Free Motion to Dismiss - District Court of Colorado - Colorado

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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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

DEFENDANT'S MOTION TO DISMISS THE AMENDED COMPLAINT ON GROUNDS OF ABATEMENT AND MOOTNESS

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

July 22, 2005

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INTRODUCTION On June 27, 2002, this Court dismissed Plaintiff's Amended Complaint for lack of subject matter jurisdiction based on the Speech or Debate Clause of the U.S. Constitution, U.S. CONST . art. I, § 6, cl. 1. See Bastien v. The Office of Senator Ben Nighthorse Campbell, 209 F. Supp. 2d 1095 (D. Colo. 2002). Plaintiff appealed that decision to the U.S. Court of Appeals for the Tenth Circuit which, on December 10, 2004, reversed.1 See Bastien v. The Office of Senator Ben Nighthorse Campbell, 390 F.3d 1301 (10th Cir. 2004). At noon on January 3, 2005, Senator Ben Nighthorse Campbell's term of office as a United States Senator expired. See U.S. CONST . amend. XX, § 1. Upon the expiration of Senators Campbell's term of office, the Office of Senator Ben Nighthorse Campbell ("Defendant" or "the Campbell Office") ceased to exist. Shortly after Senator Campbell's term of office expired, the attorneys for Defendant filed in the Tenth Circuit a Motion to Dismiss Appeal and Vacate Judgment on Grounds of Abatement. On May 31, 2005, the Court of Appeals denied the motion to dismiss on the basis that the case had not been moot when the Court of Appeals issued its judgment on December 10, 2004. See Bastien v. The Office of Senator Ben Nighthorse Campbell, 409 F.3d 1234 (10th Cir. 2005). The Court of Appeals remanded the case to this Court and expressly preserved

To avoid losing its ability to appeal the Tenth Circuit's December 10, 2004, decision, Defendant filed a Petition for Writ of Certiorari in the U.S. Supreme Court. The Supreme Court scheduled that petition for conference review on September 26, 2005. 2

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Defendant's right to raise the abatement issue after remand to the district court. See id. at 1236. ("Our decision is without prejudice to Defendant's raising its abatement claim in district court."). Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, Defendant submits this Motion to Dismiss the Amended Complaint on Grounds of Abatement and Mootness. STANDARDS GOVERNING THE MOTION Because federal courts are courts of limited jurisdiction, they may exercise jurisdiction only with specific authorization to do so. Neiberger v. Hawkins, 150 F. Supp. 2d 1118, 1120 (D. Colo. 2001). Thus, "there is a presumption against federal jurisdiction." Id. When a jurisdictional challenge is made, the burden of proof rests on the party who is asserting that the court has jurisdiction. Gibbs v. Buck, 307 U.S. 66, 72 (1939); see King v. United States, 53 F. Supp. 2d 1056, 1064 (D. Colo. 1999). ARGUMENT I. THIS CIVIL ACTION ABATED ON JANUARY 3, 2005, WHEN SENATOR CAMPBELL'S TERM OF OFFICE EXPIRED, AND THE CASE MUST BE DISMISSED As explained below, this case abated because a necessary party, the Campbell Office, ceased to exist, and substitution of another defendant in place of the Campbell Office is not authorized. Abatement is a jurisdictional issue. Snyder v. Buck, 340 U.S. 15, 22 (1950) ("The absence of a necessary party and the statutory barrier to substitution go to jurisdiction."). When a federal court's jurisdiction to adjudicate a case is called into question, that court is obligated to ascertain whether, in fact, it possesses jurisdiction before proceeding. See Fed. R. Civ. P. 12(h)(3); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) ("`Jurisdiction is power 3

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to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.'") (quoting Ex parte McCardle, 74 U.S. 506, 514 (1868)). Thus, unless the Court determines that this lawsuit has not abated, the Court must dismiss this case. The Congressional Accountability Act of 1995, 2 U.S.C. §§ 1301-1438 (2000) ("CAA" or "the Act"), the statute on which Plaintiff's claims are based, specifies who the defendant in a CAA action "shall be": "The defendant shall be the employing office alleged to have committed the violation, or in which the violation is alleged to have occurred." 2 U.S.C. § 1408(b). As relevant to this case, the term "employing office" is defined by the CAA to mean "the personal office . . . of a Senator." 2 U.S.C. § 1301(9)(A). When construing this definition, the Court "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). 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. According to the allegations in Plaintiff's Amended Complaint, the employing office in this case is the Campbell Office - the personal office of Senator Ben Nighthorse Campbell when he served in the U.S. Senate. (Am. Compl. ¶¶ 71-72, 75-76.) By Constitutional mandate, Senator Ben Nighthorse Campbell's term of office as a U.S. Senator ended at noon on January 3, 2005. See U.S. CONST . amend. 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."). Upon the expiration of 4

