Free Motion for Reconsideration - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

1:01-cv-00799-CAB-OES RITA BASTIEN, Plaintiff, v. THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant.

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)

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

December 16, 2005

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Pursuant to Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure, Defendant, the Office of Senator Ben Nighthorse Campbell, ("Defendant" or the "Campbell Office"), respectfully moves this Court for reconsideration of its Order entered December 8, 2005, ("Order") denying Defendant's Motion to Dismiss the Amended Complaint on Grounds of Abatement and Mootness ("Motion to Dismiss").1 The basis for the motion for reconsideration is clear error. In the alternative, Defendant respectfully moves the Court for certification of the Order for immediate appeal pursuant to 28 U.S.C. § 1292(b). INTRODUCTION The Court has denied Defendant's Motion to Dismiss holding that Congress is the intended defendant in this litigation, notwithstanding that the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 (2000) ("CAA" or the "Act") states that the defendant in CAA actions shall be one of the employing offices delineated in section 101(9) of the Act, 2 U.S.C. § 1301(9). The question of whether Congress is the true defendant in this litigation was not

A party may file a motion for reconsideration under Rules 59(e) and Rule 60(b) for relief from a final judgment. See Price v. Philpot, 420 F.3d 1158, 1167 n.9 (10th Cir. 2005). Under Rule 54(a), a "[j]udgment . . . includes a decree and any order from which an appeal lies." This Court's Order is directly appealable because it constitutes a denial of a claim of sovereign immunity. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see also Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). In addition, "`every order short of a final decree is subject to reopening at the discretion of the district judge.'" Price, 420 F.3d at 1167 n.9 (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983)). 1

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raised by Plaintiff in her opposition to Defendant's Motion to Dismiss,2 was not briefed for the Court by either party, and was not argued at the hearing on Defendant's Motion to Dismiss. By concluding that Congress is the intended defendant in this litigation, notwithstanding express statutory language to the contrary, the Court has ignored fundamental canons of statutory construction and substituted its policy judgment for Congress's legislative action. The Court has written into the CAA terms Congress considered and rejected, and the Court has ignored or rendered meaningless other provisions of the CAA. In so doing, the Court also has expanded the scope of the CAA's waiver of sovereign immunity. Accordingly, the Court's Order constitutes clear error. Courts have sometimes exercised a high degree of ingenuity in the effort to find justification for wrenching from the words of a statute a meaning which literally they did not bear in order to escape consequences thought to be absurd or to entail great hardship. But an application of the principle so nearly approaches the boundary between the exercise of the judicial power and that of the legislative power as to call rather for great caution and circumspection in order to avoid usurpation of the latter. It is not enough merely that hard and objectionable or absurd consequences, which probably were not within the contemplation of the framers, are produced by an act of legislation. Laws enacted with good intentions, when put to the test, frequently, and to the surprise of the lawmaker himself, turn out to be mischievous, absurd or otherwise objectionable. But in such a case the remedy lies with the lawmaking authority, and not with the courts. Crooks v. Harrelson, 282 U.S. 55, 60 (1930) (citations omitted).

Plaintiff argued that the Senate was the actual defendant in this litigation. (See Pl.'s Response to Def.'s Mot. To Dismiss at 4.) 2

