The BLT: The Blog of Legal Times

Federal Judge Denies Stay in Stem Cell Case

A federal judge in Washington this afternoon denied a request from the U.S. Justice Department to stay a ruling that temporarily blocks funding for human embryonic stem cell research.

DOJ lawyers had asked Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia to stay the preliminary injunction the judge issued last month. Government lawyers are appealing the ruling and could ask the U.S. Court of Appeals for the D.C. Circuit to issue an administrative stay.

Last week, DOJ attorneys said in court papers that the preliminary injunction threatens millions of dollars of research at the National Institutes of Health. The preliminary injunction was a blow to the Obama administration, which in March 2009 removed restrictions on funding on human embryonic stem cells.

Lamberth said today in a three-page order the “defendants are incorrect about much of their ‘parade of horribles’ that will supposedly result from this Court’s preliminary injunction." The judge said his order “does not even address the Bush administration’s guidelines, or whether NIH could return to those guidelines. The prior guidelines, of course, allowed research only on existing stem cell lines, foreclosing additional destruction of embryos.”

A stay, Lamberth said, “would flout the will of Congress.” Congress, the judge wrote, “has mandated that the public interest is served by preventing taxpayer funding of research that entails the destruction of human embryos.”

DOJ, FBI Investigation Manuals Sought in FCPA Case

Defense lawyers representing a group of arms industry defendants who are charged in an international bribery conspiracy are demanding access to internal Justice Department and FBI manuals that govern the planning and execution of undercover operations.

The lawyers say the reliability of the government’s undercover sting, which last year culminated in the arrest of 22 people, is central to the defense. FBI audit reports that the defense lawyers have received show certain alleged violations occurred during the course of the sting.

Among the alleged violations, according to a FBI report: a confidential source was allowed to travel internationally without approval and a source was directed to “participate in an embezzlement and wire fraud scheme with one subject without the appropriate [approval].”

BuckleySandler partner David Krakoff said today at a hearing in the case in Washington federal district court that some defendants are likely to argue entrapment.

Krakoff and Drinker, Biddle & Reath partner Charles Leeper said in court papers in May the government has refused to produce internal documents that govern the procedures the FBI was supposed to follow in planning and conducting the undercover operation. The defense lawyers also want to know how much money the government sunk into the case.

A Justice lawyer, Joey Lipton, said today in court that the government is in continued talks with the defense lawyers about the manuals. Lipton declined to comment in any detail about the classification of the manuals. He said DOJ and FBI officials were discussing the defense lawyers’ request for the information.

Krakoff and Leeper said in court papers that the requested documents include the FBI’s Field Guide for Undercover and Sensitive Operations, the Confidential Human Sources Policy Manual and the Confidential Funding Guide.

Sterne Kessler Adds Trademark Partner from Finnegan Henderson

Updated: 4:55 p.m.

Monica Talley, who has been a trademark partner at Finnegan, Henderson, Farabow, Garrett & Dunner for the past 14 years, has joined Sterne, Kessler, Goldstein & Fox’s Washington office, Sterne Kessler confirmed today. Talley left Finnegan on Aug. 31 and started work at Sterne Kessler the next day.

Talley’s practice focuses on trademark prosecution, clearance, portfolio management, and client counseling, as well as trademark infringement and dilution litigation, Internet-related trademark disputes, and opposition and cancellation proceedings. She also works with clients in registering and enforcing certification marks.

According to her online biography on Sterne Kessler’s Web site, Talley’s clients come primarily from the consumer products, manufacturing, telecom, biotechnology, computer, media, and entertainment industries. Talley declined to name specific clients.

Michael Ray, managing partner of Sterne Kessler, said the firm wanted to strengthen its trademark practice because "the demand was there for that kind of work." He said that before adding Talley the firm had two full-time trademark lawyers and others who occasionally handled trademark matters.

"We see the trademark practice as one we want to grow in the future. We have several clients who have turned to us for more trademark work, and we want to be able to better meet that demand," Ray said.

Talley said she decided to move to Sterne Kessler because she wanted to take advantage of the "nimbleness of a midsize firm."

"This is an opportunity to grow a practice at Sterne Kessler as well as to expand my practice. It's a very exciting move," Talley said.

Former DHS Lawyer To Head Immigrants' Rights Legal Center

Melissa Crow, former acting deputy assistant secretary for policy at the U.S. Department of Homeland Security, is the new director of the American Immigration Council’s Legal Action Center.

