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The federal appeals court in Washington, where oral arguments resume this week after a nearly three-month summer hiatus, is facing a season of change. The departure of Judge John Roberts Jr. to Capitol Hill for hearings on his nomination to the Supreme Court and the arrival of Janice Rogers Brown and Thomas Griffith on the circuit court’s bench resulted in a reshuffling of panels and argument dates for the fall. Lawyers with upcoming cases before the D.C. Circuit U.S. Court of Appeals say they’ve received oral argument dates later than usual. As of late last week, the court had posted its calendar through the end of October. The court’s argument calendar, which continues to take shape, opens with the pleas of Guantanamo Bay prisoners. Over the next two months the court will also hear cases involving immunity and liability for public officials such as police officers and will revisit long-running litigation that pits states and interest groups against the federal government. The D.C. Circuit begins arguments Sept. 8 with two of its most closely watched cases. That day, Judges A. Raymond Randolph, David Sentelle, and Judith Rogers � appointees of Presidents George H.W. Bush, Ronald Reagan and Bill Clinton, respectively � will hear the cases of Guantanamo Bay prisoners challenging their detention. The arguments were originally scheduled to be heard Oct. 6 by a panel that included the D.C. Circuit’s two newest judges, Brown and Griffith. The court did not comment on the changes in the panel, but lawyers for the detainees had requested that the hearing date be moved up so that if necessary, they could file an appeal that would reach the Supreme Court during its upcoming term. “This must feel gigantic to these judges,” says Barbara Olshansky, deputy legal director at the Center for Constitutional Rights in New York. “These are the kinds of decisions that are remembered and cited for centuries.” The learning curve is steep for any judge � regardless of whether he or she is a veteran or new to the bench, says Olshansky, who coordinates dozens of pro bono lawyers representing detainees. Of the three judges, Randolph likely would be most familiar with the detainees’ appeals. In July he wrote the opinion in Hamdan v. Rumsfeld that upheld the military tribunals set up by the Bush administration to try terrorism suspects for war crimes. Randolph’s presence on the panel could create some “hurdles” for the detainees, says Olshansky, but the questions in the current cases are different. Hamdan challenged the legality of the military commissions to try suspected terrorists. The cases to be heard this week contest the legality of the detention of the prisoners, some of whom were picked up outside of the battlefield. Lakhdar Boumediene v. Bush and Khaled Al Odah v. USA resulted in dramatically different outcomes in the lower court. In Boumediene in early January, U.S. District Judge Richard Leon, a George W. Bush appointee, held that the detainees have no rights under U.S. or international law that can be asserted in federal courts. Weeks later, Senior Judge Joyce Hens Green, appointed by President Jimmy Carter in 1979, ruled in Khaled Al Odah that the detainees do “possess enforceable constitutional rights.” No matter which way the circuit rules, the cases are expected to wind up before the Supreme Court, which last year ruled 6-3 that the detainees have a right to file habeas corpus challenges in federal court. “We’re hoping for a speedy decision,” says Stephen Oleskey, a lawyer with Wilmer Cutler Pickering Hale and Dorr in Boston who represents a group of Bosnian-Algerians taken into custody in January 2002 and held at Guantanamo Bay. Thus far, just two cases are slated for review this fall by all active members of the court. In those, the D.C. Circuit will address the unsettled question of whether members of Congress can be sued for employment discrimination by their legislative staffers. Lawyers say the decision to hear Fields v. Johnson and Hanson v. Dayton en banc was even more unusual because it was done sua sponte &# 151 without a request from any of the parties involved. “It’s very, very rare,” says Miller Baker, a partner with McDermott, Will & Emery who litigates at both the trial and appellate levels and is not involved in either case. At issue is whether federal lawmakers are shielded from employment discrimination lawsuits because of a constitutional clause that broadly protects lawmakers’ speech, debate and other “legislative activities.” The 1995 Congressional Accountability Act, passed shortly after Republicans won control of Congress, subjects Congress to various employment statutes that apply to the private sector. But it also preserves Congress’ immunity under the constitutional speech or debate clause. The question in the cases is whether the Constitution bars employment suits filed by certain legislative staffers. Judges David Tatel, Harry Edwards, and Randolph heard arguments in April in an age and race