" with which he is identified. Thus, 

we proceed to address the abrogation argument that the plaintiffs 

present as they have framed it for us and as the panel addressed 

it. But, as we will explain, even when we do so, we find the 

plaintiffs' abrogation argument to be without merit, in large part 

due to the reasoning of Tenney. 

A.

The plaintiff in Tenney, William Brandhove, had sued 

members of the California Senate's Fact-Finding Committee on UnAmerican Activities under 42 U.S.C. § 1983 and a companion civil 

rights measure that provided redress against those who conspire to 

deprive individuals of their federal constitutional rights. See

42 U.S.C. § 1985. Brandhove alleged they had used a legislative 

subpoena to "intimidate and silence" him, in an attempt to "deter 

and prevent him from effectively exercising his constitutional 

rights of free speech and to petition the Legislature for redress 

of grievances." 341 U.S. at 371. He pointed out that not a word 

in either statute recognized legislative immunity and that, in 
- 37 -

fact, the text of each statute encompassed both legislators and 

their legislative acts by applying to any "person" who was acting 

"under color of any statute, ordinance, regulation, custom, or 

usage, of any State or Territory." 42 U.S.C. § 1983. He thus 

contended that legislative immunity posed no bar to his claims.15

In holding otherwise, the Court framed the relevant 

interpretive question as follows: Did Congress intend "to overturn 

the tradition of legislative freedom achieved in England by Civil 

War and carefully preserved in the formation of State and National 

Governments here" and thereby to "subject legislators to civil 

liability for acts done within the sphere of legislative activity?" 

Id. at 376. The Court then reasoned -- perhaps not surprisingly,

given that framing -- that it could not conclude that Congress had 

so intended: 

Let us assume, merely for the moment, that 

Congress has constitutional power to limit the 

freedom of State legislators acting within 

their traditional sphere. That would be a big 

assumption. But we would have to make an 

eve[n] rasher assumption to find that Congress 

thought it had exercised the power. These are 

difficulties we cannot hurdle. . . . We 

cannot believe that Congress -- itself a 

staunch advocate of legislative freedom -

- would impinge on a tradition so well 

grounded in history and reason by covert 

inclusion in the general language before us. 

15 See Brief for Respondent at 17, Tenney v. Brandhove, 341 

U.S. 367 (1951) (No. 338). 
- 38 -

Id. 

In the decades since, the Court has shown no inclination 

to back away from Tenney's interpretive logic. Rather, in 

subsequent cases applying common-law immunities to § 1983 claims, 

the Court has explained that Tenney held that § 1983 did not 

abrogate such immunities both because "the legislative record 

[gave] no clear indication that Congress meant to abolish [them] 

wholesale" and because it was fair to "presume that Congress would 

have specifically so provided had it wished to abolish the 

doctrine[s]." Pierson v. Ray, 386 U.S. 547, 554-55 (1967). 

In accord with that same understanding, the Court has, 

in the wake of Tenney, appeared to equate the inquiry into 

Congress's intent to abrogate legislative immunity with the 

famously strict inquiry that is required to determine Congress's 

intent to abrogate Eleventh Amendment immunity. See Consumers 

Union, 446 U.S. at 738-39. It has also appeared to hold that 

evidence of an intent by Congress to abrogate the latter type of 

immunity is not evidence of its intent to abrogate the former. 

Id. Indeed, the Court has even gone so far as to state, seemingly

as a general matter, that "[o]ur cases have proceeded on the 

assumption that common-law principles of legislative . . .

immunity were incorporated into our judicial system and that they 
- 39 -

should not be abrogated absent clear legislative intent to do so." 

Pulliam v. Allen, 466 U.S. 522, 529 (1984).

The plaintiffs do argue that, even if Tenney sets forth 

a clear statement rule for abrogating legislative immunity, it 

applies only to § 1983 itself. But, they do not offer any 

supporting authority for that contention, and there is sister 

circuit precedent directly to the contrary. See Chappell v. 

Robbins, 73 F.3d 918, 923-25 (9th Cir. 1996) (applying clear 

statement rule to determine whether Congress intended to abrogate 

legislative immunity with respect to a civil claim under the 

Racketeering Influenced and Corrupt Organizations Act, 18 U.S.C. 

§ 1961 et seq.).16

In addition, the cases in the Tenney line repeatedly 

affirm the important role that legislative immunity plays in 

promoting representative democracy and thus the soundness of 

Tenney's presumption that Congress, as a legislative body in its 

16 We note that the Supreme Court has required at least as 

much clarity as Tenney required in determining whether other 

federal statutes have displaced the immunity that members of 

Congress enjoy under the Speech and Debate Clause. See United 

States v. Helstoski, 442 U.S. 477, 493 (1979) ("Assuming, 

arguendo, that the Congress could constitutionally waive the 

protection of the Clause for individual Members, such a waiver 

could be shown only by an explicit and unequivocal expression. 

There is no evidence of such a waiver in the language or the 

legislative history of § 201 or any of its predecessors." (second 

emphasis added)).
- 40 -

own right, would not likely override such a critical protection 

for legislative freedom without evidencing its serious 

consideration of the merits of doing so. Indeed, the Court in 

Tenney began its analysis by characterizing the notion that 

Congress could abrogate the immunity generally as a "big 

assumption," 341 U.S. at 376, which is a characterization that 

certainly accords with the notion that the concern about finding 

abrogation was rooted in a recognition that any such abrogation 

would implicate the federal-state balance. Cf. Gregory v. 

Ashcroft, 501 U.S. 452, 460 (1991) ("Congressional

interference . . . would upset the usual constitutional balance of 

federal and state powers. For this reason, 'it is incumbent upon 

the federal courts to be certain of Congress' intent before finding 

that federal law overrides' this balance." (quoting Atascadero

State Hosp. v. Scanlon, 473 U.S. 234, 243 (1985))). Thus, if

anything, there would appear to be particular reason to presume 

that Congress would not have abrogated such a longstanding 

immunity -- which is both discrete in nature and unusually salient 

to the legislative branch -- in the statute at issue here without 

making its intent to do so clear, given that Congress enacted this 

statute when Tenney was already established precedent. 

Accordingly, to determine whether Congress intended to 

abrogate legislative immunity by enacting Title II of the ADA, we 
- 41 -

proceed on the view that such abrogation could not take place

"absent clear legislative intent to do so." Pulliam, 466 U.S. at 

529. And, as we will next explain, given that understanding, the 

plaintiffs fail to persuade us that the District Court erred in 

determining that Title II of the ADA did not abrogate legislative 

immunity. 

1.

To make the contrary case, the plaintiffs rely on the 

text of Title II of the ADA. The operative provision of the 

statute provides that "no qualified individual with a disability 

shall, by reason of such disability, be excluded from participation 

in or be denied the benefits of the services, programs, or 

activities of a public entity, or be subjected to discrimination 

by any such entity." 42 U.S.C. § 12132. The statute that defines 

a "public entity" does so broadly to include "any State or local 

government" and "any department, agency, special purpose district, 

or other instrumentality of a State or States or local government." 

42 U.S.C. § 12131(1)(A)-(B). It also makes clear that Congress 

intended the statute to be read broadly to ensure that it would 

have an encompassing scope. See generally 42 U.S.C. § 12101(b)("It 

is the purpose of this chapter . . . to provide a clear and 

comprehensive mandate for the elimination of discrimination 

against individuals with disabilities."). 
- 42 -

Moreover, as the plaintiffs highlight, a separate

provision of the ADA that applies to the claims at issue here 

provides as follows: 

A State shall not be immune under the eleventh 

amendment to the Constitution of the United 

States from an action in [a] Federal or State 

court of competent jurisdiction for a 

violation of this chapter. In any action 

against a State for a violation of the 

requirements of this chapter, remedies 

(including remedies both at law and in equity) 

are available for such a violation to the same 

extent as such remedies are available for such 

a violation in an action against any public or 

private entity other than a State.

42 U.S.C. § 12202.

2.

The plaintiffs' chief contention regarding abrogation 

relies on the second sentence of this last provision. They contend 

that it must be read to manifest Congress's clear intent to 

abrogate the specific immunity at issue here, because it expressly 

provides that the "remedies" available under this statute in an 

action against a "State" are the same as those that would be 

available against a "private entity" and legislative immunity is 

not an immunity that any private entity may assert.

But, the provision that contains this sentence is 

substantively identical to 42 U.S.C. § 2000d-7(a)(2), which we 

know that Congress added to the RHA years earlier in the immediate 

wake of the Supreme Court's decision in Atascadero to ensure that 
- 43 -

the clear statement requirement for dispensing with Eleventh 

Amendment immunity would be met. See H.R. Rep. No. 101-485, pt. 

2, at 138 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 421 ("This 

provision is included in order to comply with the standards for 

covering states set forth in Atascadero."). After all, Atascadero

had held that a prior provision of the RHA that had purported to 

provide a means by which a State could effect a waiver of Eleventh 

Amendment immunity was unclear as to whether it covered claims 

against a State for certain types of remedies. See 473 U.S. at 

245-46. 

