The BLT: The Blog of Legal Times

Supreme Court Rejects 5th Circuit Plea in Kidnap Case

It's a rarely used, dusty corner of the Supreme Court's jurisdiction. And on Monday the Court decided to leave it undisturbed, rejecting a request by the U.S. Court of Appeals for the 5th Circuit to resolve a question that could affect prosecution of long-ago civil rights cases in the south.

Under federal law dating back to 1802, one way to get a case before the Supreme Court is for a federal appeals court to certify the question it raises -- in other words, asking the justices to decide the question and instruct it on what to do. It has never been a frequently-traveled path to the Supreme Court, but it has been allowed from time to time -- though not since 1981. In a 1957 case, the Court suggested the appeals courts should resolve knotty questions themselves without certifying a question, except in "rare instances."

In July, the 5th Circuit invoked the certificate method to answer a question on which it had split 9-9: what statute of limitations applies in the federal prosecution of James Ford Seale, a Ku Klux Klan member accused in the kidnap and murder of two black teenagers in Mississippi in 1964. Seale was indicted in 2007. There is no statute of limitations for capital crimes. A five-year limit applies in non-capital crimes, though in 1964 kidnaping was punishable by death. The district court said the prosecution could proceed, but an appeals panel reversed, ruling it was time-barred. It then went to the full circuit sitting en banc, where the 9-9 tie had the effect of reinstating the district court's decision against Seale.

According to a Justice Department tally, the issue could affect 22 possible prosecutions of racially-motivated crimes from the 1950s and 1960s. A majority of the 5th Circuit certified the question to the Supreme Court, calling it "an issue of first impression and of national importance." The 5th Circuit said it was not ignoring its responsibility to decide cases, but that the judges were "simply unable to reach a decision."

The Supreme Court on Monday dismissed the 5th Circuit's plea, over the dissent of Justice John Paul Stevens, joined by Justice Antonin Scalia. The issue is "narrow, debatable, and important," Stevens said, and should have been taken. "I see no benefit and significant cost to postponing the question;s resolution." Stevens also lamented the virtual disappearance of the certification process. "The certification process serves a valuable, if limited, function. We ought to avail ourselves of it in an appropriate case."

Justices to decide validity of two-member NLRB decisions

 

 The Supreme Court today agreed to rule on whether the vacancy-riddled National Labor Relations Board has the authority to make decisions with only two of its five members currently in office.

The board has been operating with two members since January 1, 2008, and has issued more than 400 decisions resolving allegations of unfair labor practices and disputes over union representation, including cases involving employers’ discharges of employees for exercising their organizational rights; disputes over secret ballot elections to select a union representative; employers’ unlawful withdrawals of recognition of union representatives, and refusals by employers or unions to honor their obligation to bargain in good faith.

At least 60 challenges to the validity of two-member rulings have been filed in the federal appeals courts, according to the board.

Solicitor General Elena Kagan, on behalf of the NLRB, had urged the justices to grant review in New Process Steel v. NLRB, in order to resolve a conflict among the circuits over the board’s authority to act.

The U.S. Court of Appeals for the 7^th Circuit, in agreement with the 1^st and 2d circuits, upheld the authority of two-member board decisions in the New Process Steel case. But the D.C. Circuit, in Laurel Baye Healthcare v. NLRB, held that Section 3(b) of the National Labor Relations Act requires a three-member quorum at all times.

“Although the current period—now more than 20 months long—is the longest the Board has ever been with only two sitting members since Section 3(b) was amended in 1947, the Board has previously had only two members and may again in the future,” Kagan told the high court. “Resolution of the question whether the Board may act with a two-member quorum of a three-member group is, therefore, important to the Board’s future ability to enforce the NLRA—and vital to its current ability to do so.”

The quorum issue arose in late 2007 when the board’s then-four members anticipated losing two of those members when their recess appointments expired at the end of the year. On December 28, 2007, the four sitting members of the board delegated all of the board’s powers to a three-member group. After the recess appointments expired, the remaining board members—Wilma Liebman and Peter Schaumber—acting as a two-member quorum, continued to exercise the powers the Board had delegated to the three-member group.