discrimination case against Rep. Eddie Bernice Johnson, a Texas Democrat. But shortly before scheduled arguments were to be heard in former Hill staffer Brad Hanson’s suit against Sen. Mark Dayton, D-Minn., the court announced it would hear both cases en banc instead. Arguments are scheduled for Sept. 29. Hanson says that Dayton fired him after learning the aide, who ran a health care help line for constituents, needed heart surgery. Last year, Leon denied Dayton’s motion to dismiss the case. The D.C. Circuit denied a request by Hanson’s lawyers that the two cases be consolidated. A group of Republican lawmakers filed a friend of the court brief in support of Johnson and urged the court to shield federal legislators from such lawsuits. In October, Edwards and Randolph are scheduled to sit on the same panel in another case involving questions of liability and immunity for public officials. Joined by Judge Karen LeCraft Henderson, they will decide whether D.C. Metropolitan Police Chief Charles Ramsey can be held personally liable for what plaintiffs say were constitutional violations in the arrests of anti-globalism and anti-war protesters. The trial court found the police did not give an order to disperse before ordering the mass arrests in September 2002 in Northwest Washington’s Pershing Park. Ramsey was in command of the police department’s operation plan and handling of the demonstrations while Assistant Chief Peter Newsham ordered the Pershing Park arrests. In September 2004, Judge Emmet Sullivan ruled the two did not have qualified immunity, which shields officials from liability for damages so long as their actions were “objectively reasonable.” Ramsey and Newsham, a lawyer and member of the Maryland Bar, filed an emergency appeal. Mara Verheyden-Hilliard, a lawyer with the Partnership for Civil Justice, which is representing the class, says the question of Ramsey’s liability is critical to a wider battle about how police restrain protesters. “Personal liability is a very important mechanism in making sure that this doesn’t happen again,” Verheyden-Hilliard says. Key cases in two long-running court battles are also scheduled to come before the court. Nearly a decade after they started, challenges to the federal government’s handling of billions of dollars in assets belonging to Native American heirs and held in trust for more than a century return to the D.C. Circuit. The main body of the Cobell v. Norton suit, a class action first filed in 1996 against Clinton administration Interior Department Secretary Bruce Babbitt, is pending in federal district court before Judge Royce Lamberth in Washington. For years, Lamberth has ordered the Interior Department to implement plans to correct past accounting failures and fix the way the agency accounts for the management and dispersal of the trust money in the future. The case, which is scheduled to be heard by the D.C. Circuit on Sept. 16, is the government’s appeal of Lamberth’s latest injunction requiring accounting remedies. Among the disagreements between the government and the class of trust beneficiaries is the scope of the fix. The plaintiffs say that the government needs to remedy its errors reaching as far back as 1887, the year the trust was created. The Department of Justice lawyers handling the case, however, say that the cutoff should be 1938, when another law concerning the management of the accounts was enacted. In an added twist to an already dizzyingly complex struggle, Justice Department lawyers made the unusual request on Aug. 15 that Lamberth be removed from the case, claiming that the harsh language in Lamberth’s rulings creates an appearance of bias. That question could come before the panel, which includes Senior Judges Laurence Silberman and Stephen Williams and Judge Merrick Garland. The plaintiffs have contested the motion. On Oct. 18, another appeal in the decades-old fight over plans for a permanent repository for the nation’s nuclear waste in Yucca Mountain, Nev., comes before Edwards, Henderson, and Randolph. The latest iteration of litigation that Nevada Senior Deputy Attorney General Marta Adams calls “tortured” involves the state’s protest of a proposed railroad that would transport nuclear waste to Yucca Mountain. “We sue them over pretty much everything,” Adams says. “I think the powers-that-be are surprised that Nevada has put up the argument that it has.” The state contends Congress did not entrust the Department of Energy with the authority to construct a railroad for the project and that, among other things, the agency did not do adequate studies of the environmental impact of the project. The Nuclear Energy Institute Inc., in an amicus curiae brief filed in support of the government’s plans, wrote that Nevada’s “dire predictions” about the dangers of transporting the waste by rail through the state do not “square with reality.” Lily Henning is a reporter with Legal Times, a Recorder affiliate based in Washington, D.C.

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