The BLT: The Blog of Legal Times

Iranian Terror Case Heads to Appeals Court

U.S. citizens Diana Campuzano, Avi Elishis, and Greg Salzman were injured in a terrorist suicide bombing in Jerusalem in 1997 and sought to punish the attackers in U.S. court.

Campuzano, Elishis, and Salzman, who were American students, are still trying to seek justice—now turning to the U.S. Court of Appeals for the D.C. Circuit to push their case against Iran. The plaintiffs face an uphill battle.

In 2003, U.S. District Judge Ricardo Urbina awarded $37.5 million in punitive damages for each plaintiff in a judgment against the Iranian Islamic Revolutionary Guard Corps, or Pasdaran, and the Iranian Ministry of Intelligence and Security. But Urbina denied an award against the third defendant, the Islamic Republic of Iran.

The defendants never responded to the complaint and did not show up for a hearing in U.S. District Court for the District of Columbia. Since then, the plaintiffs have collected not a dime of the award.

Earlier this year, the plaintiffs’ appellate attorney, D.C. solo practitioner Paul Gaston, urged Urbina to reconsider hitting Iran with punitive damages under recent amendments to the Foreign Sovereign Immunities Act that allow a plaintiff to seek supplemental relief—including punitive damages against a state sponsor of terrorism—for claims that have previously been brought in court. Campuzano, Elishis, and Salzman are seeking another $37.5 million each in a judgment against Iran.

But to apply those amendments, an action must be pending in court “in any form,” including on appeal or under a motion. Urbina rendered final judgment in the Campuzano case in September 2003. Gaston argues in court papers that the Campuzano case, which was filed in 2000, is before the court “in any form” in the sense that the plaintiffs are still trying to collect the award.

“This is plainly not what Congress meant by ‘before the court in any form,’ ” Urbina said in an order this July. Gaston is now appealing that order to the D.C. Circuit for guidance on defining “in any form.” He declined to talk about the case.

McGuireWoods Launches Energy Policy Group

McGuireWoods is starting a new energy policy practice with the help of its latest partner recruit: James Kerr II, currently a member of the North Carolina Utilities Commission. Kerr will start at the firm Sept. 1 and will lead the new practice out of the Raleigh and Washington offices.

The energy group will combine the efforts of McGuireWoods and its public policy arm, McGuireWoods Consulting. Kerr will focus on counseling clients in constructing legal, policy, and business strategies in connection with issues such as energy generation, renewable energy, portfolio standards, climate change policy, carbon regulation, and other types of environmental regulation and compliance.

Kerr says that in addition to the traditional legal work involved, the new practice is an “opportunity to also work in the communications and public affairs arena, to work with people and with clients on how their customers and how the cities they serve think about these issues.”

He says the practice will initially be staffed with 12 to 15 partners and consultants from other practices, such as the environmental, project finance, and energy groups. Public clients of the existing energy practice include Dominion and Constellation NewEnergy.

Before becoming a state utility commissioner in North Carolina, Kerr was president of the National Association of Regulatory Utility Commissioners.

Lawyers in Gun Case Ask for $3.5 Million

UPDATE (11:31 a.m.): Acting D.C. Attorney General Peter Nickles, responding to the fee petition, told the BLT, "We obviously are going to have to look at it closely. That’s a lot of money. This is not a situation where there was a trial. Everything was done on motions. Certain kinds of work are recognized to be appropriate and certain kinds are not." Nickles said he was meeting with staff later today to discuss whether to negotiate with the Gura and the others or to contest the fee petition in court.
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The lawyers who defeated the District’s handgun ban in the Supreme Court, successfully arguing that Americans have an individual right to arm themselves, want about $3.5 million for their trouble, according to a motion for attorney’s fees and costs filed Monday in the U.S. District Court for the District of Columbia.

The team — financed by The Cato Institute’s Robert Levy and led by civil rights and intellectual property lawyer Alan Gura — says it clocked at least 3,273 hours in the course of District of Columbia v. Heller, which was filed in February 2003 and concluded in spectacular fashion on June 26, the last day of the high court's cycle. The lawyers anticipate the District will oppose the motion, but they’ve not received a response, the motion says.

Gura, of Gura & Possessky, Clark Neily III, a senior attorney at the Institute for Justice, and Levy, the wealthy businessman-turned-lawyer, handled the bulk of the work, tallying 1,661 hours, 808.3 hours, and 595.6 hours, respectively, the motion says. In addition to about $3.5 million in fees, the lawyers asked Judge Emmet Sullivan to reimburse about $13,200 in court costs and travel expenses.

The lawyers called their case “one of the most profound and important victories available under our system of justice” and sought to emphasize the long odds they faced.

“Defendants were represented at the Supreme Court by nine attorneys from three of the nation’s largest law firms, and had access to all the legal resources provided by their own vast governmental budgets,” the motion says, noting that the D.C. Office of Attorney General has about 340 lawyers and 250 support staff.