Clifford Nelson Jr., co-chair of the labor practice group at Atlanta’s Constangy, Brooks & Smith and counsel to Laurel Baye, said high court review is important to end the uncertainty about the validity of “possibly more than 400 decisions and a growing number of contested decisions based on the lack of a proper quorum.” That uncertainty, he added, “isn’t good at all when dealing with this particular field.”

President Obama in July nominated Craig Becker, Mark Gaston Pearce and Brian Hayes to be members of the NLRB. The nominations were voted out of committee last month and are pending in the Senate.

            

Lucrative NIH Contract to Bring IP Work to D.C.

Four firms won National Institutes of Health contracts last month worth up to hundreds of millions of dollars in total over 10 years. The contracts cover contested proceedings over patents awarded in the biotechnology, chemistry and mechanical/electrical/software fields.

Foley & Lardner, an Am Law 100 firm, will soon begin work on its first NIH contract, worth up to $208 million. It’s the only firm that said it would heavily utilize its D.C.-based attorneys.

Mark Kassel, chair of Foley’s chemical and pharmaceutical practice, said the NIH has a right to review the contracts annually and his firm is unlikely to get $208 million worth of work. “We will see some fraction of that,” he said. “It’s all based on what the need is.”

They’ll be sharing the lucrative contested-proceedings litigation with three firms that have had NIH contracts in the past: San Francisco-based Townsend & Townsend & Crew could get up to $209 million, and Chicago firm Leydig, Voit & Mayer is looking at $183 million. Both firms have Washington offices. McAndrews, Held & Malloy, whose only location is in Chicago, won a contract worth up to $181 million. Both Townsend and Leydig also won other NIH contracts earlier this year and will focus their NIH efforts in their home offices, though the Washington staff may play a backup role, firm spokesmen said.

The NIH Office of Technology Transfer, based in Rockville, Md., hires private lawyers to help it patent technology developed in NIH laboratories and by the U.S. Food and Drug Administration. The office filed 343 U.S. patent applications and received $92.7 million in patent royalties in fiscal year 2008, according to its online statistics.

Kassel said the contract calls primarily for litigation support; patent interferences, which determine who will be awarded the patent when multiple applications are filed; and inter partes re-examinations, where a third party asks the patent office to re-examine the validity of a patent. The bulk of Foley’s interferences will be handled out of the D.C. office, said Washington-based partner George Quillin.

Quillin said he recently won a claim against the NIH concerning an HPV vaccine but now he’s eager to be on the government’s side. The firm’s payday will depend, in part, on how litigious the NIH is. “I’ve been involved in interferences where the other side gives up right away,” he said. “Or it could be a very closely fought, hard fought fight.”

The NIH sent out its request for proposals in April 2007 and asked firms to send thousands of pages of paperwork as part of the two-year application process. Leydig partner John Kilyk Jr., whose firm has worked with the NIH for nearly 20 years, said the process was “just over the top. It was the biggest RFP we’ve ever responded to.”

Kilyk is currently representing the NIH in a case where both the agency and New York University laid claim to the patent on an AIDS test kit. He said the usual yearly haul for the contested proceedings work—subtracting reimbursement for out-of-pocket costs—is in the hundreds of thousands of dollars. “It’s very sexy work. Everyone loves to do it, but it’s up and down,” he said. “In a particular year, when things are contentious, if you hit it right, you could get a couple million.”

For information on other firms that have won NIH contracts this year, see the National Law Journal’s previous coverage.

Time Gets Away From Supreme Court

UPDATE: We have a story here about today's oral argument in the mutual fund fees case, as well as a blog post here on a National Labor Relations Board case the Court agreed to hear, and another blog post here about the Court's action in an unusual Mississippi case brought to its attention by the U.S. Court of Appeals for the 5th Circuit.

--

There was an Alice in Wonderland quality to the Supreme Court this morning, where clocks throughout the building were off-kilter -- apparently triggered by an unsuccessful effort to turn them back when Daylight Saving Time ended early Sunday morning.

When the Court convened at 10 a.m. sharp, the ancient clock hanging above them read 6:20, as did clocks throughout the building (they're all controlled remotely, apparently.) Before the first oral argument began, Chief Justice John Roberts Jr. took note of the glitch, though he did not explain it or apologize for it. Court spokeswoman Kathy Arberg said later that a malfunction in the Court's master clock made it impossible to reset the other clocks in the building.

