D.C. Circuit Review – Reviewed: “Appointed by the Court”

by Aaron Nielson — Friday, Dec. 16, 2016@Aaron_L_Nielson

This has been a fairly quiet week in the D.C. Circuit. We have four cases — none of which is a blockbuster. Yet one case in my particular caught my attention: Angelene Hardaway v. District of Columbia Housing. Here’s why: The prevailing attorneys (Dina B. Mishra and Steven H. Goldblatt) were “appointed by the court,” plus there was a “Student Counsel” (Sarah McDonough). I’ve been noticing these notation on opinions but not tracking them. This week, however, I’ve decided to list all of the lawyers since December 15, 2015 who have argued a case in the D.C. Circuit after being appointed by the court.*

Here we go – the following lawyers were appointed by the Court (or assisted someone who was):

United States v. Brown: Barbara E. Kittay

United States v. Hunter: Mary E. Davis, Paul S. Rosenzweig, Edward C. Sussman

United States v. Hughes: Gregory S. Smith

United States v. McGill: Gregory Stuart Smith, Dennis M. Hart, Richard K. Gilbert, Manuel J. Retureta, David B. Smith, Mary E. Davis, Kristen Grim Hughes

United States v. Mitchell: Douglas J. Behr

United States v. Head: Robert S. Becker

United States v. Fokker Services B.V.: Adam G. Unikowsky, David W. DeBruin

United States v. Scurry: Jonathan S. Zucker, Dennis M. Hart, Pleasant S. Brodnax III, Howard B. Katzoff, Mark Diamond

United States v. Stubblefield: Joshua M. Parker, David W. DeBruin

Wallaesa v. Federal Aviation Administration: Adam P. Feinberg, Anthony F. Shelley, Aiysha S. Hussain

United States v. McKeever: Robert S. Becker, Carmen D. Hernandez, Dennis M. Hart

United States v. Knight: Howard B. Katzoff, Mary E. Davis, Christopher M. Davis

United States v. Vega: Richard K. Gilbert, Manuel J. Retureta, Gary M. Sidell, Kristen Grim Hughes

Stovic v. Railroad Retirement Board: Burden H. Walker, Jonathan D. Hacker, Jason Zarrow

United States v. Burnett: Howard B. Katzoff, Vincent Jankoski, Mary E. Davis, Christopher M. Davis

United States v. Williams: Stephen C. Leckar, Edward C. Sussman, Julian S. Greenspun

United States v. Marsh: Mary E. Davis

Perry v. Merit Systems Protection Board: Rebecca Taibleson, Devin S. Anderson, Christopher Landau

United States v. Melgar–Hernandez: Carmen D. Hernandez

United States v. Sheffield: William Francis Xavier Becker

United States v. Gooch: Paul S. Rosenzwei

Winston & Strawn, LLP v. McLean: Michael Skopets, Anthony F. Shelley, Brian A. Hill

And here are the Student Counsels:

Huron v. Cobert: Eric S. Fleming

Corrigan v. District of Columbia: Elizabeth M. Rademacher, Jacob M. Derr

 

Many thanks to all these lawyers for their service to the Court and their clients.

And now this week’s cases:

  • Angelene Hardaway v. District of Columbia Housing: Here, Judge Tatel (joined by Judge Griffith) addressed whether the District of Columbia Housing Authority violated federal law when it denied “approval for a live-in aide to care for Angelene.” Under the federal Housing Choice Voucher Program, “eligible families receive government subsidies to pay for ‘decent, safe, and sanitary housing.’” Families with more eligible people receive vouchers for larger housing units. A housing authority in Maryland “determined that Angelene has a disability and requires a live-in aide to care for her,” thus entitling her to larger housing unit. Her sister, Lena, is her live-in aide. Then the Hardaways moved to D.C. but “were soon met with disturbing news. On July 9, they received a letter from the Authority revoking Angelene’s right to a live-in aide and, in turn, her legal entitlement to a two-bedroom voucher.” She sued. The D.C. Housing Authority determined, after being sued, that she could continue to keep a two-bedroom unit. In response, the district court concluded she had no standing to sue. But, said Judge Tatel, “[t]he district court confused standing and mootness. … Because the Authority sent the September 26 letter after the Hardaways filed their complaint, it should have played no role whatsoever in the district court’s standing analysis.” And the case was not moot because the Authority still says she is not entitled to a two-bedroom voucher and “administrative grace” does not moot a case. Judge Rogers concurred in part: “Because it is unnecessary, at this stage of the proceedings, for the court to decide more, and the matter has not been fully briefed, however, I would defer opining on whether appellants faced eviction or whether the Authority could lawfully acquiesce to appellants remaining in the two-bedroom apartment.” (There is more going on in this case, but you get the gist of it.)

