Free Response to Motion - District Court of Colorado - Colorado

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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. ________________________________________________________________________ PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO DISMISS ________________________________________________________________________ Plaintiff, by and through her attorneys, John S. Evangelisti and Karen Hendrick Larson, hereby submits a Response to Defendant's Motion to Dismiss as follows I. STATEMENT OF THE CASE

On June 27, 2002 this Court dismissed Plaintiff's Amended Complaint based on the Speech or Debate Clause of the U.S. Constitution, U.S. Const. art. I, § 6, cl.1. Plaintiff appealed that decision to the U.S. Court of Appeals for the Tenth Circuit, which reversed that decision on December 10, 2004. Defendant, the Office of Senator Ben Nighthorse Campbell, filed a Motion to Dismiss Appeal and Vacate Judgment on the Grounds of Abatement in the Tenth Circuit on the grounds the case had abated on January 3, 2005 when Senator Campbell's term of office as a United States Senator expired. The Tenth Circuit invited, by amici, briefs in the matter and the Amici Curiae Project on Government Oversight and Public Citizen, Inc. and Amici Curiae American

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Federation of State, County and Municipal Employees; AFL-CIO; National Employment Lawyers Assn.; AARP; National Asian Pacific American Legal Consortium; and American Association of People With Disabilities filed briefs in opposition to the Defendant's Motion to Dismiss. The two amici briefs are available for review in Case No. 02-1343 in the Tenth Circuit Court of Appeals. The Tenth Circuit Court of Appeals declined to rule on the merits of the abatement argument and remanded this case to the District Court. II. BACKGROUND Plaintiff brought claims of discrimination based on gender, age and retaliation under the Congressional Accountability Act, 2 U.S.C. § 1302(a) (the "CCA"). The CCA prohibits members of congress ("member" or "congressperson(s)") and their congressional offices from discriminating against employees on the basis of age, race, gender, national origin, disability or retaliation. Defendant asks this court to dismiss this action based on lack of jurisdiction due to the alleged abatement of the action at the end of Senator Campbell's term as a Senator. The court should deny Defendant's motion because the action has not abated. Plaintiff's claims under the CAA are not extinguished by the expiration of Senator Campbell's term because the CAA does nothing to terminate the Defendant as an "employing office" responsible for defending against these claims and satisfying any resulting judgment. III. ARGUMENT A. Abatement Has No Application Where a Defendant Can Still Defend Against a Claim and Satisfy a Judgment Defendant argues that "[a]bsent a statutory basis, this Court lacks jurisdiction to

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entertain Ms. Bastien's claims if this Court finds the case has abated." Defendant's argument that this action has abated is based on the erroneous logic that the employing office of a Senator vanishes, for all legal purposes, when a Senator leaves office. The CAA creates a legal entity, statutorily termed the "employing office," to defend against claims brought by employees covered under the statute, 2 U.S.C. §§ 1301(9), 1405(a), 1408(b). These provisions apply whether a legislator remains in office or not. Nothing in the statutory definition of an employing office or elsewhere in the CAA provides that an employing office terminates or ceases to exist as an entity capable of and responsible for defending against a claim or satisfying a judgment when an elected official leaves office. Because the employing office does not disappear when an elected official leaves office, there is no need for a substitution of the defendant by a successor. The doctrine of abatement applies where events affecting the capacity of a party result in the lack of a proper party capable of pursing or defending the lawsuit. See Int'l Union v. Telex Computer Prods., Inc. 816 F. 2d at 522 (10th Cir. 1987). Thus, an action abates for lack of a proper defendant where continuing action would be "futil{e}" because "there is no one to respond to a judgment which might be or has been entered in a case, rendering the judgment ineffectual." Acheson v. Furusho, 212 F, 2d 284, 288, 296 (9th Cir. 1954). At common law a case abated "when a governmental officer, a defendant in a case in which it was sought to compel him to do or not to do an act within the sphere of his duty, was separated from the office." Acheson, 212 F. 2d at 289. In such circumstances, the former governmental officer was "powerless to perform" any

