Free Brief in Support of Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 01-WY-799-CAB-OES RITA BASTIEN, Plaintiff, v. THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant.

DEFENDANT'S REPLY IN FURTHER SUPPORT OF ITS MOTION TO DISMISS THE AMENDED COMPLAINT ON GROUNDS OF ABATEMENT AND MOOTNESS This is the response of Defendant, the Office of Senator Ben Nighthorse Campbell ("Defendant" or the "Campbell Office"), to Plaintiff's Response to Defendant's Motion to Dismiss ("Opposition"). According to Plaintiff, the demise of the Campbell Office is irrelevant to this Court's subject matter jurisdiction because the Campbell Office is merely a nominal defendant representing the Senate.1 Plaintiff's argument begs important questions that cannot be answered satisfactorily to avoid abatement. Given that the Campbell Office no longer exists, who could the Court compel to appear before it to answer Plaintiff's claims? Who could the Court compel

Plaintiff previously argued to the Tenth Circuit Court of Appeals that the Campbell Office is the nominal representative of the "Legislature." Plaintiff's equivocation on this point underscores the fallacy of her argument that Congress intended for any entity other than the Campbell Office to defend against this litigation.

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to provide discovery responses for the non-existent Campbell Office? Who is the clientdefendant that would make decisions about trial strategy or settlement? As established in Defendant's Motion to Dismiss, no sound legal basis exists for continuation of this litigation in the absence of a defendant with a live legal interest in this case, and no legal authority permits the substitution of any person or entity for the Campbell Office. Therefore, this case has abated and no longer presents a justiciable case or controversy. Accordingly, the Court no longer possesses jurisdiction of Plaintiff's claims, and must dismiss this case. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998). A. Plaintiff's Assertion that the Campbell Office Did Not Cease to Exist When Senator Campbell Left Office Is Contrary to the Plain Meaning of the Term "Employing Office"

Arguing that the Campbell Office "was created in 2002 when Ms. Bastien commenced this litigation and named the [Campbell] Office as a defendant" (Opp'n at 7), Plaintiff disputes that the Campbell Office came into existence when Senator Campbell took office and ceased to exist when he left office. Even a cursory reading of the Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 (2000) ("CAA" or the "Act"), however, reveals that an "employing office" exists independently from CAA proceedings initiated by an aggrieved legislative employee. Each employing office has obligations under the CAA regardless of whether suit is ever initiated against it.2 See, e.g., 2 U.S.C. § 1312 (requiring that an "employing office" provide

In addition, employing offices are subject to statutory enactments other than the CAA. See, e.g., 2 U.S.C. § 59f (setting forth obligations of each "Senate office" regarding mass mailings); 2 U.S.C. § 60c-5(a)(3) (borrowing definition of "employing office" from the CAA for purposes of the student loan repayment program available to Senate offices); 2 U.S.C. § 60c2

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family and medical leave to covered employees); 2 U.S.C. § 1314 (prohibiting an "employing office" from requiring covered employees to take lie detector tests); 2 U.S.C. § 1316 (requiring an "employing office" to rehire certain covered employees in the uniformed services); 2 U.S.C. § 1317 (prohibiting an "employing office" from retaliating against covered employees for opposing practices made unlawful by the CAA). Indeed, if the Campbell Office did not exist prior to Plaintiff's lawsuit, as Plaintiff contends, then the Campbell Office could not have violated the CAA as claimed in Plaintiff's Amended Complaint because the Campbell Office would not have existed on the dates when Plaintiff's rights under the Act allegedly were violated. Courts "should prefer the plain meaning [of a statute's terms] since that approach respects the words of Congress." Lamie v. United States Trustee, 540 U.S. 526, 536 (2004). To conclude that a Member's "employing office" is a statutory creation untethered to the term of the particular Member, the Court must completely disregard the plain meaning of the statutory term "employing office" and Congress's use of that term throughout the Act. As defined by the CAA, the "employing office" is "the personal office of a Member of the House of Representatives or of a Senator." 2 U.S.C. § 1301(9)(A) (emphasis added). The employing office and the personal office of a member of Congress are one and the same. The plain meaning of the phrase "personal office . . . of a Senator" is the office established to assist a Senator in the accomplishment of his official duties as Senator. The lifeline of a Senator's personal office, therefore, begins and ends with the Senator's term of office, which the Constitution establishes. See U.S. CONST . amend.

