Roth v. King

• Decision Date: 09 June 2006
• Docket Number: No. 05-7060.,05-7060.
• Citation: 449 F.3d 1272
• Parties: Pamela H. ROTH, et al., Appellees v. Rufus G. KING, III, as Chief Judge of the Superior Court of the District of Columbia, et al., Appellants Herb Robinson, as Director of the Office of Administration for the Criminal Justice Act, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

449 F.3d 1272

Pamela H. ROTH, et al., Appellees v. Rufus G. KING, III, as Chief Judge of the Superior Court of the District of Columbia, et al., Appellants Herb Robinson, as Director of the Office of Administration for the Criminal Justice Act, et al., Appellees.

No. 05-7060.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2006.

Decided June 9, 2006.

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Appeals from the United States District Court for the District of Columbia (No. 03cv01109).

Donald B. Verrilli, Jr. argued the cause for appellants/cross-appellees Rufus G. King, III, et al. With him on the briefs was Robin M. Meriweather.

Donald T. Stepka argued the cause for appellants/cross-appellees Herb Robinson, et al. With him on the briefs were Ronald A. Schechter and Jonathan L. Stern.

Lois R. Goodman argued the cause for appellees/cross-appellants. With her on the briefs were David J. Ontell, David J. Sitomer, and Betty J. Clark.

Before: SENTELLE and BROWN, Circuit Judges, and EDWARDS, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge EDWARDS.

EDWARDS, Senior Circuit Judge.

In the 2002 Appropriations Act for the District of Columbia, a joint congressional committee issued a statement "strongly urg[ing] the D.C. Superior Court to evaluate the quality of the legal services rendered by lawyers appointed under the Criminal Justice Act to handle juvenile delinquency cases." 147 CONG. REC. H8926 (daily ed. Dec. 5, 2001). The court was "urged to take immediate, affirmative steps to ensure that lawyers who lack the requisite training, experience and skill are not appointed to delinquency cases." Id. Responding to that directive, Chief Judge Rufus G. King, III, of the Superior Court of the District of Columbia ("Superior Court"), appointed an ad hoc committee to recommend panels of qualified attorneys to represent indigent parties in Family Court. From among the 351 applications received, the committee ultimately recommended 75 attorneys for a juvenile delinquency panel, 77 attorneys for a guardian ad litem panel, 181 attorneys for the Counsel for Child Abuse and Neglect ("CCAN") panel, and 34 special education advocates. On March 26, 2003, after reviewing the committee's report, Chief Judge King issued Administrative Order 03-11 ("AO 03-11"), which established the Family Court Attorney Panels in accordance with the committee's recommendations.

Prior to the establishment of the Family Court Attorney Panels, the Superior Court did not designate attorneys for such panels. Rather, the Court simply appointed counsel from lists of volunteers that had been maintained by the CCAN Office or the D.C. Public Defender Service ("PDS"). Any lawyer who desired to be on the volunteer lists was included, without any inquiry into the lawyer's qualifications. Lawyers on the lists were not guaranteed any appointments, however. Inclusion merely indicated to Superior Court judges that a lawyer was interested in receiving appointments. This regime was changed with the issuance of AO 03-11. The order provided, inter alia, that, in most cases, judges in Family Court must appoint attorneys from the appropriate panel list to represent indigent parties. Non-Panel attorneys may continue to represent their clients, but they are not eligible to receive compensation under the Criminal Justice Act ("CJA"), D.C. CODE §§ 11-2601 et seq. (2001), or the CCAN statute, D.C. CODE § 16-2326.01.

On May 21, 2003, plaintiffs-appellees, who claim to represent a class of attorneys who allegedly suffered harm as a result of AO 03-11, filed suit in District Court against the judges of the Superior Court who participated in developing and implementing the panel system ("Superior Court appellants"), and also against Ronald S. Sullivan, Jr., then-Director of PDS, and Herbert C. Robinson, Chief of PDS's Defender Services Office (collectively "PDS appellants"). Appellees alleged, inter alia, that they had a "property interest" in their "specialty practice" in Family Court, and that AO 03-11 violated their Fifth Amendment rights by "taking" their property without due process.

The Superior Court and PDS appellants filed motions to dismiss on several grounds, including immunity from suit and appellees' failure to allege a constitutionally protected property interest. The District Court granted the motion as to appellees' claims for money damages. Roth v. King, CA No. 03-1109, Mem. Op. (D.D.C. Mar. 11, 2005), Joint Appendix ("J.A.") 79. The District Court declined to dismiss appellees' claims for injunctive and declaratory relief, however, because, inter alia, in the court's view, it was unclear "whether the plaintiffs have a property interest in their specialty practice of law." Id. at 17, J.A. 95.

