United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 9, 2006 Decided June 9, 2006
No. 05-7060
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
Consolidated with
05-7061, et al.
Appeals from the United States District Court
for the District of Columbia
(No. 03cv01109)
2
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-
3
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
4
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.
5
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.
6
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”).
After applications were received, all active, senior, and
7
magistrate judges of the Superior Court were asked to evaluate
each applicant with whom they were familiar.
The Committee held its selection meetings in February and
March 2003. After reviewing all of the applications and
accompanying evaluations, the Committee then formulated its
recommendations. Any attorney who was deemed qualified was
placed on an appropriate Family Court Attorney Panel list.
There was no limit on the number of attorneys who could be
deemed qualified, and there was no limit on the number of
panels on which an attorney might be listed. From the 351
applications received, the Committee ultimately selected 75
attorneys for the juvenile delinquency panel, 77 attorneys for the
guardians ad litem panel, 181 attorneys for the CCAN panel, and
34 special education advocates. The Committee Report
explained:
Some attorneys were excluded from a panel because their
work . . . was found to be deficient. Others, however, were
excluded, particularly from the [guardians ad litem] panel,
because they lacked sufficient experience, because judicial
officers had insufficient information about the quality of
their work, or because they had not previously
demonstrated a commitment to the work of the panel to
which they applied. Many of these applicants may be
outstanding additions to the panels in the future if they
obtain appropriate experience and/or training.
Id. at 9, J.A. 130.
On March 26, 2003, after reviewing the Committee Report,
Chief Judge King issued AO 03-11, which established the
Family Court Attorney Panels in accordance with the
Committee’s recommendations. The order provided that,
barring “exceptional circumstances,” if an attorney is seeking
compensation under either the CJA or the Child Abuse and
Neglect Act, Superior Court judicial officers may only appoint
8
that individual if he or she is listed on the appropriate panel. In
addition, AO 03-11 mandated that all nonqualifying CCAN-
compensated guardians ad litem in current neglect and
termination of parental rights cases should be replaced with
panel attorneys within six months, unless the presiding judge
determines in his or her discretion that substitution would not be
in the best interest of the child.
B. District Court Proceedings
On May 21, 2003, appellees filed their initial complaint,
along with a motion for a temporary restraining order (“TRO”)
seeking to enjoin appellants from applying AO 03-11. After the
District Court denied appellees’ TRO request on June 2, 2003,
they filed an amended complaint, which was amended a second
time on April 30, 2004. In their Second Amended Complaint,
appellees defined the putative plaintiff class as “court-appointed
attorneys who have represented in the past three years, are
representing, or are otherwise eligible to represent clients in the
Family Court of the District of Columbia.” Second Am. Compl.
¶ 33, J.A. 54. Appellees’ complaint challenged the Superior
Court’s panel system principally on the ground that it abridges
their purported constitutional right to receive paid Family Court
appointments. Specifically, appellees alleged that they have a
“property interest in their existing practice before [the] Family
Court,” and that the panel system violates the Fifth Amendment
by “taking” this “property without due process.” Id. at Count I,
¶ 113, J.A. 60, 74. Among the 16 counts listed in their
complaint, appellees also raised an array of constitutional,
statutory, and common law challenges. The complaint seeks
monetary damages as well as injunctive and declaratory relief.
On June 1, 2004, appellants filed motions to dismiss all of
appellees’ claims pursuant to Federal Rules of Civil Procedure
12(b)(1) and (b)(6). In their motions for dismissal, both
Superior Court and PDS appellants asserted, inter alia, that they
were immune from liability as a result of their roles in creating
9
the four panels, and moreover, that appellees’ Fifth Amendment
Takings/Due Process claims failed to state a cause of action.
The District Court granted in part and denied in part these
motions to dismiss on March 11, 2005.
