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.

DEFENDANT'S MOTION FOR STAY OF PROCEEDINGS OR, IN THE ALTERNATIVE, TO RESCHEDULE STATUS CONFERENCE

Pursuant to Rule 7 of the Federal Rules of Civil Procedure and Local Rule 7.1, the Office of Senator Ben Nighthorse Campbell ("Defendant"), by its undersigned counsel, respectfully submits this Motion for Stay of Proceedings Or, in the Alternative, to Reschedule Status Conference. Defendant filed a Petition for a Writ of Certiorari ("the Petition") from the Order of the Tenth Circuit dated June 28, 2006, in which the Tenth Circuit dismissed Defendant's appeal filed pursuant to 28 U.S.C. § 1291 on the basis of lack of appellate jurisdiction. Bastien v. Office of Senator Ben Nighthorse Campbell, 454 F.3d 1072 (2006). As explained below, the Court should stay these proceedings because (1) Defendant has a strong case on the merits of the Petition; (2) Defendant will be irreparably harmed if it is required to proceed to discovery and trial while its claim of immunity is reviewed by the Supreme Court; (3) Plaintiff will not be substantially harmed by a stay in light of the possibility that her claims may be dismissed in their entirety on appeal; and (4) there is a strong public interest in preserving

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the constitutional separation of powers principle that lies at the root of Defendant's assertion of immunity. In the alternative, Defendant requests that the status conference be rescheduled because Lead Counsel is unavailable to appear or otherwise be present for the conference as currently scheduled. Pursuant to Local Rule 7.1(A), the undersigned certifies that she conferred with counsel for Plaintiff on November 21, 2006, regarding this motion and that Plaintiff's counsel would not consent to any part of the relief requested herein by Defendant. BACKGROUND Senator Ben Nighthorse Campbell's term of office expired 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."). As a consequence, Defendant also ceased to exist on January 3, 2005, and Defendant moved to dismiss the above-captioned case on grounds of mootness and abatement. Docket Item 66 ("the Motion to Dismiss"). This Court denied the Motion to Dismiss, finding that the case had not abated and was not moot because "Congress is the party which must answer to claims filed thereunder, not the individual members." Docket Item 77 ("December Order") at 7. The Court concluded that it was therefore "irrelevant" that Senator Campbell was no longer in office. Id. On December 16, 2005, attorneys for Defendant filed 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). See Docket Item 79. On January 18, 2006, this Court denied the Motion for

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Reconsideration, but amended the December Order to certify it for immediate appeal pursuant to 28 U.S.C. § 1292(b). See Docket Item 81 ("January Order") at 7. Defendant appealed from the December Order pursuant to 28 U.S.C. § 1291, see Bastien v. Office of Senator Ben Nighthorse Campbell, Case. No. 06-1047 (10th Cir.), and filed a petition for permission to appeal pursuant to 28 U.S.C. § 1292(b), which was separately docketed as Bastien v. Office of Senator Ben Nighthorse Campbell, Case. No. 06-500 (10th Cir.). On March 3, 2006, the Tenth Circuit denied the petition for permission to appeal in Case No. 06-500, and ordered the parties to brief the question whether the December Order is immediately appealable in Case No. 06-1047. On June 28, 2006, the Tenth Circuit dismissed the appeal in Case No. 061047 for lack of appellate jurisdiction. Bastien, 454 F.3d at 1075 (2006). The Tenth Circuit denied Defendant's petition for rehearing en banc. On November 6, 2006, Defendant filed with the United States Supreme Court a Petition for a Writ of Certiorari challenging the Tenth Circuit's decision dismissing the appeal. ARGUMENT I. A STAY OF PROCEEDINGS IS WARRANTED When considering a motion to stay district court proceedings, the Court examines four factors: (1) the likelihood that the party seeking a stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that opposing parties will be harmed if the court grants the stay; and (4) the risk of harm to the public interest. FTC v. Mainstream Mktg. Servs., Inc., 345 F.3d 850, 852 (10th Cir. 2003); see also Wis. Gas Co. v. FERC, 758 F.2d 669, 673-74 (D.C. Cir. 1985).

