Constitutional Litigation
We have an unparalleled experience in litigating constitutional issues. During the second term of the Reagan Administration, Mr. Cooper was the head of the Office of Legal Counsel at the Department of Justice and was responsible for providing constitutional analysis and advice to the President and all agencies of the Executive Branch. In that capacity, Mr. Cooper had occasion to analyze a broad range of constitutional issues. In private practice, the members of the Firm have built upon this experience and have litigated numerous constitutional cases. Specific areas of expertise include:
First Amendment
We have represented clients in a broad range of free speech cases. Representative matters include:- Satellite Broadcasting and Communications Ass'n, et al. v. FCC
275 F.3d 337 (4th Cir. 2001)We represented the SBCA and member companies Echostar Communications Corp. and DirecTV, Inc. in a First Amendment challenge to the must-carry provisions of the Satellite Home Viewer Improvement Act of 1999, requiring satellite television carriers to carry all television stations in a local market if they choose to carry one station in that market. The court of appeals rejected the challenge and upheld the law.
- NRA v. FEC
540 U.S. 93 (2003)We represented the National Rifle Association in its challenge to the constitutionality of the Bipartisan Campaign Reform Act. The statute prohibits corporations from airing television and radio advertisements mentioning a federal candidate in the 60 days prior to an election. Our suit sought to invalidate this prohibition on First Amendment grounds. In a 5-4 decision, the Court upheld the statute.
- Anti-Defamation League and Saul Rosenthal v. William J. Quigley and Dorothy Quigley
540 U.S. 1229 (2004)We represented the Anti-Defamation League (ADL) in the Supreme Court. The Tenth Circuit upheld an award against the ADL of $8.5 million in punitive damages for defamation and violations of the Federal Wiretap Act arising out of ADL's role in publicly denouncing an anti-Semitic campaign of intimidation and harassment that was reportedly designed to drive a Jewish family from its home in Colorado. The Supreme Court denied certiorari.
Fifth Amendment Takings cases
We have represented numerous clients in assessing the validity of governmental actions under the Takings Clause of the Fifth Amendment. We have prepared such analyses for pharmaceutical companies, financial institutions, the music industry, commercial fishing enterprises, the cable industry, and others. We have also litigated several such claims, including:- AmBase Corporation v. United States
In conjunction with Professor Laurence Tribe, we represent AmBase Corporation in a takings claim against the United States. The case arises out a governmental breach of contract that caused AmBase to lose its entire property interest in its wholly-owned subsidiary, Carteret Bancorp. The case is now pending before Judge Loren Smith.
- Stearns v. United States
We filed a petition for certiorari on behalf the Stearns Company. The plaintiff sold the surface rights in its land to the United States, but reserved the mineral rights. Congress subsequently passed legislation that conditioned mining of the land on governmental approval. The Court of Federal Claims found there was a taking, but the Federal Circuit reversed.
- Illig v. United States
On appeal before the Federal Circuit, we represent plaintiffs challenging the conversion of railroad easement into a nature trail under the Trails Act.
Civil Rights
As principal Deputy Assistant Attorney General for the Civil Rights Division of the Department of Justice, Mr. Cooper had supervisory responsibility over many of the important civil rights cases conducted during the first term of the Reagan Administration. We have particular expertise in institutional reform litigation, involving school systems, prisons, and juvenile detention facilities. We also have litigated several cases involving the validity of affirmative action programs. Representative matters include:- Coalition to Defend Affirmative Action v. The Regents of the University of Michigan
539 F. Supp.2d 924 (E.D. Mich. 2008).We represent a Michigan resident and law student who successfully intervened to defend against an equal protection challenge to Michigan's constitutional ban on using racial preferences in public employment, education, and contracting. When the federal district court denied intervention, we secured a reversal through and interlocutory appeal to the Sixth Circuit. More recently, the federal district court agreed with our client's position and rejected the constitutional challenges brought by the plaintiffs.
- Rockford Board of Education v. People Who Care
246 F.3d 1073 (7th Cir. 2001)We represented the Rockford, Illinois Board of Education in this school desegregation case. We had asked the district court to declare the school district unitary, vacate the desegregation decree, and dismiss the case. The trial court held that the school district was not unitary, and ruled that the busing order must remain in place at least until 2006. The court of appeals reversed and remanded with instructions that the district court grant all of the relief sought by our client.
