The BLT: The Blog of Legal Times

Arent Fox Lobbying for Landowners on Rails-to-Trails Issue

Arent Fox is lobbying the federal government on behalf of clients who have claims regarding unused railways that are designated for recreational trails.

The firm is advocating for the landowners on "litigation arising as a consequence of federal actions taken under the National Trails Systems Act Amendments of 1983," according to a lobbying registration form filed last week. A team of six Arent lobbyists that includes former Rep. Philip English (R-Pa.) is handling the account.

English, an Arent senior government relations adviser, said he and his colleagues are trying to secure the money the United States owes their clients as a result of federal court rulings in which the government was found liable for taking landowners’ property. Under the Takings Clause of the Fifth Amendment, the government is required to provide “just compensation” to private landowners whose property is taken for public use.

The government has yet to pay tens of millions of dollars to the firm’s clients who have won cases concerning more than 125 claims to land once used by railroad companies in Missouri, Kansas, Arizona and Florida, according to Arent partner Mark "Thor" Hearne II, who has handled Trails Act cases.

“There’s been a great deal of interest on the Hill and our hope is that the Department of Justice will act quickly,” English said.

Most recently in June, the U.S. Court of Federal Claims ruled that Kansas landowners represented by the firm should receive compensation for railroad easements that are designated for use as trails.

The property owners in the case claimed that government actions taken under the Trails Act prevented them from receiving rights to land in south-central Kansas. The government argued that the property is “railbanked” land that is abandoned, but might become an active railway again. Under the Trails Act, railbanked land can be transferred to a trail manager without reverting to neighboring property owners.

Judge Nancy Firestone of the U.S. Court of Federal Claims wrote in a June 9 opinion that restoring the railroad easements for train travel is very unlikely.

Supreme Court Will Rule on Immunity for Outside Counsel

The Supreme Court today agreed to take up a California case that could determine whether private lawyers hired as outside counsel by local governments are immune from civil rights lawsuits challenging their actions.

The case of Filarsky v. Delia is one of eight new cases the Court added to the docket for the fall term that begins Oct. 3. On Monday, the Court held its "long conference" at which it reviewed hundreds of petitions filed over the summer. The order list granting Filarsky and the other cases is the result of that conference. 

The lawyer immunity case was brought by Steve Filarsky of Filarsky & Watts of Ojai, California, who was hired by the city of Rialto in connection with a dispute between the city and firefighter Nicholas Delia. Delia sued several city employees and Filarsky under 42 U.S.C. 1983, asserting that the city's investigation of claims that he misused a sick day violated his civil rights.

The U.S. Court of Appeals for the 9th Circuit ruled last year that the city employees had qualified immunity because they had not violated a "clearly established right." But the panel singled out Filarsky and ruled that under 9th Circuit precedent, Filarsky did not enjoy the same immunity as city employees.

Jon Tisdale of Gilbert, Kelly, Crowley & Jennett in Los Angeles appealed the ruling to the Supreme Court on behalf of Filarsky, claiming that different levels of immunity for outside counsel "impose heavy costs upon municipalities." The 9th Circuit ruling, Tisdale wrote, "overtly dictates to municipalities how they can and cannot go about their legal business."

The League of California Cities also urged the high court to review the case, telling the justices that the 9th Circuit ruling is "not just legally wrong but will harm cities and other government units by making utilization of private attorneys less effective and more expensive." The amicus brief was filed by Kent Bullard of Greines, Martin, Stein & Richland in Los Angeles.

We wrote about the Filarsky case in our newsletter Supreme Court Insider in June. The case will be argued early next year.

Material Witness Hearings Are Public, Press Group Tells Court

A group representing the interests of the press has asked a federal appeals court in Washington to reexamine its decision blocking access to material witness proceedings that were held behind closed doors.

The Reporters Committee for the Freedom of the Press, an association of editors and reporters, filed a friend-of-the-court brief in a pending dispute in the U.S. Court of Appeals for the D.C. Circuit.

