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The bang of the gavel shook the crowd to silence. Six judges, clad in black robes, shuffled into the newly refurbished ceremonial courtroom at the U.S. Court of Appeals for the Federal Circuit. With hundreds of spectators filling the dark wood benches, this was a clearly a case of great interest. Forget the fact that neither the petitioner nor the respondent were real people. Or that the only record the judges could rely on was the 1882 Henrik Ibsen play, “Enemy of the People.” It was time for the show. The show at hand was last week’s mock trial based on the case of Stockmann vs. Stockmann. Thomas Stockmann, the doctor of Ibsen’s play, discovers that the water supply in his Norwegian town baths was creating a “mysterious illness” among visitors to the baths. On the other side was Thomas’ brother Peter, the town’s mayor, who refuses to heed the warnings of his brother’s study. With evidence of tainted water, no one will come to the city. This fact could turn out to be expensive for the town. To bring in some contemporary relevance, the Lawyers Committee for the Shakespeare Theatre Company made Thomas Stockmann into the former chief medical examiner of the Department of Housing and Urban Development. Peter Stockmann was the agency’s secretary. And instead of finding contaminated baths, the health problem was located in the water of D.C.’s Municipal Water Park, which had revitalized a blighted neighborhood since opening in 2004. The committee, whose members are drawn from D.C.’s legal community, is an advocacy group that helps raise money for the theater. Since the Ibsen play was originally more of a morality tale than a legal drama, the Lawyers Committee added an epilogue: After Peter fired his brother from the agency, Dr. Stockmann sued for damages over what he saw as a violation of his freedoms of due process, speech, and equal protection. Dr. Stockmann won in lower court and now Peter was taking it up on appeal. Enter the real-life Supreme Court Justice Ruth Bader Ginsburg, who presided over this fictitious Supreme Court. Ginsburg posed the question of the evening: “Does his [Thomas Stockmann's] status as a government employee doom his current quest?” So went a night of arguments. Each year, the Lawyers Committee hosts a gala that takes an element from one of the theater’s productions and turns it into into a mock trial. The rules are simple: Each side has an advocate who adheres to the general rules of appeals, and each side bases many of the arguments on real case law. That’s not to say that the lawyers didn’t get a little creative in their examples. At various points in the evening, Chicken Little, Mel Gibson, and Dr. Leonard McCoy of “Star Trek” became part of the arguments. But although many of the jokes were more wonkish than knee-slappingly funny, the open atmosphere allowed the lawyers to do what great fiction can do: turn drama into a commentary on real life. Representing Peter Stockmann was Williams & Connolly partner Greg Craig. To Craig, the case didn’t seem to be based on any credible health threat. His proof? He lifted up his glass of water to the panel of judges. Senior Judge Frank Schwelb of the D.C. Court of Appeals interjected from the bench. “You didn’t drink it,” he said to a wave of laughter. Schwelb continued with some legal matters. Shouldn’t the panel follow the standard legal review that requires appellate judges to be deferential to the lower court, which in this case found in favor of Thomas? he asked. Craig was not so sure. “The record in this is not like any other.” The court record, based on the play, was certainly unconventional, and Craig’s task was not a popular one. His client was hardly a likeable character to anyone familiar with the play. Peter refuses to retool the baths and sabotages Thomas’ efforts to get the press behind him. And even when Thomas tries to hold a public meeting, Peter thwarts Thomas from speaking his mind fully. Indeed, while Thomas, the doctor, is the one officially deemed the “enemy of the people,” the narrative of the play makes it clear that Peter is the real villain. Ginsburg tried to draw Craig back to the law. “I’m amazed at the line you’re taking. He [Peter] may be a despicable character, but he has qualified immunity” as a political appointee. Craig opted to go with a different approach. He tried to convince the panel that Thomas had been acting within the scope of his official duties, which would mean he had no standing to sue. He hoped to score a point in showing that Thomas had been acting under his job description by noting that Thomas had no doubt sent his study to a taxpayer-funded lab. Chief Judge Douglas Ginsburg of the U.S. Court of Appeals for the D.C. Circuit corrected him. “The record is clear. They were sent to a university,” he said, referring to one of the lines in the play. “That would be a relevant part of the record,” Craig conceded. “There is no reason to let the facts get in the way,” replied Chief Judge Paul Michel of the Federal Circuit with a grin. Lawyers in the audience, perhaps accustomed to such manipulations, chuckled in agreement. Thomas’ case was argued by Barbara McDowell of the Legal Aid Society for the District of Columbia. “Dr. Stockmann discovered what might be called �an inconvenient truth,’ ” McDowell began. The audience roared. Peter Stockmann, she said, had intimidated the press, manipulated a public meeting, and eventually fired his brother. Schwelb challenged Thomas’ standing by pointing to some of his public statements.”For instance, his profession that �All who live by lies ought to be exterminated like vermin!’ might be cause itself for a public official to dismiss a subordinate,” Schwelb said. Justice Ginsburg, too, grilled McDowell. “Your argument would say that Daniel Ellsberg, the day after he gave the Pentagon Papers to the press, could sue his bosses for damage?” It might, McDowell said. She tried a different approach: Maybe there should be an exception in the law for employees dealing with matters of public safety, such as “an FBI employee who discovers her superiors ignored a credible terrorist threat.” Ginsburg stopped her: “Now I find all this very interesting.” But, she asked, would any lawyer really argue “that Supreme Court jurisprudence in employment law is clear and certain?” The audience laughed. The case seemed to be getting tough for McDowell. Ginsburg tried to help. Why hadn’t Thomas decided to sue the press instead, which, unlike Peter, would not have qualified immunity? “You couldn’t assert a First Amendment claim,” McDowell replied. “Why not, when they are acting in cahoots with the government?” Ginsburg suggested. Judge Alan Lourie of the Federal Circuit chimed in. “I think the answer is deep pockets. The government has the money.” Despite the back and forth, Justice Ginsburg clearly believed the lawsuit was out of place. “This is a suit in federal court. But this is a dispute between brothers,” she said. She took a personal approach. Wasn’t there a grandmother or family member who could mediate this dispute instead? But there was no one else. Despite the clear sympathy some judges had for Thomas’ cause, the good doctor found himself without recourse in today’s legal system. After just 10 minutes of deliberation, the panel came back with a unanimous decision: The case must be overturned because Thomas was a political appointee. In short, he could be discharged at the will of his superior. Yet Justice Ginsburg, who delivered the opinion, offered Thomas a suggestion for a different claim, one she pulled from the end of the play, where Peter threatens to take action against Thomas should he take the report anywhere else. “Perhaps that claim might have had legs,” she suggested, adjourning the court for another year.
Emma Schwartz can be contacted at [email protected].

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