Crow, who also served as senior policy advisor in DHS’ Office of Immigration and Border Security, joins Beth Werlin, who was promoted to deputy director, as the center’s new leadership team.

The Legal Action Center engages in impact litigation and appears as amicus curiae before administrative tribunals and federal courts in significant immigration cases. It also provides resources to lawyers litigating immigration cases and works with other immigrants’ rights organizations and attorneys throughout the country.

Before joining DHS in February, Crow was a partner with Baltimore’s Brown, Goldstein & Levy where she practiced immigration law. As the past co-chair of the worksite enforcement committee of the local American Immigration Lawyers Association chapter, she played a critical role in responding to immigration raids in Maryland under the Bush Administration. Before entering private practice, Crow was counsel to the late Sen. Edward Kennedy during the 2007 debates on the U.S. Senate's comprehensive immigration reform bill.

Werlin first joined the Legal Action Center in 2001 as a NAPIL fellow (now Equal Justice Works fellow) to work on right-to-counsel issues for non-citizens in removal proceedings. After the completion of her fellowship, she continued at the center as a staff attorney, focusing on due process issues in removal proceedings and federal court litigation. In 2005, she led the center’s efforts to launch the Litigation Clearinghouse, which has developed into an integral resource for immigration litigators nationwide.

Defense Lawyers Sue to Limit Laptop, Phone Searches at Airports

The National Association of Criminal Defense Lawyers is among the plaintiffs in a new lawsuit that seeks to restrict airport searches of laptops and other electronic devices.

The association — as well as a group of photographers and a doctoral student — says the searches as they are done now violate the Fourth Amendment because customs officials are not required to have suspicion of wrongdoing before searching and copying electronic information. Some of the information is also protected by the First Amendment or by attorney-client privilege, the plaintiffs argue in their complaint.

Lisa Wayne, the president-elect of the National Association of Criminal Defense Lawyers, is among the lawyers whose laptop has been searched without cause, according to the complaint.

Wayne, of Denver, Colo., was searched in August 2008 while traveling home from Mexico after attending a program sponsored by the National Institute for Trial Advocacy, the complaint says. At the Houston airport, a customs official asked her to turn on and log in to her laptop, which the official then took out of her sight for 30 minutes.

In the future, the complaint says, Wayne plans to refuse to log in to her laptop and cite attorney-client privilege. But she fears customs officials “may nonetheless detain her laptop and ultimately gain unauthorized access to its contents.”

The American Civil Liberties Union is representing the defense lawyers and other plaintiffs. In a news release, the ACLU said it filed the lawsuit today in the Eastern District of New York. Click here (PDF) for a copy.

Matthew Chandler, a spokesman for the Department of Homeland Security, declined to comment on the details of the complaint. But, he wrote in an e-mail, electronics searches "are a targeted tool" that customs officials use "in limited circumstances to ensure that dangerous people and unlawful goods do not enter our country. The Department has been transparent about these searches — the policies themselves, as well as a privacy impact assessment of the policies, are available on DHS.gov.”

Hogan Nabs FTC Chief Trial Counsel

After two years as chief trial counsel for the Federal Trade Commission, J. Robert "Robby" Robertson has joined Hogan Lovells as a partner.

The move is something of a surprise. In 2005, after a prior stint at the FTC, Robertson rejoined Kirkland and Ellis. He began his legal career there as an associate in 1990, and made partner there in 1996.

"I am excited to become a part of one of the largest global antitrust and competition practices in the world," Robertson said in a statement. "Hogan Lovells provides me with the ideal opportunity to use the experience I have gained at the FTC, along with my considerable trial experience from private practice, to build on strong corporate, IP, and international platforms."

Hogan boasts a sizeable antitrust practice, with 45 partners and 130 antitrust lawyers in more than 15 offices. The group is co-headed by Janet McDavid and Susan Bright.

In a statement, McDavid and Bright called Robertson "one of only a handful of lawyers who can lead antitrust litigation for any client, whether it involves defending a merger or practice against an agency challenge or defending a client in private litigation."

At the FTC, Robertson's experience included serving as lead trial counsel in the agency's monopolization and unfair competition case against Intel Corp. which settled in August 2010.

He also led the litigation team in FTC v. CCC Holdings, Inc., winning a preliminary injunction in March 2009 halting the $1.4 billion merger between CCC and with Mitchell International Inc. The parties subsequently abandoned the merger.