- Coalition to Save our Children v. State Board of Education
90 F.3d 752 (3d Cir. 1996)On behalf of the Delaware House of Representatives Committee on Desegregation, we successfully urged the district court to declare the four school districts in the Wilmington, Delaware metropolitan area unitary, dissolve a busing order that had been in place since 1978, and finally dismiss a school desegregation case originally brought in 1956. On appeal, we successfully argued that the trial court's decision should be affirmed in its entirety.
- Dowell v. Board of Education
8 F.3d 1501 (10th Cir. 1993)We represented the Oklahoma City Board of Education in proceedings following remand from the United States Supreme Court in this school desegregation case that originally was filed over forty years ago. The district court granted our motion for summary judgment, declared the school district unitary, terminated court supervision over the Oklahoma City public schools, and dismissed the case. On appeal, the Tenth Circuit accepted our argument that the Oklahoma City schools had satisfied the standard established by the Supreme Court and affirmed the trial court's decision to end the case.
- Davis v. East Baton Rouge School District
Civ. A. No. 1662 (M.D. La. filed Apr. 30, 1982)When we were retained by the East Baton Rouge School District in 2001, the school district had been subject to more than four decades of federal court supervision. We filed and vigorously pressed a motion for unitary status. After extensive discovery, the case settled on terms that granted the school district unitary status and ended federal court supervision.
- United States v. The Marion County School District
No. 78-22 (M.D. Fl.)We represent the Marion County, Florida, School District in connection with its long running school desegregation case. We were retained to seek unitary status (i.e., an order dismissing the case), and recently we successfully defended the School District in a hearing regarding whether it violated its consent decree with the United States.
- Wilson v. Coalition for Economic Equality
F.3d 1431 (9th Cir.), cert. denied, 522 U.S. 963 (1997)We represented the intervenor Californians Against Discrimination and Preferences, Inc., in a case involving the constitutionality of Proposition 209 which prohibited the State of California from utilizing racial and gender preferences in education, employment and contracting. The court of appeals vacated the preliminary injunction entered by the district court and held that Proposition 209 was constitutional.
- Smith, et. al. v. Virginia Commonwealth University
84 F.3d 672 (4th Cir. 1996) (en banc)On appeal before the en banc Fourth Circuit, we represented five male professors who charged Virginia Commonwealth University with engaging in impermissible gender discrimination in its salary structure. The court of appeals reversed the district court's grant of summary judgment in favor of the defendant university.
Voting Rights
As principal Deputy Assistant Attorney General for the Civil Rights Division of the Department of Justice, Mr. Cooper had supervisory responsibility over voting rights litigation conducted during the first term of the Reagan Administration. He prepared the brief for the Department in the seminal voting rights case, Gingles v. Thornburgh, 478 U.S. 1 (1986). In private practice, Mr. Cooper has continued to litigate numerous voting rights cases arising both under the Voting Rights Act and the Constitution. Most recently, Mr. Cooper served as the National Co-Chair of Lawyers for Bush and was one of the architects of the campaign's post-election litigation strategy. Cases we have litigated in this area include:- Johnson v. Bush
405 F.3d 1214 (11th Cir. 2005)We represent Governor Jeb Bush and the other members of Florida's clemency board in their defense of Florida's felon disenfranchisement laws against a class action filed on behalf of 400,000 convicted felons. The plaintiffs brought suit under the Fourteenth Amendment and Section 2 of the Voting Rights Act. The district court granted our motion for summary judgment. After an adverse ruling from a dividend panel, the Eleventh Circuit sitting en banc affirmed the dismissal of the suit.
- Rossello, et al. v. Calderon, et al.
398 F.3d 1 (1st Cir. 2004)
We have also represented many state and local governments in voting rights litigation:- Alabama
In 1993, we successfully represented the Governor of Alabama in a congressional redistricting case in a Mobile, Alabama federal district court. The principal issue in this litigation was also Section 2 of the Voting Rights Act and the creation of districts where blacks constitute a majority. Our position prevailed in court, and we also successfully defeated a subsequent challenge at the Justice Department.
- Alaska
We represented the Reapportionment Board of Alaska, which is responsible for that state's redistricting, with respect to the Voting Rights Act and constitutional issues involved in that process. In that regard, we successfully urged the Justice Department to approve the Board's state legislative redistricting, over the objections of several Native Alaskan groups alleging minority vote dilution.
- Georgia
The City of Augusta, Georgia, and Richmond County, Georgia, retained us to seek a declaratory judgment granting Section 5 approval to a proposed plan consolidating the county and city governments, notwithstanding a prior Section 5 objection to the plan by the Department of Justice. We were also retained by the State of Georgia to assist it in obtaining Section 5 approval of electoral changes involving state judges.
