Litigation Experience

Thirty years in wide-ranging practice, including complex civil litigation (e.g., first case to recover Superfund response costs from the federal government; first suit transferred from United States District Court to Saudi Arabia); corporate and business law (including tax, bankruptcy, vehicle and equipment leasing, environmental law, employment, and government contracts); government contacts litigation (both defending and attacking government contract awards) (see, e.g., TRW Inc., 81-1 CPD 294 (1981)); silicon valley start-up company and venture capital issues, including licensing cell phone technology to Hollywood movie maker Paramount Pictures, and representing HemaGen in patent licensing allowing other companies to use some aspects of multiple-use “artificial blood” made from chemicals; nuclear energy cases for Columbia University (United States and Trustees of Columbia University v. City of New York, 463 F.Supp. 604 (S.D.N.Y. 1978))  and Allied-Signal; representing commercial clients on legislative and regulatory matters in Congress, federal agencies, each of the 50 States and the District of Columbia, including drafting legislation and report language, preparing witnesses to testify, and testifying before legislative committees; commercial speech/First Amendment cases (see, e.g., Friedman v. Rogers, 440 U.S. 1 (1979), Collins v. American Optometric Assn, 693 F.2d 636 (7th Cir. 1982)); representing clients ranging from former Attorney General Edward H. Levi, former Secretary of Defense Robert S. McNamara, the RAND Corporation, and Allied-Signal, to HRH Talal bin Abdulaziz Al Saud (the “Red Prince of Saudi Arabia”), silicon valley/high tech companies, and the American Automotive Leasing Association (see, e.g., Graham v. Dunkley, 852 NYS2d 169 (NYAD 2 Dept. 2008)); and implementing homeowners’ energy conservation in the District of Columbia (see Washington Gas Light Company, 3 DCPSC 125 (1982)).

Experienced in dealing with in-house corporate counsel and multiple outside counsel in high-stakes litigation. See, e.g., Allied Signal v. United States, 839 F.2d 1572 (Fed.Cir.), cert. denied, 488 U.S. 819 (1988) (suit seeking over $300 million under the Takings Clause for President Carter’s moratorium closing AGNS’ spent nuclear fuel reprocessing plant); Kelly v. EPA, 15 F.3d 110 (D.C.Cir.) on reh. 25 F.3d 1088 (D.C.Cir. 1994), cert. denied, 513 U.S. 1110 (1995) (suit on Superfund “lender liability” issues, disputed simultaneously in all three Branches of Government, and eventually resolved successfully through Congressional legislation). See CERCLA-envir-article and compare 42 USC 9601 (20)(A),(E),(F),(G) (CERCLA’s secured creditor exemption, as amended and expanded to cover lease financing). Outside counsel for the Public Service Commission of the District of Columbia in court cases and Commission proceedings. See, e.g., People’s Counsel v. PSC, 414 A.2d 516 (DC 1980); People’s Counsel v. PSC, 455 A.2d 402 (DC 1982); Potomac Electric Power Co. v. PSC, 457 A.2d 776 (DC 1983); Potomac Electric Power Co, 7 DCPSC 257 (1986); Potomac Electric Power Co, 9 DCPSC 199 (1988); Potomac Electric Power Co, 10 DCPSC 22 (1989); OPC v. PSC, 610 A.2d 240 (DC 1992); OPC v. PSC, 630 A.2d 692 (DC 1993); PEPCO v. PSC (DCApp # 94-AA-315)(settled on appeal) (Commission authority to have some regulatory say about the construction of PEPCO power plants, inside and outside the District of Columbia, where those plants have an effect on District residents); PEPCO v. PSC, 661 A.2d 131 (DC 1995); Watergate East v. PSC, 665 A.2d 943 (DC 1995); Washington Gas Light Co, 229 PUR4th 177 (2003); Washington Gas Light Co, 253 PUR4th 231 (2006); Potomac Electric Power Co, 280 PUR4th 381, 283 PUR4th 98 (2010), Potomac Electric Power Co., 300 PUR4th 166 (2012),  and many others. Over 100 oral arguments in court cases throughout the country.

Other litigation experience, in the U.S. Department of Justice, includes handling nationally-significant cases written up in US Law Week and the Washington Post. These cases involved, for example, the military’s drug control program in Europe (Committee for GI Rights v. Callaway, 518 F.2d 466 (D.C.Cir. 1975)); admiralty ship collision cases; the first “wrongful life” case in federal court; voting rights cases involving the U.S. Attorney General’s preclearance procedures under the Voting Rights Act and the Constitution; the validity of the old statutory mandatory retirement rule for federal government employees generally, and the FAA mandatory retirement rule for commercial airline pilots (O’Donnell v. Shaffer, 491 F.2d 59 (D.C.Cir. 1974)); antitrust law; the civil law presumption of death (Blew v. Richardson, 484 F.2d 889 (7th Cir. 1973)); equal protection (see, e.g., Hoffman v. Fioto, 430 U.S. 634 (1977)); constitutional due process; federal preemption cases; Establishment Clause challenges to chapel attendance at the military academies (West Point, Annapolis, Colorado Springs); whether “the Constitution follows the Flag” to American Samoa (King v Morton, 520 F.2d 1140 (D.C Cir. 1975)); Taft-Hartley Act injunction cases; overturning an overbroad USDC injunction stalling all federal subsidies ($8 billion) to the States of the old South; Establishment Clause challenges to the creche scene in the Christmas Pageant of Peace on the park opposite the White House (Allen v. Morton, 495 F.2d 65 (D.C.Cir. 1973)); official immunity suits; the jurisdiction of the United States Court of Federal Claims (Testan v. United States, 424 U.S. 392 (1976)); Congressional subpoenas for Executive Branch documents; cases testing the scope of free speech rights in the military; whether and when counsel can participate in in camera inspection of privileged/FOIA exempt documents; torts; contracts; class actions; attorneys’ fees; FOIA suits; Privacy Act cases; and a wide variety of cases involving court of appeals’ review of administrative agency action (e.g.Forbes Federal Credit Union v. National Credit Union Admin., 477 F.2d 777 (10th Cir.), cert. denied 414 U.S. 924 (1973) (case defining basic powers of the National Credit Union Administration).

Other volunteer work in private practice includes acting as pro bono counsel for consumers, tenants, homeowners, school teachers, and the Sierra Club Legal Defense Fund (e.g., Tsongas Forest), as well as imprisoned felons in court-appointed appeals (see, e.g., Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999));  handling campaign finance issues and cases before the Federal Election Commission and in federal court; work with the Innocence Projects, NACDL and the ACLU seeking systemic reform of procedures and training for prosecutors on their evidence-sharing responsibilities (Brady/Giglio obligations), addressed in part by DoJ’s voluntary (non-binding) Guidance for Prosecutors Regarding Criminal Discovery (January 4, 2010) and addressed in part in USDC, DDC’s proposed local rule regarding government disclosure of exculpatory information in criminal cases (February 3, 2016) (revised December 4 2017) (compare California Rules of Professional Conduct Rule 5-110D (Nov.2, 2017), discussed at 86 USLW 662-663 (November 6, 2017)); voluntary lobbyist for DC Statehood; and supporting the U.S. House of Representatives rule giving Eleanor Holmes Norton and other delegates the right to vote in the Committee of the Whole (Michel v. Anderson, 14 F.3d 623 (D.C.Cir. 1994)).