Free Motion to Continue - District Court of Colorado - Colorado

Case 1:01-cv-00799-PSF-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-WY-799-CAB-MEH RITA BASTIEN, Plaintiff, v. THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant.

DEFENDANT'S MOTION TO CONTINUE STAY OF PROCEEDINGS

Pursuant to Rule 7 of the Federal Rules of Civil Procedure and Local Rule 7.1, the Office of Senator Ben Nighthorse Campbell (the "Office" or "Defendant"), by its undersigned counsel, respectfully submits this Motion to Continue Stay of Proceedings pending the disposition by the Tenth Circuit Court of Appeals of Defendant's petition for rehearing en banc. Defendant filed a Notice of Appeal pursuant to 28 U.S.C. § 1291 ("1291 Appeal") from the Court's Order dated December 5, 2005 ("December Order"), denying Defendant's Motion to Dismiss on Grounds of Abatement and Mootness ("Motion to Dismiss"). By Order dated June 28, 2006, the Tenth Circuit dismissed the 1291 Appeal on the basis of lack of appellate jurisdiction. (See Exhibit A, hereto.) Defendant intends to seek rehearing en banc of the Tenth Circuit's June 28 Order.1

Pursuant to FED . R. APP . P. 41(d), the timely filing of a petition for rehearing en banc stays the mandate until disposition of the petition, unless the court orders otherwise.

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Defendant's 1291 Appeal divested this Court of its jurisdiction over this case, see Stewart v. Donges, 915 F.2d 572, 574 (10th Cir. 1990), and the case was stayed "pending the resolution of the Defendant's appeal." (See Docket Entry 94.) As explained below, the Court should continue the stay because (1) Defendant has a strong case on the merits of its appeal; (2) Defendant will be irreparably harmed if it is required to proceed to discovery and trial while its claim of absolute immunity is reviewed by the Tenth Circuit; (3) Plaintiff will not be substantially harmed by a stay in light of the possibility that her claims may be dismissed in their entirety on appeal; and (4) there is a strong public interest in preserving the constitutional separation of powers principle that lies at the root of Defendant's assertion of immunity. Pursuant to Local Rule 7.1(A), the undersigned certifies that she conferred with counsel for Plaintiff on July 6, 2006, regarding this Motion and that Plaintiff's counsel did not consent to the motion. BACKGROUND Senator Ben Nighthorse Campbell's term of office expired at noon on January 3, 2005. See U.S. Const. amend. XX, § 1 ("[T]he terms of Senators and Representatives [shall end] at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified."). As a consequence, the Campbell Office also ceased to exist on January 3, 2005, and Defendant moved to dismiss the above-captioned case on grounds of mootness and abatement.

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This Court denied the Office's Motion to Dismiss, finding that the case had not abated and was not moot because "Congress is the party which must answer to claims filed thereunder, not the individual members." December Order at 7. This Court concluded that it was therefore "irrelevant" that Senator Campbell was no longer in office. Id. On December 16, 2005, attorneys for the Campbell Office filed Defendant's Motion for Reconsideration or, in the Alternative, for Certification of the Court's Order for Immediate Appeal Pursuant to 28 U.S.C. § 1292(b). On January 18, 2006, this Court denied the Motion for Reconsideration but amended the December Order to certify it for immediate appeal pursuant to 28 U.S.C. § 1292(b). See Order dated January 18, 2006, Docket Item 81, at 6 ("The Court FINDS this case to be exceptional because the scope of the CAA's partial waiver of sovereign immunity is at stake."). The Campbell Office filed the 1291 Appeal from the December Order as well as a petition for permission to appeal pursuant to 28 U.S.C. § 1292(b), which was separately docketed as Bastien v. The Office of Senator Ben Nighthorse Campbell, Case. No. 06-500 (10th Cir.). On March 3, 2006, the Tenth Circuit denied the petition for permission to appeal in Case No. 06500 and ordered the parties to brief the question whether the December Order is immediately appealable in Case No. 06-1047. On June 28, 2006, the Tenth Circuit issued an Order dismissing the appeal for lack of appellate jurisdiction concluding that Defendant's argument that the CAA is a limited waiver of sovereign immunity, "do[es] not involve either immunity or separation of powers concerns." (See Exhibit A, at 8.)