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A.

Defendant Has a Strong Case on the Merits of its Petition

The Tenth Circuit erred in concluding that it lacked jurisdiction to hear Defendant's appeal from the December Order. The Tenth Circuit's error lies in its finding that the December Order did not satisfy the third prong of the collateral order doctrine.1 Bastien, 454 F.3d at 1075 (identifying the third prong: that the order must be effectively unreviewable on appeal from a final judgment). Defendant's argument for a strict construction of the waiver of sovereign immunity contained in the Congressional Accountability Act of 1995 ("CAA") is based on well-established Supreme Court precedent. A waiver of sovereign immunity must "be strictly construed," Lane v. Pena, 518 U.S. 187, 192 (1996), and courts must strictly comply with the conditions Congress places on that waiver, Lehman v. Nakshian, 453 U.S. 156, 161 (1981); United States v. Sherwood, 312 U.S. 584, 586 (1941) ("The United States, as sovereign, is immune from suit save as it consents to be sued . . . , and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.") (citations omitted). The waiver of sovereign immunity contained in the CAA is conditioned on suit against the appropriate "employing office," see 2 U.S.C. § 1408(b), which, in this litigation, no longer exists. "The Congress," which this Court determined in the December Order "is the party which must answer to [Ms. Bastien's CAA] claims," December Order at 7, is not included among the

An interlocutory order is appealable under the collateral order doctrine, identified with Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949), if it (1) "conclusively determine[s] the disputed question," (2) "resolve[s] an important issue completely separate from the merits of the action," and (3) is "effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978) (footnote omitted). 4

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more than 600 legislative branch entities the CAA identifies as defendant employing offices. See 2 U.S.C. § 1301(9) (definition of "employing office"). Relevant legislative history supports Defendant's construction of the CAA. Congress considered and rejected statutory language that would have permitted employment lawsuits against "the Congress." See, e.g., S. 579, 103d Cong. § 2(c)(1) (1993) (would have permitted employment suits "against the Congress" in federal court); H.R. 2099, 103d Cong. § 2(c)(1) (1993) (would have permitted a civil action "against the Congress or the congressional employer of such employee" in federal court); H.R. 4444, 103d Cong. § 102(c)(1) (1994) (would have permitted employment suits "against the Congress" in federal court); H.R. 4850, 103d Cong. § 2(c)(1) (1994) (would have permitted employment suits "against the Congress" in federal court). No such provision survived to final passage of the CAA, and this Court exceeded its authority by reading such a provision into the CAA. See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (courts have a "duty to refrain from reading a phrase into the statute when Congress has left it out"); see also United States v. Nordic Vill., Inc., 503 U.S. 30, 37 (1992) ("the `unequivocal expression' of elimination of sovereign immunity that we insist upon is an expression in statutory text"). Moreover, no provision of the CAA makes Congress the successor of Defendant. The CAA "contains none of the language Congress usually employs to provide for the non-abatement of litigation and the substitution of successor entities." Asociacion de Empleados del Area Canalera (ASEDAC) v. Panama Canal Comm'n, 453 F.3d 1309, 1316 (11th Cir. 2006). In sharp contrast to the CAA, numerous federal statutes explicitly provide for the avoidance of abatement and the substitution of parties in litigation involving government officers and entities upon their

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cessation. See, e.g., 5 U.S.C. § 907(c) (2000) (providing that actions by or against the head of an executive branch agency do not abate by reason of an agency 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 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) (2000) (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) (2000) (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) (2000) (providing for "[n]onabatement of proceedings" and "[c]ontinuation 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) (2000) (same); 42 U.S.C. § 7295(d), (e) (2000) (similar - Department of Energy). Finally, the CAA itself provides an express statutory prohibition on judicial review where, as here, such review would exceed the authorization provided in 2 U.S.C. § 1408(b). See 2 U.S.C. § 1410 ("Except as expressly authorized by sections 1407, 1408, and 1409 of [2 U.S.C.], the compliance or noncompliance with the provisions of [the CAA] and any action taken pursuant to [the CAA] shall not be subject to judicial review.") (emphasis added).

