Arent Fox’s Appellate group has earned a reputation for aggressively and effectively managing high-stakes, precedent-setting appeals that protect our clients’ interests. Arent Fox attorneys have broad experience in complex appellate litigation at nearly every level of the federal and state court systems.
Our goal with every case is to devise the most successful and innovative appellate strategy for clients facing complex legal and business challenges.
The practice is led by partner Mark F. (Thor) Hearne, II. Mr. Hearne has earned a national reputation for his work in complex federal and state litigation and appeals, especially in matters involving property rights. He is nationally recognized for his practice before state and federal trial and appellate courts, including having argued cases before the US Supreme Court, US Court of Appeals for the Federal Circuit, the Kansas Supreme Court, and the Missouri Court of Appeals.
Additionally, many members of our Appellate group have served as judicial clerks, providing clients with critical insight into the appellate process.
In recent years the Appellate group has argued before the US Supreme Court; handled major appeals for companies in the energy, technology, life sciences, and financial industries before an array of appeals courts; overseen an array of complex white collar appeals; led on patent appeals in the Federal Circuit; and filed amicus briefs in high-stakes Supreme Court matters for industry groups.
With more than 30 practice areas representing a broad assortment of business and industries, Arent Fox advises clients in appellate matters in cases involving administrative, bankruptcy, constitutional, corporate and securities, environmental, Employee Retirement Income Security Act (ERISA), health care, insurance, intellectual property, labor and employment, land use, and telecommunications law.
Our recent appellate work includes:
- Harris v. Arizona Independent Redistricting Commission, No. 14-232 (2014). Counsel for Arizona citizens and voters in a U.S. Supreme Court challenge of the 2012 redistricting plan for Arizona state legislative districts, where the redistricting commission produced a redistricting map with a nearly 9% population deviation, diluting the votes of thousands of Arizona voters. Thor argued this case before the Supreme Court this past December, and a decision is expected at any time.
- Brandt v. United States, 134 S.Ct. 1257 (2014). Counsel for amici curiae Cato Institute, American Farm Bureau Federation, American Land Title Association, National Cattlemen’s Beef Association, Public Lands Council, and Property Law Professors James Ely, Jr., Richard Epstein, Donald Kochan, and Dale Whitman in a case filed by the U.S. government against a Colorado ranching family. The decision set a major precedent with regard to Trails Act litigation involving the General Railroad Right-of-Way Act of 1875, which affects thousands of acres of property across the United States.
- Crawford v. Marion County Election Board, 553 U.S. 181 (2008). Counsel for amici curiae leadership of United States Senate and House of Representatives (Senators Mitch McConnell, Robert Bennett, Christopher S. "Kit" Bond and United States Representatives Roy Blunt, Lamar Smith and Vernon Ehlers) as amici curiae before the United States Supreme Court in support of Indiana election officials on issues of federal preemption and the federal Help America Vote Act.
- Lee, et al. v. Virginia State Board of Elections, et al., (No. 3:15CV357, Fourth Circuit Court of Appeals). Counsel for the Commonwealth of Virginia in successful defense of Virginia’s voter identification law in a March 2016 US District Court trial brought by challengers of the statute. This case has national implications for upcoming elections. This appeal will be argued in September 2016 and decided this Fall with potential appeal to the U.S. Supreme Court.
- Resource Investment, Inc. v. United States, No. 15-802 (2015). Counsel for amici curiae Cato Institute and National Association of Reversionary Property Owners in Supreme Court challenge to denial of landowner’s taking claim under the Tucker Act.
- Ministerio Roca Solida v. United States, No. 14-1413 (2014). Counsel for amici curiae Cato Institute and National Association of Reversionary Property Owners in Supreme Court challenge to denial of landowner’s taking claim under the Tucker Act.
- West Chelsea Buildings, LLC v. United States, No. 14-102 (2014). Thor has represented property owners in New York City in takings litigation regarding the High Line, a popular elevated recreational park on the West Side of Manhattan. Those landowners sought to appeal their claims for compensation under the Fifth Amendment for the taking of their property to the U.S. Supreme Court. Thor represents another landowner in a related case pending in the U.S. Court of Appeals for the Federal Circuit (see, below, Romanoff Equities, Inc. v. United States).
- PPL Montana v. State of Montana, No. 10-218 (2010) U.S. Supreme Court amicus brief on behalf of Cato Institute and Montana Farm Bureau Federation.