- New Mexico
We represented the State of New Mexico in a lawsuit brought by the United States, under Section 2 and other provisions of the Act, challenging various practices alleged to have a discriminatory effect on Native Americans. After the State had filed a motion for partial summary judgment, the parties agreed to settle the case.
- New York
We represented the New York State Senate in connection with redistricting for both Congress and the state legislature. We obtained the Justice Department's approval, under Section 5 of the Voting Rights Act, of both the Congressional redistricting plan and the plan for the State Senate -- the only reapportionment schemes in New York to receive the Department's approval. We also successfully defended against two state court challenges to the Senate reapportionment brought under the New York Constitution and the Voting Rights Act. We defended the Congressional plan against a challenge under Section 2 of the Voting Rights Act that sought to create an additional Hispanic Congressional district in New York City.
And Mr. Cooper represented the United States in numerous voting rights cases, including:- Dougherty County Board of Education v. White
439 U.S. 32 (1978)
- City Council of the City of Chicago v. Ketchum
471 U.S. 1135 (1985), cert. denied, 740 F.2d 1398 (7th Cir. 1984)
- Brooks v. Winter
461 U.S. 921 (1983)
- City of Lockhart v. United States
460 U.S. 125 (1983)
- Thornburg v. Gingles
478 U.S. 30 (1986)
- United States v. Marengo County Commission
731 F.2d 1546 (11th Cir. 1985)
- Edge v. Sumter County School District
775 F.2d 1509 (11th Cir. 1985)
- Jordan v. City of Greenwood
711 F.2d 667 (5th Cir. 1983)
- United States v. Dallas County Commission
739 F.2d 1529 (11th Cir. 1984)
- Agricola v. Harville
781 F.2d 506 (5th Cir. 1986)
- United States v. City of Cambridge
799 F.2d 137 (4th Cir. 1986)
- Leroy v. City of Houston
831 F.2d 576 (5th Cir. 1987)
- Dillard v. Crenshaw County
831 F.2d 246 (11th Cir. 1987)
- Chisom v. Edwards
839 F.2d 1056 (5th Cir. 1988)
- City of Pleasant Grove v. United States
479 U.S. 462 (1987)
- Martin v. Haith
618 F. Supp. 410, aff'd, 477 U.S. 901 (1985)
Separation of Powers
As the head of the Office of Legal Counsel during the Reagan Administration, Mr. Cooper frequently had occasion to issue formal opinions on separation of powers issues. In private practice, the firm has continued to be active in litigating such cases. Representative matters include:- City of New York v. Clinton
524 U.S. 417 (1998)We represented New York City and several health care providers and associations in their challenge to the constitutionality of the Line Item Veto Act. The Supreme Court held that the Act violated the Presentment Clause of the Constitution. Mr. Cooper argued the case in the Supreme Court.
- Raines v. Byrd
521 U.S. 811 (1997)We represented several members of Congress in their challenge to the constitutionality of the Line Item Veto Act. Although the district court held that the Act was unconstitutional, the Supreme Court declined to reach the merits of the members' claim, holding that they did not have standing to bring this challenge.
- FEC v. NRA Political Victory Fund
513 U.S. 88 (1994).We represented the National Rifle Association Political Victory Fund in an action brought by the FEC alleging violation of campaign contribution regulations. The court of appeals agreed with our position that the composition of the FEC violated the separation of powers. The Supreme Court ultimately dismissed the appeal after argument, agreeing with our argument that the FEC did not have independent litigating authority to challenge the decision of the court of appeals. The case was argued before the Supreme Court by Mr. Cooper.
Commerce Clause
- Coors Brewing Company v. Calderon
No. 02-1483 (D.C. Cir. 2002)We successfully represented Sila M. Calderon, Governor of the Commonwealth of Puerto Rico, in an action filed in U.S. District Court in Washington, D.C. by Coors. Coors' lawsuit challenged Puerto Rico's graduated beer tax regime as an alleged violation of the Interstate Commerce Clause of the United States Constitution. We successfully defended the Governor in the district court action. After full briefing before the U.S. Court of Appeals for the District of Columbia Circuit, Coors dismissed its appeal.
- South Central Bell Telephone Company v. Alabama
526 U.S. 160 (1999).We represented the State of Alabama in the Supreme Court in a case challenging the State's corporate franchise tax as it applied to out-of-state corporations. Our brief traced the history of the Court's Commerce Clause cases. We urged the Court to abandon its Dormant Commerce Clause jurisprudence on the ground that it has no foundation in the Constitution. Mr. Cooper argued the case.
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Practice Areas
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