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judgment against him. Id. Under the CAA, there is no presence of a governmental officer in a lawsuit because the CAA provided for a nominal defendant with resources to survive and perform in the lawsuit after the legislator leaves office. Defendant cites several statutes that provide for assignment of a successor in the event a federal agency reorganizes and no longer has the same agency head or, indeed, is no longer an agency. 5 U.S.C. § 907; 15 U.S.C. § 767(d); 20 U.S.C. § 3505(d)-(e); 22 U.S.C. § 6615(d); 22 U.S.C. §§ 6543 (d) and 42 U.S.C. §§ 7295(d)-(e). In those statutes, the defendant is the head of an agency in his or her official capacity, rather than a nominal office that remains intact under the CAA in the event a Congressperson leaves office. The mere existence of provisions for successor liability in certain cases no way mandates that abatement must or should occur absent such a provision, when such a provision is not necessary. This case is against the Senate, a body that has been in effect without reorganization since its creation; and, the CAA provides for the continuation of lawsuits without any appointment of a successor by having nominal defendants and an office to cover legal expenses and awards. There was no dissolution of Plaintiff's employer, the Senate or of the "employing office" of Senator Campbell. By statute, the case can continue through the Senate. In Alabama Power Co. v. ICC, 852 F. 2d 1361, 1366-67 (D.C. Cir. 1988), the court determined an abatement issue by using the most natural reading of a statute when it does not address a circumstance. The Senate, by the plain language of 2 U.S.C. § 1301 et seq., has the sole and full power and appropriations to complete this case. The intent of Congress ascertained by natural language leads to a reasonable result that cases do not end with the resignation of an official. Defendant's legislative intent argument in favor

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of abatement is plainly at variance with the policy of the legislation as a whole. Therefore, court must give the CAA effect in accordance with its design in order that the purpose may not fail. Ozawa v. United States, 260 U.S. 178, 194, 43 S. Ct. 65, 67, 67 L. Ed. 199 (1922)(cited in 212 F. 2d 284.) The legislative intent of the CAA is to allow a covered employee to sue the Employing Office regardless of the employment status of a senator; otherwise, the CAA would have clearly specified that complaints are barred upon the resignation of an official. Legislative Act of February 8, 1899, 30 Stat. 822, cited in Acheson v. Furusho, 212 F. 2d 284, 290 fn4. The legislature members are keenly aware of their status as elected officials with term limits and clearly would have provided specific language had it intended abatement upon the retirement of one official. "A corporate entity may be utterly dead for most purposes, yet have enough life remaining to litigate its actions." Def. Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631, 634-35 (1949). In Walling v. James V. Reuter, Inc., 321 U.S. 671 (1944), for example, the Supreme Court held that an action brought under the Fair Labor Standards Act did not "abat[e] merely because of dissolution of the corporate defendant" after the Court's grant of certiorari. Id. At 673-74. "The vitality of the judgment in such a case survives the dissolution of the corporate defendant." Id. In this case, the Office of Senator Campbell not only has enough life remaining to litigate its actions, but the Office has money to satisfy any adverse judgment. Payments of awards or settlements under the CAA come from funds which are appropriated to an account of the Office of Treasury of the United States for the payment of awards and settlements. 2 U.S.C. § 1415(a). This fund remains available to satisfy judgments regardless of whether Senator Campbell