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ARGUMENT I. Continued Stay of Proceedings is Warranted When considering a motion to stay district court proceedings, the Court examines four factors: (1) the likelihood that the party seeking a stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that opposing parties will be harmed if the court grants the stay; and (4) the risk of harm to the public interest. FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003); see also Wis. Gas Co. v. FERC, 758 F.2d 669, 673-74 (D.C. Cir. 1985). A. Defendant Has a Strong Case on the Merits of its Appeal2

Defendant's argument for a strict construction of the waiver of sovereign immunity contained in the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 (2000) ("CAA") is based on well-established Supreme Court precedent. A waiver of sovereign immunity must "be strictly construed," Lane v. Pena, 518 U.S. 187, 192 (1996), and courts must strictly comply with the conditions Congress places on that waiver, Lehman v. Nakshian,

The Tenth Circuit has heard cases en banc when the preliminary issue is whether jurisdiction over an appeal exists. Indeed, the en banc court has twice reviewed whether the collateral order doctrine under § 1291 had been met. See D&H Marketers, Inc. v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1445 (10th Cir. 1984) (en banc) ("Since the case below has not been finally terminated, the only question before us is whether the imposition of preclusive sanctions in this case falls within the narrow Cohen exception."); see also United States v. Boigegrain, 122 F.3d 1345, 1346 (10th Cir. 1997) (en banc) (deciding whether an appeal of an order committing a defendant to a mental health institution because he or she is not competent to stand for trial fell within the collateral order doctrine and stating "[t]he issue is whether we have jurisdiction over the appeal"). It has also addressed whether it could exercise jurisdiction when a party prematurely filed a notice of appeal. See Lewis v. B.F. Goodrich Co., 850 F.2d 641, 642 (10th Cir. 1988) (en banc). 4

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453 U.S. 156, 161 (1981); United States v. Sherwood, 312 U.S. 584, 586 (1941) ("The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.") (citations omitted). The waiver of sovereign immunity contained in the CAA is conditioned on suit against the appropriate "employing office," see 2 U.S.C. § 1408(b), which, in this litigation, no longer exists. Neither the CAA nor any other statute authorizes the substitution of Congress for a nonexistent employing office in CAA litigation. Relevant legislative history supports Defendant's construction of the CAA. Congress rejected every draft piece of CAA legislation that contained a provision making Congress the defendant in congressional employment lawsuits. See, e.g., S. 579, 103rd Cong. § 2(c)(1) (March 11, 1993) (permits employment suits "against the Congress" in federal court); H.R. 2099, 103rd Cong. § 2(c)(1) (May 12, 1993) (permits a civil action "against the Congress or the congressional employer of such employee" in federal court); H.R. 4850, 103rd Cong. § 2(c)(1) (July 28, 1994) (permits employment suits "against the Congress" in federal court); H.R. 4444, 103rd Cong. § 2(c)(1) (May 18, 1994) (permits employment suits "against the Congress" in federal court); H.R. 309, 104th Cong. § 2(c)(1) (Jan. 4, 1995) (permits employment suits "against the Congress" in federal court). Moreover, the CAA itself provides an express statutory prohibition on judicial review where, as here, such review would exceed the authorization provided in 2 U.S.C. § 1408(b). See 2 U.S.C. § 1410 ("Except as expressly authorized by sections 1407, 1408, and 1409 of

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[2 U.S.C.], the compliance or noncompliance with the provisions of [the CAA] and any action taken pursuant to [the CAA] shall not be subject to judicial review.") (emphasis added). Accordingly, the first factor of the stay analysis weighs in favor of continuing the stay of these proceedings. B. Continuation of the District Court Proceedings Will Cause Defendant Irreparable Harm

If a stay of the district court proceedings is not granted, Defendant will be deprived of the benefits of immunity that Congress expressly preserved in the CAA. "Except as expressly authorized by sections 1407, 1408, and 1409 of [2 U.S.C.], the compliance or noncompliance with the provisions of [the CAA] and any action taken pursuant to [the CAA] shall not be subject to judicial review." 2 U.S.C. § 1410 (emphasis added). According to 2 U.S.C. § 1408(b), "The defendant [in a civil action alleging a CAA violation] shall be the employing office alleged to have committed the violation, or in which the violation is alleged to have occurred." (Emphasis added.) The CAA delineates what an "employing office" is, see 2 U.S.C. § 1301(9); Congress is not an employing office. Moreover, the limited authorization to bring judicial proceedings under 2 U.S.C. § 1408 "shall not constitute a waiver of sovereign immunity for any other purpose." 2 U.S.C. § 1413. Thus, when Congress waived sovereign immunity under the CAA, Congress limited that waiver to CAA actions in which the defendant is an "employing office." Congress did not permit the Congress to be named as a defendant.