From July 2002 through January 2004, Robertson was the senior litigation Counsel for the Bureau of Competition, serving as lead trial counsel in the Chicago Bridge & Iron case, a challenge to a consummated merger. After a three month trial, the judge ordered a full divestiture of the acquired company. The U.S. Court of Appeals for the Fifth Circuit affirmed the decision.

From October 2004 through January 2005, Robertson was the FTC's lead trial counsel in Union Oil Co. of California, a standard-setting case based on Unocal's alleged monopolization of the technology market for summertime, reformulated gasoline in California.

Robertson spent 10 years as a Marine Corps officer prior to earning his JD from the Law School at the University of Chicago.

This Week in The National Law Journal

Bailout Busters: Jenna Greene reports that the FDIC's new power to dissolve megacompanies — one with almost no judicial oversight and in which creditors' rights are few — is sending shock waves through the bankruptcy bar.

Impeachment Trial: David Ingram previews the upcoming trial in the U.S. Senate that could end in the removal of a New Orleans federal judge accused of decades of corruption, including an alleged kickback scheme with a law firm.

Sports Law: The high number of high-profile NCAA probes that have become public recently means a steady stream of business for a small complement of attorneys, Karen Sloan reports.

FBI Retaliation Trial: Mike Scarcella reports that an employment retaliation case challenging the FBI's hiring practices after the Sept. 11 terror attacks is scheduled for trial this month, and jurors are expected to hear testimony from former Director Louis Freeh.

Korean Trade Lobbying: President Barack Obama's push to move a long-stalled free-trade agreement with South Korea has breathed new life into a lobbying campaign by both Korea and the business community, Carrie Levine reports.

And in Inadmissible: Judge Janice Rogers Brown throws down on her colleagues, DOJ's Environment and Natural Resources Division gets satisfaction, D.C. courts switch banks and more. Click here.

The Morning Wrap

Obama's Judges: The Associated Press reports on the status of President Barack Obama's judicial nominees, and finds he is behind George W. Bush and other recent presidents while just ahead of Richard Nixon in confirmed judges at this point in their presidencies.

The Justices' Clerks: The clerks on the U.S. Supreme Court are more ideologically polarized than they were in the past, echoing a trend in the other branches of government where purists reign, The New York Times reports.

Lawyers' Jobs: The legal sector is growing, The American Lawyer reports via Law.com. It added 1,000 jobs last month, marking the second straight month of improved numbers for the industry.

Petraeus on Quran Burnings: The Wall Street Journal reports on comments by Gen. David Petraeus, the top U.S. commander in Afghanistan, who said the planned burning of Qurans on Sept. 11 by a small Florida church could put the lives of American troops in danger and damage the war effort.

Central High Alum: Jefferson Thomas, one of the "Little Rock Nine" who integrated Arkansas' largest public high school in 1957 over the opposition of Gov. Orval Faubus, has died, The Washington Post reports.

Former Republican Congressional Committee Treasurer Pleads Guilty to Theft

A former treasurer of the National Republican Congressional Committee pleaded guilty today in Washington federal district court to stealing hundreds of thousands of dollars from the political committee and business clients.

Christopher Ward, a Maryland resident, worked in the NRCC's accounting department before he became treasurer in 2003, according to court records. Ward, prosecutors said in court papers, also ran an accounting and consultant business that specialized in compliance with Federal Election Commission regulations.

Prosecutors said Ward stole more than $844,000 from March 2001 to December 2007 by issuing unauthorized checks and wire transfers from the NRCC and political committees that were clients of his business.

“Christopher J. Ward was trusted to oversee other people’s money, and he violated that trust by diverting nearly $850,000 into his own pocket and creating fraudulent documentation to conceal the theft,” U.S. Attorney Rod J. Rosenstein of Maryland said in a statement. “Mr. Ward then caused false reports to be filed with the Federal Election Commission concerning the expenditure of the political contributions.”

Ward is scheduled to be sentenced on Dec. 2 before Judge Colleen Kollar-Kotelly of the U.S. District Court for the District of Columbia. Prosecutors and Ward’s attorneys have agreed on a 37-month prison sentence, but Ward faces up to ten years in prison.

Ward’s attorney, Howard Shapiro, a partner at Wilmer Cutler Pickering Hale and Dorr in Washington, was not immediately reached for comment today.

In April, Attorney General Eric Holder Jr. designated the United States Attorney for the District of Maryland to prosecute the case following a recusal of the U.S. Attorney’s Office for the District of Columbia.