The appeals court in June ruled for the U.S. Justice Department, saying the public does not have a right to access hearings in which two victims in a sex crimes case testified in a closed courtroom. The victims were held as witnesses against their will.

The defendant, a man named Jaron Brice, asked through his lawyer to review transcripts of the material witness proceedings. The appeals court upheld a “compelling interest” in keeping the hearings secret.

The trial judge, Rosemary Collyer, said the transcript should remain confidential to not expose “intimate medical and other facts about these then-juveniles to all and sundry.”

The reporters committee said in its brief (.pdf) that it has a strong interest in advocating for the public’s right to review and report on court hearings.

“The panel’s opinion at issue here raises a significant concern about the proper application of the well-established procedure courts must undertake before sealing court proceedings and records to which the First Amendment right of access attaches,” the brief said.

Senators Reach Deal on 10 Judicial Nominees

Senate leaders have come to an agreement to consider 10 judicial nominees during the next several weeks, stepping up the rate that senators have been considering judges in recent months.

The nominees include Judge Henry Floyd for the U.S. Court of Appeals for the 4th Circuit and two picks for the high-profile U.S. District Court for the Southern District of New York, Katherine Forrest and Alison Nathan. Also in the group is Jennifer Zipps, a federal magistrate who would succeed the late U.S. District Judge John Roll after his death in the January shooting at a Tucson, Ariz., grocery store.

The 10 are among 27 judicial nominees who have won the backing of the Senate Judiciary Committee and are waiting for final votes in the Senate. The White House and liberal legal groups have been pressuring the Senate to act, noting the historically high vacancy rate on the federal bench. This year, the Senate has been considering about four nominees a month.

When senators return to Washington on Monday from a week-long recess, they are set to consider Floyd, Zipps and district court nominees Nannette Brown for the Eastern District of Louisiana, Nancy Torresen for the District of Maine, William Kuntz II for the Eastern District of New York and Marina Marmolejo for the Southern District of Texas.

And then, as soon as Oct. 11, senators have agreed to consider four more district court nominees: Nathan, a former associate counsel in the Obama White House; Forrest, a former Cravath, Swaine & Moore partner who’s in the Justice Department’s Antitrust Section; Jane Triche-Milazzo for the Eastern District of Louisiana; and Susan Hickey for the Western District of Arkansas.

Senate Majority Leader Harry Reid (D-Nev.) announced the agreement late on Monday.

The Morning Wrap

Shutdown Averted: The Senate reached a deal Monday evening on a budget dispute that will avert another potential government shutdown. The Washington Post reports that Democrats agreed to approve less funding for disaster relief, while Republicans gave up spending cuts.

Abuse Denied: The Iranian lawyer who represented two American hikers recently freed from Iran has denied his former client's claims that they faced abuse in jail, the New York Times reports. The attorney is known for his specialty representing clients with problems relating to the United States.

Mens Rea: The Wall Street Journal explores how the expansion of the U.S. federal criminal code has "eroded" the role that criminal intent plays in securing convictions.

Extradition: The New York Law Journal reports that efforts are underway to extradite a former Crowell & Moring associate from Hong Kong to the U.S. on charges that he stole client escrow funds.

Jackson Doctor: The trial against Michael Jackson's former doctor is expected to begin today. The Los Angeles Times reports that the doctor's attorneys are crafting a defense that blames the pop star's own actions for his death.

Government Announces Return of $55M from Alleged Ponzi Schemes

Though the alleged mastermind behind several Internet-based Ponzi schemes has pleaded not guilty and is awaiting trial, Justice Department officials announced Monday that they'll be distributing $55 million in forfeited funds to "victims" in the meantime.

Thomas Anderson Bowdoin Jr. was indicted by a federal grand jury in November on multiple counts of wire and securities fraud. Bowdoin is accused of generating millions of dollars by promising consumers high rates of return for investing in his company's advertising ventures. Prosecutors allege Bowdoin was running Ponzi schemes and personally made off with more than $1 million.

