Attorneys for former Sen. Ben Nighthorse Campbell (R-Colo.) are seeking to have a federal appeals court decision against him overturned on grounds that his recent retirement makes the case moot.

In December, the 10th U.S. Circuit Court of Appeals ruled that the Constitution does not shield lawmakers from suits brought under the Congressional Accountability Act, as Campbell had claimed. It then sent the case — brought by Rita Bastien, a former Colorado-based employee who claimed Campbell fired her because of her age — back to district court for trial.

Campbell’s attorneys — led by the Senate chief counsel for employment, Jean Manning — have asked the appellate court to vacate its judgment “because the lawsuit from which the appeal arose has abated and, thus, the case is moot.”

The employment counsel’s office didn’t return calls seeking comment by press time. But Manning had previously indicated she might file such a motion. At the oral arguments in Denver last March, Manning said come January, “There’s no case because there is no defendant.”

Several lawyers, including Bastien’s attorney, strenuously dismissed that reasoning. They maintained that the CAA created an essentially fictional legal structure — the employing office as its own 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 that the complaint would not be moot if the Member was to leave office.

In March 2004, Campbell announced he would not seek a third term, citing health reasons.

John Evangelisti, an attorney for Bastien, said that Campbell’s leaving the Senate does not mean that the office’s liability simply dissolves. His client plans to oppose the motion.

“The office of Senator Campbell is an entity whose only purpose is to be sued for discrimination,” Evangelisti said. “The funding to pay the judgment is out of [a general Treasury] fund that was created. The fund still exists. The office still has counsel. So who’s paying the bills and keeping the lights on?”

He added, “I am kind of surprised at them going to this length. Counsel had mentioned this, and I thought they were being facetious, but apparently not.”

Evangelisti said that if his client’s case is dismissed on the grounds that Campbell left office, then many suits brought under the CAA would never make it through trial.

Before going to court, aggrieved staffers must undergo mandatory counseling and mediation, a process that can take six months to a year. Then getting the case to trial usually takes at least a year or more, Evangelisti said, meaning that under Manning’s scenario lawmakers who retired, were defeated or resigned would effectively terminate any cases brought against them.

“It doesn’t make any sense,” he said.

The 10th Circuit is the highest court to determine that Members are not immune from such suits under the clause in the Constitution that shields lawmakers from being questioned about “the Speech or Debate in either House … in any other place.”

Similar claims by two other lawmakers — Sen. Mark Dayton (D-Minn.) and Rep. Eddie Bernice Johnson (D-Texas) — are currently pending before the U.S. Court of Appeals for the D.C. Circuit.