On April 11 and 19, 2005, Superior Court and PDS appellants, respectively, filed appeals seeking collateral order review of the District Court's denial of immunity with respect to appellees' claims for injunctive relief. They also filed motions for certificates of appealability pursuant to 28 U.S.C. § 1292(b) (2000) to seek review of the District Court's order denying their motions to dismiss appellees' Fifth Amendment claims and to stay all proceedings. The District Court granted these motions on April 21, 2005, and this court granted the petitions to appeal on July 29, 2005. Meanwhile, on April 25, 2005, appellees filed a "cross-appeal" seeking to challenge the District Court's dismissal of their claims for damages. Appellees did not move for a certificate of appealability on these claims, nor did they file a cross-petition under Federal Rule of Appellate Procedure 5(b)(2).

We agree with appellants that the District Court erred in failing to dismiss appellees' Fifth Amendment claims. We hold that appellees have no "property interest" in their "specialty practice" in the Family Court, and that AO 03-11 resulted in no unlawful "takings." We also hold that the District Court erred in finding that judicial immunity covers only damages. Finally, we decline to reach the additional issues purportedly raised by appellees on "cross-appeal," because those matters are not properly before this court.

I. BACKGROUND

A. Family Court Appointed Counsel

D.C.Code §§ 16-2301 et seq. (2001), which regulates the Family Court Division of the Superior Court, guarantees appointed counsel to parties who cannot afford adequate representation. Section 16-2304(a) gives "[a] child alleged to be delinquent or in need of supervision" the right to counsel "at all critical stages of [Family Court] proceedings," and guarantees that, "[i]f the child and his parent, guardian, or custodian are financially unable to obtain adequate representation, the child shall be entitled to have counsel appointed for him in accordance with rules established by the Superior Court." D.C. CODE § 16-2304(a). These provisions work in tandem with the CJA, which reaffirms the right of juveniles who are alleged to be delinquent or in need of supervision to counsel. Section 11-2604 of the CJA establishes the hourly rates for attorneys in juvenile cases, and § 16-2326.01 provides that attorneys serving as counsel or guardians ad litem in neglect proceedings are compensated at the same rate. Of particular importance to this case, the CJA also specifies that "[c]ounsel furnishing representation ... shall in every case be selected from panels of attorneys designated and approved by the courts." D.C. CODE § 11-2602.

As noted above, prior to the establishment of the Family Court attorney panel system at issue, Superior Court judges appointed counsel in Family Court matters from lists of volunteers maintained by the CCAN Office or PDS. Attorneys were allowed to add their names to these lists without any inquiry into their qualifications. Inclusion on the lists did not guarantee appointments, however. Rather, it merely indicated that a lawyer was interested in being considered for appointment.

On April 26, 2002, Chief Judge King issued Administrative Order 02-15, creating the Family Court Panels Committee ("Committee") "for the purpose of creating panels of attorneys for representation of indigents in Family Court proceedings." Administrative Order No. 02-15, Superior Court of D.C. (Apr. 26, 2002), at 3, J.A. 120. The order instructed the Committee, in consultation with the presiding and deputy presiding judges of the Family Court, to recommend panels of designated and approved attorneys to represent four categories of indigent parties: (1) juveniles alleged to be delinquent or in need of supervision, (2) minor children needing guardians ad litem in neglect and termination proceedings, (3) parents and caretakers in neglect and termination proceedings, and (4) children needing special education advocates. This order was issued in part in response to a call by a joint congressional committee for the Superior Court to "`evaluate the quality of the legal services rendered by lawyers appointed under the Criminal Justice Act to handle juvenile delinquency cases ... [and] to take immediate, affirmative steps to ensure that lawyers who lack the requisite training, experience and skill are not appointed to delinquency cases.'" Administrative Order 03-11, Superior Court of D.C. (Mar. 26, 2003), at 1 (quoting 147 CONG. REC. H8926 (daily ed. Dec. 5, 2001)), J.A. 101.

The Committee initiated an application process on July 18, 2002, and interested attorneys were directed to submit their applications by October 1, 2002 (later extended to November 1, 2002). The application form required applicants to detail, inter alia, their educational background, previous experience in Family Court, current caseload, methods of client management, whether they had recently attended legal education programs, and other information about their professional background and experience. See Report of the Family Court Panels Committee (Mar. 20, 2003), at 5-6, J.A. 126-27 ("Committee Report")....