According to a release today from the Justice Department, about $55 million in forfeited funds were recovered by the U.S. Secret Service during the criminal investigation into Bowdoin’s case. The assets came in the form of “bank accounts, real property, luxury vehicles and watercraft.”

Bowdoin has pleaded not guilty. U.S. District Judge Rosemary Collyer denied his motion to dismiss the case in mid-March, and also denied Bowdoin’s request to have the trial moved to his home state of Florida. A status conference is scheduled for Oct. 21.

One of Bowdoin’s lead attorneys, Michael McDonnell of Naples, Fla., said the Justice Department is wrong to label the recipients as “victims.” If Bowdoin were to win an acquittal at trial, McDonnell said that his client could not recover any funds distributed through the forfeiture.

“I don’t know why they’re calling them victims. They were purchasers of advertising and no one lost a dime until the government stopped it,” McDonnell said. “This is hotly contested, there’s going to be a criminal trial and we are confident there was nothing illegal.”

Co-lead counsel Charles Murray of Bonita Springs, Fla., did not immediately return a request for comment.

The Justice Department and Secret Service intend to distribute the funds to about 8,400 victims of the alleged schemes. In a statement, U.S. Attorney for the District of Columbia Ron Machen said that the return of funds, known as “remission,” will put “$55 million back into the pockets of innocent victims of this online Ponzi scheme.”

“As we did in this case, we will continue to work with our law enforcement partners to recover every penny we can find for victims of financial fraud,” Machen said.

Also in a statement, Assistant Attorney General Lanny Breuer said the remission in Bowdoin’s case shows that “forfeiture is a powerful tool for ensuring that victims of financial fraud are made whole.”

Judge Rules For Prosecutor, Court Official In Grand Jury Dispute

A judge in Washington today dismissed a suit that a former grand juror filed against a federal prosecutor and a court official, saying the defendants are immune from liability for their role in removing the man from a panel that was hearing criminal cases in Washington.

The former juror, Peter Atherton, who for years had prosecuted his suit pro se, claimed the prosecutor and the D.C. Superior Court official unlawfully terminated his service for asking too many questions of prosecutors during the grand jury process. Fellow grand jurors, Atherton alleged, were too swiftly voting on cases without a full understanding of the law.

Atherton claimed the prosecutor, Daniel Zachem, an assistant U.S. attorney in the District of Columbia, and the court official, Suzanne Bailey-Jones, had no authority to end his grand jury service. Lawyers for Zachem and Bailey-Jones argued Atherton was disrupting the grand jury and that he was properly removed from the panel.

Only a judge, Atherton claimed in his suit, had the power to end his term. Neither defendant consulted a judge before Atherton was removed. The U.S. Court of Appeals for the D.C. Circuit in 2009 revived his suit, sending the case back to the trial court for a determination of whether Zachem and Bailey-Jones are entitled to qualified immunity.

U.S. District Judge Henry Kennedy Jr. said in a ruling today that Atherton’s suit, pending since 2004 in Washington federal district court, cannot proceed.

For Atherton to overcome the qualified immunity defense, Kennedy said he had to show that Zachem and Bailey-Jones violated a clearly established statutory or constitutional right.

The Superior Court rule in effect in April 2001, when Atherton was kicked off a grand jury, said that the chief judge or “other judge designated by the chief judge” may excuse a juror at any time for any reason.

Then chief-judge Rufus King III said in court papers in Atherton’s case that at the time, there was no process in place for disciplining jurors. Superior Court procedure has since changed, in the aftermath of the Atherton case, to require that the chief judge be consulted before any grand juror is removed from a panel. More background on Atherton's legal quest is here and here.

Kennedy said that even if a constitutional right existed at the time, Zachem and Bailey-Jones could not have reasonably known that their removal of Atherton violated a clearly established right. Zachem then was a supervisory federal prosecutor and not involved in presenting cases to grand jurors.

In his ruling, Kennedy pointed to the lack of formal procedures in Superior Court and the “apparent informal practice” of delegating grand juror removal decisions to the court’s juror office.

