In a pre-Westfall case (which might as well have motivated the 1988 law that increased Congresspersons' immunity against civil lawsuits), NYT reports (1987)

A Federal appeals court panel has ruled that a member of Congress may be sued for defamatory statements made in a letter to the executive branch even if considers the comments part of his official duties.

The 2-to-1 ruling Friday, written by Judge James L. Buckley of the United States Court of Appeals for the District of Columbia, ordered the lower court to reconsider a case it had dismissed against Representative Don Sundquist, a Tennessee Republican.

The appeals court ruled that Mr. Sundquist's comments about a Tennessee lawyer in a 1985 letter to William French Smith, then the Attorney General, were not covered by the ''speech or debate'' clause in the Constitution. The clause protects members of Congress from legal action against remarks made in Congressional debate, committee work or in performing other legislative duties.

Judge Buckley, a former Republican Senator from New York, rejected what he said was an effort to extend the reach of official immunity to members of Congress. He wrote: ''We hold that members of Congress are not entitled to immunity for common law torts committed while acting within the scope of their official duties but outside the sphere protected by the speech or debate clause.''

What ultimately happened to this case against Don Sundquist in the aftermath? And if it is known, was this case relevant for the adoption of the 1988 Westfall Act? (The answer to the latter questions seems "no" because of Wesfall v. Erwin.)

1 Answer 1


Still not sure what the ultimate fate of this case was, but very interestingly, the case did take a wider political angle:

Following the court of appeals' denial of Representative Sundquist's petition for rehearing, the House of Representatives unanimously passed a privileged resolution requesting the Supreme Court to grant certiorari. The resolution stated that the divided panel's decision "will have an adverse effect on the performance of important official duties by Members of the House and will deprive citizens of an irreplaceable source of information about the functioning of their government ...." Six weeks after the House expressed its desire to obtain review of the court of appeals decision, the Supreme Court denied Representative Sundquist's petition for a writ of certiorari.

Also this was a somewhat divided Supreme Court decision as well:

Justices White, Blackmun, and O'Connor voted to grant certiorari. [108 S. Ct. 2914 (1988).]

And yes, the Sundquist case was brought up in the April 1988 hearings to amend the Federal Tort Claims Act, in particular in the deposition of Deputy Asst. Attorney General Robert L. Willmore, who argued that the courts went too far in allowing the lawsuit against a Congressman to proceed. (Although he mentioned the Sundquist case a couple of pages after the "star" Wesfall v. Erwin case.) Willmore wrote right after mentioning Sundquist that:

In short, we are now faced with an immediate crisis of personal liability exposure for the entire federal workforce.

And some 3rd party commentary confirming that obvious connection:

In 1985, Representative Don Sundquist of Tennessee wrote to Attorney General William French Smith, alleging that an attorney was harassing three judicial officers of a Memphis juvenile court and obstructing the administration of federal child-support laws. The attorney then sued Sundquist for libel. Although the district court held that the act was protected by the Speech or Debate Clause, the D.C. Circuit applied Proxmire and reversed. The House of Representatives subsequently adopted (413-0) an unusual resolution introduced by the Speaker, which stated that the House viewed the decision of the Court of Appeals in Sundquist "with deep concern" and urged the Supreme Court to grant review in the case "and reach a just result."

When Representative Barney Frank introduced the Westfall Act around the same time, he incorporated a provision extending the Tort Claims Act's protection to the judicial and legislative branches. The Deputy Assistant Attorney General who testified at the House hearing on the bill observed that all Members were familiar with the Sundquist case and explained: "You do not want all these lawsuits against Members of Congress being tried under the Federal Tort Claims Act, and the Government in a position where it cannot use the Speech or Debate Clause." The Washington Post noted that the proposed legislation responded to both Westfall and Sundquist. [footone:] See Daniel B. Moskowitz, Congress May Undo Civil Servants' Vulnerability to Suits, WASH. POST, May 30, 1988, at BF11.

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