Free Motion to Vacate - 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 RITA BASTIEN, Plaintiff, v. THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant.

DEFENDANT'S MOTION TO VACATE ORDER SCHEDULING STATUS CONFERENCE

Pursuant to Rule 7 of the Federal Rules of Civil Procedure and Local Rule 7.1, the Office of Senator Ben Nighthorse Campbell (the "Campbell Office" or "Defendant"), by its undersigned counsel, respectfully submits this Motion to Vacate Order Scheduling Status Conference. Defendant has 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"). The 1291 Appeal was docketed by the Tenth Circuit on February 6, 2006, as Case No. 06-1047 and is currently pending. On April 4, 2006, this Court set a status conference for April 12, 2006. As explained below, Defendant's 1291 Appeal divests this Court of jurisdiction over the case, and, thus, this Court should vacate the Order scheduling the April 12 status conference.

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

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Pursuant to Local Rule 7.1(A), the undersigned certifies that she attempted to confer by telephone with counsel for Plaintiff on April 6 and 7, 2006, leaving detailed messages regarding this motion during regular business hours in Colorado, but has not heard from Plaintiff's counsel regarding Plaintiff's position. 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. This Court denied the Campbell 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. The 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 7.

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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 in Case No. 06-1047 to brief the question whether the December Order is immediately appealable under 28 U.S.C. § 1291. ARGUMENT DEFENDANT'S 1291 APPEAL DIVESTED THIS COURT OF JURISDICTION PENDING RESOLUTION OF THE APPEAL According to the Supreme Court, "it [is] generally understood that a federal district court and a federal court of appeals should not attempt to assert jurisdiction over a case simultaneously." Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982) (per curiam). Defendant's 1291 Appeal "is an event of jurisdictional significance - it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal." Id.; see also Stewart v. Donges, 915 F.2d 572, 575 (10th Cir. 1990) (stating "unassailable general proposition" that notice of appeal "confers jurisdiction on the court of appeals and divests the district court" of jurisdiction over issues on appeal). Where, as here, a denial of a claim of immunity is the subject of an appeal, the district court lacks jurisdiction to proceed and a motion for stay is unnecessary. Stewart, 915 F.2d at 575; see also Princz v. Federal Republic of Germany, 998 F.2d 1, 1 (D.C. Cir. 1993) (holding that the district court lacks jurisdiction to proceed and a motion for stay is "unnecessary" when a denial of a claim of

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immunity is the subject of an appeal). In Stewart, the district court had proceeded with trial despite the defendant's appeal of the district court's denial of his claim of qualified immunity. Id. at 577, 579. Concluding that the trial was a nullity because the trial court lacked jurisdiction, the Tenth Circuit stated: "Once a notice of appeal on an appealable issue such as qualified immunity is filed, the status quo is that the district court has lost jurisdiction to proceed." Id. at 577. In reaching this conclusion, the Tenth Circuit noted that the divestiture of jurisdiction was "especially significant" given that "the central issue in the appeal [was] the defendant's asserted right not to have to proceed to trial." Id. at 575-76. As in Stewart, the central issue in the Campbell Office's 1291 Appeal is the "asserted right not to have to proceed to trial." Id. Defendant seeks the benefits of immunity from suit that Congress preserved for it in the Congressional Accountability Act of 1995 ("CAA").1 The Court's December Order, which abrogates that statutory immunity from suit, is immediately appealable under the collateral order doctrine. See Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989) (An "explicit statutory or constitutional guarantee that trial will not occur"

"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 a defendant in CAA actions. 4

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is the sort of right that supports immediate appeal); see also Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949). Accordingly, the Court was divested of jurisdiction when Defendant filed the 1291 Appeal, and discovery and trial may not proceed. CONCLUSION For the reasons stated above, the Campbell Office respectfully requests that the Court vacate the Order scheduling the April 12, 2006, status conference. Dated: April 7, 2006 Respectfully submitted,

\s\ Claudia A. Kostel 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 7th day of April, 2006, I sent a true and accurate copy of Defendant's Motion to Vacate Order Scheduling Status Conference 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