The District Court found that “the creation of the panel
system and the limitation of appointments to panel attorneys was
a legislative act,” Mem. Op. at 7, J.A. 85, making those
appellants who helped establish the Family Court panel
framework legislatively immune from all forms of relief. The
court found that appellants who participated in the selection of
various attorneys for panel membership were entitled to a more
limited “judicial” immunity, which the District Court found to
bar damages, but not injunctive or declaratory relief. Id. at 9,
J.A. 87. The District Court also determined that this judicial
immunity covered PDS appellants, because their “‘duties are
related to the judicial process.’” Id. at 17, J.A. 95 (quoting Barr
v. Mateo, 360 U.S. 564, 569 (1959)).
The District Court expressed confusion over the odd
construction of appellees’ complaint alleging a “Fifth
Amendment taking of property without due process.” Id. at 10,
J.A. 88. Nonetheless, relying principally on Family Division
Trial Lawyers Ass’n v Moultrie, 725 F.2d 695 (D.C. Cir. 1984),
the District Court concluded that, “[a]t this point in the
litigation, the court cannot say that the plaintiffs do not have a
property interest in a specialty practice of law in the Family
Division.” Mem. Op. at 12, J.A. 90.
Near the conclusion of its Memorandum Opinion granting
in part and denying in part appellants’ motion to dismiss, the
District Court disposed of two arguments raised by appellees
challenging the efficacy of the Superior Court Family Court
Attorney Panels. The court first held that the panel system was
not ultra vires. On this point, the court found that D.C. Code §§
11-2602 and 16-2304(a) combine to give the Superior Court
authority “to make rules governing the appointment of counsel.”
10
Mem. Op. at 14-15, J.A. 92-93. The court then rejected
appellees’ claim that AO 03-11 unconstitutionally interfered
with the attorney-client relationship, noting that appellees had
“presented no persuasive authority or argument that an attorney
has a right to maintain a relationship with a client and that a
court may not interfere with that right.” Id. at 16, J.A. 94
(emphasis added).
On April 11 and 19, 2005, Superior Court and PDS
appellants, respectively, filed motions for certification under 28
U.S.C. § 1292(b) to appeal the District Court’s denial of their
motions to dismiss appellees’ Fifth Amendment claims.
Appellants also filed timely notices of appeal to seek collateral
order review of the District Court’s denial of immunity with
respect to appellees’ claims for injunctive relief. On April 21,
2005, the District Court granted appellants’ motions for
certification, and on July 29, 2005, this court granted appellants
permission to appeal pursuant to 28 U.S.C. § 1292(b).
Appellees’ filed a “cross-appeal” on April 25, 2005, challenging
the District Court’s ruling that appellants were immune from
damages. Appellees never sought certification under 28 U.S.C.
§ 1292(b) to seek review of the District Court’s partial grant of
appellants’ motion to dismiss affording appellants legislative
and judicial immunity against appellees’ claims for damages.
Nor did appellees file a cross-petition under Federal Rule of
Appellate Procedure 5(b)(2) to appellants’ petitions for
permission to appeal the District Court’s denial of their motion
to dismiss appellees’ Fifth Amendment claims.
II. ANALYSIS
A. Jurisdiction
The District Court had jurisdiction over appellees’ Fifth
Amendment claims pursuant to 28 U.S.C. § 1331 (2000). This
court accepted jurisdiction pursuant to 28 U.S.C. § 1292(b) to
allow an interlocutory appeal of the District Court’s refusal to
11
dismiss appellees’ Fifth Amendment claims. And this court has
jurisdiction under the collateral order doctrine to review the
District Court’s denial of appellants’ immunity claims, because
those claims turn on issues of law. See Int’l Action Ctr. v.
United States, 365 F.3d 20, 23 (D.C. Cir. 2004) (explaining the
“collateral order doctrine” under Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541 (1949), with respect to interlocutory
appeals from denials of immunity).