5(h)(1)(A) (authorizing appropriations for each "employing office that is the personal office of a Senator" in connection with the student loan repayment program). 3

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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."). Thus, the Campbell Office did not come into being, nor does it continue, simply by virtue of Plaintiff's decision to litigate her CAA claims. Plaintiff has argued that the Court should ignore the plain meaning of the CAA, because it "would effectively immunize the employing office of any elected official who resigns or is not reelected from liability [for alleged CAA violations]" and "would render the protections of the Act wholly illusory." (Opp'n at 13.) This argument contains several flaws and overstates the repercussions of abatement of these cases. First, there is no rational basis from which to conclude that members of Congress are more likely to harass and discriminate against their employees simply because CAA lawsuits against their offices abate at the end of their terms. Indeed, a similar argument could be made in favor of abatement. If CAA cases can continue against Members' offices after the Members leave Congress, one can envision employees filing lawsuits to assert baseless CAA claims because it will be impossible for the Members to defend against the suits once their terms end and their offices are gone. Second, while abatement may be a harsh result, it is not the proper role of the courts "to soften the import of Congress' chosen words even if [the courts] believe the words lead to a harsh outcome." Lamie, 540 U.S. at 538. Undeniably, aggrieved employees in a limited number of cases will lose the ability to obtain certain remedies for alleged violations of the CAA. It would be absurd, however, to construe the CAA to permit litigation to continue against a non-existent defendant in violation of Article III, § 2 of the Constitution. Finally, the fact that the possibility of abatement exists for certain CAA 4

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cases does not mean that Congress created an "illusory" right without a remedy. (Opp'n at 13.) The CAA provided Plaintiff with a right to seek a remedy for alleged discrimination; indeed, she pursued counseling and mediation and filed this lawsuit. All litigation, not just CAA litigation, however, carries a risk of terminating before the plaintiff is awarded the remedy sought. This does not mean, however, that the plaintiff's rights were illusory ab initio. B. This Court Lacks Authority to Substitute the U.S. Senate for the Campbell Office as the Defendant in This Litigation

According to Plaintiff's Amended Complaint, the personal office alleged to have committed CAA violations against Plaintiff is the Campbell Office. The undisputed evidence establishes, however, that the Campbell Office ceased to exist on January 3, 2005. (See Def.'s Motion to Dismiss, Tab A, Devendorf Decl.) Although Plaintiff claims in her Opposition that the Campbell Office still exists as a party in this case, she has offered no evidence supporting that claim. Nor has Plaintiff offered any evidence to dispute the facts set forth in the Declaration of Dave Devendorf, which prove that the Campbell Office ceased to exist after January 3, 2005. In apparent recognition that the Campbell Office no longer exists and that this lawsuit cannot continue against a non-existent defendant, Plaintiff has argued that the Campbell Office was merely a "nominal defendant" masquerading as the "Senate" which is "the real party in interest" and, therefore, it is proper for this Court to substitute the Senate as the defendant. (Opp'n at 7-8; see also id. at 4.) Plaintiff has cited United States v. Koike, 164 F.2d 155 (9th Cir. 1947), as support for this argument; however, Plaintiff's reliance on Koike is misplaced. Rather, the holding in Koike supports the Campbell Office's argument that if the Senate were the real

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party in interest in CAA cases, Congress would have stated that explicitly in the Act. See id. at 157 (permitting substitution of the United States as plaintiff for the Price Administrator because Price Administrator had initiated suit "`on behalf of the United States'" pursuant to his statutory authorization (quoting section 205(e) of the Price Control Act)). The CAA contains no such statement. Contrary to Plaintiff's assertion at page 8 of her Opposition, neither 2 U.S.C. § 1301(3) nor Moore v. Capitol Guide Board, 982 F. Supp. 35 (D.D.C. 1997), supports Plaintiff's proposition that "Plaintiff is permitted to sue . . . the Senate." As explained by the court in Moore, 2 U.S.C. § 1301(3) defines only the term "covered employee" and cannot serve as a basis for enlarging the number of defendants against which a CAA plaintiff may bring suit. Moore, 982 F. Supp. at 39-40. Moreover, Plaintiff has failed to identify any legal authority that would permit this Court to ignore section 408(b) of the CAA, 2 U.S.C. § 1408(b), which states unequivocally that the defendant in a CAA action "shall be the employing office alleged to have committed the violation, or in which the violation is alleged to have occurred." Implicitly acknowledging that Congress has not "specifically authorized" the Senate to be sued for CAA violations, Plaintiff has argued, citing Federal Rule of Civil Procedure ("Rule") 25(d) and Blackmar v. Guerre, 342 U.S. 512 (1952), that "such authorization may be implied if there is an agency that is an offspring of the suable entity." (Opp'n at 9.) This argument also lacks merit. The method for substituting a party with his or her successor in office described in Rule 25(d) does not apply in CAA cases because the CAA unequivocally prohibits reference to other 6