Thus, the second sentence of this same provision in the 

ADA would appear -- like the second sentence in its predecessor in 

the RHA -- to have been intended merely to make clear that the 

Eleventh Amendment immunity referenced in the first sentence 

extends to all types of remedies that may be sought against states. 

That the sentence in question refers only to "remedies" and not 

"immunities" and that the legislative history to this provision

makes no reference to any immunity other than Eleventh Amendment

immunity both accord with that same conclusion. See Lussier v. 

Fla., Dep't of Highway Safety & Motor Vehicles, 972 F. Supp. 1412, 

1418-19 (M.D. Fla. 1997) (rejecting the argument that the second 

sentence of 42 U.S.C. § 12202 "creates an exception to the 

jurisdictional bar leveled by the Tax Injunction Act"); see also
- 44 -

28 U.S.C. § 1341 (precluding federal courts from considering 

challenges to a State law that facilitates "the assessment, levy 

or collection of any tax"). So, too, does the fact that the 

provision concerns only actions against "State[s]," given that the 

immunity here applies to actors at all levels of government. 

See, e.g., Bogan, 523 U.S. 44 (applying legislative immunity to a 

suit involving a municipal legislator); Lake Country Ests., 440 

U.S. 391 (applying legislative immunity to a suit involving a 

regional legislative body). Accordingly, consistent with general 

interpretive principles, we decline to treat this sentence as if 

it were a means of effecting a sweeping abrogation of such an 

important immunity, when it appears as a follow-on to a sentence 

that expressly dispenses with a distinct immunity without itself 

making reference to any immunity at all. See Conservation Law 

Found., Inc. v. Pruitt, 881 F.3d 24, 32 (1st Cir. 2018) ("Congress 

does not hide elephants in mouseholes." (citing Whitman v. Am. 

Trucking Ass'ns, 531 U.S. 457, 468 (2001))).

To be sure, Congress did manifest its clear intent to 

abrogate Eleventh Amendment immunity via 42 U.S.C. § 12132, as the 

first sentence of the provision just considered makes perfectly 

evident. But, the fact that Congress clearly intended to abrogate 

the status-based immunity that the Eleventh Amendment protects

does not in and of itself clearly demonstrate that Congress 
- 45 -

intended to abrogate the conduct-based immunity for those engaged 

in legislative activities that is at issue here. See Walker v. 

Jones, 733 F.2d 923, 931 (D.C. Cir. 1984) ("The 'fundamental 

purpose' of [legislative immunity] is to 'free[] the legislator 

from executive and judicial oversight that realistically threatens 

to control his conduct as a legislator.'" (quoting Gravel v. United 

States, 408 U.S. 606, 618 (1972) (second alteration in original)

(emphasis added and omitted))). Indeed, as we have already noted, 

the Court has indicated that evidence of an intent to abrogate 

Eleventh Amendment immunity is not itself evidence of an intent to 

abrogate legislative immunity. Consumers Union, 446 U.S. at 738.

Thus, to the extent that any such abrogation of 

legislative immunity was intended, the evidence of that intention 

must be located elsewhere in Title II of the ADA. In considering 

whether such evidence exists, we do not dispute the plaintiffs' 

assertion that the "activities" of the House are encompassed by 

the statute's operative provisions, which encompass the 

"activities" of the State and "any department, agency, special 

purpose district, or other instrumentality of" it. See 42 U.S.C. 

§§ 12131, 12132. But, we agree with the Speaker that, even so, 

those provisions do not themselves demonstrate that Congress 

intended to abrogate legislative immunity by enacting this 

statute. 
- 46 -

Like the Court in Tenney, "[w]e cannot believe that 

Congress -- itself a staunch advocate of legislative freedom --"

would abrogate legislative immunity "by covert inclusion in the 

general language" of Title II of the ADA. 341 U.S. at 376. Indeed, 

the fact that Congress expressly saw fit to abrogate Eleventh 

Amendment immunity as to actions against states brought under it,

but then made no reference to legislative immunity, supports that 

conclusion.17 Cf. Smart v. Gillette Co. Long-Term Disability Plan, 

70 F.3d 173, 179 (1st Cir. 1995) ("The maxim [expressio unius est 

exclusio alterius] instructs that, when [a statute lists specific 

items], any item not so listed is typically thought to be excluded. 

While this interpretive maxim is not always dispositive, it carries 

weight . . . ." (internal citations omitted)).

17 Congress, in enacting Title II, "directed the Department 

of Justice . . . to elucidate Title II['s statutory language] with 

implementing regulations," Frame v. City of Arlington, 657 F.3d 

215, 225 (5th Cir. 2011); see 42 U.S.C. § 12134(a) ("[T]he Attorney

General shall promulgate regulations in an accessible format that 

implement [Title II]."). The implementing regulations provide 

that Title II of the ADA covers "activities of the legislative and 

judicial branches of State and local governments." See

Nondiscrimination on the Basis of Disability in State and Local 

Government Services, 56 Fed. Reg. 35,694, 35,696 (July 26, 1991) 

(codified at 28 C.F.R. pt. 35). 

But, we cannot conclude that Congress's general grant of 

rulemaking authority reveals that "the legislature has in fact 

faced, and intended to bring into issue, the critical matters 

involved in the judicial decision." Will v. Michigan Dep't of 

State Police, 491 U.S. at 66 (1989) (quoting United States v. Bass, 

404 U.S. 336, 349 (1971)). 
- 47 -

That is not to say that there is a "magic words" test

any more than there is such a test for abrogating Eleventh 

Amendment immunity. United States v. Texas, 507 U.S. 529, 534 

(1993); see Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73-74 

(2000); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 56-57

(1996). But, in addition to the fact that the statute here makes 

no express reference to legislative immunity, it also makes no 

express reference to legislatures or legislators, compare 18 

U.S.C. § 201(a)(1), with 42 U.S.C. § 12131, let alone to 

legislative acts. See also United States v. Brewster, 408 U.S. 

501, 524 (1972) ("Congress, of course, is free to exempt its 

Members from the ambit of federal bribery laws, but it has 

deliberately allowed [18 U.S.C. § 201] to remain on the books for 

over a century."). Nor does Title II of the ADA otherwise indicate 

an intent by Congress to deal with the "subtle considerations of 

the mixture of legislative or executive duties with the political 

facts of life," Bostick v. Rappleyea, 629 F. Supp. 1328, 1333 

(N.D.N.Y. 1985) (quoting Gerhart v. Oregon, 40 F. Supp. 597, 600 

(D. Ore. 1976)), as Title VII of the Civil Rights Act of 1964 and 

the Age Discrimination and Employment Act do. See id.

Instead, the operative provisions of Title II of the ADA 

merely contain a general reference to the "activities" of the 

"public entit[ies]" to which Title II of the ADA applies and then 
- 48 -

define those "entit[ies]" in terms that are themselves "general" 

with respect to the acts that could trigger the immunity at issue. 

42 U.S.C. § 12132. In that respect, Title II of the ADA is not 

like the statutes in Kimel or Seminole Tribe when it comes to 

manifesting a congressional intent to abrogate a well-established 

immunity by expressly naming the very kind of defendant that enjoys 

the immunity. Instead, it is more like § 1983, which, as we have 

seen, the Court determined in Tenney does not suffice to manifest 

a clear congressional intent to abrogate legislative immunity, 

because the Court could not accept that Congress would abrogate 

legislative immunity by "covert inclusion" in the "general 

language" of § 1983, notwithstanding that a state legislator 

performing legislative duties would appear to be a "person" who is 

acting "under color of" law, insofar as those words are given their 

ordinary meaning. See 341 U.S. at 376.18 

18 The plaintiffs suggest that the Supreme Court's holding 

in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 

209-10 (1998), indicates that Title II's reference to "State or 

local government[s]," 42 U.S.C. § 12131, provides sufficiently 

clear language to effect an abrogation of legislative immunity. 

In Yeskey, the Court considered whether Title II of the ADA's 

standards applied to state correctional facilities, and the Court

concluded that such facilities fall "squarely within the statutory 

definition of 'public entity'." Yeskey, 524 U.S. at 210. But, 

neither party disputes that Title II of the ADA applies to the 

"programs and activities" of the House, as neither party disputes 

that it is a "public entity." We are concerned with a question 

distinct from the one presented in Yeskey, as the question here 

concerns not the meaning of "public entity" but whether Title II 
- 49 -

B.

The plaintiffs also make the closely related contention 

that their claims under § 504 of the RHA are not subject to the 

Speaker's assertion of legislative immunity, because any 

legislative immunity that the Speaker might enjoy against their 

RHA claims has been waived. That is so, they contend, given that

the New Hampshire General Court "affirmatively sought and accepted 

federal funding to pay for legislative session expenses" pursuant 

to the Coronavirus Aid, Relief, and Economic Security (CARES) Act, 

Pub. L. No. 116-136, 134 Stat. 281 (2020). Here, they rely on 

§ 504 of the RHA, which provides that "[n]o otherwise qualified 

individual with a disability . . . shall, solely by reason of her 

or his disability, . . . be subjected to discrimination under any 

program or activity receiving Federal financial 

assistance . . . ." 29 U.S.C. § 794(a); see also id.

