Free Motion to Stay - 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 Civil Action No. 01-cv-00799-PSF-MEH RITA BASTIEN, Plaintiff, v. THE OFFICE OF SENATOR BEN NIGHTHORSE CAMPBELL, Defendant.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT'S MOTION TO STAY PROCEEDINGS PENDING THE DECISION OF THE SUPREME COURT IN OFFICE OF SENATOR MARK DAYTON v. HANSON Defendant, the Office of Senator Ben Nighthorse Campbell ("the Campbell Office" or "Defendant"), by and through undersigned counsel, respectfully submits this memorandum in support of its Motion to Stay Proceedings Pending the Decision of the Supreme Court in Office of Senator Mark Dayton v. Hanson, No. 06-618 (U.S. filed Nov. 3, 2006) (hereinafter, "the Dayton Appeal"). The Dayton Appeal, which will be heard by the Supreme Court on April 24, 2007, presents the question of whether the Speech or Debate Clause of the U.S. Constitution poses a jurisdictional bar to an employment lawsuit brought under the Congressional Accountability Act of 1995 ("CAA"), 2 U.S.C. §§ 1301-1438 (2000).1

By Order dated January 19, 2007, the Supreme Court directed the parties to brief and argue the question presented, the issue of appellate jurisdiction, and whether the underlying lawsuit is rendered moot by the expiration of Senator Dayton's term of office. See Office of Senator Mark Dayton v. Hanson, No. 06-618, 2007 WL 123682 (U.S. Jan. 19, 2007).

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I.

Introduction This lawsuit, filed under the CAA, is an employment discrimation case in which Plaintiff,

a former employee of the Office, alleges age discrimination and retaliation. On January 9, 2002, the Office moved to dismiss the Amended Complaint in its entirety, asserting that the Speech or Debate Clause of the U.S. Constitution bars this Court's jurisdiction over this action. Docket No. 35;2 see also U.S. CONST . art. I, § 6, cl. 1. On June 27, 2002, this Court granted the Campbell Office's motion to dismiss. Dkt. No. 56. Plaintiff appealed that decision to the U.S. Court of Appeals for the Tenth Circuit which, on December 10, 2004, reversed. 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 Senator Campbell's term of office, the Campbell Office ceased to exist. On July 22, 2005, the Campbell Office moved to dismiss Plaintiff's claims on grounds of abatement and mootness. On December 5, 2005, this Court denied the Campbell Office's motion to dismiss. The Campbell Office's interlocutory appeal to the Tenth Circuit was dismissed for lack of jurisdiction, and on January 8, 2007, the U.S. Supreme Court denied the Campbell Office's petition for a writ of certiorari. During this same time period, the Office of Senator Mark Dayton ("the Dayton Office") appealed to the U.S. Court of Appeals for the District of Columbia Circuit from the denial of a motion to dismiss a CAA case brought against the Dayton Office by a former employee. Office of Senator Mark Dayton v. Hanson, No. 04-5335 (D.C. Cir. filed Sept. 24, 2004). Like
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The docket for this case will be cited to hereinafter as "Dkt." 2

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Defendant, the Dayton Office had moved to dismiss pursuant to FED . R. CIV . P. 12(b)(1) on the basis of Speech of Debate Clause immunity. Id. On August 18, 2006, the D.C. Circuit issued a fragmented en banc decision affirming the district court's denial of the Dayton Office's motion to dismiss. See Fields v. Office of Eddie Bernice Johnson, 459 F.3d 1 (D.C. Cir. 2006).3 It is from that decision that the Dayton Office filed a direct appeal to the Supreme Court pursuant to 2 U.S.C. § 1412. On January 5, 2007, the Dayton Office filed a Suggestion of Mootness on the basis that the Dayton Office ceased to exist at noon on January 3, 2007, as a result of the expiration of Senator Dayton's term of office. The Supreme Court took the appeal on January 19, 2007, and requested additional briefing on the issues of mootness and appellate jurisdiction. See Office of Senator Mark Dayton v. Hanson, 2007 WL 123682 at *1. Pursuant to Local Rule 7.1, on February 7, 2007, counsel for Defendant contacted Plaintiff's counsel regarding this motion. Plaintiff's counsel would not consent to the relief requested herein by Defendant. II. Argument A. A Stay of All Proceedings Is Warranted Pending Resolution of The Dayton Appeal by the Supreme Court

This Court has broad discretion to stay all proceedings in this action pending the resolution of independent proceedings elsewhere. Landis v. North American Co., 299 U.S. 248, 254 (1936); Flying J Inc. v. Sprint Commc'ns Co., No. 1:99CV111TC, 2006 WL 1473338 (D.