Roberts told spectators that lawyers are sometimes admonished not to look at the clock during oral arguments. "That is particularly important today," he said. 

Roberts' predecessor and mentor William Rehnquist notoriously got upset when advocates, obviously trying to pace themselves, would glance up at the clock above the justices as they responded to questions. Rehnquist once scolded a lawyer, "You are here to answer our questions, not to look at the clock!"

The warning today from Roberts was well-taken, because the clocks kept changing as the argument proceeded, at one point reading 10 a.m.. and then a little after 11. Lawyers kept their own time, and never looked up. Court electricians are working on the problem. 

More later at nlj.com and at this blog on the Court's other action today.

Judge Stalking Trial Delayed Again

After several delays, the trial of a 39-year-old convicted felon accused of stalking D.C. Superior Court Magistrate Judge Janet Albert was continued until Dec. 7 and the jury was dismissed this morning.

“This is very rare that something like this happens,” presiding Judge Russell Canan told the 14 jurors before releasing them. “You can rest assured this is the least favorable of the options the court considered.”

Taylar Nuevelle, on trial for stalking and burglary after Albert, her ex-girlfriend, found her unconscious in Albert’s attic in September 2008, failed to show up to court last Wednesday for opening arguments because of an undisclosed medical condition. As a result, the trial was pushed back until today. But Nuevelle, who was in court this morning, is scheduled to undergo a medical procedure tomorrow so the trial was postponed further.

“She’s on medication right now and she’s extremely weak,” defense counsel A. Kevin Fahey, a D.C. solo practitioner, said in court.

Various scheduling conflicts between Fahey, Assistant U.S. Attorney Stephanie Brenowitz and a key prosecution witness compelled Canan to postpone the trial to Dec. 7. A new jury will be chosen then.

Brenowitz did mention that Albert will take the stand during the trial in what the prosecution expects to be a lengthy testimony.

Canan also dismissed Fahey’s motion to withdraw as counsel. Last Friday Fahey mentioned that Nuevelle wanted him to withdraw. The specifics of the motion were not publicly disclosed, though Canan said several potential defense witnesses had not been subpoenaed. Canan said he is concerned about the motion and wants to give Fahey and Nuevelle time to think it over. He set a hearing for Nov. 12 to reconsider the motion, but stressed that he wants to settle the issues without further delaying the trial.

“This is the date. We’re not going to rearrange things to accommodate another counsel,” Canan said. “It’s not going to be acceptable to hear complaints at the last minute again.”

DOJ Invokes State Secrets Privilege in Suit Challenging Surveillance

Calling it the "only responsible choice," Justice Department officials are invoking the state secrets privilege in trying to thwart a suit that challenges the government's secret wiretapping program.

The Justice Department on Friday night issued a statement from Attorney General Eric Holder Jr. in which he said the suit, pending in the U.S. District Court for the Northern District of California, cannot move forward without jeopardizing national security. The suit, first filed in 2006, present class action allegations rooted in the government’s alleged violation of privacy laws. (Click here for a copy of the complaint.)

On Friday, the government filed a motion to dismiss that cited the state secrets privilege. Holder said the declaration of the state secrets privilege in the suit, Shubert v. Obama, follows new policies and procedures the Justice Department announced last month. The procedures, Holder said, “require a thorough, multi-stage review and rely upon robust judicial and congressional oversight.” The review of the privilege involved senior Justice officials, including Deputy Attorney General David Ogden and Associate Attorney General Thomas Perrelli.

Holder said there was no way to carve out classified information from the suit to allow a portion of the case to proceed. The “core claims” in the suit, Holder said, involve ongoing intelligence operations. “We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power,” Holder said.

“Ultimately, the judicial system will determine whether we have drawn the line at the appropriate place, as is lawful and appropriate under our system of checks and balances,” Holder said. The attorney general's statement is here.

Ilann Maazel, a lawyer for Shubert and the purported class, said the plaintiffs will oppose the government’s motion.