§ 794(b)(1)(A)-(B). For, as they contend, the New Hampshire 

General Court's acceptance of federal funding effected a waiver of 

the Speaker's legislative immunity in light of 42 U.S.C. § 2000d7(a)(1). 

of the ADA effected an abrogation of the immunity traditionally 

enjoyed by certain acts taken in the course of the activities of 

a "public entity." And, as to that question, we conclude that 

Tenney provides the controlling interpretive rule. 
- 50 -

But, the plaintiffs do not suggest that a statute may be 

any less clear in encompassing legislative immunity when it 

provides a means for that immunity's waiver than it must be when 

it provides for its abrogation. Nor do we see how they could so 

contend. See Atascadero, 473 U.S. at 241. Thus, because the terms 

of 42 U.S.C. § 2000d-7 are not materially different from the terms 

of 42 U.S.C. § 12202 -- in that they, too, do not speak to the 

immunity at issue with the requisite degree of clarity, concerned 

as they are only with a distinct immunity, Eleventh Amendment 

immunity -- the plaintiffs' waiver-based argument for showing that 

the District Court erred in denying their motion for preliminary 

injunctive relief fails. 

VI.

We come, then, finally, to the plaintiffs' case-specific

reasons for concluding that legislative immunity poses no bar to 

their request for preliminary injunctive relief. But, once again, 

we are not persuaded. 

A.

We start with the plaintiffs' contention that

legislative immunity is no obstacle to their obtaining an emergency 

injunction because their federal law claims do not seek to hold 

the Speaker liable for any "legislative act." The plaintiffs argue 

in this regard that their claims target only the Speaker's failure 
- 51 -

to permit them to engage remotely in official legislative 

proceedings -- including his failure to permit them to vote on 

bills in that manner. 

But, "voting by Members" itself constitutes a 

legislative act, see Gravel, 408 U.S. at 624, and the plaintiffs

request an accommodation with respect to the House rules that 

purport to bar the remote participation that they seek. Thus, we 

fail to see on this record a material difference between their 

requested injunctive relief and a request for relief that would 

seek to dictate the setting of the rules themselves. See Consumers 

Union, 446 U.S. at 726, 728-29 (explaining that legislative 

immunity applied to a suit against the Chief Justice of Virginia

in his official capacity that sought prospective injunctive relief 

for his "failure to amend" a state bar rule that was alleged to 

violate the First Amendment); see also Larsen v. Senate of 

Commonwealth of Pa., 152 F.3d 240, 253 (3d Cir. 1998) (considering 

"whether [the] request for prospective relief . . . could be 

accorded consistent with the policies underlying legislative 

immunity"). That being so, the plaintiffs fail to persuade us

that there is no basis for applying legislative immunity because 

there is no legislative "act presented for examination." Walker, 

733 F.2d at 929.
- 52 -

We do recognize that legislative immunity does not 

attach to the activities that are merely "casually or incidentally 

related to legislative affairs." Brewster, 408 U.S. at 528. But,

determinations about the procedures that govern the means by which 

House members may cast votes are not easily so characterized, and 

the injunctive relief that the plaintiffs seek is, on their own 

account, relief that must run against a legislator directly to be 

effective. Nor do the plaintiffs identify any authority that would 

support a "casual" or "incidental" characterization, id., even 

though there is seemingly contrary recent authority from the D.C. 

Circuit. See McCarthy v. Pelosi, 5 F.4th 34, 39 (D.C. Cir. 2021).19 

Thus, the plaintiffs fail to make the case that, for this reason, 

the District Court erred in relying on the Speaker's legislative 

immunity to reject their request for emergency relief. 

19 The plaintiffs do argue at some length that, to determine 

whether the accommodation that they seek is reasonable would not 

require any inquiry into legislative motive or even any questioning 

of any legislative officer and that, for this reason, the assertion 

of legislative immunity is no bar to their claims. But, even if 

we were to assume that the plaintiffs accurately predict how the 

litigation would unfold, that prediction does not suffice to permit 

the plaintiffs to show that the District Court erred in denying 

their request for injunctive relief based on legislative immunity, 

given that the immunity protects the one who enjoys it from the 

suit itself. See Romero-Barcelo v. Hernandez-Agosto, 75 F.3d 23,

28 (1st Cir. 1996). 
- 53 -

B.

The plaintiffs separately contend that, because comity 

is the basis for legislative immunity, the Speaker may assert that

immunity here only to the extent that New Hampshire law would 

permit him to do so. The plaintiffs then point us to decisions of 

the New Hampshire Supreme Court that they contend show that the 

immunity enjoyed by the Speaker is qualified and applies only if 

the legislative acts in question "do not infringe upon the 

fundamental rights of the people." See, e.g., Burt v. Speaker of 

the House of Representatives, 243 A.3d 609, 610 (N.H. 2020).

But, the scope of the legislative immunity that we must 

recognize in construing federal statutes is not dependent on the 

immunity that a state itself recognizes under its own law. See

Lake Country Ests., 440 U.S. at 404 ("[T]he absolute immunity for 

state legislators recognized in Tenney reflected the Court's 

interpretation of federal law; the decision did not depend on the 

presence of a speech or debate clause in the constitution of any 

State, or on any particular set of state rules or procedures 

available to discipline erring legislators."). For this reason, 

it is of no relevance here that the Speaker might not be able to 

assert such a defense against claims brought under New Hampshire

law.
- 54 -

C.

There remains to address the plaintiffs' final argument

for rejecting the District Court's legislative-immunity-based 

denial of their motion for a preliminary injunction, though it is 

one that they barely developed in the District Court or before the 

panel. This argument rests on the potential limit on the immunity

discussed in Kilbourn v. Thompson, 103 U.S. 168 (1880). 

In that case, the Court explained that "there 

may . . . be things done, in the one House or of the other, of an 

extraordinary character, for which the members who take part in 

the act may be held legally responsible." Id. at 204. In line 

with Kilbourn, we have recognized that that "there may be some 

conduct, even within the legislative sphere, that is so flagrantly 

violative of fundamental constitutional protections that 

traditional notions of legislative immunity would not deter 

judicial intervention." Nat'l Ass'n of Soc. Workers v. Harwood, 

69 F.3d 622, 634 (1st Cir. 1995). 

Kilbourn made quite clear that standard for an "act" to 

be deemed of "extraordinary character" is a most demanding one. 

In fact, in sketching out the high bar a legislative act would 

need to clear before being deemed an act of "extraordinary 

character," such that a legislator could be sued for it, the Court 

in Kilbourn considered, as a possibility, that "members of 
- 55 -

[Congress could go] so far to forget their high functions and the 

noble instrument under which they act as to imitate the Long 

Parliament in the execution of the Chief Magistrate of the nation, 

or to follow the example of the French Assembly in assuming the 

function of a court for capital punishment." 103 U.S. at 204-05. 

In the event legislators engaged in conduct so clearly exceeding 

the powers delegated to them, the Court -- quite understandably -

- was "not prepared to say that such an utter perversion of their 

powers to a criminal purpose would be screened from punishment by 

the constitutional provision for freedom of debate." Id.

The fact that the Speaker's conduct implicates as 

important a statutory right as the ones protected by Title II of 

the ADA and § 504 of the RHA thus does not, in and of itself, 

provide us with a sufficient basis under the Kilbourn standard for 

concluding that the District Court erred in determining that the 

plaintiffs were not entitled to their requested emergency relief. 

Indeed, the fact that some of their claims assert a violation of 

the Fourteenth Amendment does not in and of itself suffice to do 

so. Cf. Bogan, 523 U.S. at 46-47, 55 (finding that legislative 

immunity barred a First Amendment retaliation claim, where the 

plaintiff alleged that she had been fired as a result of her filing 

a complaint against an employee working under her supervision); 

Tenney, 341 U.S. at 370-71, 376-79 (determining that legislative 
- 56 -

immunity barred the plaintiffs' First Amendment claim, premised on 

the state legislature's request that state officials prosecute him 

for his failure to testify at a committee hearing). See generally

Eastland v. U.S. Servicemen's Fund, 421 U.S. 491, 509-12 (1975) 

(holding that the Speech or Debate Clause barred the plaintiffs' 

claims, premised on the plaintiffs' allegations that a Senate 

subcommittee subpoena, if complied with, would constitute an 

invasion of the plaintiffs' privacy and violate their First 

Amendment rights). 

Moreover, the plaintiffs take aim at conduct by the 

Speaker that involves a decision to follow -- rather than depart 

from -- existing House rules that were overwhelmingly passed and

that were predicated on a general handbook for setting such rules

for all legislatures generally. The challenged conduct by the 

Speaker also does not, on its face, target any class of legislators

either expressly or through clever artifice, in part because it 

involves adhering to existing rules rather than making new ones. 

Cf. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 

U.S. 520 (1993). The remedy sought for that decision to stick to 

those existing rules, we also note, is an injunction that would 

run directly against a legislator and not merely a legislative 

employee.
- 57 -

We note as well that this case is distinct from Powell v. 