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STANDARD GOVERNING THE MOTION Reconsideration may be granted upon "`the need to correct clear error or prevent manifest injustice.'" Grimaldo v. Reno, 189 F.R.D. 617, 618 (D. Colo. 1999) (quoting Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 948 (10th Cir. 1995)). ARGUMENT This Court has held that "Congress is the party which must answer to [CAA] claims" and that "the term `employing office' actually refers to Congress." Order at 7, 8. The Court's holding is clearly erroneous for several reasons. I. THE COURT COMMITTED CLEAR ERROR BY IGNORING THE PLAIN MEANING OF THE CAA AND ASSIGNING TO IT A MEANING THAT IS UNSUPPORTED BY THE STATUTORY TEXT The clear and unambiguous text of the CAA provides absolutely no basis for the Court's conclusion that "the term `employing office' actually refers to Congress." Order at 8. Indeed, Congress expressly defined the term "employing office": EMPLOYING OFFICE . - The term "employing office" means ­ (A) the personal office of a Member of the House of Representatives or of a Senator; (B) a committee of the House of Representatives or the Senate or a joint committee; (C) any other office headed by a person with the final authority to appoint, hire, discharge, and set the terms, conditions, or privileges of the employment of an employee of the House of Representatives or the Senate; or (D) the Capitol Guide Board, the Capitol Police Board, the Congressional Budget Office, the Office of the Architect of the Capitol, the Office of the Attending Physician, the Office of Compliance, and the Office of Technology Assessment.

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2 U.S.C. § 1301(9). This definition is specific, its terms are not ambiguous, and its meaning is plain on its face. The Court, however, has ignored the definition's plain meaning and has assigned a meaning to the term "employing office" that is completely unsupported by and contrary to the definition. In re Geneva Steel Co., 281 F.3d 1173, 1178 (10th Cir. 2002) ("A statute clear and unambiguous on its face must be interpreted according to its plain meaning."); see also Colautti v. Franklin, 439 U.S. 379, 392 n.10 (1979) ("As a rule, `[a] definition which declares what a term "means" . . . excludes any meaning that is not stated.'" (quoting 2A C. Sands, Statutes and Statutory Construction § 47.07 (4th ed. Supp. 1978))). The Court has concluded that its substituted definition of "employing office" is more in line with what Congress intended the CAA to state than what Congress expressly stated. As argued below, the Court's rewriting of the CAA violates well-established canons of statutory construction, expands the scope of the CAA's waiver of sovereign immunity by removing a condition Congress placed on this Court's jurisdiction over CAA matters, and renders several provisions of the CAA superfluous or meaningless. A. Neither an Incongruous Result Nor an Absurd Result Justifies this Court's Rewriting of Unambiguous Statutory Language

This Court has determined that faithful adherence to the text of the CAA would produce certain incongruous or absurd results, e.g., allowing an employee who brought a CAA suit at the beginning of a Congressman's term to obtain a remedy but not allowing an employee who brought a CAA suit at the end of a Congressman's term to obtain a remedy. See Order at 10 (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982)). The possibility or even the probability of incongruous results, however, does not provide the Court with a legitimate 4

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basis for straying from the plain meaning of the statutory text. See Potomac Elec. Power Co. v. Dep't of Labor, 449 U.S. 268, 283-84 (1980) ("[I]f `compelling language' produces incongruities, the federal courts may not avoid them by rewriting or ignoring that language. . . . The fact that it leads to seemingly unjust results in particular cases does not give judges a license to disregard it.").3 Moreover, the Supreme Court has held that courts may not consider whether a statute will produce absurd results unless that statute is ambiguous. "Judicial perception that a particular result would be unreasonable may enter into the construction of ambiguous provisions, but cannot justify disregard of what Congress has plainly and intentionally provided." Comm'r of Internal Revenue v. Asphalt Prods. Co., Inc., 482 U.S. 117, 121 (1987). "We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of the statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete." Barnhart v. Sigmon Coal Co., 534 U.S. 438,

In Potomac Elec. Power, 449 U.S. 268 (1980), the Longshoreman's and Harbor Workers' Compensation Act ("LHWCA") provided two means for calculating compensation for an on-the-job injury. Id. at 270. If an injury was set forth in the LHWCA schedule, an individual was entitled to receive two-thirds of his average weekly wages for a set period of weeks, regardless of whether his earning capacity was actually impaired. Id. In all other cases, an employee was entitled to two-thirds of the difference between his pre-injury average weekly wages and his post-injury wage-earning capacity for the period of his disability. Id. The plaintiff argued that he should be allowed to select the method of calculation that would provide him with the larger recovery, even though the LHWCA expressly provided that the second method should be used only if the first method was inapplicable. Id. The Supreme Court acknowledged that the application of the plain meaning of the LHWCA might produce an unfair result. Id. at 282. For example, an individual with a temporary, unscheduled disability who had the same wage-earning impairment as an individual with a permanent, scheduled disability might actually receive a larger recovery. Id. at 283. The Court held, however, that an incongruous result did not give the courts license to rewrite the statute. Id. at 283-84. 5