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Because Defendant is asserting an immunity from suit, not merely an immunity from liability, a denial of that immunity is "effectively unreviewable on appeal from a final judgment," Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). As the Tenth Circuit has acknowledged, failure to grant a stay in such circumstances "results in a denial or impairment of the appellant's ability to obtain its legal entitlement to avoidance of litigation." McCauley v. Halliburton Energy Servs., Inc., 413 F.3d 1158, 1162 (10th Cir. 2005); cf. Woodruff v. Covington, 389 F.3d 1117, 1125 (10th Cir. 2004) (if the court "wait[s] until final judgment to hear this appeal, the right not to be burdened by trial will have been irreparably lost"). Finally, if these proceedings are not stayed and Defendant's assertion of immunity is ultimately held correct, then the Judicial Branch will have imposed on Congress a litigation burden Congress did not agree to assume. Such an imposition would violate the constitutional doctrine of separation of powers, a harm that cannot be undone by an appeal after trial. See Will v. Hallock, 126 S. Ct. 952, 959 (2006) (observing that "honoring the separation of powers" is a "value of a high order" that supports avoiding trial through immediate appeal). Because Defendant will be irreparably harmed by being forced to engage in discovery and trial prior to resolution of its appeal, the second factor of the stay analysis weighs heavily in favor of granting a stay of these proceedings. C. Plaintiff Will Not Be Substantially Harmed by a Stay

Defendant acknowledges that in the case of any interlocutory appeal by a defendant the plaintiff has an interest in proceeding forward while the defendant's appeal is pending. This

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harm, however, is outweighed by the constitutional issue at stake3 and the possibility that the Tenth Circuit may terminate the litigation in its entirety. Moreover, if the Tenth Circuit rules in Defendant's favor, then Plaintiff will not be able to recover her costs and fees of litigating before the district court. Therefore, the third factor of the stay analysis provides little or no support for denial of a stay. D. It Is in the Public Interest to Preserve the Constitutionally Created Separation of Powers

As stated above, the statutorily-preserved immunity at issue on appeal implicates constitutional separation of powers concerns. See Section II.B, supra. The statute that is applicable in this case, the CAA, explicitly prohibits "judicial review" where, as here, judicial review would exceed the authorization contained in 2 U.S.C. § 1408. See 2 U.S.C. § 1410. A strong public interest exists in having the immunity issue resolved on appeal before the balance of powers between the coordinate branches is irretrievably upset. See Will, 126 S. Ct. at 959.

"[I]t is a Constitution we are expounding . . . . [T]he needs of a system of government sometimes must outweigh the right of individuals to collect damages." Nixon v. Fitzgerald, 457 U.S. 731, 759 (1982) (Burger, C.J., concurring). 8

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CONCLUSION For the reasons stated above, the Office respectfully requests that the Court continue to stay proceedings in the above-captioned matter pending resolution of Defendant's petition for rehearing en banc on the 1291 Appeal. Dated: July 6, 2006 Respectfully submitted,

/s/ Jean M. Manning Jean M. Manning Senate Chief Counsel for Employment Claudia A. Kostel Senate Senior Counsel for Employment Office of Senate Chief Counsel for Employment P.O. Box 77053 Washington, D.C. 20013 Telephone: (202) 224-5424 Facsimile: (202) 228-2557 Attorneys for The Office of Senator Ben Nighthorse Campbell

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CERTIFICATE OF SERVICE I hereby certify that on this 6th day of July, 2006, I sent a true and accurate copy of Defendant's Motion to Continue Stay of Proceedings to the following attorney through the Electronic Case Filing system.

John Evangelisti, Esq. [email protected] 1120 Lincoln Street, Suite 711 Denver, Colorado 80203 Attorney for Plaintiff, Rita Bastien

/s/ Tonya Dixon Tonya Dixon

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