McCormack, 395 U.S. 486 (1969). There, the Court confronted the 

refusal of the United States House of Representatives to permit 

the plaintiff "to take his seat," see id. at 489, 506-08, despite 

his having been duly elected as a member, and the Court permitted 

relief that would run against an employee of the House and not a 

legislator. See id. at 504-06.20

That said, we recognize, as the Court has recognized in 

its decisions preserving legislative immunity, that immunities are

susceptible to abuse. It takes no great imagination to conjure 

hypotheticals that might warrant the "extraordinary character" 

descriptor if carried out. For that reason, the assessment of 

when a given act that, though seemingly legislative in nature, is 

nonetheless "of an extraordinary character," Kilbourn, 103 U.S. at 

204, that makes it unworthy of the immunity's protection must be 

sensitive to context. 

20 We note that Bond v. Floyd, 385 U.S. 116 (1966) similarly 

involved a challenge to actions of the Georgia House of 

Representatives to "exclude" a "duly elected representative" from 

"membership" in that legislative body, see id. at 120, and that it 

did not address legislative immunity. See also Rash-Aldridge v. 

Ramirez, 96 F.3d 117, 119 (5th Cir. 1996) (finding legislative 

immunity applicable, despite the holding in Bond, because the 

relevant legislature "did not try to remove [the plaintiff] from 

her seat . . . nor [did it] take away any privileges of that office 

because of what she said or did").
- 58 -

Here, the challenge concerns a denial of a request for 

extraordinary relief against a legislator that was made below with 

no development of how the Speaker's actions are comparable to any 

of the hypotheticals concerning never-undertaken legislative acts

that the dissent describes. That only reinforces the reason to 

ensure that our focus is on the character of the legislative act 

being challenged and not those that have never been made based on 

records that do not exist. We do not decide, therefore, more than 

that, given the facts and circumstances of this case, there is no 

basis for concluding that the District Court erred in making the 

only ruling that is before us in this appeal: denying the request 

for emergency relief against the Speaker due to the Speaker's 

decision not to make the kind of accommodation with respect to 

House Rule 65 that the plaintiffs seek.

We do emphasize, though, one final point that takes us 

back to the reasons that the Court gave in Tenney for concluding 

that legislative immunity had been incorporated into American law 

and that federal statutes are appropriately construed with that 

understanding in place. The immunity serves an important

democratic end notwithstanding that it insulates elected 

representatives from legal challenges for certain of their 

official actions. For that reason, we must be cognizant -- as the 

Court has instructed us to be -- of the risks associated with 
- 59 -

failing to respect the traditional scope of legislative immunity, 

bounded though it is, out of respect for legislative freedom and 

thus democratic self-government. See Eastland, 421 U.S. at 501-

03.

Too narrow a construction of that immunity -- and one 

not sufficiently respectful of the high bar that Kilbourn plainly 

intended to set for stripping seemingly protected acts from the 

cover the immunity confers -- invites abuses of its own. Those 

abuses may involve not only federal judges improperly intruding 

into internal state legislative affairs but also warring sides in 

partisan state legislators' battles improperly enlisting federal 

judges to participate in them. See E.E.O.C. v. Wash. Suburban 

Sanitary Comm'n, 631 F.3d 174, 181 (4th Cir. 2011) ("As members of 

the most representative branch, legislators bear significant 

responsibility for many of our toughest decisions . . . .

[Legislative immunity] shields them from political wars of 

attrition in which their opponents try to defeat them through 

litigation rather than at the ballot box.").

We do not suggest that any such effort by the plaintiffs 

is at play here, and we appreciate the seriousness of the health 

threat that this virus poses. We do emphasize, though, that the 

immunity exists not merely to protect against the fact of such 

enlistment in a given case but also to protect against the 
- 60 -

possibility of that enlistment in a future case.21 That Congress 

would be better attuned than the judiciary to the possibility that 

such abuses might occur in the absence of the immunity seems clear 

enough. That recognition provides yet another reason -- and one 

that Tenney itself may be understood to have recognized in adopting 

the clear statement rule that it deployed -- for us to be wary of 

construing Kilbourn in a manner that would deem even such a 

"quintessentially legislative act," see Pelosi, 5 F.4th at 39, as 

the decision by the Speaker of the House to follow these rules for 

the manner of members' participation in floor proceedings 

(including with respect to the casting of votes) to be beyond the 

protection of the immunity that has been historically afforded to 

such an act. 

VII.

For the reasons given, the District Court's denial of 

the plaintiffs' motion for a preliminary injunction is affirmed. 

-DISSENTING OPINION FOLLOWS21 In that regard, one can also imagine hypothetical suits 

challenging internal legislative rules regarding core legislative 

acts brought solely to advantage one side in a partisan battle 

over a high-stakes legislative procedure (such as one that seeks 

to augment the requirements that must be met to carry out a 

filibuster) by, if nothing else, adding costs to the legislative 

body's adoption of that rule. 
- 61 -

THOMPSON, Circuit Judge, with whom KAYATTA, Circuit 

Judge, joins, dissenting. As the COVID-19 pandemic raged to new 

heights in the winter of 2021, the New Hampshire House of 

Representatives conducted its sessions in person. Some members of 

the House have significant personal health issues, which put them 

at an increased risk of serious illness -- or even death -- if 

they were to contract COVID-19. Facing the unenviable choice 

between public duty and death, they sued the Speaker of the House, 

in his official capacity, for disability discrimination. But the 

Speaker told the court it would need to bounce the suit altogether 

without further ado: He says he is entitled to absolute 

legislative immunity, which shields judicial review of a House 

rule effectively ousting disabled members from that august 

assembly and (here's the kicker) leaving their constituents 

unrepresented.

My colleagues agree with the Speaker's sweeping claim of 

absolute legislative immunity. I cannot abide by the Court's 

decision to turn a blind eye to the effective disenfranchisement 

of thousands of New Hampshire residents simply because their 

representatives are disabled. But it's not just that. My 

colleagues also today lay the foundation to immunize any 

legislative rule that "does not, on its face, target any class of 

legislators" -- a standard so broad as to immunize race- and 
- 62 -

religion-based discrimination, too (examples to follow shortly).

The Court's rule opens the floodgates to potential abuse and spells 

a recipe for disaster in the future.

I respectfully dissent.

I.

A.

In broad strokes, the common-law doctrine of legislative 

immunity shields state legislators from liability for their 

legislative acts. See Supreme Court of Va. v. Consumers Union of 

the U.S., Inc., 446 U.S. 719, 732 (1980). As we've said before, 

the aim of legislative immunity is "to shelter individual 

legislators from the distractions and hindrance of civil 

litigation and [to] 'immunize[] [them] from suits for either 

prospective relief or damages.'" Nat'l Ass'n of Social Workers v. 

Harwood, 69 F.3d 622, 630 (1st Cir. 1995) (quoting Consumers Union, 

446 U.S. at 731). The immunity is "essentially coterminous" with 

the Speech or Debate Clause protecting federal legislators. Id.

at 629; see Consumers Union, 446 U.S. at 732 (noting state 

legislators' immunity "is similar in origin and rationale to that 

accorded Congressmen under the Speech or Debate Clause").

1.

Legislative immunity as well as its federal counterpart 

in the Speech or Debate Clause finds its roots in pre-colonial 
- 63 -

common-law principles. See Tenney v. Brandhove, 341 U.S. 367, 372 

(1951). The privilege of parliament "was principally established, 

in order to protect [its] members not only from being molested by 

their fellow-subjects, but also more especially from being 

oppressed by the power of the crown." 1 William Blackstone, 

Commentaries 159 (1765). It arose in Sixteenth and Seventeenth 

Century England out of a power struggle between the House of 

Commons (the lower house of English Parliament) and the King. Id.; 

see Robert J. Reinstein & Harvey A. Silverglate, Legislative 

Privilege and the Separation of Powers, 86 Harv. L. Rev. 1113, 

1123–35 (1973). During that time, the House of Commons sought an 

increasingly significant role in legislation. Reinstein & 

Silverglate, supra, at 1124, 1126–27; J.E. Neale, The Commons' 

Privilege of Free Speech in Parliament, in Tudor Studies 257, 276 

(R. Seton-Watson ed. 1924). Yet Parliamentarians were concerned 

with receiving the wrath of the crown for opposing the crown's 

measures, see Neale, supra, at 273–74 -- which, to that point, was 

not necessarily an unfounded fear, see Reinstein & Silverglate, 

supra, at 1126–28. Thus, with the English Bill of Rights of 1689, 

it was codified: "That the freedom of speech, and debates or 

proceedings in parliament, ought not to be impeached or questioned 

in any court or place out of parliament." 1 W. & M., 2d sess., c. 

2 (1689).
- 64 -

When our Founders made a pre-computer-age copy and paste 

from the English Bill of Rights to our Constitution in 1789, they 

had little to say about the Speech or Debate Clause. See Reinstein 

& Silverglate, supra, at 1136 & nn. 121–24. As some scholars 

suggest, that's probably so because many Founders took it as a 

necessary condition of a representative government. Id. For 

example, Madison saw "the right of self-protection in the discharge 

of the necessary duties as inherent in legislative bodies." Letter 

from James Madison to Philip Doddridge (June 6, 1832), in 4 Letters 

and Other Writings of James Madison 221 (1865). So too did Justice 

Story. See 2 Joseph Story, Commentaries on the Constitution § 856 

(1833) ("It seems absolutely indispensable for the just exercise 

of the legislative power in every nation, purporting to possess a 

free constitution of government; and it cannot be surrendered 

without endangering the public liberties, as well as the private 

independence of the members.").