- Trinity Lutheran Church v. Pauley (No. ), counsel for amicus curiae National Association of Evangelicals filing an amicus brief in support of the church in a challenge to Missouri’s prohibition on public aid to religious schools (Missouri’s Blaine Amendment).
- Palmer Ranch v. Commissioner of Internal Revenue Service, T.C. Memo 2014-79 (US Tax Court 2013), affirmed, 812 F.3d 982 (11th Cir. 2016). US Tax Court trial in Florida regarding numerous tax issues, including the appraisal and valuation of a major property development involving charitable contributions, conservation easements, zoning procedures and zoning effects on property valuation. On appeal, the 11th Circuit Court of Appeals granted additional relief to Palmer Ranch over and above what the Tax Court awarded. This litigation has included the preparation and filing of a 160-page post-trial brief as well as two appellate briefs.
- Romanoff Equities, Inc. v. United States, 2016 WL 909300 (Fed. Cir. March 10, 2016). Appeal from the US Court of Federal Claims denying landowner relief under the Fifth Amendment for the taking of its property. This appeal is of national interest because it raises property law and federalism issues in that the US Court of Appeals for the Federal Circuit decided a novel question of New York state property law without certifying that state law question to New York’s highest state court.
- Biery, et al. v. United States, 2016 WL 1128079 (Fed. Cir. March 23, 2016). Case of national interest regarding attorney fee reimbursements to landowners who successfully pursue Fifth Amendment takings claims against the federal government awarded under the federal Uniform Relocation Act. Petition for rehearing soon to be filed in the US Court of Appeals for the Federal Circuit.
- Childers v. United States, 116 Fed. Cl. 486 ( 2013). Successfully representation of property owners in trial to determine property valuation resulting in a $5.7 million favorable ruling.
- Jack Ladd v. United States, 630 F.3d 1015 (Fed. Cir. 2010). Successful reversal of Court of Federal Claims adverse ruling setting a major precedent in Trails Act cases that a Fifth Amendment taking pursuant to the Trails Act takes place at the time of the issuance of the Notice of Interim Trail Use by the Surface Transportation Board.
- Kinder v. Geithner, 695 F.3d 772 (8th Cir. 2012). Lawsuit brought by the Lieutenant Governor of Missouri regarding the Patient Protection and Affordable Care Act.
- Evans v. United States, 694 F.3d 1377 (Fed. Cir. 2012). Successful reversal of two district court decisions following the Federal Circuit’s decision in Bright v. United States. The court expressed frustration at the government’s actions and clarified the law according to plaintiffs’ requests.
- Ingram v. United States, 105 Fed. Cl. 518 (2012). Representation of South Carolina landowners in their Fifth Amendment takings claim, successfully determining method of valuation of their property interests.
- Whispell v. United States, 106 Fed. Cl. 635 (2012). Representation of Florida landowners in their Fifth Amendment takings claim, successfully determining method of valuation of their property interests.
- Douglas R. Bigelow Trust v. United States, 107 Fed. Cl. 490 (2012). Representation of Michigan landowners’ class action claim asserting Fifth Amendment taking of land subject to railroad right-of-way.
- Thompson v. United States, 101 Fed. Cl. 416 (2011). Representation of Michigan landowners in Fifth Amendment takings claim successfully determining that landowners had reversionary rights to property underlying an abandoned railway triggering Fifth Amendment’s “just compensation” requirement.
- Hodges v. United States, 101 Fed. Cl. 549 (2011). Representation of Michigan landowners successfully determining that abandoned railway right-of-way conversion to a public trail constituted a taking under the Fifth Amendment.
- Rogers v. United States, 101 Fed. Cl. 287 (2011). Representation of Florida landowners in a class action Fifth Amendment takings claim, successfully determining method of valuation of property.
- Bright v. United States, 603 F.3d 1273 (Fed. Cir. 2010). Counsel in class-action Fifth Amendment taking case brought against the federal government. Successfully overturned adverse decision by Court of Federal Claims. National Law Journal noted this case “could dramatically change the rules for plaintiffs across the country who file big-money class actions against the federal government.” Mike Scarcella, “Broken Trails,” National Law Journal (June 22, 2009). U.S. Justice Department touted the government’s lower court win as one of the DOJ’s most significant accomplishments in 2009. In a unanimous decision issued May 3, 2010, the Federal Circuit overturned the Court of Federal Claims and issued a decision that broadly affirmed the use of class action procedure in cases against the federal government. The Federal Circuit’s broadly written rejection of the Justice Department’s argument is a landmark victory for the plaintiffs in this and more than 30 other pending class action cases.