U.S. Attorney Ronald Machen Jr., a former Wilmer partner himself, previously represented Ward in federal court in Washington in a forfeiture action that was filed in June 2008.

The government wants to seize Ward’s house in the 6300 block of Massachusetts Avenue in Bethesda, Md. The civil case is pending.

Former Cheney Chief of Staff Lands at Heritage

David Addington, a longtime top aide and lawyer to former Vice President Dick Cheney, has kept a low profile since his boss left public office in January 2009. Now, he is taking a job with the conservative Heritage Foundation.

The Heritage Foundation noted Addington’s hire in the middle of another announcement Aug. 27. It has received relatively limited attention since then, despite his influence on national security policy during the George W. Bush administration. A Heritage spokesman referred all questions today to a voice mailbox with Addington’s name, indicating that he may have already started at the foundation.

Addington, who did not return a message, will have the title of vice president for domestic and economic policy studies, according to the announcement by Heritage Foundation President Edwin Feulner. He is succeeding Stuart Butler, a policy analyst who is starting a new “think tank within a think tank” at Heritage.

The path from government service to policy think tanks is a well-worn one, though Addington had practiced law and served as general counsel to the American Trucking Associations Inc. before joining the vice president’s office in 2001. He worked at Holland & Knight and at Baker, Donelson, Bearman, Caldwell & Berkowitz.

Addington served as Cheney’s counsel from 2001 to 2005 and as his chief of staff from 2005 to 2009, succeeding I. Lewis “Scooter” Libby in the latter role. He worked for Cheney when he was secretary of defense in the George H.W. Bush administration, ending up as Defense Department general counsel in 1992.

Can Federal Courts Pay Non-Citizen Law Clerks?

The federal courts are grappling with the consequences of a little-noticed new law that bars the payment of federal salaries to non-U.S. citizens. The law could affect more than two dozen currently hired judicial law clerks who hail from nations including Canada and Australia.

The statute, Section 704 of Public Law 111-117, was included in an omnibus budget measure passed last December. It requires that "no part of any appropriation contained in this or any other Act shall be used to pay the compensation of any officer or employee of the Government of the United States ... whose post of duty is in the continental United States unless such person: (1) is a citizen of the United States." It allows exceptions for those who are seeking U.S. citizenship, or have refugee or asylum status.

The law affects all federal employers, and many agencies hire at least some non-citizens. Civil Service rules call for U.S. citizenship for federal employees, but over the years, statutes and executive orders have allowed exceptions for citizens of U.S. allies and other categories. But the new law, whose origin is unclear, is a more blanket prohibition.

The new provision appears to have gone unnoticed -- or at least unpublicized -- in other federal workplaces. But reports of the law and its possible impact on the law clerks have circulated within the judiciary. It is not uncommon for students from Canada and other nations to attend U.S. law schools, where they apply and compete for U.S. court clerkships like any other students.

When asked about the situation, officials of the Administrative Office of the U.S. Court declined comment.

Radio Royalties Bill Would Cost Broadcasters - but Help Lady Gaga, GAO Finds

The Government Accountability Office today released a report analyzing the effect of pending legislation that would require broadcasters to pay royalties to musicians and record companies for music played on radio stations.

If the proposed Performance Rights Act were to pass, most artists wouldn’t make more than a few hundred extra dollars in royalties a year. But the most-played song during the time of the study, “Bad Romance" by Lady Gaga, would have garnered over $446,000 in royalties.

Under current law, AM and FM radio stations can play music without paying a royalty to the copyright holder (usually the record company), performers, and musicians. They do however have to pay royalties to the songwriter or composer. Satellite, Internet and cable radio must pay both kinds of royalties.

The bill would impose a performance royalty on radio stations. The amount would vary according to the station’s gross annual revenues and status as commercial or noncommercial.

Radio station owners who oppose the legislation argue it’s appropriate that artists don’t receive royalties because exposure via radio play helps sell albums.

However, the GAO in its 69-page report “found the relationship between radio airplay and sales to be unclear. The presence of other promotional outlets, such as the Internet and special events, and growth of music piracy create a more nuanced environment wherein the relationship between airplay and music sales is less clear than in the past.”

Overall, the GAO estimated that every 1% point of royalty based on station revenue would cost the broadcast radio industry $101 million per year. As for artists, if the rate was 2.35%, GAO estimated that 56 % of performers would receive $100 or less per year, and fewer than 6 % of performers would receive $10,000 or more per year in royalties from airplay in the top 10 markets.