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remains in office, or departed years ago. When Congress enacted the CAA, it could have chosen not to insulate Members of Congress from personal liability, or it could have directed that adverse judgments be paid from each Member's discretionary funds. See, U.S.C. § 58c (authorizing the individual Senator's official personnel and office expense accounts). Congress did neither. Congress explicitly rejected alternative versions of the CAA and amendments that would have extended personal liability to Members of Congress or required them to reimburse the government for damages payments made on their behalf. See, Jim Brudney, Congressional Accountability and Denial: Speech or Debate Clause and Conflict of Interest Challenges to Unionization of Congressional Employees, 36 Harv. J. Legis. 1, 11 n. 49 (1999). Indeed, an "employing office" is defined to cover a host of entities that have the authority to employ individuals who work in the Legislative Branch, such as the personal office of a Senator, 2 U.S.C. § 1301(9)(a), a House or Senate committee, § 1301(9)(B), or the Capitol Police Board, the Congressional Budget Office (CBO), and the Office of the Architect of the Capitol, § 1301(9)(D). Congress can hardly have contemplated that the right of a Senator's employee to pursue a CAA claim would disappear if the individual Senator left office, while an employee of the Congressional Budget Office, the continuing existence of which is not dependent on the vagaries of election cycles, would never be at risk of losing the right to pursue his CAA claim. B. The Real Defendant In Interest is The Senate Plaintiff is a "covered employee" of the Senate under the Congressional Accountability Act ("CAA"). 2 U.S.C. § 1301(8). The CAA directs employees who seek remedies for employment discrimination to name as a defendant the employing

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office alleged to have committed the violation or in which the violation is allegedly to have occurred. 2 U.S.C. § 1408. See Moore v. Capitol Guide Bd., 982 F,. Supp. 35, 39 (D.D.C. 1997). The Office of Senator Ben Nighthorse Campbell is a nominal entity to define the location of the violation, but there is no legal entity by that name. 2 U.S.C. § 1408 (b) states "The Defendant shall be the employing office alleged to have committed the violation, or in which the violation is alleged to have occurred. " The Office of Senator Campbell, or the employing office, as a cognizable legal entity, was created in 2002 when Ms. Bastien commenced this litigation and named the Office as a defendant. Any definition of employing office as a "personal office", is secondary to the specific provision in the CAA of the real party in interest as the "employing office. 2 U.S.C. § 1408 (b), does not personalize the Defendant to Senator Campbell. The genesis of the employing office was in no way tied to the beginning of the Senator's term of office, and its termination is in no way mandated by the end of the Senator's term. No other construction of the CAA makes sense. Congress' plain intent in requiring plaintiffs to sue the Office rather than the individual member of Congress was to provide plaintiffs redress and avoid legalistic game-playing over the proper party-defendant. This naming requirement is comparable to the statutory requirement Under Title VII of the Civil Rights Act of 1964 that a plaintiff name the secretary of an agency rather than the agency, even though the agency is the real party in interest. 42 U.S.C. § 2000e-16(c). When Congress enacted the CAA, it specifically authorized suit against a nominal defendant to avoid uncertainty regarding the proper defendant and to prevent precisely what Defendant seeks: to have a valid claim of illegal discrimination simply vanish because of the Congressperson's financial condition or term of office. Congress has put

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in place mechanisms to see that suits continue to be defended even after an offending Congressperson's term ends. Congress' determination that Members of Congress and their offices bear no direct liability in cases like this underscored the fact that Senator Campbell's departure from office is simply beside the point. That the Office is solely a creature of the CAA and independent of the term of Senator Campbell may best be seen from the fact that, other than the CAA, there is no provision in Title 2 of the U.S. Code that provides for the "office" of a member of Congress to be party to a suit. By contrast, Title 2 does contemplate Members of Congress being sued in their "official" or "representative" capacities. See 2 U.S.C. § 288c (authorizing Office of Senate Legal Counsel to defend Senators sued in their official or representing capacity). In passing the CAA, however, Congress chose not to authorize suits against a Member of Congress in his or her "official" or "representative" capacities. Nor did Congress authorize suits against Members in their personal capacity. Congress did so for a reason. Congress did so to permit suits against a nominal defendant whose sole function was to respond to litigation. The plaintiff may not file a complaint against the individual member of Congress. See 2 U.S.C. §§ 1405(a) & 1408(b). 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. § 1301 (3)(A)-(C); See 2 U.S.C. §§ 1405(a) & 1408(b). There is established, as an independent office within the legislative branch of the federal government, the Office of Compliance ("OOC"). 2 U.S.C. § 1381. The Office of House Employment Counsel or the Senate Chief Counsel for Employment represents the defendant and the Office of Congressional Compliance has subpoena