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461-62 (2002) (rejecting the application of the absurd results doctrine where the statute was clear on its face) (internal quotations and citations omitted). The CAA provides that the "defendant shall be the employing office." 2 U.S.C. § 1408(b). As the Court acknowledged in its Order, "The term `employing office,' as it pertains to this case, means `the personal office of a Member of the House of Representatives or of a Senator.'" Order at 5 (quoting 2 U.S.C. § 1301(9)(A)). Therefore, the defendant in this case "shall be" the Campbell Office. B. Section 413 of the CAA Requires this Court to Adhere Strictly to the Express Conditions Congress Placed on the CAA's Waiver of Sovereign Immunity

This Court has concluded "that Congress is the party which must answer to claims filed []under [the CAA.]" Order at 7. The Court has reasoned that "Congress created the fictional entity of the `employing office' to serve as the defendant in any CAA case" and that this fictional entity "represents Congress as a whole" for the purpose of making Congress "as an institution, [] responsible for the acts of its members, at least in the financial sense of the term." Order at 8. Congress, however, did not consent to be a party in CAA litigation. Neither the text nor the history of the CAA refers to the employing offices subject to suit under the CAA as "fictional entit[ies]." Rather, sections 101(9) and 408(b) of the CAA, 2 U.S.C. §§ 1301(9) and 1408(b), make clear that Congress waived sovereign immunity for suits only against individual employing offices that allegedly committed CAA violations or in which CAA violations allegedly occurred. Id. Congress was so adamant that courts adhere to the conditions placed on the CAA's waiver of sovereign immunity, that it codified that requirement. See 2 U.S.C. § 1413 ("The authorization to bring judicial proceedings under sections 1405(f)(3), 6

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1407, and 1408 of this title shall not constitute a waiver of sovereign immunity for any other purpose."); see also 2 U.S.C. § 1410 ("Except as expressly authorized by sections 1407, 1408, and 1409 of this title, the compliance or noncompliance with the provisions of this chapter and any action taken pursuant to this chapter shall not be subject to judicial review."). It is axiomatic that "the United States as a sovereign is immune from suit save as it consents to be sued." United States v. Mitchell, 445 U.S. 535, 538 (1980); see also Dep't of the Army v. Fed. Labor Relations Auth., 56 F.3d 273 (D.C. Cir. 1995). "A necessary corollary of th[e] rule [that the United States cannot be sued without the consent of Congress] is that when Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied." Block v. North Dakota, 461 U.S. 273, 287 (1983). Any waiver of sovereign immunity must be unequivocal and must "appear on the face of the statute; it cannot be discerned in (lest it be concocted out of) legislative history." Dep't of the Army, 56 F.3d at 277. As this Court observed in its Order, the term "employing office" as applied to this case means "the personal office . . . of a Senator." 2 U.S.C. § 1301(9)(A). Congress did not define "employing office" to mean "the Congress." Only an employing office can be a defendant in a CAA action. See Moore v. Capitol Guide Bd., 982 F. Supp. 35, 39-40 (D.D.C. 1997). Furthermore, this Court's conclusion that Congress intended itself to be the defendant in CAA actions is belied by legislative history. The bill that ultimately became the CAA during the 104th Congress emerged from multiple, unsuccessful versions of similar legislation in the 103rd and 104th Congresses. In several of those rejected legislative precursors, Congress would have