Of the royalties, 50% would be paid to the copyright holder, 45 % would be paid to the featured performer or musician, 2.5 % would be paid to background musicians, and 2.5 % would be paid to background performers and vocalists.

In Lady Gaga’s case, that would work out to $201,000 for Lady Gaga herself, while her record company would earn 50 percent, or over $223,000. The background musicians and performers would share 5 percent, over $22,000.

The bill is currently pending in both the House, where it is sponsored by Rep. John Conyers (D - Mich), and in the Senate, where it was introduced by Sen. Patrick Leahy (D - Vt.)

Kagan Indicates She'll Recuse in A Twelfth Pending Case

When she was up for confirmation, Supreme Court Justice Elena Kagan provided the Senate with a list of 11 pending cases in which she would recuse because of her participation as solicitor general. In a routine order list issued this morning, Kagan indicated she was not participating in an additional case -- the vaccine liability case of Bruesewitz v. Wyeth, set for argument Oct. 12.

Kagan signaled her recusal, as often happens at the high court, by stating she was not participating in a routine action on the case -- in this instance a motion for divided argument and argument time for the acting solicitor general.

But the government's brief in the case is signed by Acting SG Neal Katyal, so why would Kagan have recused? The answer almost certainly lies in a related vaccine liability case, American Home Products v. Ferrari. At the invitation of the Court, the SG filed a brief in January in the Ferrari case, signed by Kagan when she was SG.

The final paragraph of Kagan's brief in the Ferrari case was: "The petition for a writ of certiorari should be held pending the disposition of Bruesewitz v. Wyeth, Inc., petition for cert. pending, No. 09-152, or be denied. The petition for a writ of certiorari in Bruesewitz should be granted."

That brief judgment made by Kagan on the Bruesewitz case was apparently enough involvement for her to decide that she should recuse, so she is likely not to be on the bench Oct. 12 when it is argued.

The order in the Bruesewitz case offered another possible development on the recusal front. At earlier stages, Chief Justice John Roberts Jr. had recused, likely because his financial disclosure form indicates ownership in stock in Wyeth. In today's order, while Kagan's non-participation was noted, nothing was said about Roberts' recusal. That may have been an omission, or it might also mean that Roberts has sold the stock to allow himself to participate. Justices have done that before, and law now allows them to do so without paying capital gains taxes on proceeds from the sale of the stock. Roberts may have felt a need to shed the stock because of Kagan's recusal, so as not to have Bruesewitz decided by only seven of the nine justices.

More later on today's orders. 

UPDATE: In another order on the list, the Court denied a petition for rehearing in the case British American Tobacco Ltd. v. United States, one of several pieces of tobacco litigation stemming from the RICO case brought by the government against cigarette makers. The Court denied review in the cases on June 28, but BATCo's lawyer Alan Untereiner of Robbins, Russell, Englert, Orseck, Untereiner & Sauber sought rehearing, invoking a recent ruling that limited the extraterritorial reach of the RICO statute based on the Supreme Court's own decision in June in Morrison v. National Australia Bank.

The Morning Wrap

BP Argues Catch-22: The New York Times reports that BP is warning Congress that if it passes legislation that bars the company from getting new offshore drilling permits, it may not have the money to pay for all the damages caused by its oil spill in the Gulf of Mexico. BP's ability to further the Gulf restoration process would also be severely limited, the company says.

Gulf Fire Shakes Industry: In related news, The Wall Street Journal reports that the fire that broke out on an oil and gas platform Thursday in the Gulf of Mexico heightened pressure on the energy industry, which is battling greater regulation and a deep-water drilling ban. Some energy experts said the fire complicated the energy industry's effort to portray BP PLC's massive Deepwater Horizon oil spill as a fluke that shouldn't have provoked a drilling moratorium.

Little Progress In Middle East Peace Talks: It comes as little surprise that on the first day of talks between the leaders of Israel and Palestine, not much progress was made. The Los Angeles Times reports that Israeli Prime Minister Benjamin Netanyahu and Palestinian Authority President Mahmoud Abbas adjourned without progress on their conflict over Israeli housing construction in disputed areas, an issue that threatens to quickly undermine the negotiations. The two leaders agreed to meet again on Sept. 15.

Is Obama Not Hip Anymore? The New York Times reports that fewer young voters consider themselves Democrats. Though many students have liberal leanings on social issues, the weak job market has taken a toll on their loyalties: far fewer 18- to 29-year-olds now identify themselves as Democrats compared with 2008.