From the limited intellections from the founding era, we 

learn that the Speech or Debate Clause was intended to be for the 

benefit of the people -- not the representatives. As the 

Massachusetts Constitution of 1780 noted,22 legislators' privilege 

22 None other than Samuel and John Adams took the lead in 

drafting the Commonwealth's constitution. See Nikolas Bowie, The 

Constitutional Right of Self-Government, 130 Yale L.J. 1652, 1706–

07 (2021).
- 65 -

of speech or debate was "so essential to the rights of the people." 

Mass. Const., pt. 1, art. XXI. According to another founder:

In order to enable and encourage a 

representative of the publick to discharge his 

publick trust with firmness and success, it is 

indispensably necessary, that he should enjoy 

the fullest liberty of speech, and that he 

should be protected from the resentment of 

every one, however powerful, to whom the 

exercise of that liberty may occasion offence.

James Wilson, Legislative Department, Lectures on Law (1791), 

reprinted in 2 The Founders' Constitution 331 (Philip B. Kurland 

& Ralph Lerner eds. 2000).

In discussing the related privilege from arrest,23 one 

of our earliest Supreme Court justices explained it necessary 

because a legislator "has superiour duties to perform in another 

place. When a representative is withdrawn from his seat by a 

summons, the people, whom he represents, lose their voice in debate 

and vote, as they do in his voluntary absence." 2 Story, 

Commentaries § 857. As Justice Story put it, "[t]he enormous 

disparity of th[at] evil admits of no comparison." Id.

Legislative privilege was also seen as necessary to the 

balance of the separation of powers. According to Jefferson and 

23 Article I, section 6 also provides that Representatives and 

Senators "shall in all Cases, except Treason, Felony and Breach of 

the Peace, be privileged from Arrest during their Attendance at 

the Session of their respective Houses, and in going to and 

returning from the same." U.S. Const. art. I, § 6.
- 66 -

Madison, should the privilege of legislators be too weak, the 

result would be to "give to the Judiciary, and through them to the 

Executive, a complete preponderance over the legislature rendering 

ineffectual that wise and cautious distribution of powers made by 

the constitution between the three branches." Thomas Jefferson & 

James Madison, Protest to the Virginia House of Delegates (1797), 

reprinted in 2 The Founders' Constitution 336. But, even insofar 

as it was necessary for the separation of powers, the true driving 

goal was the representation of the public: Too much power of the 

coordinate branches over legislators could allow the branches "to 

interpose in the legislative department between the constituent 

and his representative, to control them in the exercise of their 

functions or duties towards each other," thus "tak[ing] away the 

substance of representation." Id.

Early American judicial interpretations took a similar 

tack. The courts thought that legislators "legally and inherently 

possessed of all such privileges, as are necessary to enable them, 

with freedom and safety, to execute the great trust reposed in 

them by the body of the people who elected them." Bolton v. 

Martin, 1 U.S. (1 Dall.) 296, 303 (C.P. Phila. 1788). The 

Massachusetts Supreme Judicial Court similarly thought the 

legislative privileges were "secured, not with the intention of 

protecting the members against prosecutions for their own benefit, 
- 67 -

but to support the rights of the people, by enabling their 

representatives to execute the functions of their office without 

fear of prosecutions, civil or criminal." Coffin v. Coffin, 4 

Mass. 1, 27 (1808). Thus, the courts thought, legislators "ought 

not to be diverted from the public business by law suits . . . . 

on account of [their] public business." Bolton, 1 U.S. (1 Dall.) 

at 305.

All the same, the Founders were well aware that the 

privilege was subject to abuse. Letter from Madison to Doddridge, 

supra, at 221. The Founders "well knew how oppressively the power 

of undefined privileges had been exercised in Great Britain, and 

were determined no such authority should ever be exercised here." 

Charles Pinckney, Breach of Privilege, Senate (Mar. 5, 1800), 

reprinted in 2 The Founders' Constitution 337. Thus, one Founder 

suggested that the Constitution "never was intended to give 

Congress, or either branch, any but specified, and those very 

limited, privileges indeed." Id. Indeed, early courts 

acknowledged that the people were "careful . . . in providing that 

the privileges, which they, for their own benefit, had secured to 

their representatives, should not unreasonably prejudice the 

rights of private citizens." Coffin, 4 Mass. at 29.
- 68 -

2.

Modern courts have placed their own gloss on these 

historical interpretations, though they echo the same sentiments. 

The Supreme Court has noted that the immunity's "fundamental 

purpose [is] freeing the legislator from executive and judicial 

oversight that realistically threatens to control his conduct as 

a legislator." Gravel v. United States, 408 U.S. 606, 618 (1972). 

It "is one manifestation of the 'practical security' for ensuring 

the independence of the legislature." United States v. Johnson, 

383 U.S. 169, 179 (1965). So, legislative immunity "insures that 

legislators are free to represent the interests of their 

constituents without fear that they will later be called to task 

in the courts for that representation." Powell v. McCormack, 395 

U.S. 486, 503 (1969).

Modern courts have also recognized that legislative 

immunity is not a personal privilege. That is, it isn't directed 

to the benefit of the legislators themselves. See Gravel, 408 

U.S. at 617 ("[T]he 'privilege is not a badge or emolument of 

exalted office, but an expression of a policy designed to aid in 

the effective functioning of government.'"). Rather, it is 

understood "to support the rights of the people, by enabling their 

representatives to execute the functions of their office without 

fear of prosecutions, civil or criminal." Kilbourn v. Thompson, 
- 69 -

103 U.S. 168, 203 (1880) (quoting Coffin, 4 Mass. at 27). Thus, 

"[t]he purpose of the protection . . . is not to forestall judicial 

review of legislative action but to insure that legislators are 

not distracted from or hindered in the performance of their 

legislative tasks by being called into court to defend their 

actions." Powell, 395 U.S. at 505.

3.

Importantly, though, these general principles aren't 

without exception. The Supreme Court has repeatedly footnoted the 

possibility that "there may . . . be things done, in the one House 

or the other, of an extraordinary character, for which the members 

who take part in the act may be held legally responsible." 

Kilbourn, 103 U.S. at 204; see Gravel, 408 U.S. at 619; Tenney, 

341 U.S. at 378–79. Although the Court has never addressed a case 

in which it has held the extraordinary-character exception to 

apply, it has clarified that its case law reflects "a decidedly 

jaundiced view towards extending the Clause so as to privilege 

illegal or unconstitutional conduct beyond that essential to 

foreclose executive control of legislative speech or debate and 

associated matters such as voting and committee reports and 

proceedings." Gravel, 408 U.S. at 620. That is, the court reads 

legislative immunity (and the "essentially coterminous" privilege 

of the Speech or Debate Clause applicable to Congress) "broadly to 
- 70 -

effectuate its purposes," Johnson, 383 U.S. at 180, but "not [to] 

extend beyond what is necessary to preserve the integrity of the 

legislative process," United States v. Brewster, 408 U.S. 501, 517 

(1972).

As examples of potentially extraordinary legislative 

acts, the Supreme Court has hypothesized a legislature that 

"execut[es] . . . the Chief Magistrate of the nation, or . . . 

assum[es] the function of a court for capital punishment." 

Kilbourn, 103 U.S. at 204–05. We have similarly pondered a 

legislature that "votes to allow access to its chambers to members 

of only one race or to adherents of only one religion," suggesting 

these might veer into the orbit of the extraordinary-character 

exception. Harwood, 69 F.3d at 634. These circumstances, we and 

the Court have said, could be so far afield from the purpose of 

legislative immunity that the otherwise legislative acts might not 

engender absolute immunity.

B.

When we think about this case against the backdrop of 

the historic origins of legislative immunity, it becomes clear 

that applying legislative immunity here fits neatly into that 

category of legislative actions of an extraordinary character.
- 71 -

1.

Foreclosing judicial review based on the facts of this 

case conflicts directly with the purpose of legislative immunity. 

If legislative immunity is meant to "enable and encourage a 

representative of the publick to discharge his publick trust with 

firmness and success," Wilson, supra, at 331, then it seems 

contradictory that the immunity would protect some legislators' 

decision to effectively preclude other legislators from 

discharging their duties. Indeed, one of our earliest Supreme 

Court justices recognized that the related immunity of legislators

from arrest was undergirded by the worry that "[w]hen a 

representative is withdrawn from his seat by a summons, the people, 

whom he represents, lose their voice in debate and vote, as they 

do in his voluntary absence." 2 Story, Commentaries § 857. Yet 

the challenged action here, too, leaves some people without their 

voice in the representative government.

If legislative immunity is truly a protection offered by 

the people for their own benefit, see Mass. Const., pt. 1, art. 