The team asked Sullivan to multiply its fees under a provision of Section 1988 that allows for fee enhancement in exceptional cases “where the result is especially important and there is significant professional risk to counsel in pursuing the litigation.” That means Gura’s 1,661 hours, at a rate of $557 per hour, would be doubled, netting him about $1.9 million.

“If this is not an ‘exceptional case’… we are at a loss to describe what case would qualify,” the motion says.

Interestingly, the lawyers are also seeking a fee enhancement for the contingent nature of the case, though circuit precedent forbids it. “The request is made in the good faith belief that the issue requires revisiting,” the motion says.

Their reasoning: “No lawyer rationally undertakes, on a contingent basis, work that would yield the same fee for the same work that could be earned without risk of non-payment.”

SCOTUSblog has more here.

Morning Wrap

Nuclear North Korea: North Korea has stopped disabling its nuclear reactor at Yongbyon in protest of the United States and the fact that the country has not been removed from the list of nations that sponsor terrorism, The Washington Post reports. North Korea says it will consider rebuilding the facility if it continues to remain on the list.

Right of Way: The Bush administration proposed yesterday a reduction in the amount of areas in the Atlantic Ocean set aside to protect endangered whales, The Washington Post reports. The move indicates that the administration is willing to yield to cargo companies' concerns about new speed limits for ships in the protected zones.

What's In A Name? Jeffrey Steiner has left Thelen Reid Brown Raysman & Steiner for DLA Piper, marking the third name partner to leave the firm in recent months. Seven corporate and finance partners joined Steiner in leaving the firm, The National Law Journal reports via Law.com. On Sept. 9, the firm will officially shorten its name to Thelen.

Clearing the Smoke: California's top law official stepped into the fray over medical marijuana in the state yesterday, offering new guidelines designed to reduce the tension between state and federal authorities. The Los Angeles Times reports that California Attorney General Jerry Brown issued an 11-page directive to help legitimate patients avoid arrest while aiding police in hunting down illegal cultivators and criminal middlemen.

Appeals Court: U.S. Owes $1.1B for Contract Breach

The United States owes $1.1 billion to 11 oil and gas companies for breaching their leases to explore off the coast of California, the U.S. Court of Appeals for the Federal Circuit said today in an opinion upholding the lower court.

The 2006 damage award handed down by the U.S. Court of Federal Claims is believed to be one of the largest in that court’s 150-year history. The oil and gas companies, represented by Covington & Burling, sued for breach of contract after the federal government blocked them from drilling off California.

“The fundamental take-home message is that the government, when it enters a contract with another party, is held substantially to the same standard as everyone else,” says Covington partner Steven Rosenbaum, who argued the case for the oil and gas operators. Edward Bruce, senior counsel, and associate Thomas Cosgrove were also on the briefs.

Thirty-five leases granted by the U.S. Department of the Interior between 1979 and 1984 were at issue. The damage amount represents the sum total of payments to the government for the leases.

Rosenbaum says the companies discovered new oil fields that were estimated by the federal government to contain over one billion barrels of oil. But statutory changes in 1990 to the Coastal Zone Management Act of 1972 barred drilling for the oil. In other words, Rosenbaum says, the government changed the rules of the game.

“Under these circumstances, where both parties have participated in apparent good faith for the better part of 20 years, the purpose of restitution is adequately served by having the government return the initial payments,” Judge William Bryson wrote in an opinion joined by Judges Arthur Gajarsa and Alan Lourie. There was no immediate word whether the Department of Justice planned to appeal.

Thelen Officially Shortens Its Name

Thelen Reid Brown Raysman & Steiner announced today that it will officially shorten the firm’s legal name to Thelen, effective Sept. 9.

According to a press release issued by the firm, the name change is meant to “present a clear and strong brand in the legal marketplace.” The release states, “A single corporate identity also has the added benefit of consistent branding in the domestic and global markets in which Thelen operates.”

The release, however, does not mention the recent departures of three of Thelen’s name partners, Peter Brown, Richard Raysman, and Jeffrey Steiner. Brown left last spring for Baker & Hostetler, and Raysman announced his departure earlier this month for New York’s Otterbourg, Steindler, Houston & Rosen. Steiner left Thelen this week for DLA Piper's New York office. All of the partners previously practiced in Thelen’s New York office. At least 18 partners total have left the firm since April.

Legal Times has more on Thelen here.

Supreme Court Litigant to Address Democrats

One sign that the Democrats will raise the Supreme Court as a campaign issue will come Tuesday night when Lilly Ledbetter addresses the Democratic national convention in Denver. Ledbetter, you may recall, was a Goodyear tire worker who lost a 2007 Supreme Court case based on her claim of unequal pay.

The justices, in one of the most criticized rulings of the Roberts Court, ruled that her claim was untimely because it was filed long after the initial pay decision was made. She worked for the company for more than a decade before realizing the disparity. Democrats reacted with outrage, and Ledbetter became a symbol of the effects of the Supreme Court's conservative turn.