“It’s extremely unfortunate and disappointing that the Obama administration has essentially adopted former President Bush’s policies regarding the state secrets privilege,” said Maazel, a partner in New York’s Emery Celli Brinckherhoff & Abady. “In the Justice Department’s view, the government is free to violate any law” based on the assertion that national security is involved. “What the government is doing is avoiding any inquiry into the program.”

Maazel called the Justice Department’s position “extremely dangerous.” There are any number of ways to litigate cases that are purportedly rooted in national security, Maazel said. Judges can seal courtrooms and pleadings. The lawyers involved in a case can go through a security clearance process. A judge, and not a jury, can decide the outcome of a case.

Patton Boggs Working to Keep Army in Heidelberg

A Patton Boggs team led by name partner and leading lobbyist Thomas Boggs will lobby to keep a U.S. Army presence in Heidelberg, Germany, according to disclosure documents filed with the Justice Department last week.

In an Aug. 28 letter to the mayor of Heidelberg, Dr. Eckart Würzner, Boggs wrote that as part of an ongoing military assessment known as the Quadrennial Defense Review, the military is reconsidering plans to bring two German-based Army Brigades back to the U.S. Cancelling the relocation would leave 42,000 soldiers in Germany and Europe, Boggs wrote.

Boggs wrote that "We believe we can be of assistance to the City of Heidelberg and the State of Baden-Württemberg in helping to maintain the Army's presence in the City" by lobbying Congress on the military construction budget and congressional authorization for military construction projects.

Boggs wrote that partners Michael Nardotti, a retired major general, and partner John Deschauer would help lobby, and stressed Nardotti's "extensive contacts with Army leadership."

The law firm's fee is $12,500 a month. Patton Boggs did not immediately respond to a request for comment on the contract.

This Week in The National Law Journal

Car Wars: Toyota's Prius hybrid is "at the center of a bruising patent fight" in which the automakers ability to import the vehicle into the United States is at stake, writes Jenna Greene. Paice LLC, of Bonita Springs, Fla. is trying to get the maximum royalty fee for each Prius sold using technology a Texas court already says belongs to the tiny company.

Revamping Recusals: Congress is getting ready to consider changes to the federal recusal guidelines, writes David Ingram. Proposals being discussed include requiring a second judge to rule on a recusal motion and making substitutions automatic if a party files a sworn affidavit alleging prejudice.

Listening Party: Lawyers for ex-Rep. Rick Renzi say the government recorded at least 50 conversations between them and their client during their investigation into the House Republican. They say the talks were privileged, and are trying to convince a federal judge to either throw out the government's indictment against Renzi, or at least suppress some of its evidence. Mike Scarcella has the story.

Financial Lobbying: Finance companies spent spent $37 million on lobbying during the first half of 2009, putting them on pace to match the $49.6 million spent on lobbying last year, writes Carrie Levine. Some companies are still tightening their lobbying budgets, but with a banking bill looming in Congress,at least some industry players are expecting to up their spending.

The Morning Wrap

Immigration Detention: Galvanized by a petition sent by 100 men, locked up without charges in Manhattan, the New York City Bar Association has sent volunteers into the jail to offer legal counsel to detainees, the New York Times reports. The bar association issued a report today calling for all the detainees to be provided with counsel.

Iraqi Elections: Vice President Joe Biden is in Baghdad today pressing for new election law in the country, AFP reports. He's joined by President Massud Barzani of Iraqi Kurdistan. The two men are concerned that a January vote will have to be delayed as the country's Kurdish fation refused to attend a vote over a compromise bill.

Polygamy Trial: The trial of a middle-aged man accused of sexually assaulting a teen that he took as one of his nine wives is underway. Raymond Merril Jessop, who was a member of the Fundamentalist Church of Jesus Christ of Latter-day Saints, or FLDS, when the group's Texas compound was raided by officials in 2008, is accused of fathering a child with a 16-year-old girl. Prosecutors also plan to argue that the marriage wasn't legal because he already had several wives, the Wall Street Journal reports. Jessop has pleaded not guilty.

New Grisham: The New York Times reviews John Grisham's latest work, a collection of short stories—his first such endeavor. Grisham took seven unused plot ideas and put them together into a "sharp, lean tale free of subplots and padding," the Times writes. "Exactly when and how will a tricky legal issue arise? You needn’t see it coming to know it will be there," the review continues.