Free Motion for Reconsideration - District Court of Colorado - Colorado

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

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UNITED STATES COURT OF APPEALS TENTH CIRCUIT RITA BASTIEN, Plaintiff-Appellant,

THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant-Appellee. APPELLANT'S RESPONSE BRIEF Plaintiff, by and through her attorneys, Karen Hendrick Larson and John S. Evangelisti, hereby submits a Response Brief as follows
BACKGROUND

Plaintiff, an employee of the Senate, brings claims of employment discrimination based on gender, age and retaliation under the Congressional Accountability Act ("CCA"). 2 U.S.C. § 1302(a) and 131 1.
STATUTORY SCHEME. The CAA applies the civil rights laws to the Legislative branch of Government.

The CAA provides that Title VII and the ADEA "shall apply,. ..to the Legislative branch of the Federal Government:" 28 U.S.C. 1 302(a).
The CAA covers employees of the Senate.

The "term 'covered employee' means any employee of- . ..(B) the Senate". 2 U.S.C. 1301(3). The "term 'employee of the Senate' includes any employee whose pay is disbursed by the Secretary of the Senate". 2 U.S.C. 1301(8).

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(Winter, 1999). The enactment of the CAA created federal anti-discrimination laws for the Legislative Branch within the first two weeks of the 104'~ Congress, with Congress no longer above the law. An important component of the CAA is that it shields the members of Congress, themselves, from litigation, while making Congress accountable as an institution. Neither the individual member, nor his staff can be named or sued. Moreover, Congress pays all defense costs, attorney fees and monetary damages awarded as a result of misconduct of the individual members. 2 U.S.C. 4 14 15 (Supp. I1 1996).

THE "OFFICE" OF SENATOR BEN NIGHTHORSE CAMPBELL IS A NOMINAL ENTITY CREATED BY THE CAA TO BE NAMED IN AN ACTION AGAINST THE LEGISLATIVE BRANCH WHICH IS THE REAL PARTY IN INTEREST. 2 U.S.C. 5 1408 (B). The Legislative branch is the real suable entity.
The CAA provides that Title VII and the ADEA "shall apply,. ..,to the Legislative branch of the Federal Government:" 28 U.S.C. 1302(a). The "term 'covered employee' means any employee of-

...(B) the Senate".

2 U.S.C. 1301(3). The "term

'employee of the Senate' includes any employee whose pay is disbursed by the Secretary of the Senate*'. 2 U.S.C. § l3Ol(8). Under the CAA, Plaintiff is permitted to sue one of nine continuing entities; and, the Senate is one of those entities. Moore v. Capitol Guide Bd., 982 F. Supp. 35,39-40 (D.D.C. 1997); 2 U.S.C.

3 1301 (3)(A)-(C).

Defendant ignores the fact that it was the Legislature that waived sovereign immunity. It is the Legislature that is the employing entity, not the individual senator. It is the Legislature that is liable for the conduct of its employees be they Senators or Janitors.

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'LB'~" office and harasses a senate employee; then, the Office of Senator "B" would be named even though the violation was not "committed" by the Office of Senator " B . This is so because the real employerlparty in interest that is liable for damages is the Legislature itself. This shows that the Office is a nominal defendant since it can be named as the defendant for acts that occurred at the Office but which the Office did not commit.

The ofice is the offspring of the Legislature.
Under Fed. R.. Civ. P. 25(d), when an officer of the United States ceases to hold office, an action may be continued against his successor. Even if the remaining entities are not specifically authorized to be sued, such authorization may be implied if there is an agency that is an offspring of the suable entity. Blackmar v. Guere, 342 U.S. 512,5 1415,72 S.Ct.410,411-12,96, L.Ed. 534,539-9. The decision in favor of institutional rather than individual accountability implies collective responsibility for the errors of members under civil rights or workplace labor laws. 2 U.S.C.

5 5 1405(a), 1408(b); James T. O'Reilly, COLLISION IN THE

CONGRESS: CONGRESSIONAL ACCOUNTABILITY. WORKPLACE CONFLICT, AND THE SEPARATION OF POWERS, 5 Geo. Mason L. Rev. 1 (Fall, 1996).

Plaintlffcould have used a dzflerent name for the employing ofice.
Ms. Bastien could have named the defendant as "The Colorado employing office of the Senate" or "The Office of the Colorado Senator" or "Senate Office at 300 Main St., Denver Colo.". We could substitute "Office of Ex-senator Ben Nighthorse Campbell". ABATEMENT INAPPLICABLE WHERE THE ACTION IS NOT FUTILE. Here, there was no dissolution of Plaintiffs employer, the Legislature. Nor was

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there a dissolution of the Office of Colorado Senator. An action abates not because an entity ceases to exist but rather when continuing the action is futile because there is no one to respond to a judgment. This is not the case.
CONTINUING THE SUIT IS NOT FUTILE WHERE THE CCA PROVIDES FOR: THE COST OF CONTINUING THE "OFFICE", COUNSEL FOR THE "OFFICE" AND THE SATISFACTION OF ANY AWARD OR SETTLEMENT.