XXI (noting the privilege was "so essential to the rights of the 

people"); Coffin, 4 Mass. at 27 (noting the privileges were 

"secured, not with the intention of protecting the members against 

prosecutions for their own benefit, but to support the rights of 

the people"); Jefferson & Madison, supra, at 336 (reasoning that 
- 72 -

the purpose of the privileges is to protect the relationship 

"between the constituent and his representative"), then what 

benefit would the people gain in immunizing their own 

disenfranchisement? Indeed, the Founding generation recognized 

that the people were "careful . . . in providing that the 

privileges, which they, for their own benefit, had secured to their 

representatives, should not unreasonably prejudice the rights of 

private citizens." Coffin, 4 Mass. at 29. I cannot imagine why 

the effective ouster and disenfranchisement of some should be 

immunized in favor of the representative interests of others. 

Indeed, as Justice Story long ago recognized, the removal of a 

representative from her official duties in the face of an arrest, 

process, or subpoena, and the resulting loss of a voice for those 

she represents, is an "evil [that] admits of no comparison." 2 

Story, Commentaries § 857.

2.

Nor has the Supreme Court suggested that legislative 

immunity would attach in circumstances like those in this case. 

Indeed, the Court has never addressed any case in which a 

legislature has sought to exclude legislators based on federal 

statutorily protected characteristics.

The closest the Court has come to the circumstances we 

face here is Powell, where the Court faced a challenge to a U.S.
- 73 -

House of Representatives resolution excluding a duly elected 

member from being seated. 395 U.S. at 492–93. The resolution --

which excluded, not expelled the Congressman, see U.S. Const., 

art. I, § 5; Powell, 395 U.S. at 506–07 -- punished the Congressman 

for his actions in a civil suit, his wrongful use of House funds 

for personal gain, and lies on House expenditure reports, Powell, 

395 U.S. at 493.24 It was enacted by a more than two-thirds

majority of the House. Id. at 500. And it was enforced by the 

House Clerk, the Sergeant at Arms, and the Doorkeeper, who

respectively refused to perform service for the Congressman, pay 

him his salary, and threatened to deny him admission to the House 

chamber. Id. at 500–01.

The Court concluded that the Speech or Debate Clause 

barred the suit against the legislative defendants, but it did not 

bar suit against the Clerk, Sergeant at Arms, or the Doorkeeper. 

Id. at 506. The Court reasoned that, by allowing the suit to 

proceed against the House employees, it left the House members 

"fully protected" by the Speech or Debate Clause, since they were 

"relieved of the burden of defending themselves." Id. at 505. 

24 I also note that Powell involved a resolution that excluded 

a member, in essence, for cause. See id. at 492. Here, though, 

the legislative act effectively ousting the representatives has 

only one cause: their statutorily protected disabilities. Which 

is a far cry from exclusion of a member for nefarious activities 

that scathed the public trust in the office. 
- 74 -

Yet the Court made clear what it did not decide: "whether under 

the Speech or Debate Clause petitioners would be entitled to 

maintain this action solely against members of Congress where no 

agents participated in the challenged action and no other remedy 

was available." Id. at 506 n.26.

That reservation is again revealing of the disconnect 

between the application of legislative immunity here and its

purpose. The Powell Court did not explain why absolute legislative 

immunity might bend to a suit against legislators where no 

employees were involved, see id., but I think the reasoning seems 

quite clear. The Court must have identified something truly 

peculiar about the facts in Powell. And indeed the allegations 

were peculiar. They were not of a private party or the executive 

trying to distract legislators from their duties or punish them 

for their votes. Rather, it was a suit by a legislator against 

his legislative peers who had excluded him from carrying out his 

own legislative responsibilities towards his constituents -- just 

as it is here.

My colleagues also note that Bond v. Floyd, 385 U.S. 116 

(1966), addressed a similar challenge to a state legislature's 

exclusion of a member, yet the Court (for some unknown reason, my 

colleagues suggest) did not address legislative immunity. But the 

Court didn't reach any immunity because the State conceded "that 
- 75 -

it should [not] be completely free of judicial review whenever it 

disqualifies an elected Representative." Id. at 130. Rather, the 

State "admit[ted] that, if a State Legislature excluded a 

legislator on racial or other clearly unconstitutional grounds, 

the federal (or state) judiciary would be justified in testing the 

exclusion by federal constitutional standards." Id. And 

rightfully so -- the consequences of not conceding at least some 

level of judicial review to the exclusion of a duly elected 

representative are staggering, as the Powell Court implicitly 

recognized. See 395 U.S. at 506 n.26. It would permit legislative 

immunity, designed to safeguard representative democracy, to be 

weaponized against the representation it is meant to support.25

3.

Even though the grant of legislative immunity here

hardly squares up with the immunity's purpose, the majority still 

25 My colleagues cite to Rash-Aldridge v. Ramirez, 96 F.3d 

117, 119 (5th Cir. 1996), to argue that legislative immunity can 

apply to an ouster of an elected official notwithstanding Bond. 

Yet Rash-Aldridge involved the removal of an elected official from 

a seat on a separate planning board to which she was appointed by 

the elected city council (of which she was also a member). Id. at 

118-19. It did not involve -- as in Bond and here -- an attempt 

to oust the official from her elected position. Id. at 119 ("Her 

capacity as an elected official was not compromised because the 

council did not try to remove her from her seat on the council nor 

take away any privileges of that office because of what she said 

or did."). The court instead likened it to the choice to fire a 

public employee. Id. at 119-20.
- 76 -

thinks this is not a sufficiently "extraordinary" circumstance for 

the immunity to reach its limit. According to my colleagues, 

discrimination on the basis of a disability -- in contravention of 

a landmark federal statute -- is inconsequential.

Congress, though, would certainly disagree. Congress 

enacted the ADA to "provide a clear and comprehensive national 

mandate for the elimination of discrimination against individuals 

with disabilities." 42 U.S.C. § 12101(b)(1). (Full stop.) It 

comes in response to Congress's finding that "many people with 

physical or mental disabilities have been precluded from 

[participating in all aspects of society] because of 

discrimination," id. § 12101(a)(1), and that those with 

disabilities, "as a group, occupy an inferior status in our 

society," id. § 12101(a)(6). Specifically, Congress found that 

"individuals with disabilities continually encounter various forms 

of discrimination, including . . . the discriminatory effects of 

. . . overprotective rules and policies, failure to make 

modifications to existing facilities and practices, exclusionary 

qualification standards and criteria, segregation, and relegation 

to lesser services, programs, activities, benefits, jobs, or other 

opportunities." Id. § 12101(a)(5). To remedy that wrong, Title 

II of the ADA provides that "no qualified individual with a 

disability shall, by reason of such disability, be excluded from 
- 77 -

participation in or be denied the benefits of the services, 

programs, or activities of a public entity, or be subjected to 

discrimination by any such entity." Id. § 12132.

That still isn't enough for my colleagues, though. They 

say that legislative rules subverting the ADA and discriminating 

against the disabled are somehow not "extraordinary" enough. Even 

though Congress explicitly found that people with disabilities 

were systematically discriminated against and enacted a law meant 

to put those individuals on equal footing. Even though Congress 

thinks that discrimination is a "serious and pervasive social 

problem." Id. § 12101(a)(2). And even though Congress passed the 

ADA with a seeming intent to reject the Supreme Court's refusal to 

consider disabilities a suspect classification akin to race. See

Anita Silvers & Michael Ashley Stein, Disability, Equal 

Protection, and the Supreme Court: Standing at the Crossroads of 

Progressive and Retrogressive Logic in Constitutional 

Classification, 35 U. Mich. J.L. Reform 81, 111–15 (2002); see 

also 42 U.S.C. § 12101(a)(7) (2007) (describing the disabled as a 

"discrete and insular minority").26

26 Though the 2008 amendments to the ADA removed the "discrete 

and insular" finding, the House Report reflects the amendment was 

not to discount the prior finding, but to correct misimpressions 

that the ADA was meant to have narrow applicability. See H.R. 

Rep. No. 110-730, pt. 2, at 8 (2008) (noting that Congress still 

believes that "individuals with disabilities 'have been faced with 
- 78 -

Moreover, even taking the majority at its conclusion on 

this piece (even though it's flat-out wrong), there's one whopping 

interest the majority entirely ignores here: The interests of 

representative government. And as I've already detailed, we and 

the Supreme Court have repeatedly expressed a skeptical eye toward 

applying legislative immunity to legislative actions that 

effectively remove certain constituents' representative power in 

the government. See Powell, 395 U.S. at 506 n.26; Harwood, 69 

F.3d at 634.

4.

