Free Notice of Appeal - 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-CV-799-CAB-OES RITA BASTIEN, Plaintiff, v. THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant.

DEFENDANT'S NOTICE OF APPEAL

Pursuant to Federal Rule of Appellate Procedure 3 and 28 U.S.C. § 1291, notice is hereby given that the Office of Senator Ben Nighthorse Campbell ("Campbell Office"), Defendant in the above-named case, appeals to the United States Court of Appeals for the Tenth Circuit from the Order entered in this action on December 8, 2005 ("December Order"), which denied Defendant's Motion to Dismiss the Amended Complaint. No docketing fee is required because this appeal is pursued on behalf of a former entity of the legislative branch of the United States government. The underlying action involves a claim filed under the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 (2000) ("CAA") against the Campbell Office. Sovereign immunity bars suits against the government except to the extent the government expressly waives

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its immunity. United States v. King, 395 U.S. 1, 4 (1969) (A court's "jurisdiction to grant relief depends wholly upon the extent to which the United States has waived its sovereign immunity to suit and . . . such a waiver cannot be implied but must be unequivocally expressed."). In addition, waivers of immunity must be narrowly construed, and courts must strictly adhere to any conditions of the waiver. Lehman v. Nakshian, 453 U.S. 156, 161 (1981) ("[L]imitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied."); see also United States v. Williams, 514 U.S. 527, 531 (1995) ("[W]e may not enlarge the waiver beyond the purview of the statutory language. Our task is to discern the `unequivocally expressed' intent of Congress, construing ambiguities in favor of immunity." (citation omitted)). The CAA subjects congressional offices to selected provisions of eleven different employment laws, see 2 U.S.C. § 1302(a), and provides the exclusive remedy for employment discrimination lawsuits brought against congressional offices, see 2 U.S.C. §§ 1361(d) and (e). In the CAA, Congress has waived immunity only for suits against an "employing office" of the legislative branch, see 2 U.S.C. § 1408(b), as that term is defined in the CAA, see 2 U.S.C. § 1301(9). The Campbell Office ceased to exist at noon on January 3, 2005, when Senator Campbell's term of office as a U.S. Senator expired. See U.S. CONST . amend. XX, § 1. The CAA does not provide for a successor defendant when an employing office ceases to exist. This action cannot proceed against a defendant that no longer exists. Furthermore, because waivers of sovereign immunity must be narrowly construed and any conditions on such waivers must be

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strictly adhered to, continuation of this case against any defendant other than the Campbell Office would exceed the CAA's limited waiver of sovereign immunity. This appeal raises two issues: whether this civil action has abated and whether it is moot in light of the dissolution of the Campbell Office and the limited waiver of sovereign immunity contained in the CAA. These issues are immediately appealable under the collateral order doctrine.1 See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47 (1949). In Cohen, the Supreme Court recognized a small class of interlocutory orders that are immediately appealable to the courts of appeals pursuant to 28 U.S.C. § 1291. Id. Such orders must (1) "conclusively determine the disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (footnote omitted). In addition, collateral appeal of an interlocutory order must present "a serious and unsettled question." Cohen, 337 U.S. at 547. The December Order satisfies all of the conditions of the collateral order doctrine. First, the December Order constitutes a complete and conclusive determination, rather than a tentative order, by this Court because no revision of the December Order is reasonably expected. Cf. State of Utah v. Kennecott Corp., 14 F.3d 1489, 1493 (10th Cir. 1994) ("Inherently tentative orders are those `to which some revision might reasonably be expected in the ordinary

Although Defendant strongly believes that a direct appeal is appropriate under the collateral order doctrine, out of an abundance of caution, Defendant has filed a petition for permission to appeal pursuant to 28 U.S.C. § 1292(b) with the United States Court of Appeals for the Tenth Circuit. 3

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course of litigation.'") (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12-13 n.14 (1983)). Second, the issues decided in the December Order are entirely independent of the plaintiff's allegations of discrimination and retaliation in her amended complaint. Thus, the matters embraced in the December Order are truly collateral to the claims in this litigation because those matters will not "affect, or... be affected by, decision of the merits of this case." Cohen, 337 U.S. at 546. Third, the December Order is "effectively unreviewable on appeal from a final judgment," Coopers & Lybrand, 437 U.S. at 468, because it implicates an immunity from suit and not merely an immunity from liability. Cf. Mitchell v. Forsyth, 472 U.S. 511, 526-27 (1985) (holding order denying a claim of qualified immunity is directly appealable under collateral order doctrine because claim of immunity in that case was an immunity from litigation and not just from liability). "Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994); see also Dept. of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (stating that suits against the U.S. government are barred absent a specific waiver). The Supreme Court has held in various other contexts that the denial of a claim of immunity is immediately appealable under the collateral order doctrine. See, e.g., Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993) (Eleventh Amendment immunity); Mitchell v. Forsyth, 472 U.S. at 530 (qualified immunity); Nixon v.

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Fitzgerald, 457 U.S. 731, 743 (1982) (absolute Presidential immunity); Helstoski v. Meanor, 442 U.S. 500, 508 (1979) (Speech or Debate Clause immunity). Finally, as this Court recognized in its Order filed January 18, 2006, the issues addressed by the December Order are "exceptional" issues that have never been ruled on by this Circuit or any other federal court. Thus, this collateral appeal of the December Order presents "a serious and unsettled question" appropriate for immediate review. Cohen, 337 U.S. at 547. Accordingly, the December Order is currently appealable pursuant to 28 U.S.C. § 1291. Dated: February 2, 2006 Respectfully submitted,

/s/ Claudia A. Kostel Jean M. Manning Senate Chief Counsel for Employment [email protected] Claudia A. Kostel Senate Senior Counsel for Employment [email protected] Office of Senate Chief Counsel for Employment P.O. Box 77053 Washington, D.C. 20013 (service address) Senate Hart Building, Room 103 Washington, D.C. 20510-7130 (street address) Telephone: (202) 224-5424 Facsimile: (202) 228-2557 Attorneys for Defendant, The Office of Senator Ben Nighthorse Campbell

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CERTIFICATE OF SERVICE I hereby certify that on this 2nd day of February, 2006, I sent a true and accurate copy of Defendant's Notice of Appeal 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