Simultaneously with its consideration of the Dayton Office's appeal, the D.C. Circuit heard a similar appeal from the Office of U.S. Representative Eddie Bernice Johnson, and issued a single opinion disposing of both appeals, although the appeals were never consolidated. 3

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Utah May 22, 2006). In accessing whether a stay is appropriate, a court should consider "whether the defendants are likely to prevail in the related proceedings; whether, absent a stay, the defendants will suffer irreparable harm; whether the issuance of a stay will cause substantial harm to the other parties to the proceeding; and the public interests at stake." United Steel Workers of Am. v. Oregon Steel Mills, Inc., 322 F.3d 1222, 1227 (10th Cir. 2003) (citing Battle v. Anderson, 564 F.2d 388, 397 (10th Cir. 1977)). "Especially in cases of extraordinary public moment, the individual may be required to submit to delay not immoderate in extent and not oppressive in its consequences if the public welfare or convenience will thereby be promoted." Landis, 299 U.S. at 256. "[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Id. at 254; United Steel Workers of Am., 322 F.3d at 1227 (quoting Landis). "A trial court may, with propriety, find it is efficient for its own docket and the fairest course for the parties to enter a stay of an action before it, pending resolution of independent proceedings which bear upon the case." Leyva v. Certified Grocers of California, Ltd., 593 F.2d 857, 863 (9th Cir. 1979). This is best done by the "exercise of judgment, which must weigh competing interests and maintain an even balance." Landis, 299 U.S. at 254-55. In this case, after weighing the competing interests, fairness and efficiency support a stay.

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1.

The Balance of Equities Favors a Stay a. This is a Case of Extraordinary Public Moment

The legal landscape of this case has changed substantially since this Court held the Initial Scheduling Conference on January 19, 2007.4 The scope of the Speech or Debate Clause and how it applies in employment lawsuits brought by congressional staffers (like Plaintiff) whose job duties are part of the due functioning of the legislative process is now an issue of first impression before the Supreme Court in a "case[] of extraordinary public moment." Landis, 299 U.S. at 256. The Supreme Court has held that a stay within the bounds of moderation pending the resolution of independent proceedings elsewhere is appropriate if the public welfare or convenience will be promoted. Landis, 299 U.S. at 256. There is a strong public interest in preserving the constitutional separation of powers principle in which Speech or Debate Clause immunity is rooted. See United States v. Gillock, 445 U.S. 360, 369 (1980); Eastland v. United States Servicemen's Fund, 421 U.S. 491, 503 (1975); see also Def.'s Mot. To Dismiss, Dkt. No. 35. Where a constitutional separation of powers issue has been raised on appeal to the Supreme Court in a case almost identical to the one at bar, there is a strong public interest in having the question resolved on appeal before the balance between the coordinate branches is irretrievably upset. Indeed, in Helstoski v. Meanor, the Supreme Court found that the "guarantees of [the Speech or Debate] Clause are vitally important to our system of government
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During the January 19, 2007 scheduling conference, Defendant's counsel had raised the possibility of the Supreme Court accepting the Dayton Appeal. Several hours after the scheduling conference concluded, the Supreme Court issued its January 19, 2007 order. 5

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and therefore are entitled to be treated by the courts with the sensitivity that such important values require." 442 U.S. 500, 506 (1979). Furthermore, the Supreme Court long ago observed that the Speech or Debate privilege is the "great and vital privilege . . . without which all other privileges would be comparatively unimportant or ineffectual." Kilbourn v. Thompson, 103 U.S. 168, 204 (1880) (quoting Joseph Story, Commentaries on the Constitution, § 866). A great constitutional issue is involved here, "great in [its] complexity, great in [its] significance." See Landis, 299 U.S. at 256. The CAA is a fairly new statute and the Dayton Appeal will provide the first opportunity for the Supreme Court to provide guidance on the ability of congressional staff to pursue CAA claims where the Speech or Debate Clause privilege is invoked. A ruling by the Supreme Court in the Dayton Appeal regarding the Speech or Debate Clause's application in CAA cases is significant to the case at bar because such ruling would directly impact the continuing validity of the Tenth Circuit's decision in this case on the same legal issue. See Bastien, 390 F.3d at 1315-19. Given the vital importance of the Speech or Debate Clause privilege to the maintenance of constitutionally guaranteed separation of powers, the public interest weighs heavily in favor of this Court granting a stay until the Supreme Court determines whether and how constitutional immunity applies in the context of congressional personnel decisions. The Supreme Court will also be considering whether the Dayton Appeal is moot as a result of the expiration of Senator Dayton's term of office. Like the Campbell Office, the Dayton 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 Dayton Office for 6