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statutory authority for the purpose of enlarging the jurisdictional grant contained in the Act. See 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 . . . shall not be subject to judicial review." (emphasis added)). Thus, this Court's jurisdiction is limited to what Congress provided in 2 U.S.C. § 1408. Notwithstanding the CAA's strict jurisdictional limitations, Rule 25(d) does not provide a method for substitution in this case. This rule, which provides for substitution of parties when a public official who is sued in his official capacity dies, resigns or otherwise ceases to hold office, does not apply because the Campbell Office was not a public official; rather, the Campbell Office was the personal office of a (now-former) Senator. Compare 2 U.S.C. § 1408(b) (the defendant in a CAA action is an "employing office") with 42 U.S.C. § 2000e-16 (in the executive branch the defendant in a suit brought under Title VII of the Civil Rights Act is "the head of the department, agency, or unit, as appropriate").3 Even if Rule 25(d) could be employed to enlarge the CAA's jurisdictional grant, which it cannot, Plaintiff's argument that the Senate is the successor of the Campbell Office is not supported by Blackmar. The Blackmar case involved a disgruntled former employee of the Veterans Administration, Blackmar, who attempted to sue, among other defendants, the Civil Service Commission. The Court held that the Commission could not be sued by Blackmar

In the House's version of House Bill 1 (passed January 5, 1995), the bill that eventually became the CAA, CAA suits could be brought against the "head of the employing office involved." H.R. 1, 104th Cong. § 10(a) (1995). That provision of the bill, however, did not survive to final passage of the Act. 7

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because Congress had not authorized suit against the Commission. Blackmar, 342 U.S. at 514. The Court stated that when Congress authorizes suit against an agency, "it does so in explicit language." Id. at 515. With a specific reference to the "offspring" of corporations Congress creates to perform government work, i.e., subsidiary corporations created by a parent governmental corporation pursuant to its statutory authorization, the Blackmar Court stated that a right to sue such offspring could be implied if the parent corporation is itself a suable entity. Blackmar, 342 U.S. at 515 (citing Keifer & Keifer v. Reconstruction Finance Corp., 306 U.S. 381 (1939)). From that statement, Plaintiff has attempted to extrapolate an implied right to sue, and therefore substitute as defendant here, the Senate, implying that the Campbell Office is the offspring of the Senate. (Opp'n at 9.) Plaintiff, however, has turned the logic of Blackmar on its head by asserting an implied right to sue the parent based on a statutory right to sue the purported child.4 Lacking any statutory basis for substitution of the Senate for the Campbell Office, Plaintiff has urged this Court to find an implied right of suit against the Senate, citing Acheson v. Furusho, 212 F.2d 284 (9th Cir. 1954), for support. (Opp'n at 3-4.) Plaintiff's reliance on Acheson also is misplaced. First, as the Campbell Office established in its Motion to Dismiss, a court's "jurisdiction to grant relief depends wholly upon the extent to which the United States

Plaintiff has not explained how the Campbell Office is the "offspring" of the Senate for purposes of implying a right to sue the Senate for the alleged CAA violations of the Campbell Office. The Campbell Office is not a creation of the Senate akin to a corporate subsidiary created by a corporate governmental agency pursuant to statutory authority; rather, the Campbell Office came into being when Senator Campbell took office. 8

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has waived its sovereign immunity to suit and . . . such a waiver cannot be implied but must be unequivocally expressed." United States v. King, 395 U.S. 1, 4 (1969) (emphasis added). Second, the Acheson court did not analyze the issue presently before this Court: whether a suit against a government entity must abate when that entity ceases to exist. See Acheson, 212 F.2d at 288 ("Our immediate consideration of the subject [of abatement] is limited to actions in which governmental officers are parties defendant.") Accordingly, Acheson is inapposite. Third, Congress affirmatively rejected the idea of authorizing CAA lawsuits against the Senate. In one of the unsuccessful legislative pre-cursors to the CAA, House Bill 4822 (as introduced in the Senate October 3, 1994), provided that in CAA lawsuits commenced in federal district court "the defendant shall ­ (1) in an action by an employee of the Senate, be the Senate; . . . ." H.R. 4822, 103d Cong. § 306(b) (1994); see S. REP. NO . 103-397, at 39 (1994). Having considered but decided against incorporating a similar provision in the CAA, Congress signaled its intent not to permit CAA suits against the Senate. C. The Constitutional "Case or Controversy" Requirement Mandates The Existence of Two Live Parties With Opposing Legal Interests Throughout the Course of the Litigation

