No Campbell, No CAA Case?

Appeal Almost Certain in Suit

Posted March 12, 2004 at 5:36pm

DENVER — The lawyer representing Sen. Ben Nighthorse Campbell in an age discrimination suit before a federal appeals court asserted that the Colorado Republican’s retirement could lead to dissolution of the case, but several other lawyers questioned that interpretation.

The comments came after the 10th U.S. Circuit Court of Appeals heard an appeal Thursday by former Campbell state office employee Rita Bastien, whose case was dismissed by a lower court on grounds that the Constitution protected the Senator from suit. Senate Chief Counsel for Employment Jean Manning, who represents Campbell, said come January, “There’s no case because there is no defendant.”

The Congressional Accountability Act, under which Bastien sued Campbell, stipulates that the employing office — in this case Campbell’s personal office — is the defendant in such cases. Citing health reasons, Campbell announced earlier this month that he will not seek a third term.

“This has just come up. He certainly didn’t give me a heads-up that he was retiring,” Manning said, adding: “I would hope that [the judges] would rule before January.”

A decision in the case could come anytime, but the likely window is anywhere from two months to a year.

Even if the court rules before Campbell officially relinquishes his seat, however, Manning said there might not be time for either side to appeal because the defendant — the office and not the Senator himself — would no longer exist.

But Bastien attorney John Evangelisti said that Campbell leaving the Senate does not mean that the office’s liability simply dissolves. “The office is established by the act. The office has a potential liability. Just because a corporation goes out of business doesn’t mean it doesn’t owe its creditors anymore,” he said, calling Manning’s assertion “silly and irresponsible.”

Additionally, in 1979 the Supreme Court determined in a case against the late Rep. Otto Passman (D-La.) that a Congressional staffer could sue a Member for wrongful termination even after the Member had left office, ruling that although she could no longer be rehired, “a damages remedy is surely appropriate in this case.”

Long before the enactment of the CAA, the suit was filed by a former deputy administrative assistant to Passman who said she was fired because she was a woman, violating her Fifth Amendment right to due process. Passman had left office two years before the high court’s decision.

Several other lawyers, who asked not to be named, also strenuously disputed Manning’s reasoning, noting that the CAA created an essentially fictional structure — the employing office as a stand-alone entity — for the purposes of these types of cases, both to prevent the Member from being held personally liable for discrimination claims and to ensure the complaint would not be moot if the Member was to leave office.

“The injury doesn’t dissolve … just because he is no longer in office. The office itself has not gone away. The compensatory damages to which she is entitled are being paid by the Treasury,” one lawyer explained. “It’s just a legal fiction that the CAA sets up. They set it up that way so there wouldn’t be the issue of getting the Senator involved.”

The CAA stipulates that all damages be awarded out of an account within the general treasury and requires that the Office of Compliance approve compensatory awards.

Discussions of what happens to the case after Campbell’s retirement are salient only because of the near certainty that the three-judge panel’s decision, regardless of the outcome, will be appealed either to the entire 14-member 10th Circuit or to the Supreme Court.

Manning stated unequivocally that she would appeal a decision favoring Bastien, adding confidently: “I won’t be going to the Supreme Court because I will be winning.” For her part, Bastien said she would at least entertain the possibility of taking her case further.

“The appeal is very important, I think, not only for myself but all people who end up working for a Member of Congress. Especially given who their bosses are, they need to be protected,” Bastien said. “Actually, I need to do a little soul-searching on that, based on cost, bottom line. I am going to be 65 next week, so my ability to earn money is diminishing by the day.”

But Bastien isn’t alone in her desire to see the court uphold the constitutionality of the landmark 1995 act, which applied federal labor laws to Congress for the first time. The 35 million-member AARP, along with the American Federation of State, County and Municipal Employees, the National Employment Lawyers Association, the American Association of People with Disabilities, and the National Asian Pacific American Legal Consortium, submitted friend-of-the-court briefs in the case and were granted half of the appellant’s time for oral argument. (Although it’s too early for the organization to make such a determination, several lawyers knowledgeable about these types of cases said it wouldn’t be uncommon for them to help the appellant proceed with the case if money was the only issue.)

At stake in the case is whether employees have the right, as the CAA explicitly provides, to take Members to court over alleged violations of the 11 federal workplace and anti-discrimination laws covered in the act.

In 2002, a U.S. district judge dismissed the suit brought by Bastien, a former caseworker in Campbell’s state office, before it could be heard by a jury. He ruled that she was sufficiently tied to the legislative process to trigger constitutional protection. The question now before the 10th Circuit is whether that constitutional provision — which protects Members from being questioned about the “Speech or Debate in either House … in any other place” — applies to personnel decisions.

The appellant argued the district court was wrong in two key respects.

The friend of the court, represented by Jones, Day, Reavis & Pogue attorney Traci Lovitt, told the court that terminating an employee is an administrative, not legislative, action and thus not covered by Speech or Debate.

“The words ‘you’re fired’ are not a legislative act,” she told the judges. “The [kinds of] questions that are going to be asked of Senator Campbell, ‘Did she show up to work on time?’ those are the kinds of inquiries that have nothing to do with the legislative process.”

The district court’s decision to dismiss the case, she continued, was “truly unprecedented” because never before has any court “struck down an act of Congress signed by the president on the theoretical possibility that a question may be asked in the future.”

Upholding the district court decision, she said, would make an “entire class of actions authorized under the CAA unconstitutional.”

Evangelisti added: “The uncontested pleadings show Ms. Bastien’s performance at all times was good. The suit does not require an inquiry into legislative speech.”

Secondly, Evangelisti argued that even if the court believes that some Speech or Debate protection is applicable to personnel decisions, Bastien was so distanced from the legislative process so as to render constitutional immunity moot.

Bastien, who was 62 at the time of her dismissal, maintains that she performed no legislative duties for Campbell and did only constituent service work related to the Immigration and Naturalization Service. “She collected political information but is not at all connected with specific legislation,” he said.

“I was doing constituent services,” Bastien said in an interview after the hearing.

Manning told the court that personnel actions are absolutely a function of the legislative process.

“I would like to begin by pointing out that the Supreme Court has addressed Speech or Debate 11 times. In none of those instances, not one, did the Supreme Court make a distinction between legislative acts and administrative acts,” Manning said. “Anything a Member does that is within the sphere of legislative duties is protected.”

In an interview after the oral argument, Manning acknowledged that if the appeals court strikes down a key provision of the CAA allowing employees to go to court it would be “unpalatable” to some.

“The Constitution just puts limits on things. Sometimes the results aren’t what they would like them to be. I would admit that the result would be unpalatable here,” Manning said, adding, “This is interfering with the business of Congress.

“Not all employees can go to court to get redress. To some people, it would not be palatable that employees who have been wronged cannot go to court,” she said.

When asked by a reporter where employees who feel they have been wronged could go if the courts eliminated the judicial branch as an avenue for at least some legislative staffers, Manning responded that they could go to the Ethics Committee.

The CAA sets up two venues for aggrieved staffers after the required counseling and mediation at the Office of Compliance. They can either continue pursuing their claim at an administrative hearing within the independent legislative branch agency, or they can go to federal district court. Asked again where staffers could turn instead of district court, she did not name the Office of Compliance; instead she maintained that the statute provides the Ethics Committee as a route unto itself.

As for which legislative employees — staff assistants, chiefs of staff, state office employees — she would have excluded from going to court because of Speech or Debate, she replied: “I think we will spend the next 20 years [determining] where’s the line.”