An attorney for Atherton, Foley & Lardner associate Benjamin Dryden, did not immediately comment on the ruling. It was not immediately known whether Atherton would seek an appeal. A spokesman for the U.S. Attorney's Office, William Miller, declined to comment.

Updated 1:50 p.m.

Lobbyists League President Urging Fed Ethics Office to Withdraw Proposed Rule

American League of Lobbyists President Howard Marlowe on Monday urged the Office of Government Ethics to withdraw a proposed rule that would bar career government employees from accepting at least some lobbyists' invitations to attend professional conferences or other events.

Marlowe said the proposal -- which the ethics office said would apply to all groups that lobby, except "nonprofit professional associations, scientific organizations and learned societies" -- is unwarranted. The Obama administration hasn't provided any reports that show federal employees abused the current rule that says they can accept a lobbyist's invitation to go to "widely attended gatherings" for free or at a discount, he said.

The rule, if enacted, would “prevent government workers from having even casual social contact with registered lobbyists,” the League president said.

“To prevent interaction of almost any kind between lobbyists and Federal employees is not in the public interest,” Marlowe said in a statement. “It will result in the dumbing-down of government at a time when public trust is at an all-time low.”

The Office of Government Ethics said in the Federal Register that the widely attended gathering exception “was used to permit attendance at events, particularly social events, where the nexus to the government's interest was attenuated.”

“If one views the problem of lobbyist gifts as the mere potential for some quid pro quo, then probably an invitation to a gala ball will not directly influence an official to take action benefiting the giver,” the ethics office said. “But it is increasingly recognized that the more realistic problem is not the brazen quid pro quo, but rather the cultivation of familiarity and access that a lobbyist may use in the future to obtain a more sympathetic hearing for clients.”

The deadline for comments on the proposed rule, which was published Sept. 13 in the Federal Register, is Nov. 14.

A Relaunch for SCOTUSblog

SCOTUSblog, the widely read blog that focuses on Supreme Court news and analysis, relaunched itself today, promising new features and "community" discussions about key cases before the high court. 

Since it began in 2002, SCOTUSblog has had law firm sponsorship -- either Goldstein's family firm, or for a time, Akin Gump Strauss Hauer & Feld, where Goldstein led the appellate practice until he left to resume a smaller Supreme Court practice in January of this year. As of today, the blog has a new outside sponsor -- Bloomberg Law -- which founder Tom Goldstein says will enable it to "dramatically expand" its offerings.

Amy Howe, Goldstein's wife and law partner, will be the editor of the new incarnation of the blog, while Goldstein remains as publisher. He will also continue his Supreme Court practice with the renamed firm Goldstein & Russell. Goldstein says he will retain "all editorial control" and readers will still be able to access the blog for free. Goldstein said the blog could be a conduit to paid products offered by Bloomberg. An announcement by Bloomberg indicated the partnership will also generate webinars, symposia, and analysis by Goldstein for Bloomberg customers.

With the new resources brought in by Bloomberg, Goldstein said more of the case summaries and analyses on the blog will be written by experts in the field, rather than by law students.

Steve Wermiel, a former Supreme Court correspondent for the Wall Street Journal who now teaches at American University's Washington College of Law, will be a new contributor, specifically targeting law students. Goldstein also said he plans to generate moderated community debates over Supreme Court topics on the blog.

This Week in The National Law Journal

Epic Stakes in Mortgage War: Jenna Greene  reports on the legal battle surrounding Fannie Mae and Freddie Mac. A major deciding factor is whether or not banks misstated material information about the securities they were selling.

Selective Service: David Ingram had a sit-down interview with Christopher Kang, senior counsel to the White House who runs the president's judicial nominee process.

New Tool Fights Foreign Crime: A new law that gave judges broader power to freeze foreign assets is facing a key constitutional test in a Washington federal court. Mike Scarcella reports.

Lobbying Prater: As the newly-appointed staff director the deficit-reduction panel "super committee," Mark Prater is a prime target for lobbyists from both sides of the aisle. Andrew Ramonas reports.