On January 9, 2006, instead of filing a reply brief, appellees
filed a “motion to remand the case back to the district court due
to lack of jurisdiction.” Unconsented Mot. to Remand the Case
Back to the District Court Due to Lack of Jurisdiction (“Remand
Mot.”) at 1. In support of this motion, appellees asserted that
their complaint sought a monetary claim against the Superior
Court, which appellees contend is a federal court because
Congress created it pursuant to its Article I powers. See id. at
1-2. Appellees therefore claimed that the Federal Circuit has
exclusive jurisdiction over this appeal. See id. at 1 (citing 28
U.S.C. § 1295(a)(2) (2000)). Appellees also argued that the
District Court’s jurisdiction was “questionable,” because
appellees have not clearly waived their claims to damages in
excess of $10,000 and, therefore, the Court of Federal Claims
might have exclusive original jurisdiction over their claims. See
id. at 2 (citing 28 U.S.C. § 1346). Accordingly, appellees
requested that this case be remanded to the District Court, so
that it could vacate its judgment and transfer the case to the
Court of Federal Claims or, in the alternative, permit appellees
to amend their claims to specify that they are not seeking
damages in excess of $10,000. See id. at 2. The motion to
remand was referred to this merits panel. We now deny the
motion.
Appellees’ jurisdictional arguments are founded on faulty
premises. Section 1295(a)(2) provides that the Federal Circuit
shall have exclusive jurisdiction of an appeal from a final
12
decision of a district court “if the jurisdiction of that court was
based, in whole or in part, on section 1346 of this title.” 28
U.S.C. § 1295(a)(2). Section 1346 delineates trial court
jurisdiction in cases where money damages are sought from the
United States. See 28 U.S.C. § 1346. In particular, § 1346
provides in pertinent part that the district courts shall have
original jurisdiction, concurrent with the Court of Federal
Claims, of “[a]ny . . . civil action or claim against the United
States, not exceeding $10,000 in amount, founded either upon
the Constitution, or any Act of Congress . . . or for liquidated or
unliquidated damages in cases not sounding in tort.” 28 U.S.C.
§ 1346(a)(2). Appellees believe that § 1346 applies here,
because they are seeking monetary damages from the Superior
Court, which they argue should be treated as the United States.
This claim is meritless.
Although the Superior Court is a “federal” creation, the
“case law and other federal statutes [generally] treat the D.C.
courts like state courts.” Handy v. Shaw, Bransford, Veilleux &
Roth, 325 F.3d 346, 351 n.5 (D.C. Cir. 2003); see also JMM
Corp. v. District of Columbia, 378 F.3d 1117, 1125 (D.C. Cir.
2004) (“Congress has made clear that it intends federal courts
generally to treat the District of Columbia judicial system as if
it were a state system, an intent that this circuit has long
respected and effectuated.”). We can find no authority, and
appellees cite none, supporting the suggestion that, although it
is “like state courts” for most purposes, the Superior Court
should be treated as the “United States” for purposes of 28
U.S.C. § 1346. We therefore reject the suggestion. And
because appellees’ complaint plainly is not a suit against the
United States, there is no merit to their suggestion that the Court
of Federal Claims has exclusive original jurisdiction because
appellees did not expressly waive damages in excess of $10,000.
It is also clear that the judges of the Superior Court and
officials at PDS are not the “United States” for purposes of the
13
Tucker Act. See 28 U.S.C. § 1491(a)(1) (2000) (“The United
States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded
either upon the Constitution, or any Act of Congress or any
regulation of an executive department, or upon any express or
implied contract with the United States . . . .”). Indeed, the
“Tucker Act grants the Court of Federal Claims jurisdiction over
suits against the United States, not against individual federal
officials. 28 U.S.C. § 1491(a).” Brown v. United States, 105
F.3d 621, 624 (Fed. Cir. 1997) (emphasis added).
In short, as noted above, the District Court had jurisdiction
under § 1331 to hear appellees’ Fifth Amendment claims, and
this court has jurisdiction under § 1292(b) and the collateral
order doctrine to entertain the appeals that are now properly
before us.