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Congress, not the judiciary, is empowered to subject congressional defendants to federal court litigation. See U.S. CONST . art. I, § 1; see also Nw. Airlines, Inc. v. Transp. Workers Union, 451 U.S. 77, 95 (1981) ("federal lawmaking power is vested in the legislative, not the judicial, branch of government"); Buckley v. Valeo, 424 U.S. 1, 132 (1976) ("Congress has plenary authority in all areas in which it has substantive legislative jurisdiction, so long as the exercise of that authority does not offend some other constitutional restriction.") (citation omitted). Further, Congress, not the judiciary, is empowered to provide for a successor to a defunct government entity defendant. See ASEDAC, 453 F.3d at 1316 (holding that a federal court cannot substitute an executive branch agency to defend a suit in place of a terminated government entity "[a]bsent an unequivocal statutory expression of Congress's intent to waive [the executive agency's] sovereign immunity"). When this Court denied Defendant's Motion to Dismiss and held that this litigation could proceed notwithstanding Defendant's dissolution because "the Congress" is the true defendant, the Court created a waiver of congressional sovereign immunity where none previously existed and thereby intruded into the legislative sphere in violation of separation of powers principles. Heckler v. Mathews, 465 U.S. 728, 741-42 (1984) (when courts "judicially rewrit[e]" statutes passed by Congress, they impermissibly "usurp the policy-making and legislative functions of duly-elected representatives"); see also United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 479 (1995) (courts have an "obligation to avoid judicial legislation"). Last term in Will v. Hallock, the Supreme Court reaffirmed that an order is effectively unreviewable on appeal from a final judgment when "some particular value of a high order [is] marshaled in support of the interest in avoiding trial: honoring the separation of powers." 126 S.

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Ct. 952, 959 (2006). As explained above, the December Order satisfies this requirement articulated in Will. Therefore, the December Order is an immediately appealable collateral order. Accordingly, the first factor of the stay analysis weighs heavily in favor of granting a stay of these proceedings. B. Continuation of the District Court Proceedings Will Cause Defendant Irreparable Harm

If a stay of the district court proceedings is not granted, the Defendant will be deprived of the benefits of immunity that Congress preserved for it in the CAA. "Except as expressly authorized by sections 1407, 1408, and 1409 of [2 U.S.C.], the compliance or noncompliance with the provisions of [the CAA] and any action taken pursuant to [the CAA] shall not be subject to judicial review." 2 U.S.C. § 1410 (emphasis added). According to 2 U.S.C. § 1408(b), "The defendant [in a civil action alleging a CAA violation] shall be the employing office alleged to have committed the violation, or in which the violation is alleged to have occurred." (Emphasis added.) The CAA delineates what an "employing office" is, see 2 U.S.C. § 1301(9); Congress is not an employing office. Moreover, the limited authorization to bring judicial proceedings under 2 U.S.C. § 1408 "shall not constitute a waiver of sovereign immunity for any other purpose." 2 U.S.C. § 1413. Thus, when Congress waived sovereign immunity under the CAA, Congress limited that waiver to CAA actions in which the defendant is an "employing office." Congress did not permit the Congress to be named as a defendant or to be substituted as the defendant for a non-existent employing office.2

Courts have dismissed from CAA lawsuits defendants that are not included among the employing offices the CAA delineates. See, e.g., Moss v. Lenhardt, C.A. No. 02-01622 (RMC), Mem. Op. at 5 (D.D.C. Jan. 24, 2003) (case dismissed because "[n]either an individual nor the United States Senate constitutes an `employing office' under section 1301(9) of the CAA") 8

