The BLT: The Blog of Legal Times

In the Supreme Court, a Fight Over Sanctions for Government Misconduct

The Justice Department doesn't want the U.S. Supreme Court to hear a dispute over alleged prosecutorial misconduct, urging the court to keep in place a ruling that voided an award of more than $600,000 in attorney fees to a Miami doctor who was acquitted in a drug case.

Responding to the Justice Department today, Dr. Ali Shaygan's lawyers continued their effort to convince the high court to review the decision of the U.S. Court of Appeals for the 11th Circuit to dismiss the legal fee award.

At issue is this: Under what scenario is a criminal defendant allowed to recoup legal fees under the Hyde Amendment? Federal law says a defendant can try to obtain fees if the legal position of the United States was vexatious, frivolous or in bad faith. But those terms are not defined.

The Justice Department said in its Supreme Court papers that a defendant must show at the start that a case itself should never have been brought in the first place. Shaygan's chief lawyer, David Markus, said today in response that the government is attempting to craft a new provision under the Hyde Amendment. Shaygan's brief is here.

Breaux Lott and International Marine Shipping Company Part Ways

With an international marine shipping company decreasing its size, the Breaux Lott Leadership Group lost a lobbying contract that was on track to bring the Patton Boggs affiliate $440,000 this year.

Breaux Lott notified Congress on Sunday that it stopped lobbying for Tampa, Fla.-based United Maritime Group LLC on August 31. The lobbying ended after United Maritime completed its sales this year of U.S. United Ocean Services LLC and U.S. United Barge Lines LLC, two of the company's three main subsidiaries. The sale of United Maritime's last major subsidiary, U.S. United Ocean Services LLC, is slated to close this year.

Lobbying termination paperwork shows that Breaux Lott most recently advocated for United Maritime on tax and maritime commerce matters, as well as funding for Mississippi River dredging and the U.S. Agency for International Development's "Food for Peace" program, which brings food to countries where people face starvation. Former Senator John Breaux (D-La.), a senior counsel at his firm, and public policy adviser John Flynn most recently worked on the account.

Settlement Reached in 3M Defamation Lawsuit

Updated at 2:24 p.m.

One of two closely watched cases involving the District of Columbia's relatively new law barring lawsuits aimed at chilling protected speech has settled, according to filings in the city's federal trial and appellate courts.

On Friday, parties in 3M Co.'s defamation lawsuit against Washington-based political strategist Lanny Davis notified the U.S. Court of Appeals for the D.C. Circuit that Davis was dropping his appeal of a judge's ruling that the D.C. law barring strategic lawsuits against public participation, or SLAPPs, couldn't apply in federal court. This morning, the parties notified U.S. District Judge Robert Wilkins that they had reached a settlement in the underlying case.

The D.C. Circuit was scheduled to hear arguments in the 3M case the same day as a similar appeal in a defamation lawsuit filed by former U.S. Department of Agriculture Shirley Sherrod against now-deceased web publisher Andrew Breitbart and his colleague Larry O'Connor. Today's dismissal of the 3M case means the burden of arguing over whether the anti-SLAPP law can apply in federal court will fall solely to the parties in Sherrod's case.

Terrorism, Intellectual Property Likely to be Issues at Presidential Debate

Tonight's third and final presidential debate, focused on foreign policy, could shed more light on the differences between the candidates on Department of Justice priorities as well as several other legal issues.

Mitt Romney's campaign has not so far given an overarching vision regarding what DOJ in his administration might look like, but several areas Attorney General Eric Holder Jr. has emphasized in the past four years relate to activity abroad such as the large enforcement push on the Foreign Corrupt Practices Act (FCPA).

The main topics of the debate tonight will focus on the Middle East, specifically the terrorist attack last month in Libya in which U.S. Ambassador Chris Stevens and three other Americans were killed, as well as the White House response.

Former U.S. Attorney Patrick Fitzgerald Heads for Skadden

Former U.S. Attorney Patrick J. Fitzgerald is joining Skadden, Arps, Slate, Meagher & Flom's Chicago office as a partner, the firm announced today.

Fitzgerald oversaw numerous high-profile prosecutions, including the successful prosecutions of former Illinois governors George Ryan and Rod Blagojevich on corruption charges.