B. The Issues on Appeal
This case is laden with multiple claims and a convoluted
record. It is therefore important that we carefully draw the
bounds of this interlocutory appeal, lest there be any confusion
over what is now before this court. There are only two issues
now on appeal: (1) appellants’ claim that the District Court
erred in denying their motion to dismiss appellees’ Fifth
Amendment claims; and (2) appellants’ claim that the District
Court erred in concluding that they were not entitled to
immunity against appellees’ claims for injunctive relief. There
are no other issues before this court at this time.
Appellees purported to file a “cross-appeal” challenging the
District Court’s ruling that appellants were “immune from suit
and liability on Plaintiffs’ claims.” See Notice of Cross-Appeal,
Roth v. King, CA No. 03-1109 (D.D.C. Apr. 25, 2005).
Principally, appellees seek to give life to their claims for
damages against appellants, which the District Court dismissed
as barred by legislative and judicial immunity. But the District
14
Court dismissal of these claims did not result in a “final
decision” for purposes of 28 U.S.C. § 1291, see Hill v.
Henderson, 195 F.3d 671, 672 (D.C. Cir. 1999), and appellees
did not seek certification under 28 U.S.C. § 1292(b). Nor do
appellees satisfy the requirements of the collateral order
doctrine. We agree with our sister circuits, which have
uniformly held that an order granting immunity “does not
satisfy the collateral order doctrine and may not be immediately
appealed.” Baird v. Palmer, 114 F.3d 39, 43 (4th Cir. 1997)
(citing cases). It is also noteworthy that the District Court did
not certify its dismissal as final under Federal Rule of Civil
Procedure 54(b). See Hill, 195 F.3d at 672.
Moreover, appellees did not file a cross-petition for
permission to appeal after Superior Court appellants sought
permission to appeal the District Court’s refusal to dismiss
appellees’ Fifth Amendment claims. See FED. R. APP. P. 5(b)(2)
(stating that “[a] party may file . . . a cross-petition within 7 days
after the [initial] petition is served”). In light of appellees’
failure to timely file this cross-petition – or any at all, for that
matter – it is unclear whether we even have discretion to
consider the issues presented by appellees’ “cross-appeal.”
In Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199
(1996), the Court noted:
As the text of § 1292(b) indicates, appellate jurisdiction
applies to the order certified to the court of appeals, and is
not tied to the particular question formulated by the district
court. The court of appeals may not reach beyond the
certified order to address other orders made in the case.
United States v. Stanley, 483 U.S. 669, 677 (1987). But the
appellate court may address any issue fairly included within
the certified order because “it is the order that is appealable,
and not the controlling question identified by the district
court.” 9 J. Moore & B. Ward, Moore’s Federal Practice ¶
110.25[1], p. 300 (2d ed.1995). See also 16 C. Wright, A.
15
Miller, E. Cooper, & E. Gressman, Federal Practice and
Procedure § 3929, pp. 144-145 (1977) (“[T]he court of
appeals may review the entire order, either to consider a
question different than the one certified as controlling or to
decide the case despite the lack of any identified controlling
question.”).
Id. at 205. Although Yamaha makes it clear that we “may
address any issue fairly included within the certified order,” it
does not address how § 1292(b) should be read in conjunction
with Rule 5(b)(2) of the Federal Rules of Appellate Procedure.
Appellees’ challenge to the District Court’s order dismissing
their damage actions as barred by legislative and judicial
immunity arises from the same order denying appellants’ motion
to dismiss appellees’ Fifth Amendment claims. It therefore
“applies to the order certified” for review under § 1292(b)(2).
But the challenge also appears to be a “cross-petition” within the
compass of Rule 5, which must be timely filed, and for which
permission to seek review must be given. Even if appellees’
“Notice of Cross-Appeal” is viewed as a “cross-petition,” we did
not grant permission for such an appeal, and appellees’ Notice
of Cross-Appeal was filed 14 days after Superior Court
appellants’ petition was served on the clerk of the District Court.