- Dorothy L. Biery, et al. v. United States and Jeremy Pankratz et. al v. United States, 86 Fed. Cl. 516 (2009) (certification order). Certified question referred to Kansas Supreme Court by US Court of Claims. Amicus curiae, including Kansas Farm Bureau, filed briefs in support due to precedential importance of issue. Argued on October 30, 2009.
- Rogers v. United States, 90 Fed. Cl. 418 (2009). Earlier decision in Rogers case representing more than 350 Florida property owners in Fifth Amendment lawsuit against federal government for taking property without paying compensation. Court of Federal Claims ruled in favor of Plaintiffs, holding that the Plaintiffs “are entitled to just compensation under the Fifth Amendment.”
- Shoemyer v. Kander (Mo. Supreme Court No. SC94516), counsel for a consortium of Missouri agricultural groups defending the adoption of a state constitutional amendment by initiative petition.
- St. Louis Union Station Holdings, Inc. v. Discovery Channel Store, Inc., 301 S.W.3d 549 (Mo. Ct. App. 2009). Successful trial and appeal involving a commercial lease dispute. Appellate argument selected for Appellate Advocacy Program at Washington University School of Law.
- Weinschenk v. State of Missouri, 203 S.W.3d 201 (Mo. 2006). Counsel for intervenors seeking to uphold Missouri’s voter registration law requiring photo identification in the Missouri Supreme Court.
- Miller v. United States, 67 Fed.Cl. 542 (2005). Counsel for class of Missouri landowners (including municipalities and school districts) in successful Fifth Amendment takings litigation against federal government. Successfully concluded with judgment for Plaintiffs in excess of $8.1 million in total compensation and won landmark decision on rate of interest due property owners under the Fifth Amendment.
- Grantwood Village v. United States, 45 Fed. Cl. 771 (2000). Counsel for Plaintiff, Town of Grantwood Village, in Fifth Amendment takings litigation against United States. Successful verdict for full amount of claim sought and attorney fees and expenses. Decision on government’s liability established significant legal precedent finding United States liable for paying “just compensation” for Trails Act takings of landowners “reversionary” interest in land.
- Lowe v. American Standard (E.D. Mo. 2005). Counsel for Plaintiff (former senior executive) in employment contract dispute. Plaintiff prevailed with verdict in full amount of demand — in excess of $500,000 — after multi-day federal jury trial.
- Bush-Cheney, 2000, Inc. v. Baker, 34 S.W.3d 410 (Mo. Ct. App. 2000). Counsel for President Bush and Bush-Cheney presidential campaign in successful emergency appeal overturning trial court order holding polls open beyond legal closing hour. Court of appeals decision established significant election law precedent.
- Corbett v. Sullivan, 202 F. Supp. 2d 972 (E.D. Mo. 2002). Lead counsel for Plaintiffs in the successful federal civil rights redistricting litigation of St. Louis County, Missouri. Represented individuals including minority plaintiffs and worked closely with the local NAACP in achieving a successful reapportionment of St. Louis County government. Counsel for the NAACP said, “[Mr. Hearne carried] the burden of a substantial amount of the NAACP’s case…. [Mr. Hearne] provided great help to counsel for the NAACP during this fast-paced redistricting litigation. [And Mr. Hearne took] the leading role in this action and in incorporating the NAACP’s objectives.”
- McCurdy v. St. Luke’s Episcopal Presbyterian Hospitals, 265 S.W.3d 286, (Mo. Ct. App. 2008). Successfully represented property owner in trial court and court of appeals by preventing condemnation of private road easement across property owner’s land.
- In re Request for Advisory Opinion Regarding Constitutionality of 2005 PA 71, 740 N.W.2d 444 (Mich. July 18, 2007). Counsel for amicus curiae before Michigan Supreme Court in support of constitutionality of provision of Michigan election statute.
- Glosemeyer v. United States, 45 Fed. Cl. 771 (2000). Representation of Missouri property owners in a class action determining that “railbanking” and conversion of railway to public use constituted a taking under the Fifth Amendment.
- McNary, v. Akin, Cause No. 00CC-002969, (Cir. Ct. St. Louis Cty, Div. 10, 2000). Counsel for U.S. Congressman in successful defense of primary election recount challenge.