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Washington Lawyer

Irvin Nathan on His Time as D.C. Attorney General

Last fall former D.C. attorney general Irvin B. Nathan finished his term as the last mayor-appointed attorney general in the District of Columbia. Nathan is now senior counsel at Arnold & Porter LLP. The text of this article is drawn from a speech that Nathan gave in October in which he reflects on the highlights and accomplishments of his term, as well as the transition of the Office of the Attorney General from an appointed office to an elected one.

I have just completed four years as District of Columbia attorney general. The position now is elective, and Karl A. Racine took office in January as the first lawyer chosen by the voters for the job.

I’d like to sum up my experience for the Washington legal community. First, the diversity of legal issues that comes with the job—from dealing with all three branches of the federal government, the Charter of the District, public school financing, transportation of special needs students, gun control, homelessness, federal consent decrees, juvenile justice, truancy and abused and neglected children, getting financial support for custodial moms, employment preferences to reduce unemployment, and a host of other issues—has been fascinating, challenging, and intellectually and psychically rewarding.

Before I took office, then-Mayor-Elect Vincent C. Gray promised me that under his administration, the attorney general would be fully independent in decisions about what cases to bring and what positions to take in our legal advice. He adhered in every respect to that promise. In my every dealing with him and in all that I have observed, he fully lived up to his legal and ethical obligations. He never asked me to shade our opinion or to take any position that I did not think was fully lawful and justified.

At the Office of the Attorney General (OAG), we had a number of successes as well as a few disappointments. My number one priority when I arrived and my proudest accomplishment has been helping OAG continue to become a first-class public law office for the District. That is my best legacy to this city. There is a very strong team of lawyers in our office, many of whom are longtime veterans of the office who bring critical combinations of talent and institutional memory. We have added top-flight talent such as big firm partners from private practice, including Sally Gere, as well as talented lawyers from the federal government. We built out our pro bono program, increasing our capacity at little or no cost to the District, and deepened our relationship to the private bar. We also set up a terrific fellowship program for top graduates of D.C. law schools, and I named the program after one of my role models and heroes in the law and one of my predecessors, Chuck Ruff. The Ruff Fellows, more than 10 a year, come straight out of the District’s law schools and do real lawyer work for a year under OAG supervisors, with the law schools covering half of the cost and the District getting a terrific deal by covering half of this modest salary. We have a pipeline for hiring many fellows into permanent positions where possible, where they have hit the ground running as they come on fulltime.

I am pleased to report that judges, agency directors, and even opposing counsel have advised me that the quality of our representation has been excellent and has helped enhance and restore the office’s credibility. Two decisions I made at the outset were critical: One, keeping Valerie Scott, who started with my predecessor, as my executive assistant. She is a treasure, knows where all the bodies are buried and where the landmines are, and always steers me clear of trouble. The second was the decision to bring with me a loyal colleague from my work as general counsel at the House of Representatives, my top aide, Ariel Levinson-Waldman, who is indefatigable, brilliant, and conscientious.

Another major priority has been making progress toward ending the intrusive and expensive oversight by federal courts of District agencies. Before our administration, the District had not ended a single consent decree case in more than a decade. We ended three of the seven we inherited, and I believe the District may close out two or three more next year. We ended the the Blackman-Jones case, which deals with special education services. The District and the U.S. Department of Justice filed a joint motion in U.S. District Court to dismiss a settlement agreement that had mandated federal oversight of patient care at Saint Elizabeths Hospital. This means that, for the first time in seven years, the District’s inpatient psychiatric facility will no longer be under federal oversight.

We made an impact in our public integrity cases. We investigated, filed civil suit, obtained a settlement, and secured a consent judgment from former Councilmember Harry Thomas Jr., who took District funds meant for little league baseball and converted that money for his personal use for trips to resorts, fancy cars, golf equipment, and other luxuries. After laying the matter out in detail in our complaint, we referred it for criminal prosecution to the U.S. Attorney’s Office, which secured a guilty plea and substantial jail time. The Thomas matter was the first in the District’ s 40-year Home Rule history where this office sued a sitting member of the Council. As a result of that case, we were able to improve the governance and accountability of the City and Youth Investment Trust, an entity that receives millions of dollars of city money for nonprofit, charitable purposes.