As explained in the Campbell Office's Motion to Dismiss, this case is moot because there are no longer two active combatants in the litigation. (See Def.'s Motion to Dismiss at 7-8.) Plaintiff has stated that her "interest in vindicating her rights . . . remains fully intact" (Opp'n at 14); however, no live party exists against which Plaintiff may vindicate those rights. Thus, the "case or controversy" requirement for this Court's jurisdiction is lacking, and the case must be dismissed. See Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) ("To qualify as 9

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a case fit for federal-court adjudication, an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." (internal quotation marks omitted)); Martinez v. Winner, 800 F.2d 230, 231 (10th Cir. 1986) ("There can be no live controversy without at least two active combatants."). Plaintiff asserts that the decision in Powell v. McCormack, 395 U.S. 486 (1969), supports a contrary conclusion. (Opp'n at 14-15.) The Court in Powell, however, was not confronted with the complete absence of an adverse party. In Powell, the Court considered whether any of Representative Powell's claims had not been mooted by the termination of the 90th Congress, thereby supporting the Court's continuing jurisdiction. The Court found that among Powell's several claims, at least one supplied the constitutional case or controversy requirement: a claim for salary withheld from him during the 90th Congress against the "official responsible for the payment of congressional salaries" who was still a party to the litigation. 395 U.S. at 498. In the case before this Court, there is not one claim that can save this case from mootness because all of Plaintiff's claims for relief are against the Campbell Office, which ceased to exist on January 3, 2005. Plaintiff also has argued that this suit can proceed, asserting without authority that the Campbell Office "is still available and able to respond to a monetary judgment that might be entered" (Opp'n at 10), that defense counsel's "ability . . . to defend this litigation" is not impaired (Opp'n at 9), and that "[t]here would be no prejudice to the Senate" (Opp'n at 10). Plaintiff's assertions are not only incorrect, but also fail to establish that the Campbell Office is a live party.

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Plaintiff has argued that the appropriation of funds to pay awards in CAA cases, 2 U.S.C. § 1415(a), provides a basis for avoiding abatement of this CAA action. (Opp'n at 10.) First, section 1415 does not contain any language preventing abatement of CAA actions. Second, this argument overlooks the fact that to be entitled to such a judgment, a plaintiff must prove his or her case through litigation. When the defendant has ceased to exist, such litigation simply is not possible. See Martinez v. Winner, 800 F.2d 230, 231 (10th Cir. 1986) ("There can be no live controversy without at least two active combatants."). Plaintiff's argument that the Campbell Office must still exist because defense counsel continues to represent it (Opp'n at 10), is equally flawed. Apparently Plaintiff would have defense counsel withdraw from the case without notifying the Court that the case has abated and is moot. The Supreme Court, however, has expressed its displeasure with counsel who fail to make a timely suggestion of mootness to the Court. "It is the duty of counsel to bring to the federal tribunal's attention, `without delay,' facts that may raise a question of mootness." Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.23 (1997). Finally Plaintiff has argued that "[t]here would be no prejudice to the Senate if this case were to proceed." (Opp'n at 10.) The presence or absence of prejudice to the Senate, however, is irrelevant if this Court lacks subject matter jurisdiction, which it does. Moreover, if the Senate were substituted for the Campbell Office in this litigation then the Senate would be prejudiced because it was not involved in and is not responsible for the CAA violations alleged in Plaintiff's Amended Complaint, and because Congress did not authorize CAA suits against the Senate.

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CONCLUSION For the reasons set forth above and in Defendant's Motion to Dismiss the Amended Complaint on Grounds of Abatement and Mootness, this case should be dismissed with prejudice. Dated: August 16, 2005 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

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CERTIFICATE OF SERVICE I hereby certify that on this 16th day of August, 2005, I served a true and accurate copy of Defendant's Reply in Further Support of its Motion to Dismiss the Amended Complaint on Grounds of Abatement and Mootness to the following attorney, through the Electronic Case Filing system: John Evangelisti, Esquire Karen Larson, Esquire 1120 Lincoln Street, Suite 711 Denver, Colorado 80203

/s/ Tonya Dixon Tonya Dixon