North Korean Congress May Discuss New Leader: North Korea is preparing for its largest political gathering in 30 years, which is drawing some to believe that Kim Jong Il may be preparing to pass the mantle of leadership to his youngest son Kim Jong Un. Bloomberg reports that little is known outside North Korea about Kim Jong Un, who may be in his late 20’s.

McDermott Will & Emery Team Helps Enlisted Sikh Become First In 30 Years To Win Right To Wear Faith Articles in Army

For the first time in more than 30 years, the U.S. military has allowed an enlisted Sikh soldier to maintain his religiously-mandated turban, beard and hair while serving in the Army.

A team of lawyers in the Washington office of McDermott Will & Emery, and attorneys at the Sikh Coalition, a community-based organization, on Wednesday successfully secured the religious right for Simran Preet Singh Lamba.

Lamba was recruited by the Army in 2009 through the Military Accessions Vital to the National Interest program for his language skills in Punjabi and Hindi. He was initially advised by an Army recruiter that his Sikh articles of faith would likely be accommodated. But the Army’s current regulations do not permit a new recruit to request a religious accommodation.

The McDermott team worked with the office of the Deputy Chief of Staff of the Army G-1 to develop a procedure through which Lamba requested an accommodation through the Army’s Human Resources Command, explained a firm spokesman. But in March, his formal request was denied.

McDermott and the Sikh Coalition then appealed to the G-1, which granted the accommodation request, after close consultation with Secretary of Defense Robert Gates and Army Secretary John McHugh.

“We have been unwavering in our assertions that Mr. Lamba's religious requirements in no way hinder his ability to effectively serve the United States,” said Amandeep Sidhu, McDermott's lead counsel on the case in a statement. “We remain deeply impressed with the Army's forward-thinking approach in allowing Mr. Lamba to serve with his turban and beard, and reaffirm our call for the Army to consider amendments to its uniform policy that continues to close the door to other Sikh Americans wanting to serve in the U.S. Army.”

The two legal teams won one-time exceptions last year for two Sikh Army officers—a medical doctor and a dentist. Lamba is the first enlisted man to win the accommodation.

"This is historic, absolutely, in terms of what this means for Sikhs," Sidhu told The National Law Journal. "The officer accommodation was clearly a big step in the right direction. The accommodation of an enlisted soldier is an even bigger step and brings us one step closer to the average Sikh being able to serve his country."

The teams' efforts have spurred interest in Congress. In the past year, more than 50 members, led by Reps. Carolyn Maloney (D-N.Y.) and Rodney Frelinghuysen (R-N.J.) have written to military officials requesting that Sikhs be accepted into the U.S. Armed Forces.

Lamba is scheduled to begin basic training this week.

“We applaud the Army’s decision, but we still have more work to do,” said Harsimran Kaur, legal director of the Sikh Coalition in a statement. “Although Sikhs have a reputation for being among the finest soldiers in the world, Sikh Americans must still seek individual exemptions to serve their country. Religious freedom is one of the bedrock American values. Going forward, we hope that the U.S. military will accept with open arms any Sikh who wants to serve.”

In addition to McDermott’s Sidhu, the firm’s team working on the case included H. Guy Collier, Stephen Ryan, David Ransom, Jennifer Belcher, and Shruti Tejwani.


ICE's Interior Decorator Pleads Guilty to Conspiracy to Defraud Government

The interior designer who decorated Immigration and Customs Enforcement's Washington headquarters has agreed to plead guilty to conspiracy to defraud the government.

In a one-count felony charge filed Sept. 1 in U.S. District Court for the District of Columbia, the Justice Department alleged that Darlene Mathis-Gardner provided false information and documents to General Services Administration officials in order to win a $1.3 million contract for interior design at ICE’s new headquarters on 12th Street SW.

According to court papers, Mathis-Gardner and her co-conspirators passed off independent contractors as the company's employees, submitted false information about their background and qualifications, and created fictitious documentation of the company's past performance in order to convince government officials that they were qualified to perform the work.

The charge carries a maximum penalty of up to five years in prison and a $250,000 fine for individuals. Mathis-Gardner’s punishment has yet to be determined by the court.

The case is the first to arise from an ongoing investigation into procurement fraud occurring against ICE conducted by the Antitrust Division's National Criminal Enforcement Section, the ICE Office of Professional Responsibility and the GSA Office of Inspector General.

Mathis-Gardner was represented by Amy Jackson, a partner at Trout Cacheris. The Justice Department was represented by trial attorneys Mary Strimel and John Terzaken.