Defendant claims that the suit must abate because continuing it is impossible and fitile. Yet, nothing could be further fiom the truth. Under the CAA an individual legislator is not required to do anything and is not even named as a discriminating official. Just as in Title VII the employer rather than individual employees are liable under the CAA. Here the employer of Ms. Bastien is the Senate.
Cost of continuing the "Office".

The CAA authorizes "sums as may be necessary for administrative, personnel, and similar expenses of employing offices which are needed to comply with this chapter." 2 U.S.C. 1415(b).
Satisfaction of any award or settlement.

The CAA provides that any settlement or award is to be paid fiom funds "appropriated to an account of the Office in the Treasury of the United States for the payment of awards and settlements under this chapter." 2 U.S.C. 1415(a).
Settlement authority remains.

The CAA requires that any settlement be "approved by the Executive Director" of the OOC. 2 U.S.C. 1414,Z U.S.C. 1382(a).
MANDAMUS PRECEDENTS DISTINGUISHED.

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the substitution of the United States is not technically a matter of making a new party at all. The action here was commenced by Porter under Sec. 205(e) of the act, which provides that 'The Administrator may institute such action on behalf of the United States.' Porter was, therefore, no more than a nominal plaintiff; and Fleming, who should have been substituted as Porter's successor, would have been in no different position. The United States, on behalf of which the action was brought, was the real plaintiff. Bowles v. Goldman, D.C., 7 F.R.D. 12, 17. Whether the action is maintained by an officer authorized to sue on its behalf, or by the United States in its own name, the real plaintiff remains the same.

IN THE ALTERNATIVE, FRCP 25 PROVIDES FOR SUBSTITUTION.
To the extent that defendant is contending that the suit is personal to the office holder then the offices successor is automatically substituted. (d) Public Officers; Death or Separation From Office. (1) When a public officer is a party to an action in an official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and the officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party, but any misnomer not affecting the substantial rights of the parties shall be disregarded. An order of substitution may be entered at any time, but the omission to enter such an order shall not affect the substitution. (2) A public officer who sues or is sued in an official capacity may be described a s a party by the officer's official title rather than by name; but the court may require the officer's name to be added. FRCP 25. (2) Automatic Substitution of Oficeholder. When a public officer who is a party to an appeal or other proceeding in an official capacity dies, resigns, or otherwise ceases to hold office, the action does not abate. The public officer's successor is automatically substituted as a party. Proceedings following the substitution are to be in the name of the substituted party, but any misnomer that does not affect the substantial rights of the parties may be disregarded. An order of substitution may be entered at any time, but failure to enter an order does not affect the substitution. FAP 43.

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The CAA is administeredfor the Legislative branch by the OOC subject to oversight by the Legislature.
"There is established, as an independent office within the legislative branch of the federal government, the Office of Compliance" (emphasis added). 2 U.S.C.

9 1381.

The

OOC is subject to "oversight" by committee's of the Senate and House. 2 U.S.C. 1381(i).

Alabama Power Co. v. ICC, 852 F. 2d 1361, 1366-67 (D.C. Cir. 1988)( substitution is
required only is original party is unable to continue to litigate). JURISDICTION Federal courts continue with jurisdiction of this case because it has not been abated and remains as a live controversy for the reasons stated above. The OOC by the plain language of 2 U.S.C. $ 130 1 et seq. law has the sole and full power and appropriations to complete this case. REMAND Defendant's motion raises issues of law and fact which should be raised in the trial court and may not be raised for the first time on appeal. This court may vacate a case brought before it for review of another court and remand the case for appropriate judgment; however, in this instance Plaintiff would have no meaningful appeal a judgment by this court. 28 U.S.C. CONCLUSION The CAA provides that the employing office be named as a defendant as a part of the process of providing employees of the Legislative branch to seek redress for violations of civil rights. However, the office is defendant in name only. The naming of a nominal defendant created by the CAA is inextricably interrelated with the other provisions of the CAA for the administration and funding of the Act under the oversight

8 2109.

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Defendant's motions are frivolous and justify an award of attorney fees for defending against the motions.

Respectfblly Submitted,

&dm S. Evangelisti

L . d L . , a.'
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f l ~ t t o r n e ~ plaintifffor 1120 ~incoln Ste. 71 1 St., Denver, CO 80203 (303) 83 1-4404

J

Attorney for Plaintiff 1120 Lincoln S t , Ste. 71 1 Denver, CO 80203 (303) 932-8226 CERTIFICATE OF MAILING
I certify that on this 3 1'' day of January, 2005 I placed in the U.S. Mail, postage prepaid, a true and correct copy of this Response to Motion to Dismiss Appeal and Vacate Judgment on Grounds of Abatement correctly addressed to the following:

Jean M. Manning Claudia A. Kostel Senate Senior Counsel for Employment Office of Senate Chief Counsel for Employment 11 11 Arlington Boulevard, #805 Arlington, Virginia 22209