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power and provisions for counseling, mediation, full administrative hearings discovery appeals, full judicial proceedings in a district court action, settlement and payment of awards. 2 U.S.C. §1401-1415. Damages, attorney's fees and costs of litigation are paid from funds appropriated into the Office of Congressional Compliance's treasury account. 2 U.S.C. § 1415(a). The Office of Congressional Compliance is responsible for and able to provide full relief; hence, abatement is not necessary. Contra, United States v. Boutwell, 84 U.S. 604, 21 L. Ed. 721 (1873). Under Fed. R. Civ. P. 25(d), when an officer of the United States dies, resigns or otherwise ceases to hold office, an action may be continued and maintained by or 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, 514-15, 72 S.Ct. 410, 411-12, 96, L. Ed. 534, 539-9. Here, the Senate is the real suable entity and the Congress appointed the Office of Congressional Compliance to remedy Congressional employment discrimination. 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. §§ 1405(a), 1408(b); See, James T. O'Reilly, Article: Collision In Congress: Congressional Accountability, Workplace Conflict, and the Separation of Powers, Fall, 1996, 5 Geo. Mason L. Rev. 1, Fall, 1996, The CAA shields individual Congresspersons from litigation while making Congress accountable as an institution. Senator Campbell's departure from office in no way impairs the ability of the Office of Senate Chief Counsel to defend this litigation. If this case were allowed to proceed, the same lawyers would handle the case, they would have

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the same access to witnesses and the same ability to mount a defense.

There would be

no prejudice to the Senate if this case were to proceed. See, United States v. Koike, 164 F. 2d 155, 157 (9th Cir. 1947)(allowing case to proceed where "defendant will in no way be prejudiced...[and] the cause of action against him remains the same." "Abatement of a case usually follows, as of course, when there is no one to respond to a judgment which might be or has been entered in a case. " Acheson v. Fujiko Furusho, 212 F. 2d 284, 288 (9th Cir. 1954). The Office of Chief Counsel for Employment is able to and continues to vigorously defend this case, and through funds set aside in the U.S. Treasury. See U.S.C. § 1415(a). The Office of Senator Ben Nighthorse Campbell is still available and able to respond to a monetary judgment that might be entered. The Defendant's motion to dismiss on the grounds of abatement should therefore be denied. C. CAA Causes of Action Are Not Limited By the Terms of Members of Congress Contrary to Defendant's argument that it is impossible to litigate this case, CAA causes of action are not limited by the terms of Members of Congress. While the statute requires that claims be asserted within statutorily specified time periods. See U.S.C. §§ 1402-1404. The statute specifies certain time periods for certain actions by the Office of Compliance and its hearing officers, see 2 U.S.C. §§ 1402, 1403, 1405, the CAA does not otherwise limit the time within which claims may be considered. In particular, the CAA nowhere suggests that claims are limited to, and extinguished by, the terms of Members of Congress. There is no proper legal basis for reading further time limitations in the statute. See, e.g., Nat'l R.R. Passenger Corp. v. Nat'l Ass'n of R.R. Passengers, 414 U.S. 453, 458 (1974); Hartman v. Kickapoo Tribe Gaming Comm'n, 319 F. 3d 1230, 1232-33 (10th Cir. 2003). 10

