Constitutional & Complex Litigation

In a number of carefully selected matters, we work with clients and co-counsel to design and prosecute constitutional and regulatory challenges and other complex litigation from the ground up–with a special focus on the First Amendment, litigation involving federal agencies, and class actions. We also consult on litigation strategy and are occasionally retained to argue critical, high-stakes motions that present unsettled legal issues.

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Class Action Challenging Fees for Federal Court Records (PACER)

National Veterans Legal Services Program, et al. v. United States (U.S. District Court for the District of Columbia) – We represent three national nonprofits—the National Veterans Legal Services Program, National Consumer Law Center, and Alliance for Justice—in a class-action lawsuit concerning PACER fees: the $.10-per-page charges that individuals must pay to access federal court records. This action challenges the legality of those fees for one reason: the fees far exceed the cost of providing the records. Although the judiciary is authorized by Congress to charge fees “only to the extent necessary” to recoup costs, PACER fees have generated huge revenues—with important implications for freedom of information and access to justice. In January 2017, the court granted our motion to certify a nationwide class of PACER users. Complaint | Class Certification Opinion | Motion to Dismiss Opinion  | Class Certification Motion | Government’s Opposition to Class Certification | Reply in Support of Class CertificationGovernment’s Motion to Dismiss Opposition to Motion to Dismiss | Coverage at National Law JournalABA JournalWall Street Journal; Techdirt; Ars Technica; Courthouse News; Bloomberg BNA; AFJ press release.

Emoluments Clause Litigation

Citizens for Responsibility and Ethics in Washington v. Trump (U.S. District Court for the Southern District of New York) – We are working with a team of top ethics experts and legal scholars to challenge the constitutionality of the countless conflicts of interest and unprecedented influence by foreign governments created by President Donald Trump’s worldwide business holdings. 
​Our clients ​in this case—the government watchdog group Citizens for Responsibility and Ethics in Washington, a hotel owner, a hotel-event booker, and an association of hundreds of restaurants—challenge President Trump’s violations of the Constitution’s foreign and domestic emoluments clauses. (We are also advising the Attorney General for the District of Columbia and the Attorney General of Maryland in parallel litigation filed in the U.S. District Court for the District of Maryland.)
The Foreign Emoluments Clause prohibits President Trump from receiving anything of value from foreign governments, including foreign government-owned businesses, without the approval of Congress, while the Domestic Emoluments Clause provides that the President’s “Compensation” shall not be increased or decreased, and that he may not receive any “other emolument from the United States, or any of them,” during his term of office. The plaintiffs allege that the President is violating these clauses in a number of ways, including through leases held by foreign governments at New York’s Trump Tower, patronage by foreign and domestic governments at the Trump International Hotel in Washington, D.C., and other business dealings in foreign countries.
The legal team on the case includes ​Deepak Gupta and Jon Taylor; ​CREW’s board chair and vice-chair Norman Eisen and Richard Painter, the top ethics lawyers for the last two presidents; ​c​onstitutional law scholars La​rry​ Tribe and Zephyr Teachout; and attorneys from Cohen Milstein Sellers & Toll. Second Amended Complaint | Motion to Dismiss

Recovering Illegal Tax-Preparer Fees from the IRS

Steele v. United States (U.S. District Court for the District of Columbia) – In 2010, the IRS introduced a novel regulatory scheme for those who prepare tax returns, and began charging preparers a $64.25 fee to obtain a preparer ID number. Although the D.C. Circuit held in 2014 that the IRS does not have the authority to regulate tax preparers, the IRS continues to charge these fees. In this case, we represent a class of tax-return preparers challenging the legality of these IRS fees. We represent the class along with co-counsel from Motley Rice. Amended Complaint | Class-Certification Motion | Class Certification Opinion | Motion for Reconsideration | Opinion Granting Motion for Reconsideration | Motion for Summary Judgment | Summary Judgment Opinion

Class Action on Behalf of Federal Bankruptcy Judges

Houser v. United States (U.S. Court of Federal Claims)Our firm serves as sole counsel to a certified class of federal judges–one of the few such cases in U.S. history. We were retained by the National Conference of Bankruptcy Judges to devise and prosecute litigation against the United States on behalf of all current federal bankruptcy judges, as well as former judges and their surviving spouses, estates, and beneficiaries.
We argued that because the United States violated the U.S. Constitution’s Judicial Compensation Clause by failing to pay district judges their full compensation, and because the government calculated bankruptcy judges’ salaries based on those unlawfully low salaries, the government failed to pay bankruptcy judges their lawful compensation. Deepak Gupta is lead counsel for the plaintiffs.
We prevailed at summary judgment, obtained a final judgment entitling our clients to over $56 million in back pay, and are administering a class claims process in cooperation with the U.S. Department of Justice. Summary Judgment Brief | Complaint