At least one other circuit has maintained that “[t]he failure to file
[a] petition for permission to cross-appeal within the time
provided is a jurisdictional defect, barring th[e] Court from
hearing [appellee]’s cross-appeal.” Tranello v. Frey, 962 F.2d
244, 247-48 (2d Cir. 1992) (emphasis added). But cf. Freeman
v. B & B Assocs., 790 F.2d 145, 151 (D.C. Cir. 1986) (holding
that failure of an appellee to cross-appeal “ordinarily precludes
review where an appellee seeks to enlarge his rights or lessen
those of an adversary,” but is not a jurisdictional bar).
We need not resolve these knotty issues raised in
connection with § 1292(b) and Rule 5. The one thing that is
clear here is that any review of appellees’ purported cross-
16
appeal is at most discretionary with this court. Given the record
at hand, we decline to exercise any discretion that we might
have to engage in interlocutory review of the District Court’s
order denying appellees’ claims for damages. As appellants
point out, appellees “have not even argued, let alone shown, that
these claims warrant interlocutory review.” Reply & Opp’n Br.
of Appellants Superior Court Judges at 15. Absent such a
showing, there is no good reason for this court to entertain
appellees’ cross-appeal on damages. Moreover, we similarly
decline to resolve whether the cross-appeal is so “inextricably
intertwined” as to allow for pendent appellant jurisdiction in this
case. See Swint v. Chambers County Comm’n, 514 U.S. 35, 50-
51 (1995); Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d
675, 678-79, 679 n.4 (D.C. Cir. 1996) (per curiam).
We therefore turn to the two issues that are properly before
this court: (1) appellees’ Fifth Amendment claims and (2)
appellants’ claims that they are entitled to immunity against
injunctive relief.
C. Appellees’ Fifth Amendment Claims
This court reviews de novo the District Court’s denial of
appellants’ motions to dismiss appellees’ Fifth Amendment
claims. See Covad Commc’ns Co. v. Bell Atl. Corp., 398 F.3d
666, 670-71 (D.C. Cir. 2005); Bombardier Corp. v. Nat’l R.R.
Passenger Corp., 333 F.3d 250, 252 (D.C. Cir. 2003). In
concluding that appellees “may be able to demonstrate that they
have a property interest in their specialty practice of family
law,” Mem. Op. at 13, J.A. 91, the District Court relied
primarily on Family Division Trial Lawyers Ass’n v. Moultrie.
Id. at 12-13, J.A. 90-91. We find that the District Court erred in
reaching this conclusion, for Moultrie plainly does not control
the disposition of this case. We also hold that appellees’ Fifth
Amendment claims fail to state a cause of action and, therefore,
must be dismissed.
17
The court in Moultrie considered a constitutional claim
brought by Superior Court Family Division trial attorneys “that
requiring an attorney to perform traditional pro bono service
amounts to a ‘taking’ of property.” Moultrie, 725 F.2d at 705.
In the course of the opinion, the court said: “if the superior
court appointment system effectively denies the appellants the
opportunity to maintain a remunerative practice as family
lawyers before the Family Division, and that specialty practice
is determined to be a ‘property’ interest, it might effect an
unconstitutional ‘taking.’” Id. at 706. Appellees’ attempt to rest
on this passage from Moultrie to build a claim here that they
have 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. Appellees’
arguments on this score are specious.
Not only does Moultrie not support appellees’ Fifth
Amendment claims in this case, parts of the decision positively
refute their principal contentions. As a preliminary matter, it
should be noted that Moultrie addressed an equal protection
claim under the Fifth Amendment. Appellees in this case have
raised no such claim. More importantly, the court in Moultrie
made it absolutely clear that the trial attorneys in the Family
Division of Superior Court “[had] no expectation of
compensation for their services in appointed cases that rises to
the level of a property interest.” Id.