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The CAA shields the members of Congress, themselves, from litigation, even while making Congress accountable as an institution. Senator Campbell is therefore relieved from any action whatsoever. D. The Legislative Intent of the CAA The dominant principle of the legislative intent in abatement cases cited by the Defendant is that, when an entire governmental agency is dissolved by legislation, that agency can no longer carry out the action prayed for unless by legislation an alternative party in interest is named. Def. Supplies Corp. v. Lawrence Warehouse Co. 336 U.S. 631, 634 (1949). In that case, Congress expressly dissolved an entire entity, transferred all of the corporation's assets and liabilities to a successor, and provided a twelve-month period for substitution of the successor as a party in any action involving the former corporation. The failure to substitute the successor within the time prescribed by Congress caused appellate proceedings to abate because of the impossibility of proceeding without a necessary party. Id. At 637-38. In Organic Cow LLC v. Ctr. For New England Dairy Compact Research, 335 F. 3d 66, 72 (2nd Cir. 2003) the entity's assets were transferred to a private non-controlled entity, leaving no party to defend. In Skolnick v. Parsons, 397 F. 2d 523, 525 (7th Cir. 1968) a federal commission terminated without a successor. A case will abate when a necessary party voluntarily withdraws from the action and new parties attempt to substitute for the withdrawn party. Alabama Power Co. v. ICC, 852 F. 2d 1361, 1366-67 (D.C. Cir. 1988). Senator Campbell's presence is irrelevant because he was not a party who could withdraw. The real party in interest, the employing office, remains in the case and substitution is no required.

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E. This Action has Not Abated Because the Congressional Accountability Act Does not Terminate The Employing Office of Senator Campbell As An Entity Responsible for Defending Against a Claim Under the Act Or Satisfying A Judgment This action has not abated. Nothing in the CAA provides for the termination of the "employing office" of Senator Campbell as an entity responsible for defending against a claim under the Act or satisfying a judgment merely because of the expiration of Senator Campbell's term. Nothing in the Act indicates that a cause of action abates when a legislator leaves office. Defendant's suggestion that this Court should find an implied abatement provision in the CAA where none exists contravenes the text, implementing documents, structure and policy of the Act. The U.S. Senate Handbook demonstrates that the Senate, itself, does not understand an employing office to be relieved of timely incurred obligations when a Senator resigns, retires, or otherwise leaves office. The Handbook confirms that actions under the CAA are brought against an employing office, not against individual legislators. See, Senate Comm. On Rules and Administration, U.S. Senate Handbook I-8 to I-11 (1996). The Office of Senate Chief Counsel for employment is tasked with defending employing offices of Senators, see, id at I-23, and nothing in the Handbook suggests that Senate Employment Counsel's representation of the employing office depends on the continuation of the Senator's service in Congress. The Handbook also confirms that any judgments will be satisfied "from funds appropriated...for that purpose," not by "[i]ndividuals [or] Senate offices." See id. at I-11. Awards and settlements of claims brought under the CAA will be paid from funds appropriated to an account designated for that purpose. Individuals and Senate offices are not personally liable for payment of awards and settlements. Finally, the Handbook provides for payment of "expenses 12

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incurred up to and including [a} Senator's last day of service." Id. At I-89 (requesting that "if possible" outstanding vouchers be presented to the Senator's office for payment within 30 days of the end of his term and discussing procedure by which the Secretary of the Senate reserves other funds to cover any office closing costs). The same, of course, applied to expenses and liabilities occurring prior to the Senator's departure from office. The construction of the statute advocated by Defendant would render the protections of the Act wholly illusory and defeat the goals of the CAA. Defendant's interpretation of the Act, for example, would free the employing office of a Senator who committed violations at the core of the Congressional Accountability Act of all responsibility for those violations, and would leave the victim without the compensation or other remedies that Congress thought it was extending to its employees, if the Senator simply took the expedient step of resigning. Defendant's claim that the capacity of the Office of Senator Campbell to defend this suit hinges on the duration of Senator Campbell's term of office would turn the CAA on its head. It would give members of Congress a license to discriminate in their final months of office, and would make employees of individual Members the only congressional employees not to have the full range of civil rights protections afforded to other employees, public or private. Moreover, even absent a resignation specifically timed to avoid liability, Defendant's construction of the statute would essentially immunize all or most of the illegal acts of the employing office of any legislator who is not reelected to Congress, since the conduct of litigation, including all appeals, can easily take years--including periods of time long enough to exhaust an entire term of a House member or a Senator. See infra at 18-19 (describing the time required to pursue a claim under the CAA to completion). "[T}here