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been the defendant in 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, 103rd Cong. § 2(c)(1) (Jan. 4, 1995) (permits employment suits "against the Congress" in federal court).4 Thus, this Court clearly erred by concluding that Congress intended itself to be the defendant in CAA actions; Congress, in fact, rejected such legislative language. Rather than "prefer[ring] the plain meaning [of the CAA's terms]," an "approach [that] respects the words of Congress," Lamie v. United States Trustee, 540 U.S. 526, 536 (2004), this Court has chosen to insert words in the CAA, thereby impermissibly broadening the waiver of sovereign immunity contained in the CAA. This statutory redrafting is particularly egregious because it affects a condition Congress placed on the jurisdiction of this Court. See Neiberger v. Hawkins, 150 F. Supp. 2d 1118, 1120 (D. Colo. 2001) (because federal courts are courts of limited jurisdiction, they may exercise jurisdiction only with specific authorization to do so). Accordingly, the Court's conclusion that this litigation may proceed because Congress is the actual defendant, constitutes clear error.

Similarly, Congress rejected bills that would have made the House or the Senate the defendant in employment lawsuits. See H.R. 4822, 103rd Cong. § 306(b)(1) (as reported in the Senate October 3, 1994); S. 29, 103rd Cong. § 2(a)(3)(A) (Jan. 21, 1993). 8

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C.

This Court's Order Renders Several Provisions of the CAA Meaningless or Superfluous

The Court's conclusion that an "employing office" is a fictional entity renders many CAA provisions nonsensical or meaningless, a violation of a fundamental canon of statutory construction. See Colautti v. Franklin, 439 U.S. 379, 392 n.10 (1979) (stating that an interpretation of a statute that would render one portion of the statute redundant, superfluous or meaningless is a violation of an elementary canon of construction). For example, the Court rests its "fictional entity" conclusion on the assertion that the employing office "does nothing more than indicate where the discrimination occurred." Order at 8. This assertion ignores an entire phrase in 2 U.S.C. § 1408(b): PARTIES.­ The defendant shall be the employing office alleged to have committed the violation, or in which the violation is alleged to have occurred. (Emphasis added.) It strains reason to assert that a fictional entity can "commit" a CAA violation. Id. Moreover, each employing office is individually responsible for correcting its own ADA and OSHA violations, using the individual office's appropriated funds. See 2 U.S.C. § 1415(c). If, as the Court asserts, the Congress is institutionally "responsible for the acts of its members" and the "employing offices" are fictional, then the requirement that each employing office use its own budget to correct its OSHA and ADA violations is meaningless. Similarly, according to 2 U.S.C. § 1432, some employing offices, but not all, can discriminate on the basis of an employee's party affiliation, domicile and "political compatibility

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with the employing office." Id. (emphasis added). If, as the Court has concluded, the term "employing office" means Congress, then § 1432 is meaningless. . Likewise, the Court's construction of the CAA renders 2 U.S.C. § 1408(b) virtually

meaningless and nullifies 2 U.S.C. § 1301(9). If Congress were the actual defendant in CAA actions, then there would be no point in requiring that a particular employing office be the defendant in CAA litigation. As in this lawsuit, the allegations of the aggrieved employee's complaint would identify the location and the alleged perpetrator of the CAA violation. Furthermore, following the Court's reasoning that all "employing offices" described in the CAA are fictional entities, the Office of Compliance, an "employing office" pursuant to 2 U.S.C. § 1301(9)(D), must be a fictional entity. Yet, this Court has stated in its Order that the Office of Compliance is "an independent office within the legislative branch" that promulgates regulations and oversees the "elaborate complaint procedure created by the [CAA]." Order at 4. In accordance with the Court's Order, either the Office of Compliance is not an independent office within the legislative branch, notwithstanding express statutory language to the contrary, or when Congress used the term "employing office" it sometimes meant employing office but at other times meant Congress. Similarly, the various committees of the House and Senate, each an "employing office" pursuant to 2 U.S.C. § 1301(9)(B), must be fictional. Yet, many of those committees issue nonfictitious, enforceable subpoenas and conduct investigations and other proceedings. As the foregoing examples show, the Court's conclusion that an "employing office" is merely a fictional entity intended to mean Congress, does not withstand scrutiny when tested