We used our affirmative civil authority to fight public corruption in the District’s public charter schools, including a lawsuit against the former Options Public Charter School managers for the outrageous sums they took for themselves at the expense of benefits for at-risk youth. We obtained a judicial order creating a receiver for the school, and we are endeavoring to recover the millions of dollars intended for education purposes, which were diverted by these managers.

We have achieved significant relief for District consumers. We obtained a series of favorable consumer protection settlements arising out of our multi-state investigations, including a settlement against major financial institutions for mortgage-related fraud under which $40 million became available to D.C. homeowners, and $4.6 million was paid to the District, a portion of which the District has allocated toward obtaining housing counselors for District residents.

We achieved $7 million in relief for D.C. homeowners in a settlement with Ocwen Financial Corporation. We participated in a multi-state settlement with Johnson & Johnson concerning improper marketing of the antipsychotic drug Risperdal for which the District received more than $4 million. We secured $1 million in settlement of a false claims case against Forrester Construction along with its agreement to forebear from seeking any contracting preferences under the CBE program for 30 months. We announced that District consumers are eligible for refunds from an $80 million fund under a national settlement reached with AT&T Mobility, by the District and our partners, the Federal Trade Commission and Federal Communications Commission, in response to our allegations that AT&T placed unauthorized charges for third-party services on consumers’ mobile telephone bills, a devious practice known as “cramming.”

I’m proud of the work we have done protecting and augmenting the taxpayer dollars in our local treasury that fund the services provided by the District government. Our work has saved District taxpayers many hundreds of millions of dollars. Each year in my tenure, we have faced around $2 billion in claimed liability and we won most of those civil cases, and through settlements or judgments paid a tiny fraction of that amount, typically less than $25 million a year. For example, we recently persuaded the U.S. Court of Appeals to reject a $2.5 million judgment against the District by a former prisoner for actions taken by the parole board, initiated by the U.S. Attorney’s Office, and approved by both local and federal courts. We obtained a major victory in the D.C. courts in the Aeon case, where the court ruled for the District after a multi-year litigation, rejected Aeon’s claims for more than $5 million in redemption fees, and adopted an interpretation of the tax laws that will prevent predatory market actors like Aeon from overcharging homeowners in the future.

We have, through affirmative efforts, dramatically changed the way that the office handles matters where the District has been financially injured. In one case, we brought in more than $7.5 million for the District treasury for taxes owed based on the value of a private firm’s leasehold interest at Union Station. After a decade of no action by the District against online travel companies that failed to pay required taxes, we won a suit we filed in 2011 against Expedia, Travelocity, Priceline, and other companies. Last year we reached in principle large contingent settlements with these companies for their failure to pay the full amounts of required hotel taxes to the District over a decade. The settlements are contingent on our sustaining in the D.C. Court of Appeals the holding of the trial court that the companies are liable. We are confident of our prospects on appeal. I am hopeful that the result will be a recovery of $60 million to $90 million for the District.

This is a significant accomplishment, particularly because in other jurisdictions, these suits are handled on a contingency-fee basis by outside law firms. We are by federal law precluded from handling suits in that manner and so have handled these document- and resource-intensive matters entirely within our office. Our lawyers did an excellent job in reaching this result in such a short time against wealthy corporate parties represented by high-powered law firms. If we win this appeal, we will have secured for the D.C. treasury more than $200 million over the course of our four years. And that is on top of the hundreds of millions we have saved the District in our defensive work. That is not bad for a public office funded by just $60 million a year in local dollars.

We have also supported the District’s financial health through our counseling and litigation related to the city’s robust economic development. We obtained more than 20 rulings in takings cases, each upheld by the D.C. Court of Appeals, that collectively brought to an end the decade of litigation and uncertainty that held up the Skyland Shopping Center redevelopment. Our litigation saved more than $9 million in land costs for the project. With the litigation against former owners and shopkeepers concluded, the District is making significant strides in this redevelopment project that is expected to create hundreds of jobs, provide affordable housing opportunities, and encourage private economic development in the East End.