Jackson could not be reach immediately for comment.

DOJ Files Suit Against Arizona Sheriff's Office

The U.S. Department of Justice is stepping up its investigation into the office of Joe Arpaio, the controversial sheriff of Maricopa County, Ariz., and a nationally known opponent of illegal immigration.

DOJ attorneys filed a complaint today in U.S. District Court in Arizona, alleging that Arpaio and his staff have obstructed their investigation. The department wants to know whether the sheriff’s office is discriminating based on national origin in its police practices and jail operations, according to the 10-page complaint (PDF).

So far, the department alleges, Arpaio’s staff has responded to the investigation with only a handful of documents. “Despite notice of their obligation to comply in full with the United States’ requests for information, Defendants have refused to do so,” the complaint says.

Robert Driscoll, a partner in the Washington office of Alston & Bird who represents the sheriff’s office, said in a statement that he has tried to cooperate with the Justice Department. He said he met with DOJ officials on Friday, telling them the sheriff's office would cooperate with "all reasonable document requests" and would schedule interviews with senior staff.

"We were awaiting a response from DOJ, and this lawsuit is apparently it," Driscoll said in the statement. "Clearly DOJ is more interested in filing its third lawsuit in as many weeks against Arizona defendants than in looking into the allegations that purportedly gave rise to its investigation."

The Justice Department’s filing says that the federal government has a right to examine certain documents from the sheriff’s office because the office receives federal grant money. Four attorneys from the department’s Civil Rights Division are on the brief, in addition to Assistant Attorney General Thomas Perez and U.S. Attorney for Arizona Dennis Burke.

Updated at 4:25 p.m. with Driscoll's response.

SEC Charges New Jersey Investment Adviser with Fraud

The Securities and Exchange Commission today charged a New Jersey woman and her three investment firms with bilking unsophisticated investors out of at least $11 million dollars via the sale of phony promissory notes.

In a case both filed and settled today in New Jersey federal court, the SEC alleged that Sandra Venetis of Branchburg, N.J. told some investors that the promissory notes were guaranteed by the Federal Deposit Insurance Corporation and would earn tax-free interest of 6 to 11% per year.

She also told investors that their money would be loaned to doctors and would be backed by Medicare reimbursement payments.

Instead, she used the money to pay business debts and for travel to Alaska, Italy, France, India, and the Caribbean, as well as gambling and home mortgage payments. She also gave cash to relatives.

Venetis and her companies, Systematic Financial Associates Inc., Systematic Financial Services LLC, and Systematic Financial Services Inc., agreed to settle SEC civil charges of unregistered sales of securities in violation of the Securities Act of 1933, violations of the antifraud provisions of the Securities Act and the Securities Exchange Act of 1934, and violations of the antifraud provisions of the Investment Advisers Act of 1940.

The settlement includes the disgorgement of ill-gotten gains with prejudgment interest, financial penalties, an asset freeze, accountings, and the appointment of an independent monitor, although the amount of monetary relief has not yet been determined and must be approved by the court.

Venetis was represented by New Jersey solos Robert Stevens of Princeton and Anthony Colasanti of West Caldwell.

The SEC was represented by senior trial counsel Jack Kaufman as well as Susan Steele from the U.S. Attorney’s office in Newark.

The SEC team also included members of the Asset Management Unit and other staff within the New York Regional Office including Ken Joseph, James McGovern, Catherine Lifeso, and Panayiota Bougiamas, and examination staff members Dawn Blankenship, Danielle Ryea, Kenneth O'Connor, Beth Abraham, and Francesco Spinella.

Inside the Supreme Court Insider

This week’s Supreme Court Insider (register here to receive the weekly newsletter free) offers several features that take you, well, inside the Court and some of its lesser-known operations, as well as up-to-the-minute developments. Among them:

-- The final installment of a Q&A interview with Frank Wagner, the Court’s reporter of decisions, who is retiring at the end of the month. (More on the interview later.)

-- A video discussion with David Frederick, partner at Kellogg, Huber, Hansen, Todd, Evans & Figel, about arguing before the Supreme Court. The second edition of his book on the subject has just been published.

-- A story about Kiwi Camara, our appellate lawyer of the week. The Houston lawyer, who once was the youngest person to enroll at Harvard Law School, has filed the first petition with the Supreme Court on illegal music downloading from the Internet.

-- A report on a rare writ of mandamus filed in a post-Katrina case in which action by the U.S. Court of Appeals for the 5th Circuit has been stymied by a large number of recusals.