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against the rest of the provisions of the CAA. The uncontested fact remains, that the Campbell Office - while Senator Campbell served as a United States Senator - was a very real, independent, and animate Senate office. II. THE COURT COMMITTED CLEAR ERROR BY DETERMINING THAT THIS CASE IS NOT MOOT The Court agreed with Defendant that a case is moot when "there are no longer adverse parties with sufficient legal interests to maintain the litigation." Order at 11 (quoting Goldin v. Bartholow, 166 F.3d 710, 717 (5th Cir. 1999)). The Court committed clear error, however, by finding that adverse parties exist because the defendant is Congress. Order at 12. Because the Campbell Office, the intended defendant in this case, ceased to exist on January 3, 2005, there are no longer two adverse parties and, thus, this case is moot. See Martinez v. Winner, 800 F.2d 230, 231 (10th Cir. 1986) ("There can be no live controversy without at least two active combatants."). III. IF THE COURT DOES NOT GRANT DEFENDANT'S MOTION FOR RECONSIDERATION THE COURT SHOULD CERTIFY THE ORDER FOR IMMEDIATE APPEAL If the Court does not grant Defendant's Motion for Reconsideration, Defendant requests that the Court certify the Order for immediate appeal pursuant to 28 U.S.C. § 1292(b).5 This

Defendant believes that the Order is appealable as a matter of right pursuant to 28 U.S.C. § 1291 because the Order constitutes a denial of a claim of sovereign immunity. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949); see also Mitchell v. Forsyth, 472 U.S. 511, 525 (1985). Because the possibility exists that the Tenth Circuit may not agree that appeal pursuant to § 1291 is proper, however, Defendant seeks this Court's certification of the Order for appeal pursuant to 28 U.S.C. § 1292(b). See 19 JAMES WM . MOORE ET AL., MOORE 'S FEDERAL PRACTICE ¶ 203.331 (3d ed. 2005) (recommending that a party request that the district court certify the order under § 1292(b) and file a petition for permission to appeal and 11

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Court possesses the discretion to certify an order for immediate appeal if the following criteria are met: (1) the action must be a "civil action," (2) the court must conclude that the order from which the appeal is to be taken involves a "controlling question of law," (3) upon which there exists "substantial ground for difference of opinion," and (4) the court must believe that "immediate appeal from the order may materially advance the ultimate termination of the litigation." Baldozier v. Am. Family Mut. Ins., No. Civ. A. 04CV02174, 2005 WL 1798613, at *2 (D. Colo. July 27, 2005) (Ex. 1 hereto) (quoting In re Grand Jury Proceedings June 1991, 767 F. Supp. 222, 223 (D. Colo. 1991)); see also Swint v. Chambers County Comm'n, 514 U.S. 35, 47 (1995) ("Congress thus chose to confer on district courts first line discretion to allow interlocutory appeals."). In the instant case all four criteria are met, and, therefore, certification of the Order for immediate appeal is warranted. First, this case is a civil action. See 2 U.S.C. §§ 1404, 1408(a). With regard to the second criterion, "[t]he critical requirement is that the question be one having the potential for substantially accelerating disposition of the litigation. . . . If the correct answer to the question will end the matter pending, the question is controlling." In re Grand Jury Proceedings June 1991, 767 F. Supp. 222, 225 (D. Colo. 1991). In the instant case, the Order presents two questions of controlling law: 1) whether this case abated when the Campbell Office ceased to exist as a result of the expiration of Senator Campbell's term; and 2) whether this case was mooted when the Campbell Office ceased to exist as a result of the expiration of Senator Campbell's term. If a court concludes either that abatement occurred or that this case is moot,