We prevailed in an important economic development matter against the federal government. After what I viewed as a dangerously wrong ruling by the U.S. Department of Labor, we sued, and U.S. District Judge Amy Berman Jackson ruled that wages paid for construction of the CityCenterDC project are not subject to the federal Davis-Bacon Act. The decision could save as much as $20 million in increased construction costs that an official of the Department of Labor had suggested should be paid by the District. In developments like it the result is estimated to save the District more than half a billion dollars in future years.

I am similarly proud of the public safety impact we have had. Working with the Metropolitan Police Department and the Office of the Chief Medical Examiner, our Public Safety Division, headed up by Andy Fois, fully restored and improved our drunk-driving breath-testing program so that we can continue to enforce our impaired driving laws. We now have state-of-the-art, properly calibrated equipment, along with a fully updated Council statute, which our lawyers helped draft, to prosecute drivers who pose a threat to public safety. We secured a major public safety victory for the District in the D.C. Circuit’s Heller II decision, upholding the District’s rights to regulate and require the registration of handguns, and are in the process of drafting and will be vigorously defending laws that regulate the carrying of handguns in nonsensitive places.

Let me also note significant highlights in our Child Support Services work. Each year, we have earned more than $900,000 in federal audit-based performance awards. We won a federal grant to seek to improve early intervention approaches to encourage noncustodial parents to become more consistent payers of child support. Combined with federal matching funds, the office will be eligible for a total of $1.1 million in grants over five years.

We have had disappointments, especially refusals by legislatures to give the office the tools and authority it should have. First and foremost is subpoena power. In a fit of pique at my predecessor, the Council took away the general subpoena power that the office had long held. It created instead a highly restricted, virtually unusable authority to compel the production of evidence in a few matters. As is the case with every other attorney general and indeed local prosecutor around the country, the Council should restore the full subpoena authority for our office. Congress should provide more adult criminal jurisdiction to the Attorney General’s Office, especially when the District is the victim of the crime. Finally, Congress should let the District be like every other city and state that is able to hire contingent fee lawyers, supervised by city attorneys, to pursue financial claims on behalf of the city. I am disappointed that we were not able to get the Council to pass anti-pay-to-play legislation. We have a very unfortunate situation where government contractors can make campaign contributions to members of the Council who have approval authority over large contracts. We should end Council approval of these contracts and forbid contributions to any elected officials with control over government contracts.

I want to note our dedication to upholding the rule of law. Generally it is our obligation to defend the validity of laws passed by the legislature. However, where a specific law is patently unlawful, particularly if it places government officials at risk as a result, the calculus changes. This issue arose in the District when the Council passed the Budget Autonomy Act, usurping from the Congress and the president the ability to appropriate local revenues, which make up most of the D.C. budget. When the mayor and our independent chief financial officer followed my advice and refused to implement that invalid law, passed in violation of the Home Rule Act, the Council sued them to enforce the statute. Our office represented the mayor and chief financial officer, along with eminent outside counsel. The Council was represented by well-respected outside counsel. U.S. District Judge Emmet Sullivan held for the mayor and chief financial officer, finding, as we had argued, that the statute is unlawful, in violation of the Home Rule Charter and other federal law, and enjoining its implementation.

I hope that my successor, Karl Racine, will continue to adhere to the rule of law and not pander to the populace to lead our government astray.

As you know, having an election of the city’s chief legal officer will make us like most states but unlike most cities, at least in the East and Midwest. In most cities, the chief legal officer is appointed by the mayor, as has been the case in the District for nearly two centuries. In California and some other Western states, the city’s lead lawyer is elected. District voters in 2010 approved a charter amendment that for the first time made the attorney general’s office an elected position. The wisdom of this change remains to be tested.

In the recent election for attorney general, I am disappointed that instead of dealing with the issues and responsibilities of the office, some candidates made promises about matters that are not within OAG’s purview, such as promising more affordable housing and better education policies. The electorate would have been better served by having a clearer understanding of what the office really does and who had the background, temperament, experience, management skills, and the reputation for integrity and responsibility to lead the first-class legal office we are leaving.

It is my hope that our future elected chief legal officers, when dealing with thorny issues like budget autonomy, will have the courage and dedication to the rule of law to follow the lodestar of what the law requires even where the answer may be unpopular.