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is nothing to suggest that , in enacting [the CAA] ....Congress intended to hold out to [congressional employees] an illusory right for which it was denying them a remedy." Graham v. B'hood of Locomotive Firemen & Enginemen, 338 U.S. 232, 240 (1949). This Court should not accept [Defendant's] interpretation of the statute...for it completely eviscerates the congressional goal of protecting congressional employees in the workplace. Browsher v. Merck & Co., 460 U.S. 824, 836 (1983); see also Harebert v. Healthcare Servs. Group, 391 F. 3d 1140, 1149 (10th Cir. 2004)("Courts must guard against interpretations that might defeat a statute's purpose"). Defendant's interpretation of the Act would effectively immunize the employing office of any elected official who resigns or is not reelected from liability for acts committed in violation of the CAA during the legislator's last few years in Congress. A more self-defeating construction of the status is difficult to imagine. F. Ms. Bastien's Claim in Not Moot Because She Still Has a Viable Claim and a Cognizable Interest in the Outcome This action has not been rendered moot simply because Senator Campbell is no longer in office. "A case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome." Powell v. McCormick, 395 U.S. 486, 496 (1969). Here, Ms. Bastien's interest in vindicating her rights to be free of age discrimination under the CAA and the ADEA remains fully intact, as does the interest of the Senate in conserving money from the Senate's CAA judgment fund. This case bears substantial resemblance to Powell, when the House of Representatives refused to seat Adam Clayton Powell, Jr. in the 90th Congress. Representative Powell filed suit in the U.S. District Court against the House leadership and other House officials seeing declaratory and injunctive relief. By the time the case reached the Supreme Court, the 14

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90th Congress had dissolved and the 91st Congress had taken its place. The House argued before the Supreme Court that the claim was moot because "the House of Representatives is not a continuing body" and because the 91st Congress had, in the meantime, decided to seat Representative Powell. Id. At 495. The Supreme Court summarily without comment rejected the House's claim that its status as a temporal body mooted the case. See id at 499-500 (rejecting argument that claim against the state legislature in Bond v. Floyd, 385 U.S. 116 (1966) was saved from mootness only because the Court issued its decision before the legislative term had ended). The Court held that Representative Powell did have a "live" case and a cognizable interest in the outcome, notwithstanding the end of the 90th Congress. Id. At 498-499. Ms. Bastien's employment claims are unresolved and hotly contested. She has a legally cognizable interest in obtaining relief for the alleged discrimination. The Senate has an interest in fully contesting these claims of discrimination made against one of its offices and has a stake in preserving funds appropriated to pay judgments and settlements in these cases. Just as the Supreme Court rejected the House's argument that it could avoid liability because each Congress exists only for a fixed term, this Court should reject the Office of Senator Campbell's reliance on the same argument in pressing its motion to dismiss. IV. CONCLUSION This Federal court has jurisdiction of this case because it has not been abated and remains as a live controversy for the reasons stated above. The CAA provides adequate protection to Plaintiff without further action by Senator Campbell. Abatement is not

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available in this case to Senator Campbell. This Motion to Dismiss is frivolous and Plaintiff should be awarded costs and attorney's fees for defending it. WHEREFORE, Plaintiff respectfully requests the Honorable Court to deny Defendant's Motion to Dismiss Appeal and Vacate Judgment on the Grounds of Abatement. Respectfully Submitted, s/______________________________ John S. Evangelisti 1120 Lincoln St., Ste. 711 Denver, CO 80203 Telephone: (303) 831-4404 FAX: (303) 831-4404 E-mail:[email protected] Attorney for Plaintiff, Rita Bastien s/_________________________ Karen Hendrick Larson 1120 Lincoln Street, Suite 711 Denver, CO 80203 Telephone: (303) 831-4404 FAX: (303) 830-8843 E-mail:[email protected] Attorney for Plaintiff Rita Bastien

CERTIFICATE OF SERVICE I hereby certify that on August 11, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following email addresses: [email protected] [email protected] [email protected] [email protected]

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