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Senator Campbell's term of office,2 the Campbell Office ceased to exist on January 3, 2005. (See Second Declaration of Dave Devendorf, attached hereto at Tab A.) See also U.S. SENATE HANDBOOK at I-89 ¶ 1 (1996) (explaining office closing requirements, e.g., all employees had to be removed from the Campbell Office's payroll by close of business January 2, 2005, and the Campbell Office could not incur office expenses "after the last day of the Senator's service.") (attached hereto at Tab B). When a defendant ceases to exist, the case cannot continue; rather, litigation against it abates. See Def. Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631, 634 (1949) (stating that when a corporation dissolves, pending litigation abates because of the "`impossibility' of proceeding `without a defendant'"). In a case in which a government entity is the defendant, the suit abates if the government entity "terminates with no provision for naming a successor and with no appropriate governmental body to stand in its shoes for purposes of litigation." Organic Cow, LLC v. Ctr. for New England Dairy Compact Research, 335 F.3d 66, 72 (2d Cir. 2003); see Skolnick v. Parsons, 397 F.2d 523, 525 (7th Cir. 1968) (holding that action against federal commission abated when commission terminated without a successor). In this case, the Campbell Office terminated, and the CAA neither provides for naming a successor nor authorizes the substitution of another governmental body to stand in the shoes of the Campbell Office for purposes of this litigation.

There can be no dispute of fact that the term of Senator Campbell expired on January 3, 2005. See Brown v. Piper, 91 U.S. 37, 42 (1875) (stating judicial notice may be taken of "the election and resignations of [S]enators"). 5

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The CAA does not contain any provision for naming a successor to a defendant employing office when that employing office ceases to exist. Moreover, the CAA unequivocally prohibits reference to outside statutory authority to enlarge 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 [Act] . . . shall not be subject to judicial review.") (emphasis added). Accordingly, this Court is precluded from substituting another entity for the Campbell Office because, as stated above, this Court retains jurisdiction of this case only if the defendant is the Campbell Office. See 2 U.S.C. §§ 1408(b), 1410; Moore v. Capitol Guide Bd., 982 F. Supp. 35, 39 (D.D.C. 1997) (stating that a covered employee may "bring suit under the CAA only against `the employing office alleged to have committed the violation, or in which the violation is alleged to have occurred.'" (quoting 2 U.S.C. § 1408(b)); cf. Alabama Power Co. v. ICC, 852 F.2d 1361, 1366-67 (D.C. Cir. 1988) ("To permit . . . substitution . . . in these circumstances would be to condone the impermissible ­ an evasion of clear jurisdictional requirements ordained by Congress for obtaining judicial review."). In contrast to the CAA, numerous other federal statutes explicitly provide for the avoidance of abatement and the substitution of parties in litigation involving government offices and entities that cease to exist. See, e.g., 5 U.S.C. § 907(c) (providing that actions by or against the head of an executive branch agency "does not abate by reason of the taking effect of a reorganization plan" and that "within twelve months after the reorganization plan takes effect," a party may move for substitution of "the successor of the head . . . under the reorganization 6

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effected by the plan or, if there is no successor, against such agency or officer as the President designates"); 15 U.S.C. §§ 767(d) (providing that "[n]o cause of action by or against any department or agency, functions of which are transferred by [reorganization of executive branch functions and agencies to create the Federal Energy Commission] . . . shall abate by reason of the [reorganization]" and permitting substitution of the United States in such proceedings); 20 U.S.C. §§ 3505(d) - (e) (providing that "[n]o cause of action by or against any department or agency, functions of which are transferred by [reorganization of the Department of Education] . . . shall abate by reason of the [reorganization]" and permitting substitution of the Secretary of Education in such proceedings); 22 U.S.C. §§ 6615(d) - (e) (providing for "Nonabatement of proceedings" and "Continuation of proceedings with substitution of parties" in connection with the reorganization and consolidation of the Foreign Affairs agencies); 22 U.S.C. §§ 6543(c) - (d) (same); 42 U.S.C. §§ 7295(d) - (e) (same - Dep't of Energy). Because the Campbell Office ceased to exist on January 3, 2005, and the CAA neither provides for a successor to the Campbell Office nor permits substitution of another entity for the Campbell Office, this lawsuit must be dismissed. II. THIS CASE IS MOOT BECAUSE NO DEFENDANT, AS DEFINED BY THE CAA, WHO IS A REAL PARTY IN INTEREST EXISTS In the absence of a live controversy, a federal court is deprived of jurisdiction. "Article III, § 2, of the Constitution confines federal courts to the decision of `Cases' or `Controversies.'" Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). "A moot case presents no Article III case or controversy, and a court has no constitutional jurisdiction to resolve the issues

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it presents." Goldin v. Bartholow, 166 F.3d 710, 717 (5th Cir. 1999). "A controversy is mooted when there are no longer adverse parties with sufficient legal interests to maintain the litigation." Id.; see also Arizonans, 520 U.S. at 67 ("To qualify as 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."). There are no longer two active combatants in this litigation because neither the Campbell Office nor a successor exists. Therefore, the "case or controversy" requirement for this Court's jurisdiction is lacking. Accordingly, Plaintiff's lawsuit must be dismissed as moot.

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CONCLUSION For the reasons stated, the Amended Complaint should be dismissed with prejudice.

Dated: July 22, 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 22nd day of July, 2005, I sent a true and accurate copy of Defendant's Motion to Dismiss the Amended Complaint on Grounds of Abatement and Mootness 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