     

  • Autor v. Pritzker: This case is pretty interesting, which is saying a lot because it is about attorney’s fees. Judge Rogers (joined by Judges Henderson and Ginsburg) concluded that none were required. It turns out that “Appellants are federally registered lobbyists who sued the Secretary of Commerce and United States Trade Representative on the grounds that [a federal policy barring federally registered lobbyists from serving on the Industry Trade Advisory Committees] violated their rights under the First and Fifth Amendments to the Constitution.” In Autor I, the D.C. Circuit agreed – kind of: “Because the ban requires Appellants to limit their exercise of a constitutional right — in this case, the First Amendment right to petition government — in order to qualify for a governmental benefit — in this case, ITAC membership — we reverse the district court’s premature dismissal of the complaint and remand for that court to determine in the first instance whether the government’s interest in excluding federally registered lobbyists from ITACs outweighs any impingement on Appellants’ constitutional rights.” The parties then settled before the district court ruled on remand. So did Appellants “prevail”? No, says the D.C. Circuit: “Although Autor I narrowed the grounds on which the government could defend the lobbyist ban, it did not foreclose the possibility that the government could prevail on the merits.” (Note that “the Office of Management and Budget revised the lobbyist ban to apply only to lobbyists who serve on advisory committees in an individual capacity.”)

     

  • Silver State Land, LLC v. Schneider: Judge Edwards (joined by Judges Henderson and Rogers) opens his opinion this way: “In September 2011, the City of Henderson, Nevada executed an agreement with the Las Vegas National Sports Center to construct sports venues on a 480-acre parcel of federally-owned public land. Under the agreement, Sports Center was to serve as the developer and work with the City in designing the project. In exchange, the City agreed to request the Bureau of Land Management in the Department of Interior to convey the public land to the developer. After completion of the project, the developer was to transfer ownership of the land and the sports complex to the City, and the City would lease back the venues to the developer. After reviewing the City’s request, the Bureau agreed to conduct a modified competitive auction of the land.” It turns out there was only one bidder, Silver State (which was affiliated with Sports Center), and the bid was accepted. “On November 28, 2012, Silver State paid the balance of money due in connection with the sale and asked the Bureau to issue the patent for the land so that Silver State could record it. Within hours after Silver State transferred the funds to the Bureau, Sports Center terminated its agreement with Henderson. On November 29, 2012, Henderson requested the Bureau to cancel the public land sale because the developer had backed out of its agreement to build the sports complex. In January 2013, the City filed an action in Nevada state court against the developer.” Reviewing this situation, the Bureau of Land Management opted not to give the land patent to Silver State. Was that decision lawful? Yes: “The Bureau had authorized a modified competitive land auction, giving special preference to Appellant, only because of the public benefits that the sale was to produce.”

     

  • Gilmore v. Palestinian Interim Self-Government Authority: Here is Judge Wilkins’ (joined by Judges Griffith and Silberman) summary of the case: “Esh Kodesh Gilmore, a United States national, was killed in a shooting attack in Jerusalem on October 30, 2000. His family members and estate (collectively, ‘Appellants’) filed suit against the Palestinian Interim Self-Government Authority and the Palestine Liberation Organization (collectively, ‘Appellees’) asserting claims under the Anti-Terrorism Act and related common law theories. After years of litigation, the District Court granted summary judgment in favor of Appellees. Appellants challenge the judgment, along with the vacatur of Appellees’ defaults and the denial of Appellants’ motion to compel the production of intelligence materials. Appellees challenge the District Court’s denial of a motion for judgment on the pleadings for lack of personal jurisdiction. … For the reasons set forth below, we affirm each of the District Court’s challenged orders.”

     

    And that is the week in the D.C. Circuit. (Thanks again to those who serve.)

     

    * A good friend of mine, William Burgess, argued a case this week as appointed counsel. Here is the audio. Bill is great.

     

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    About Aaron Nielson

    Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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