Fitzgerald was appointed to be the U.S. Attorney for the Northern District of Illinois in 2001 by President George W. Bush. Prior to his tenure as U.S. attorney, Fitzgerald spent 13 years as an assistant U.S. attorney in the Southern District of New York. During that time, he was lead prosecutor in the trial of defendants convicted in the 1998 bombings of the U.S. embassies in Kenya and Tanzania.

This Week in The National Law Journal

Cease and desist? Tweet!: Sheri Qualters reports that accused trademark infringers are increasingly using social media to fight back, in the hopes that the Internet spotlight will create a backlash against overaggressive trademark owners, even if they have legitimate claims.

Heat is on for law school test: The California Department of Fair Employment and Housing and the U.S. Department of Justice have filed suit against the Law School Admission Council, alleging that the council's accommodations process violates the Americans With Disabilities Act. Karen Sloan has the story.

Putting shield to the test: Mike Scarcella takes a look at the Justice Department's efforts to fight an attempt by plaintiffs in a human rights case to subpoena Álvaro Uribe Vélez, the former president of Colombia.

More pressure over recusals: By longstanding tradition, U.S. Supreme Court justices almost never publicly explain their recusal decisions. But Tony Mauro reports that the tradition is increasingly coming under fire, with a growing number of groups urging justices to publicly explain their decisions to bow out of – or stay in – cases before them.

The Morning Wrap

McGovern Dies: Former Senator George McGovern (D-S.D.), who lost to Richard Nixon in the 1972 presidential election, died on Sunday, The Washington Post reports. The cause of death wasn't disclosed. He was 90.

Judges Step Up: The American Lawyer takes a look at 10 recently appointed U.S. district court judges whom top litigators say stand out. "Our survey is a subjective one — we aren't presenting our selections as the best judges on the federal bench," the magazine says. "Rather, these are judges to watch."

SEC Probes: The U.S. Securities and Exchange Commission's investigation into Facebook Inc.'s May 17 IPO after its stock price plummeted hasn't turned up any evidence that the company kept material information from investors, Bloomberg reports. “It’s unlikely the SEC will pursue an enforcement action against Facebook based on what they were discussing before the IPO,” said Peter Henning, a former SEC lawyer who teaches at Wayne State University in Detroit.

D.C. Judge Rejects Bagram Prisoners' Detention Challenge

Three years ago, a federal judge in Washington announced that prisoners held in U.S. custody at an air base in Afghanistan could use federal courts to challenge their detention. But the U.S. Court of Appeals for the D.C. Circuit struck the decision.

The judge, John Bates of Washington federal district court, today rejected renewed legal challenges, saying that the amended petitions from the government-declared enemy combatants do not undercut the foundation of the appellate court ruling. The judge's ruling is here.

Prisoners at the Guantanamo Bay naval facility can use federal trial courts to seek their freedom. The D.C. Circuit, however, distinguished Guantanamo from the Bagram airfield in Afghanistan. The appeals court, Bates wrote today, found "critical problems with allowing detainees at such a site" to bring petitions seeking their release.

Crunch time coming up for GOP's DOMA fight

House Republicans have paid Washington law firm Bancroft nearly $1.5 million in the past two years to have former solicitor general Paul Clement defend the Defense of Marriage Act in federal courts. So far, they have lost all six decisions in district or circuit cases.

House Democrats say the Republicans must now decide whether to keep paying Bancroft, after another high-profile loss Thursday in the U.S. Court of Appeals for the Second Circuit in New York. The U.S. Supreme Court is also considering whether to take up DOMA this term.

The contract with Bancroft was capped at $1.5 million. House Democrats released statistics this week showing that the legal bills – including $750,000 this year – have reached just $50,000 short of that amount as of mid-October.

DOJ, Alaska feud over 'threatened' listing for polar bears

A lawyer representing the state of Alaska today asked a federal appeals court in Washington to strike the controversial federal listing of polar bears as a threatened species.

The attorney, Murray Feldman of the Boise, Idaho office of Holland & Hart, argued that the U.S. Fish and Wildlife Service has failed to adequately explain why it believes polar bears will likely become endangered. Feldman contends the government drew conclusions without any real connection between population projection and habitat loss.

The government listed the polar bear as a threatened species in 2008 under the Endangered Species Act. Federal officials said at the time that the designation was based on the "best available science, which shows that loss of sea ice threatens and will continue to threaten polar bear habitat."

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit didn't immediately rule this morning. The court is looking at whether to uphold U.S. District Judge Emmet Sullivan's ruling in June 2011 finding the "threatened" designation for polar bears was adequately justified.