"The Supreme Court is on the ballot," says Kitty Kolbert, head of People for the American Way who applauds the fact that Ledbetter -- one of the few nonpoliticians on the agenda -- will speak to the convention. "That case plays well to the movable middle."

Efforts in Congress to change the law to allow claims like Ledbetter's are still pending. The political action committee of People for the American Way will be pushing the Supreme Court issue in key states in the fall, Kolbert says.

Washington Firms Pitch In to Help Holocaust Survivors in Rockville

As part of a national effort coordinated by Manatt, Phelps & Phillips, several Washington law firms came together late last week to help Holocaust survivors apply for reparations under a German government program.

In the Washington area, 36 firms and corporate legal departments have offered to provide legal assistance to the hundreds of local survivors who qualify for the reparations for work done voluntarily while living in Jewish ghettos during World War II. The program will allot about $3,000 to each survivor who is eligible.

At last week’s clinic, Manatt was joined by lawyers from Vinson & Elkins; Goodwin Procter; Intel's corporate law department; and Howrey, which coordinates the program in the Washington area. Sixteen survivors attended the clinic at the Jewish Social Service Agency in Rockville, Md.

“D.C. has been a wonderful surprise. No other city in the country had as many firms jump on board,” says Cristin Zeisler, director of pro bono activities at Manatt.

Manatt got involved in Los Angeles last October when the firm held a clinic with Bet Tzedek, a pro bono legal service organization, to help Holocaust survivors in California fill out applications for reparations. After the success of the first clinic, Manatt worked with Bet Tzedek to expand the program to cities throughout the country. So far, lawyers in 28 cities in the United States and in Toronto have joined the effort.

Zeisler says there may be as many as 20,000 survivors nationwide who qualify for the reparations.

Stench Prompts Evacuation of Federal Courthouse

The Associated Press is reporting that the E. Barrett Prettyman courthouse is being evacuated. Apparently, a leaking battery that was improperly disposed of has produced a sulfuric reek throughout the building. No one was injured by the leak, but a few people complained of watery eyes. The evacuation was ordered as a precaution, U.S. Marshal George Walsh told the AP.

Biden and Legal Times

Barack Obama embraced a man willing to talk when he picked Joseph Biden Jr. as his running mate last weekend. The blunt-speaking senior senator from Delaware and former chairman of the Senate Judiciary Committee (1987 to 1995) has written repeatedly for Legal Times over the years, most recently in this June op/ed criticizing Sen. John McCain’s judicial philosophy. Below are some of the notable appearances of Sen. Biden in Legal Times over the past decade.

June 30, 2008: Biden warns that McCain will “cement conservatives' hold on the Supreme Court” if elected, nominating jurists in the mold of Chief Justice John Roberts Jr. and Justice Samuel Alito Jr. “A return to the cramped originalism advocated by Sen. McCain would be a tremendous step backward. The Founders did not intend to consign us forever to the thinking of the past, but instead recognized that, as Thomas Jefferson said, ‘Our laws and our institutions must go hand in hand with the progress of the human mind.’”

May 29, 2006: Biden’s son, Hunter Biden, joins Amtrak Reform Board. Writes Jason McClure: “Amtrak may have no better friend on Capitol Hill than Sen. Joe Biden (D-Del.), who has been an ardent supporter of subsidies for the troubled rail service and proudly says he takes the train to work. So it's not hard to guess how Biden's son Hunter garnered a presidential nomination this month to fill a Democratic seat on Amtrak's Reform Board.”

Jan. 17, 2006: T.R. Goldman notes how members of the Senate Judiciary Committee shouldered Alito out of the limelight with their speechifying. Of Biden, Goldman writes: “Delaware's Joe Biden is the acknowledged lead bloviator among committee Democrats, weighing in on the first day of questioning, in which each senator was allotted 30 minutes, with a rambling, 24-minute discourse.”

Sept. 14, 2005: Biden bores in on John Roberts Jr. during his nomination hearings, with such intensity that Sen. Arlen Specter admonishes him to stop interrupting. "His answers are misleading," Biden said of the soon-to-be chief justice. "With all due respect, they are my answers, and they are not misleading," Roberts shot back, shedding his characteristic coolness for the first time in the nomination hearings.

June 20, 2005: Biden responds to an earlier op/ed by Sen. John Cornyn (R-Texas), arguing that the U.S. Bankruptcy Code should be stripped of the provision that allows companies to file for bankruptcy in the state of their incorporation, singling out Delaware for particular criticism. Biden said Coryn’s argument “resurrects old studies and rehashes unsubstantiated allegations, making an argument that has been repeatedly rejected by Congress and academic experts.”

May 28, 2002: Biden breaks ranks and votes in favor of conservative judicial nominee D. Brooks Smith for the U.S. Court of Appeals for the 3rd Circuit. Jonathan Groner writes that Biden's support for Smith was especially notable “since in a 1993 speech to the Pittsburgh chapter of the Federalist Society, Smith delivered a head-on criticism of Biden's views on the reach of congressional power under the Constitution.”