-- A chart detailing the law schools that justices visited last year to speak and teach, according to their financial disclosure reports.

One footnote on the interview with Wagner: Since he is the person responsible for preparing the Court’s opinions for official publication, he is keenly aware of justices’ stylistic preferences. Inn the interview he talked about one difference of opinion among the justices that he has not seen the need to resolve: the use of apostrophes when making certain words that end in "s" possessive. Do you add an apostrophe and an "s" or just an apostrophe? (Example: should it be Congress’ or Congress’s?) Wagner has let the justice authoring the opinion dictate which style is used in that opinion, rather than imposing a single rule.

Wagner was too discreet to name names, but we did a quick Westlaw search to discern the justices' preferences. We could not find a definitive answer for all nine,  but determined that the following justices are prone to using the apostrophe only: Clarence Thomas, Stephen Breyer, and Samuel Alito Jr. On the other side of the divide, Chief Justice John Roberts Jr. and Justices Antonin Scalia and Ruth Bader Ginsburg seem to prefer adding an apostrophe and an "s", and Anthony Kennedy, fulfilling his role as swing vote, has gone both ways.

Capitol Police Shooting Prompts Wrongful Death Suit

Updated 1 p.m.

The family of a Ft. Washington man fatally shot last summer outside the U.S. Capitol are suing police in federal district court, claiming the authorities used lethal force without justification.

An attorney for the parents of Kellen A. White, killed in July 2009, allege in the suit that U.S. Capitol Police shot White “without legal cause or excuse.” The wrongful death complaint, which seeks $50 million in damages, was filed Aug. 31 in the U.S. District Court for the District of Columbia.

The six-page suit claims White was not armed during the confrontation with police. “During the traffic stop, there were no weapons drawn by Kellen Anthony White and there was nothing to cause any officer interacting with [White] to fear for his safety or the safety of others,” the suit said.

Janai Reed, the Washington solo practitioner who is representing the White family, said this afternoon that she could not get clear answers from the police over whether White was carrying a firearm.

Capitol Police Sgt. Kimberly Schneider said today the agency does not comment on pending litigation.

The suit said officers fired twelve or more bullets at White, who died about an hour after the shooting. “The shooting was excessive and occurred without the force of law, justification or cause.”

Capitol Police said last year that White fled from police during a traffic stop near Union Station. White, according to police, was driving “erratically and dangerously.” Police said White nearly ran over two officers and then crashed into a marked Capitol Police cruiser.

According to a Capitol Police statement issued last year: “The subject disregarded repeated demands by police officers to put down the weapon that the suspect had. He began shooting a weapon at several U.S. Capitol Police officers. U.S. Capitol Police officers who feared for their lives, returned fire hitting the suspect.”

The Morning Wrap

Mideast Talks Begin Between Netanyahu, Abbas: The leaders of Israel and Palestine will begin direct talks today about how to negotiate peace between their respective states. The talks are to be held at the State Department, where they will take place under the eye of Secretary of State Hillary Rodham Clinton. The New York Times reports that the negotiations follow "a remarkable tableau" at the White House Wednesday night, where President Obama, flanked by Prime Minister Benjamin Netanyahu of Israel and President Mahmoud Abbas of the Palestinian Authority, vowed to do everything within his power in the next year to achieve the comprehensive agreement that has eluded negotiators since Israel was established.

East Coast Braces for Hurricane Earl: Communities from North Carolina to New England are keeping close watch on forecasts of Hurricane Earl's expected trajectory. The Associated Press reports that even a slight shift could put millions of people in harms way as the Category 4 storm heads toward shore. The governors of North Carolina, Virginia and Maryland declared states of emergency.

What to Do About Senate Newcomers? With more than a half-dozen victories by tea party outsiders in the primaries, The Wall Street Journal ponders whether the Senate could grind to a halt as an alliance of outsiders forms to change the deal-making culture of the upper body.

Study Finds Single Women Making Progress on Pay: Women in large cities appear to be making more than their male counterparts in large cities. That's according to a new study by James Chung of Reach Advisors, who has spent more than a year analyzing data from the Census Bureau's American Community Survey. The study, which Time writes about here, found that in 147 out of 150 of the biggest cities in the U.S., the median full-time salaries of young women are 8% higher than those of the guys in their peer group. In two cities, Atlanta and Memphis, those women are making about 20% more. The catch is that reverse gender gap, applies only to unmarried, childless women under 30 who live in cities.