Finally, and most importantly, the court’s concern in
Moultrie was not that the attorneys’ expectations of
compensated appointments might rise to the level of a property
interest. Rather, the court was concerned that the system at
issue in that case – which required attorneys to accept abuse and
neglect cases pro bono in order to receive compensated juvenile
cases – might amount to an unlawful “taking” if the burden of
the mandatory pro bono assignments prevented lawyers from
earning a living. The court thus said:
18
While we agree . . . that some pro bono requirements
do not constitute a “taking,” we think it equally clear that an
unreasonable amount of required uncompensated service
might so qualify.
....
Of course, the state, in the reasonable exercise of its
police power, may frustrate even expectations that rise to
the level of a property interest. But that is not what is
involved here. Here, . . . the government is not merely
contracting for employees’ services which it is free to use
or to decline, but rather is allegedly appropriating for itself
in the existing market the services of certain lawyers to a
degree that their economic survival in that market is
threatened . . . .
Id. at 705, 706 n.13 (internal citations omitted) (emphasis
added).
It seems obvious that nothing about the Family Court
attorney panel system promulgated pursuant to AO 03-11
resembles the “conscripted” pro bono service requirement at
issue in Moultrie. Appellants are quite correct in their argument
that “[t]he instant case simply does not implicate the Moultrie
‘takings’ analysis upon which the Family Lawyers’ Fifth
Amendment claims depend. The Family Lawyers do not, and
cannot, allege that their time or labor has been appropriated.”
Resp. & Reply Br. of PDS Appellants at 5. It is also clear that
“AO 03-11 neither expropriates any of [appellees’] labor nor
imposes a regulatory burden or restriction on them of any kind.”
Br. of Superior Court Appellants at 19. In other words, the
government is not “appropriating itself . . . the services of
certain lawyers.” Moultrie, 725 F.2d at 706 n.13. Instead,
“[t]he Superior Court is merely deciding the rules that will
govern how it will retain and compensate lawyers in fulfillment
of the government’s statutory responsibility to ensure that
19
indigents in Family Court matters receive effective
representation.” Br. of Superior Court Appellants at 19. In
short, Moultrie cannot possibly carry the day for appellees.
The only remaining questions here are whether appellees
have otherwise alleged a viable “property interest” protected by
the Fifth Amendment Due Process Clause or, alternatively,
stated a claim that is cognizable under the Takings Clause of the
Fifth Amendment. We are not entirely sure what appellees
mean when they contend that AO 03-11 constitutes a “Fifth
Amendment taking of property without due process.” Second
Am. Compl. Count I, J.A. 60. We need not tarry over this point,
however. Accepting appellees’ allegations as true, we find no
valid property interest under either the Due Process Clause or
the Takings Clause of the Fifth Amendment. The District Court
therefore erred in allowing these claims to survive appellants’
motion to dismiss.
It is well understood that, under the Fifth Amendment Due
Process clause, “[t]o have a property interest in a benefit, a
person clearly must have more than an abstract need or desire
and more than a unilateral expectation of it. He must, instead
have a legitimate claim of entitlement to it.” Town of Castle
Rock v. Gonzales, 125 S. Ct. 2796, 2803 (2005) (citation and
internal quotation marks omitted). Property interests “are
created and their dimensions are defined by existing rules or
understandings that stem from an independent source such as
state law.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564,
577 (1972); see also Bloch v. Powell, 348 F.3d 1060, 1068 (D.C.
Cir. 2003). And “federal constitutional law determines whether
[a claimed property] interest rises to the level of a legitimate
claim of entitlement protected by the Due Process Clause.”
Castle Rock, 125 S. Ct. at 2803-04 (citations, alteration, and
quotation marks omitted).