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Because Defendant is asserting an immunity from suit, not merely an immunity from liability, a denial of that immunity is "effectively unreviewable on appeal from a final judgment," Coopers & Lybrand, 437 U.S. at 468. As the Tenth Circuit has acknowledged, failure to grant a stay in such circumstances "results in a denial or impairment of the appellant's ability to obtain its legal entitlement to avoidance of litigation." McCauley v. Halliburton Energy Servs., Inc., 413 F.3d 1158, 1162 (10th Cir. 2005); cf. Woodruff v. Covington, 389 F.3d 1117, 1125 (10th Cir. 2004) (if the court "wait[s] until final judgment to hear this appeal, the right not to be burdened by trial will have been irreparably lost"). Finally, if these proceedings are not stayed and Defendant's assertion of immunity is ultimately held correct, then this Court will have imposed on Congress a litigation burden Congress did not agree to assume. Such an imposition would violate the constitutional doctrine of separation of powers, a harm that cannot be undone by an appeal after trial. See Will, 126 S. Ct. at 959. Because Defendant will be irreparably harmed by being forced to engage in discovery and trial prior to resolution of the Petition, the second factor of the stay analysis weighs heavily in favor of granting a stay of these proceedings. C. Plaintiff Will Not Be Substantially Harmed by a Stay

Defendant acknowledges that in the case of any interlocutory appeal by a defendant the plaintiff has an interest in proceeding while the defendant's appeal is pending. This harm, however, is mitigated by the possibility that the Supreme Court may terminate the litigation on

(unpublished); Moore v. Capitol Guide Bd., 982 F. Supp. 35, 39 n.5 (D.D.C. 1997) (dismissing several named defendants because "the language of the statute requires an employee filing a claim in District Court to bring suit against the single employing office responsible for the alleged violation"). 9

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abatement or mootness grounds, in which case, Plaintiff would not be able to recover her costs and fees of litigating before the district court. Moreover, if the Supreme Court grants the Petition,3 then this Court will be divested of jurisdiction pending the Supreme Court's resolution of the matter. Therefore, the third factor of the stay analysis provides little or no support for denial of a stay. D. It is in the Public Interest to Preserve the Constitutionally Created Separation of Powers

As stated above, the statutorily-preserved immunity at issue on appeal implicates constitutional separation of powers concerns. The statute that is applicable in this case, the CAA, explicitly prohibits "judicial review" where, as here, judicial review would exceed the authorization contained in 2 U.S.C. § 1408. See 2 U.S.C. § 1410. A strong public interest exists in having the immunity issue resolved on appeal before the balance of powers between the coordinate branches is irretrievably upset. See Will, 126 S. Ct. at 959. II. IN THE ALTERNATIVE, DEFENDANT RESPECTFULLY REQUESTS THAT THE STATUS CONFERENCE BE RESCHEDULED BECAUSE LEAD COUNSEL IS UNAVAILABLE ON NOVEMBER 30. Should the Court deny Defendant's motion to stay these proceedings pending resolution of the Petition, Defendant respectfully requests that the Court reschedule the status conference. The Court has requested the personal appearance of "Lead Counsel" at the status conference on November 30, 2006, in Denver, Colorado. Jean Manning, the Senate Chief Counsel for Employment, is Lead Counsel for Defendant in this litigation. Of most immediate

Based on the Supreme Court's current schedule for reviewing petitions in conference, Defendant anticipates the Supreme Court's decision whether to grant or deny the Petition will likely issue in early- to mid-January 2007. 10

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concern is that Ms. Manning will be traveling on official business from November 28 through December 1, 2006, and therefore will be unable to appear in person or by conference call for the November 30 status conference. As stated, based on the Supreme Court's current schedule for reviewing petitions for certiorari in conference, Defendant anticipates that the Supreme Court's decision whether to grant or deny the Petition will occur in mid-January 2007. Therefore, Defendant respectfully requests that the status conference be rescheduled for no sooner than January 15. CONCLUSION For the reasons stated above, Defendant respectfully requests that the Court stay all proceedings in this Court pending resolution of Defendant's Petition for a Writ of Certiorari, or in the alternative, to reschedule the status conference to a date not sooner than January 15, 2007. Dated: November 22, 2006 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

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CERTIFICATE OF SERVICE I hereby certify that on this 22nd day of November, 2006, I sent a true and accurate copy of Defendant's Motion for Stay of Proceedings Or, in the Alternative, to Reschedule Status Conference 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

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