After pro se litigant Peter Atherton was victorious in the U.S. Court of Appeals for the D.C. Circuit this year, he submitted a bill of costs for $13.86 to cover making copies of court records. Lawyers for the D.C. attorney general's office say the city shouldn't pay.
Atherton, who argues government officials improperly dismissed him from a D.C. Superior Court grand jury, raised a number of issues on appeal that the D.C. Circuit dismissed. But the court kept in place the claim that Assistant U.S. Attorney Daniel Zachem and D.C. Superior Court jury officer Suzanne Bailey-Jones violated Atherton's right to due process (pdf).
The appeals court remanded the case to determine whether Zachem and Bailey-Jones are entitled to qualified immunity in a suit that alleges the defendants improperly removed Atherton from a grand jury in April 2001. A federal trial judge tossed the suit, finding Zachem and Bailey-Jones are protected by absolute immunity. The three-judge D.C. Circuit panel disagreed.
In the eyes of the District's lawyers, Atherton should not be given a dime because the court ruled only in part for him. "Given that Mr. Atherton did not prevail on most of the issues he raised on appeal, he should bear his own costs," Senior Assistant Attorney General Richard Love wrote in a motion, filed June 25, opposing the bill of costs.
The government is still deciding whether to petition the D.C. Circuit for a rehearing or rehearing en banc. The government was given an extension until July 24 to file a petition.
Atherton's case attracted attention among lawyers in the D.C. criminal defense bar for the issues it raised about the independence of grand juries. Atherton said in a complaint in the U.S. District Court for the District of Columbia that he was bounced from the panel in April 2001 for alleged disruption. He said he was criticized by fellow jurors for asking too many questions of prosecutors and demanding more information from them.
Zachem, responding to juror complaints about Atherton, reported to Bailey-Jones. Bailey-Jones dismissed Atherton even though a rule in Superior Court says only the chief judge, or a designate judge, can dismiss a grand juror. Then-Chief Judge Rufus King III was unaware that Atherton was removed until after the fact. King filed an affidavit in the suit that said the practice at the time Atherton was kicked off the grand jury did not include notification of the chief judge before a juror was removed.
"Mr. Atherton's removal from this grand jury threatened the independence of the grand jury and violated his constitutional rights," argued Sarah Campbell of the Duke Law School appellate litigation clinic. Campbell, who argued the case in March, has since graduated.
Duke Law professor James Coleman Jr. and senior lecturing fellow Sean Andrussier were tapped to represent Atherton's interest as amicus curiae.
This article originally appeared in The BLT: The Blog of Legal Times.