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purposes of continuing litigation. Therefore, should the Supreme Court in the Dayton Appeal find the matter moot because the Dayton Office no longer exists, this decision would materially affect the case at bar, obligating this Court to dismiss Plaintiff's suit. The question of whether this Court lacks jurisdiction because Plaintiff's claim became moot when the Campbell Office ceased to exist is of public importance as federal courts must be diligent in ensuring jurisdiction over claims. 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 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)). b. Defendant Will Be Irreparably Harmed By Continuation Of The District Court Proceedings

"A showing of irreparable injury will generally be automatic from invocation of the immunity doctrine if the trial has begun or will commence during the pendency of [an] appeal." McSurely v. McClellan, 697 F.2d 309, 317 (D.C. Cir. 1982). Here, a trial is set for October 1, 2007, and pre-trial discovery would commence during the pendency of the Dayton Appeal. As the D.C. Circuit has noted, "compelling a public official to proceed to trial before the merits of an immunity defense are determined will generally constitute irreparable injury not because of the expense of litigation, but because of the irretrievable loss of immunity from suit." Id. at 317, n.13. The Campbell Office would suffer "a clear case of hardship or inequity in being required to go forward" before the Supreme Court considers the important Constitutional issues under

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consideration in the Dayton Appeal and at issue in this case.5 Landis, 299 U.S. at 255. It is possible that the Supreme Court may rule in favor of the Dayton Office on the basis of Speech or Debate Clause immunity or may rule that the expiration of Senator Dayton's term of office moots the CAA case against the Dayton Office. If the Court proceeds here and the Supreme Court later determines either of these issues in the Campbell Office's favor, the Campbell Office will be irreparably harmed. It is also possible that the Supreme Court's ruling in the Dayton Appeal will provide guidance regarding the testimonial aspect of the Speech or Debate Clause privilege and how it applies to CAA cases. Plaintiff has stated her intention to take the depositions of both former Senator Ben Nighthorse Campbell and his former Chief of Staff.6 Guidance from the Supreme Court would be helpful in advance of anticipated disputes over the scope of the testimonial privilege applicable to former Senator Campbell and his former aides. Equity requires that a stay be granted in light of the clear hardship that the Campbell Office would suffer were this case to continue while the Supreme Court reviews substantial constitutional issues of import here.

Defendant acknowledges that the Supreme Court may not rule on the merits of the Dayton Appeal and that it cannot be certain how the Supreme Court will rule even if the Supreme Court reaches the merits. But, certainty of ultimate success is not required for a stay. McClendon v. City of Albuquerque, 79 F.3d 1014, 1020 (10th Cir. 1996) (If the applicant meets the other requirements for a stay pending appeal, it will be deemed to have satisfied the likelihood of success on the merits requirement by showing "questions going to the merits so serious, substantial, difficult and doubtful, as to make the issues ripe for litigation and deserving of more deliberate investigation.") (quoting Walmer v. U.S. Dep't of Def., 52 F.3d 851, 854 (10th Cir. 1995)). The Speech or Debate Clause privilege would also apply to Senator Campbell's aides. See Gravel v. United States, 408 U.S. 606, 616 (1972) ("for the purpose of construing the privilege a Member and his aide are to be treated as one") (internal citations omitted). 8
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c.

Plaintiff Will Not Be Substantially Harmed By A Stay

Defendant acknowledges that Plaintiff desires to proceed while the Dayton Appeal is pending before the Supreme Court. The minimal delay anticipated by Defendant is mitigated by the possibility that the Supreme Court may terminate the Dayton Appeal on either Speech or Debate Clause or mootness grounds ­ a decision that would have an immediate and substantial impact on this case if it is still pending. In the event of such a ruling by the Supreme Court, this case would likely have to be dismissed and any resources expended by Plaintiff, including attorneys' fees, would be non-recoverable. Thus, a stay of these proceedings may actually benefit Plaintiff. 2. Considerations of Judicial Economy Favor a Stay

A trial court may consider principles of judicial economy and the avoidance of unnecessary litigation when considering a grant of stay. See Landis, 299 U.S. at 254. "[T]he power to stay proceedings is incidental to the power inherent in every court to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants. Id. In this case, nothing will be gained by this Court addressing issues the Supreme Court is about to decide, particularly since, if this case proceeds and is still pending when the Supreme Court rules, it would be dismissed if the Supreme Court were to overturn the Dayton Appeal or find the matter moot. Further proceedings here would require the expenditure of significant judicial and other resources that may be avoided as a result of the Dayton Appeal. Accordingly, the stay should be granted.

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III.

Conclusion Because the balance of equities tips heavily in favor of the Campbell Office and for

reasons of judicial economy, as stated herein, the Court should stay all proceedings in this case pending resolution of the Dayton Appeal by the Supreme Court.

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 P.O. Box 77053 Washington, D.C. 20013 Telephone: (202) 224-5424 Facsimile: (202) 228-2557 Attorneys for Defendant, The Office of Senator Ben Nighthorse Campbell Dated: February 7, 2007

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