a notice of appeal with the circuit court). 12

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then the case will terminate. Cf. Def. Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631, 634 (1949) (stating that when a corporation dissolves, pending litigation against it abates because of the "`impossibility' of proceeding `without a defendant'"); Goldin v. Bartholow, 166 F.3d 710, 717 (5th Cir. 1999) ("A moot case presents no Article III case or controversy, and a court has no constitutional jurisdiction to resolve the issues it presents."). To satisfy the third criterion, the issues presented "must be difficult, novel, and involve `a question on which there is little precedent or one whose correct resolution is not substantially guided by previous decisions.'" Baldozier, No. Civ. A. 04CV02174, 2005 WL 1798613, at *2 (quoting In re Grand Jury Proceedings, June 1991, 767 F. Supp. at 226). As the Court has noted, the abatement and mootness issues are matters of first impression. See Order at 6 ("[T]he question now pending before the Court, which as far as the Court can tell is a matter of first impression, is whether a suit against a member of Congress under the CAA abates or becomes moot when the member leaves office."). Further, limited case law exists from which a court could analogize to decide these issues. See Transcript, Hearing on Motion to Dismiss, at pp. 8, 11-12, 27; see also Am. Mgmt. Sys. v. United States, 57 Fed. Cl. 275, 277 (2003) (determining that the "substantial ground" criteria was met where a closely analogous body of case law did not exist that could provide the court with guidance). In addition, there exists substantial ground for difference of opinion in deciding these two questions of controlling law, as illustrated by the numerous positions Plaintiff has taken regarding who could be named as a defendant to prevent this case from abating and/or becoming moot. For example, in a filing she submitted to the Tenth Circuit, Plaintiff argued that any one of the following entities could become the defendant:

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the Legislature; Senator Ken Salazar's office; the Office of Compliance; the Office of the Colorado Senator; the Senate Office at 300 Main St., Denver, Colo; and the Senate. (See Appellant's Resp. Br. (Docket Item 1777339, Case No. 02-1343 (10th Cir.)) at 5, 7-8, 11-12.) (Ex. 2 hereto.) Before this Court, Plaintiff asserted only that the Senate could be substituted as the defendant. (See Pl.'s Response to Def.'s Mot. To Dismiss at 4.) Finally, this Court has concluded that Congress is the real defendant in this case, despite the fact that Plaintiff did not raise that argument. Given the substantial ground for difference of opinion in deciding these two questions of controlling law, it is clear that these issues are difficult to decide. Finally, the Order satisfies the forth criterion for certification under 28 U.S.C. § 1292(b). This criterion is met if the immediate appeal of an order could materially advance the ultimate termination of this litigation. See In re Grand Jury Proceedings June 1991, 767 F. Supp. at 223. Here, the case will terminate if the Tenth Circuit concludes on appeal of the Order that abatement occurred or that this case is moot. Because this Order involves two difficult and novel issues, the resolution of which may terminate this civil case if appealed forthwith, the Order meets the standard for immediate appeal pursuant to 28 U.S.C. § 1292(b), and, therefore, if this Court denies Defendant's Motion for Reconsideration, this Court should exercise its discretion and certify the Order for immediate appeal. CONCLUSION For the reasons stated, the Court should reconsider its Order and grant Defendant's Motion to Dismiss.

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STATEMENT PURSUANT TO D.C. COLO. LCivR 7.1(A) I, Claudia Kostel, before filing this motion, contacted John Evangelisti, Esquire, counsel for Plaintiff, to confer to resolve the disputed matters discussed herein. After I informed opposing counsel of the relief Defendant planned to seek from the Court, Mr. Evangelisti informed me that Plaintiff opposes the relief requested by Defendant as not necessary.

Dated: December 16, 2005

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 16th day of December, 2005, I sent a true and accurate copy of 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) 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