Appellees have cited no source of law creating any
entitlement that qualifies as property under the Due Process
20
Clause. There was no statute, regulation, or court rule that
guaranteed any member of the bar compensated Family Division
appointments before AO 03-11 was promulgated. As noted
above, the judges of the Superior Court always had discretion to
decide which attorneys to appoint to handle Family Division
cases, and to decide the basis upon which such appointments
would be made. Section 11-2602 of the D.C. Code provides 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. Prior to the adoption of AO
03-11, no law or rule ensured appointment for attorneys who
met particular criteria, and no law or rule restricted the
discretion of a presiding judge to terminate a lawyer’s
appointment for cause. The Superior Court simply appointed
counsel from lists of volunteers that had been maintained by the
CCAN Office and PDS. Any lawyer who desired to be on a
volunteer list was included, without any inquiry into the
lawyer’s qualifications. However, inclusion on a list merely
indicated to Superior Court judges that a lawyer was interested
in receiving appointments – it did not guarantee appointment.
In short, before the issuance of AO 03-11, no member of the bar
could claim entitlement to appointments in the Family Division.
“[W]hen a statute leaves a benefit to the discretion of a
government official, no protected property interest in that
benefit can arise.” Bloch, 348 F.3d at 1069; see also Castle
Rock, 125 S. Ct. at 2803 (noting that “a benefit is not a protected
entitlement if government officials may grant or deny it in their
discretion”); Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454,
462-63 (1989) (stating that protected liberty interests are created
when a state places substantive limitations on official
discretion). This point was made clear in Washington Legal
Clinic for the Homeless v. Barry, 107 F.3d 32 (D.C. Cir. 1997),
where we held that D.C. law and regulations defining eligibility
for emergency shelter for homeless persons did not create a
property interest, because government officials retained
21
substantial discretion to determine which eligible persons would
actually receive shelter. Id. at 36-37. “Where . . . the legislature
leaves final determination of which eligible individuals receive
benefits to the unfettered discretion of administrators, no
constitutionally protected property interest exists.” Id. at 36
(citation and internal quotation marks omitted).
Under this well-established case law, appellees’ desires for
compensated appointments amount to nothing more than
“expectations,” not “entitlements.” There never has been a
statute or rule, or even a practice, securing to attorneys a right to
compensated Family Court appointments. And “[a] lawyer’s
inability to make a living as a family court practitioner without
such appointments does not remotely create an entitlement.” Br.
for Superior Court Judge Appellants at 20. Therefore, appellees
have alleged no facts sufficient to support any claim under the
Due Process Clause.
Appellees’ claims under the Fifth Amendment Takings
Clause fare no better. As appellants aptly note, “the invalidity
of a takings claim follows a fortiori from [appellees’] failure to
establish any entitlement that would qualify as property under
the Due Process Clause. That is so because even a legitimate
claim of entitlement to a benefit that is sufficient to trigger due
process protection does not transform the benefit itself into a
vested property right protected by the Takings Clause. See
generally Kizas v. Webster, 707 F.2d 524, 539-40 (D.C. Cir.
1983).” Br. of Superior Court Judge Appellants at 16-17. The
decision in Kizas notes that “the fifth amendment employs two
independent clauses to address two independent issues. A claim
of deprivation of property without due process of law cannot be
blended as one and the same with the claim that property has
been taken for public use without just compensation.” Id. at 539
(citation, quotation marks, and alteration omitted).
Furthermore, “[e]ven if the District of Columbia had
established an entitlement on the part of [appellees] to
22
compensated Family Division appointments (and it assuredly
has not), the Takings Clause would not constrain the
government’s authority to alter or eliminate that entitlement.”
Br. of Superior Court Judge Appellants at 17 (citing, inter alia,
Bowen v. Gilliard, 483 U.S. 587, 604 (1987) (“Congress is not,
by virtue of having instituted a social welfare program, bound to
continue it at all, much less at the same benefit level.”)).
