By Zoe Tillman, From The National Law Journal

A New York federal judge who declared the District of Columbia’s gun regulations unconstitutional should never have been assigned to the case, lawyers for the city argue. The fight over U.S. District Judge Frederick Scullin Jr.’s special assignment in Washington threatens to derail the litigation in a federal appeals court.

Scullin, who sits in the federal district court in Syracuse, was assigned to Wrenn v. District of Columbia through a quirk of federal court procedure. In 2011, Scullin was specially approved to preside in an earlier D.C. gun case, Palmer v. District of Columbia. When Wrenn was filed in February, lawyers for the challengers marked the two cases as “related,” which automatically sent the new case to Scullin’s docket.

Scullin declared the gun regulations challenged in Wrenn unconstitutional in May. As the District appeals that order, the U.S. Court of Appeals for the D.C. Circuit is taking a closer look at whether Scullin should have been assigned to Wrenn at all. Last month, the appeals court, unprompted, asked lawyers on both sides to address the issue.

The D.C. attorney general’s office argued in court papers last week that Scullin was never authorized to hear Wrenn, making his decision invalid. Lawyers for the challengers, led by Second Amendment litigator Alan Gura of Gura & Possessky, defended Scullin’s assignment. Gura said that the order authorizing Scullin to hear Palmer carried over to Wrenn.

“There’s no precedent that holds judges appointed for particular cases are barred from related cases,” Gura said in an email to the NLJ. “That wouldn’t make sense—among the ‘judicial duties’ that come with handling a case is the obligation to take related matters when the dispute spills over into a different docket number.”

Lawyers for the District acknowledge that they didn’t earlier challenge Scullin’s assignment. They wrote that they “assumed that Judge Scullin had been properly designated” under federal court rules.

A spokesman for the attorney general’s office declined to comment. In court papers, lawyers for the city wrote that a visiting judge was only allowed to hear a case if the chief judge of the federal circuit involved—in this case, the D.C. Circuit—said the assignment was necessary and the judge was explicitly authorized to serve by the chief justice of the United States. That did not happen in Wrenn, D.C. contends.

Even if Palmer and Wrenn were related, the city’s lawyers wrote, a visiting judge’s designation to preside in a particular case did not carry over.

Scullin, who was confirmed to the U.S. District Court for the Northern District of New York in 1991 and took senior status in 2006, declined to comment.

What the Supreme Court said, in 1937

Federal courts routinely accept help from judges in other districts. Visiting judges closed more than 3,000 cases in U.S. district courts in 2014, according to the federal judiciary. But the situation in Wrenn—a visiting judge assigned to a case because of its relation to a different case, absent an explicit designation by the chief justice—appears to be rare.

The D.C. Circuit asked the lawyers to address Frad v. Kelly, the 1937 U.S. Supreme Court case. In Frad, an Eastern District of New York judge was assigned to the Southern District of New York for a set period of time. After his designation expired, the judge issued an order in a case that had been assigned to him in the Southern District. The Supreme Court declared that order invalid. The District’s lawyers said Frad supported their argument that Scullin had no authority to hear Wrenn.

Gura said the Frad decision didn’t undermine Scullin’s right to handle Wrenn because it was part of his “judicial duties” under his designation to hear Palmer.

Palmer was one of 10 cases assigned to Scullin in the D.C. federal district court in July 2011. In a previous interview with the NLJ, U.S. District Judge Royce Lamberth, who was chief judge in 2011, said Scullin was one of several judges from across the country who agreed to take cases in D.C. while the court dealt with a crush of cases filed by detainees at the U.S. military facility in Guantánamo Bay, Cuba. The court also had vacant seats at the time.

Palmer challenged the city’s ban on the public carrying of handguns for self-defense. Scullin declared the ban unconstitutional in July 2014. In response to Scullin’s ruling, rather than pursue an appeal, the D.C. Council adopted new regulations for licensing individuals to carry firearms, but did not ban concealed carrying outright. Gura, who represented the challengers in Palmer, challenged the new regulations as unconstitutional under the Second Amendment in Wrenn.

When he filed the lawsuit in February, Gura also filed a notice that the case was “related” to Palmer. Wrenn met two of the five possible criteria for being a related case, according to Gura: Wrenn involved “common issues of fact” and grew “out of the same event or transaction.”

Even if Scullin were not properly designated to hear Wrenn, it shouldn’t undo his order, Gura argued in court papers in the D.C. Circuit. Scullin properly exercised the jurisdiction of the D.C. court, even if he wasn’t technically designated to preside in that particular case, Gura wrote, invoking the “de facto doctrine.”

Lawyers for the District said Scullin’s assignment to Wrenn was “not a ‘mere technicality’—it strikes at the very heart of the assignment statute, and is thus jurisdictional and not subject to the de facto officer doctrine.”

The D.C. Circuit has schedueled arguments for Nov. 20.

IMAGE: sundrawalex / iStockphoto.com.

For more on this story go to: http://www.nationallawjournal.com/id=1202739544799/New-York-Judges-Role-in-DC-Gun-Case-Challenged#ixzz3oSgJAy00