Given those weighty interests at stake, one would expect 

a significant explanation for the extraordinary decision to 

exclude some duly elected representatives from their 

representative duties. Unfortunately, disappointment awaits: The 

Speaker does not submit particularly compelling countervailing 

reasons that representative government is furthered by the rule 

here. Rather, even a bare review of the Speaker's proffered 

reasons only further reveals the extraordinary nature of the rule's 

effect here.

restrictions and limitations, subjected to a history of purposeful 

unequal treatment, and relegated to a position of political 

powerlessness in our society, based on characteristics that are 

beyond the control of such individuals'").
- 79 -

At first, there were concerns in New Hampshire that a 

remotely held session of the legislature could face constitutional 

complications. But, in November 2020, the New Hampshire Supreme 

Court made clear that no such issues existed. Op. of the Justs., 

247 A.3d 831, 840 (N.H. 2020).

So, since then, the House has claimed logistical issues 

in having remote sessions. According to the Clerk of the House, 

he lacks enough staff with the technological savvy or bandwidth to 

manage "monitor[ing] remote technology" to "record votes during 

the session." The Clerk also claims there are "substantial 

concerns that recording the votes remotely would be problematic," 

since the clicker used to record votes cannot be used offsite. He 

speculated about the potential that votes are not appropriately 

counted, or that some technological issue might result in improper 

vote counting. Yet, in the in-person sessions the House held back

in 2020, the House had technical issues with voting, including 

some that resulted in multiple instances of vote-count errors.

As another reason against permitting remote 

participation, the Speaker apparently still claims (nearly 

eighteen months into the pandemic) that he has yet to figure out 

the technical logistics of remote participation. But he has not 

detailed any efforts made toward doing so. And, in February 2021

(nearly three months after constitutional concerns were answered), 
- 80 -

the Clerk of the House testified that he hadn't seen any 

communications detailing attempts to work with a vendor to get 

remote participation up and running. What is clear is that the 

Speaker's IT woes could be cured with an appropriate contract.

The Speaker also claims this rule is integral to ensuring 

that the body conducts its business "in the public view, so 

citizens may observe the proceedings, including debate, amendment, 

and voting, and the environment in which legislators operate." 

Remote participation, the Speaker contends, "diminishes the 

public's ability to observe these individuals to ensure, for 

example, that their votes are not being inappropriately influenced 

by persons off-screen." Yet House committee hearings have included 

remote participation, even though the same concerns would 

seemingly apply there.

These criticisms are not meant to question that there 

may be legitimate reasons not to permit elective remote 

participation. They merely highlight the fact that there is no 

grave legislative concern pushing the opposite scale here for those 

representatives who claim to be forced, due to their disabilities, 

to choose between fulfilling their duties and a significant risk 

of death. And, it goes to show the truly extraordinary character 

of the legislative action here: effective ouster of some duly 

elected representatives based on selective reasoning.
- 81 -

II.

Still, the Court's brush-off of disability-based 

discrimination and resulting disenfranchisement is not the only 

flaw in the analysis. Perhaps even more troubling than my 

colleagues' ultimate conclusion is how they get there. I see at 

least four infirmities, which I'll explain in turn.

A.

The first three fall into a general bucket of ways in 

which the majority tries to discolor the arguments made by the 

plaintiffs.

First, the majority hamstrings the extraordinarycharacter argument by insinuating it is waived, but just without 

saying so. Starting the discussion by noting that this argument 

was supposedly "barely developed in the District Court or before 

the panel," ante at 54, my colleagues lead off an attempt to make 

short shrift of this significant argument. Yet, they avoid saying 

that the plaintiffs in fact waived the argument. And rightfully 

so given that the plaintiffs took up three pages of their opening 

brief to the panel on this issue, and because we've entertained in 

the past arguments less developed than the one here.

Second, the majority also tries to bruise the argument 

by emphasizing that this case arises from a request for "emergency 

relief." Yet it points to no authority on why the extraordinary 
- 82 -

relief of a preliminary injunction should be relevant to the purely 

legal question of whether the plaintiffs are likely to succeed (as 

the majority acknowledges, see ante at 17-18). Indeed, the 

equitable-balancing parts of the preliminary-injunction analysis 

are not at issue here. And, in any event, it was the Speaker who 

raised legislative immunity as a full bar not just to the 

preliminary injunction, but, effectively in turn, the action as a 

whole.

And third, in an effort to throw the reader off the trail 

of the extraordinary-character exception, the majority picks and 

chooses the relevant examples of extraordinary-character 

hypotheticals laid out by courts. It focuses in on the most 

egregious examples from Kilbourn: a legislature that "exectu[es] 

. . . the Chief Magistrate of the nation, or . . . assum[es] the 

function of a court for capital punishment." 103 U.S. at 204–05. 

True, those examples of a legislature on a murderous tear pale to 

a certain extent in comparison to the issues here. (Though it is 

important to note that the plaintiffs here alleged they were forced 

to choose between death and fulfilling their duty as an elected 

legislator. So it's not that far afield from Kilbourn's examples.) 

But the majority noticeably neglects to mention that a panel of 

this court suggested that a "legislature that votes to allow access 

to its chambers to members of only one race or to adherents of one 
- 83 -

religion" might veer into the orbit of the extraordinary-character 

exception. Harwood, 69 F.3d at 634. Curiously so given how that 

hypothetical rings awfully close to what the plaintiffs claim here.

B.

The most menacing problem with the analysis is how my 

colleagues shrug off the impact of this ruling on later cases. 

Rest assured, my colleagues claim, we need not concern ourselves 

with the horrifying hypotheticals heralded by the plaintiffs as 

the next discriminatory legislative rules because they are not 

this case. See ante at 57-58. They say we can cross that bridge 

another day because this decision is limited to no more than the 

facts of this case.

Poke at those assurances a little, however, and they 

dissipate into thin air. Rather, when we line up our so-called 

parade of horribles, it becomes clear that the majority's rule --

immunizing conduct that "does not, on its face, target any class 

of legislators," ante at 56 -- will give no room for subsequent 

panels of this Court to address those hypotheticals. The Court 

instead opens the floodgates to a host of rules that are designed 

to oust various subsets of legislators based on a host of protected 

characteristics, just so long as the other legislators are clever 

enough to craft them in an ostensibly neutral way.
- 84 -

1.

Take, for example, the following legislative rules 

governing the voting process:

• A rule that all members must stand to address the 

legislative body, but one of the members is 

wheelchair bound;

• A rule prohibiting the use of any electronic 

devices on the voting floor, but a member needs a 

hearing aid;

• A rule prohibiting service animals from entering 

the floor during a session, but a member requires 

one;

• A rule prohibiting a sign-language interpreter from 

entering the floor during a session of the body, 

but a member requires an interpreter.

All are facially neutral but would effectively bar select 

representatives from fulfilling their representative duties. So, 

my colleagues say, absolute legislative immunity would apply. 

Tough luck for any representative (or her constituent) who thought, 

like Congress, that a wheelchair shouldn't limit the right to serve 

as an elected representative.

And those are just some of the hypotheticals related to 

disabilities. Take a few more for-examples:
- 85 -

• A rule prohibiting a representative from wearing 

any headwear,27 but certain members adhere to a 

religion that requires doing so28;

• A rule prohibiting facial hair, but certain 

members' religions prohibit them from shaving29;

27 Rules of legislative procedure requiring particular 

clothing are not all that uncommon, even though my colleagues claim 

I have lined up a string of "hypotheticals concerning neverundertaken legislative acts." Ante at 58. Starting in 1837, the 

U.S. House of Representatives had a blanket rule banning members 

from wearing headwear in the chamber. Cong. Globe, 25th Cong., 

1st Sess. 31 (1837); see Rules of the House of Representatives, 

115th Cong., Rule XVII, cl. 5 (2017). It wasn't until 2019 that 

an exception was made for religious headwear. H.R. Res. 6, 116th 

Cong., § 102(x) (2019).

 The New Zealand Parliament also faced controversy when it 

booted a member who hailed from one of New Zealand's Indigenous 

cultures for failing to wear a European-style necktie and instead 

donning a traditional pendant. See Natasha Frost, He Calls the 

Tie a 'Colonial Noose.' Now Parliament Says It's No Longer 

Mandatory, N.Y. Times (Feb. 10, 2021), https://www.nytimes.com/

2021/02/10/world/asia/new-zealand-rawiri-waititi-tie.html. 

28 Again, not an uncommon practice. For example, many 

observant Jewish men wear a yarmulke or kippah. See The Pluralism 

Project at Harvard University, Kippah (2022), https://

pluralism.org/kippah. As a matter of religious practice, Sikh men 

wear turbans, and Sikh women wear long head scarfs called a chunni. 

See The Pluralism Project at Harvard University, The Five K's at 

1 (2020), https://pluralism.org/files/pluralism/files/the_five_

ks.pdf. Many Muslim women wear a hijab, another type of religious 

head covering. See The Pluralism Project at Harvard University,

Women in Islam at 1, 3 (2020), https://pluralism.org/files/

pluralism/files/women_in_islam.pdf.

29 These would include, for example, adherents of UltraOrthodox or Hasidic Judaism, certain denominations of Islam, 

Sikhism, or Rastafarianism. See Dawinder S. Sidhu, Religious 

Freedom and Inmate Grooming Standards, 66 U. Miami L. Rev. 923, 

939 (2012) (collecting sources).
- 86 -

• A rule requiring that all sessions be held on 

Saturday mornings, but some members are Jewish and 

observe Shabbat.30 

According to the majority, since all of these rules "on [their]

face[] do[] not take aim at any class of legislators," then 

absolute legislative immunity would apply. Another bad break for 

those who thought that there was no religious litmus test for 

serving as a representative. Especially tough considering that, 

in Harwood, we specifically noted (and forgive me for repeating 

this but it's important) that "a hypothetical legislature that 

votes to allow access to its chambers to members of only one race 

or to adherents of only one religion" might just rise to the level 

of the extraordinary-character exception. 69 F.3d at 634. My 

colleagues, of course, provide no explanation of how we square 

that up.

