Roth, Pamela v. King, Rufus

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.”

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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.