“Generally, when a government entity acts to create property
rights yet retains the power to alter those rights, the property
right is not considered ‘private property,’ and the exercise of the
retained power is not considered a ‘taking’ for Fifth Amendment
purposes.” Democratic Cent. Comm. of D.C. v. Washington
Metro. Area Transit Comm’n, 38 F.3d 603, 606 (D.C. Cir. 1994)
(per curiam). “[T]he very notion that AO 03-11 ‘takes’
[appellees’] property is beset by such difficulties that it is
impossible to see how the concept could apply in practice.” Br.
of Superior Court Judge Appellants at 17. Appellees have stated
no Takings claims that can withstand appellants’ motions to
dismiss.
In sum, we hold that appellees have not stated a claim for
relief under either the Due Process or Takings Clauses of the
Fifth Amendment. They have demonstrated no entitlements or
“property interests” that warrant mandatory process or just
compensation. We therefore reverse the District Court on this
point.
D. Immunity
1. Superior Court Appellants
We agree with Superior Court appellants that the District
Court erred in holding that appellees might be able to obtain
injunctive relief. 42 U.S.C. § 1983, as amended in 1996 by the
Federal Courts Improvement Act, explicitly immunizes judicial
officers against suits for injunctive relief. The statute states that,
“in any action brought against a judicial officer for an act or
23
omission taken in such officer’s judicial capacity, injunctive
relief shall not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.” Federal Courts
Improvement Act of 1996, Pub. L. No. 104-317, § 309(c), 110
Stat. 3847, 3853 (codified as amended at 42 U.S.C. § 1983
(2000)). Neither statutory limitation appears to apply in this
case, and appellees’ complaint says nothing to the contrary.
Therefore, because a number of the Superior Court appellants
acted in a “judicial capacity” in selecting attorneys for inclusion
on the panels, those appellants are immune from suits for
injunctive relief under § 1983.
Citing Forrester v. White, 484 U.S. 219 (1988), appellees
argue that the creation of the panels and appointment of
attorneys are “administrative” acts with respect to which no
immunity should apply. Appellees’ reliance on Forrester is
misplaced. Forrester concerned a probation officer’s complaint
that the chief judge of her circuit unlawfully demoted and
discharged her. The Supreme Court found that the chief judge
“was acting in an administrative capacity when he demoted and
discharged [her].” Id. at 229. The Court held that “[t]hose acts
– like many others involved in supervising court employees and
overseeing the efficient operation of a court – . . . . were not
themselves judicial or adjudicative.” Id. Thus, Forrester stands
for the unremarkable proposition that internal employment
decisions made by judges are not judicial acts. Such acts have
no relevance to the development and implementation of AO
03-11.
2. PDS Appellants
As the District Court noted, “[b]y statute, PDS is directed
to assist the court in determining the financial eligibility for
appointed representation.” Mem. Op. at 17, J.A. 95. In
addition, D.C. Code § 2-1602(b) (2001), requires PDS to
“establish and coordinate the operation of an adequate system of
private attorneys to represent [indigent] persons.” It is well
24
established that judicial immunity “extends to other officers of
government whose duties are related to the judicial process.”
Barr, 360 U.S. at 569; see Stanton v. Chase, 497 A.2d 1066,
1069 (D.C. 1985) (citing Barr and holding that the Deputy Chief
of the Defender Services Office – then known as the CJA Office
of PDS – was absolutely immune from suit for acts associated
with appointment of counsel under the CJA). It is beyond
question that PDS appellants’ statutory role in the panel system
is “related to the judicial process,” and the District Court
therefore properly afforded them judicial immunity. There is
also no reason to believe that the Federal Courts Improvement
Act of 1996 is restricted to “judges,” and thus we find that, due
to their statutory role in the selection process, PDS appellants
are immune from injunctive relief.
III. CONCLUSION
For the reasons outlined above, we reverse on the two
matters that are presently before this court. We hold that the
District Court erred in (1) denying appellants’ motion to dismiss
appellees’ Fifth Amendment claims, and (2) in concluding that
appellants were not entitled to immunity against appellees’
claims for equitable relief. The case is hereby remanded for
further proceedings consistent with this decision.
So ordered.