Instead, my colleagues caveat that this is a case 

addressing "a decision to follow -- rather than depart from --

existing House rules . . . ." Ante at 56. There's no 

discrimination to worry about here, they assure us, because this 

case "involves adhering to existing rules rather than making new 

30 In case the reader is unfamiliar, some followers of Judaism 

"keep Shabbat" and must refrain from any labor from sunset Friday 

to sunset Saturday. See The Pluralism Project at Harvard 

University, Keeping Shabbat at 1 (2020), https://pluralism.org/

files/pluralism/files/keeping_shabbat.pdf.
- 87 -

ones." Id. As with their other consolations, this one, too, rings 

hollow. My colleagues fail to explain why we should turn a blind 

eye to discrimination simply because it is based on an established 

practice within a legislative chamber. They also offer no 

principled reason why the House's choice to continue to adhere to 

a pre-existing rule -- in the face of claims that this rule 

discriminates against the disabled -- somehow lessens the 

potential for nefarious intent compared to a choice to enact a new 

rule.

Nor does their distinction alleviate the harm identified 

by many of these hypotheticals. For one example, as I noted, the 

U.S. House of Representatives banned headwear in the chamber from 

1837 to 2019. And it didn't lift that rule until the first two 

Muslim-American women were elected to that chamber, and one of 

them wears a religious headscarf.31 Had a majority of the U.S. 

House members in January 2019 chosen to simply adopt the old rules

without change, then, according to the majority, that 

representative and her thousands of constituents would be out of 

luck and barred from the federal courts. The same goes for any 

31 Michelle Boorstein, Rep. Ilhan Omar Prompts New Rule That 

Allows, for the First Time in 181 Years, Head Coverings on House 

Floor, Wash. Post. (Jan. 4, 2019), https://www.washingtonpost.com/

religion/2019/01/04/rep-ilhan-omar-prompts-new-rule-that-allowsfirst-time-years-head-coverings-house-floor/.
- 88 -

newly elected wheelchair-bound representative to the House in New 

Hampshire and her constituents: The current House Rules require 

that a member must "rise from his or her seat" to "speak in debate, 

make a motion, or deliver any matter to the House." 2021-2022 

Rules of N.H. House of Representatives, R. 11. As I've detailed, 

immunizing these effective ousters flies in the face of the purpose 

of legislative immunity.

Tellingly, the Speaker has no response to these

hypotheticals that are not so far afield. Indeed, at oral 

argument, the Speaker clarified that challenges to the hearingaid and service-animal hypotheticals would be barred by absolute 

legislative immunity. And the majority apparently agrees, as its 

telling offers no wiggle room for facially neutral rules governing 

legislative procedure that are mere backhanded efforts at 

discriminatory ousters.

Recognizing the shocking impact of his rule but of course 

trying to deflect, the Speaker contends that these hypothetical

rules may not be integral to the legislative process in that they 

affect the way that legislators speak, debate, and vote, and thus 

do not gain absolute immunity. Yet it takes no Walt Disney-level 

imagination to conjure up random reasons a legislature might 

provide that would attach the hypothetical rules to the so-called 

integral aspects of the legislative process. A legislature could 
- 89 -

ban all electronic devices for security purposes, or because they 

tend to interfere with the vote-counting system. It could ban 

service animals because they supposedly distract from the 

legislative process. It could ban all non-legislators including 

sign-language interpreters from the floor for the same reasons 

offered in Harwood. It could ban headwear or facial hair out of 

some belief that it is necessary for decorum or security (e.g., 

hidden weapons).32 And, following on from the Speaker's 

contentions about public access here, it could hold legislative 

sessions only on Saturday mornings because it has concluded that 

is the time most accessible to the public.

Again, the majority tell us to fear not. For in its 

telling, when these cases come along, we can be "sensitive to 

context." Ante at 57. Yet that consolation, too, falls apart 

when meshed with other Supreme Court precedent on legislative 

immunity. As the Court has said, "[t]he claim of an unworthy 

purpose does not destroy the [legislative] privilege." Tenney, 

367 U.S. at 377; see also Bogan v. Scott-Harris, 523 U.S. 44, 54–

55 (1998). According to the Supremes "it [is] not consonant with 

our scheme of government for a court to inquire into the motives 

32 See 10 Reg. Deb. 2163 (1833) (statement of Rep. Patton) 

(calling the practice of wearing hats in the House chamber 

"indecorous").
- 90 -

of legislators." Tenney, 367 U.S. at 377; see also Johnson, 383 

U.S. at 184–85 (holding a criminal prosecution for bribery could 

not inquire into a legislator's motive for legislative action under 

the Speech or Debate Clause). So, again, the majority's rule may 

appear a simple solution to this case. But it may well doom the 

next case where there is some suspicion of a facially neutral rule 

driven by "abuse." See ante at 57. When we turn to that case, lo 

and behold, we might be forbidden to inquire into the motives of 

the particular legislative action. See Bogan, 523 U.S. at 54–55; 

Tenney, 367 U.S. at 377. So in practice, the majority's rule here 

likely means that legislative immunity is sacrosanct and will bar 

any suit based on any facially neutral legislative rule, regardless 

of its impact on our representative democracy.

2.

Attempting still to distance this case from its clear 

implications, the majority casts blame on the plaintiffs for suing 

a legislator directly as opposed to a non-legislator employee

within the House, such as a doorkeeper.33 See ante at 56. My 

33 My colleagues' suggestion that the extraordinary-character 

exception should not apply here because this is a suit against a 

legislator (and not an employee) is more smoke and mirrors. 

Indeed, the Supreme Court's hypotheticals in Kilbourn, as well as 

our hypotheticals in Harwood, would also probably leave someone 

else to sue. But the point is that a legislator does not enjoy 

legislative immunity when the action at issue is of an 

extraordinary character. See Kilbourn, 103 U.S. at 204 (noting 
- 91 -

colleagues suggest that the plaintiffs' suit could have proceeded 

against a doorkeeper without facing the bar of legislative 

immunity. See id. (citing Powell, 395 U.S. at 504–06). But the 

Powell Court, as I've already noted, explicitly carved out the 

possibility of whether the plaintiffs there "would be entitled to 

maintain this action solely against members of Congress where no 

agents participated in the challenged action and no other remedy 

was available." Id. at 506 n.26. And in Powell, the plaintiff 

could sue the Clerk, Sergeant at Arms, and Doorkeeper because they 

each took action to enforce the rule directly against the 

Congressman. See id. at 504. Here, though, who should the 

plaintiffs have sued instead? When asked at oral argument, the

Speaker said there is no one else to sue -- this is "a selfexecuting rule." And my colleagues, similarly, have no answer. 

Instead, they take Powell for its support but toss away its 

limitation.

My colleagues also fail to recognize the bind their rule 

puts would-be plaintiffs in when combined with our prior precedent. 

Suggesting that the plaintiffs should have sued a House employee 

that there may be actions "of an extraordinary character, for which 

the members who take part in the act may be held legally 

responsible" (emphasis added)). The extraordinary-character 

exception applies (as its name suggests) as an exception to the 

typical rule that legislative immunity would bar suit.
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instead, they nonetheless ignore the fact that we held in Harwood

that the doorkeeper sued there could also claim legislative 

immunity since he "did nothing more or less than to interpret and 

enforce" the legislative rule at issue. 69 F.3d at 631; see id.

at 635 (holding that all defendants could assert the immunity); 

id. at 641–43 (Lynch, J., dissenting) (critiquing the majority's 

conclusion that the doorkeeper could assert legislative immunity). 

So, under this Court's precedent, plaintiffs can sue neither the 

legislator nor the non-legislator enforcer of a rule.34 Which

further underscores the immense scope of the immunity the 

majority's rule sets up here.

* * *

The problem with the majority's telling here is that it 

has no limiting principle at all. Instead, it gives carte blanche

to legislatures to strategically silence legislative opponents --

and effectively disenfranchise their constituents -- so long as 

they can conjure up some facially neutral rationale for the rule. 

I cannot concur in giving such wide latitude at the expense not 

only of other legislators (and solely on the basis of their 

34 That is so notwithstanding pre-Harwood Supreme Court 

precedent seemingly to the contrary. See, e.g., Markham Concepts, 

Inc. v. Hasbro, Inc., 1 F.4th 74, 83 (1st Cir. 2021) (noting that 

arguments that a panel "misconstrued then-existing Supreme Court 

precedent" generally won't fly as an exception to the law-of-thecircuit rule). 
- 93 -

federally protected disabilities), but also at the expense of their 

constituents' voices in the legislative process. I agree with 

Justice Story that "[t]he enormous disparity of th[at] evil" -- of 

forcing the absence of duly elected representatives from their 

solemn duties -- "admits of no comparison." 2 Story, Commentaries

§ 857. But forcing out duly elected New Hampshire representatives 

with disabilities is exactly the evil that has befallen here. I 

therefore respectfully dissent.