The BLT: The Blog of Legal Times

Sequestration Drives Scheduling Changes at D.C. Federal Court

To accommodate expected furloughs in federal law enforcement and defender services agencies, the U.S. District Court for the District of Columbia will stop scheduling most criminal matters on alternating Fridays from April 26 through September 30, court officials said.

Unlike those agencies and some federal courts, however, the D.C. court isn't planning to furlough or fire staff before the end of the fiscal year in September as part of mandated federal budget cuts known as sequestration. Under sequestration, which took effect March 1, non-defense agencies faced five percent in budget cuts.

New arrests will still be processed on the alternating Fridays, U.S. District Chief Judge Royce Lamberth said, while ongoing criminal trials will be recessed. He said the decision was made in consultation with the local U.S. attorney, U.S. Marshal, and Federal Public Defender's offices. Civil cases won't be affected; Lamberth said the U.S. attorney's office indicated that they expect to have lawyers available.

Justice Dept. Asks Court to Dismiss Suit over Secret Court’s Opinions

Updated 5:58 p.m.

The Foreign Intelligence Surveillance Court in Washington operates largely out of the public spotlight, issuing secret orders that are not generally available for public review. In a pending lawsuit, the U.S. Justice Department is fighting to block the disclosure of information about a case in which the court determined government surveillance activity violated the law.

Last August, the advocacy group Electronic Frontier Foundation sued the department in U.S. District Court for the District of Columbia to try to get any written order or opinion from the surveillance court about that case. The lawsuit followed the release of information from U.S. Senator Ron Wyden (D-Oregon) about once instance when the secret court found the government's implementation of the Foreign Intelligence Surveillance Act had "circumvented the spirit of the law."

The government said it declassified four statements and permitted Wyden to disclose the information "in an effort to strike the right balance between government transparency and the protection of critical intelligence activities." The Justice Department on Monday night filed court papers asking a judge to terminate the case, saying that no more information about the apparent transgression can be, or should be, revealed to the public.

Ex-clients Sue Hogan Lovells Over $36M Loss

Hogan Lovells is being sued by two Montgomery County, Md. landowners who allege the law firm’s advice led to a $36 million jury verdict against them.

The malpractice suit, filed April 1 in D.C. Superior Court, stems from the work attorneys from the legacy firm Hogan & Hartson did for the Camalier and Davis families in a real estate deal.

The plaintiffs in the malpractice suit leased two adjacent properties to the Penrose Group, which intended to construct apartment buildings. According to the complaint, the Hogan attorneys who were retained in September 2006, including commercial litigation partner David Hensler, advised the landowners not to produce an estoppel certificate, a guarantee that developers were in compliance with the lease.

Without an estoppel certificate Penrose, the developer, was unable to get financing for the project. Penrose subsequently sued the landowners for loss of profit.

Link sought between white supremacist indictment, prosecutors' shooting

State and federal law enforcement authorities are trying to determine whether there's any connection between an indictment late last year against the Aryan Brotherhood of Texas and the shooting deaths of two prosecutors in Kaufman County, about 35 miles southeast of Dallas.

Prosecutors in November announced racketeering conspiracy charges against 34 members of the white supremacist group, basing the case on crimes—including fire bombings and murder—that spanned more than two decades.

The 17-count indictment, then-Assistant Attorney General Lanny Breuer said during a press conference in Texas, represents "a devastating blow" to the Aryan Brotherhood, which Breuer described as a "violent and highly structured criminal enterprise" operating throughout the state.

The Kaufman district attorney, Mike McLelland, and his wife, were fatally shot Saturday in their home, the authorities said. The double-homicide follows the January 31 shooting of one of McLelland's assistant district attorneys, Mark Hasse, who was killed in a parking lot as he walked to work.

Our affiliate Texas lawyer has more details here.

D.C. Circuit Revives Suit over DOJ Hiring Misconduct

A federal appeals court today revived a privacy suit rooted in a "dark chapter" at the U.S. Justice Department in which top officials assessed politics and ideology to screen applicants vying for entry-level slots in the prestigious Honors Program.

In the suit in Washington's federal trial court, several applicants to the program alleged they were not selected for interviews in 2006 based on their political affiliation. An internal DOJ report in 2008 concluded that top officials improperly considered First Amendment-protected speech to eliminate candidates. The lawsuit, filed in 2008, relied on the publication of the internal investigation.

Those senior officials, the U.S. Court of Appeals for the D.C. Circuit said today, had an obligation to preserve Internet records about each candidate "given that Department investigation and future litigation were reasonably foreseeable." The records have since been destroyed.

Writing for the court, Judge Judith Rogers said a jury should be allowed to hear a claim of spoliation—that is, that two remaining plaintiffs, Matthew Faiella and Daniel Herber, were "harmed by creation and use of the destroyed records." The screening committee at the time comprised Michael Elston, chief of staff to the deputy attorney general, and Esther McDonald, counsel to the associate attorney general. The D.C. Circuit opinion is here.

The Morning Wrap

The dealmakers: The American Lawyer spotlights this year's Dealmakers of the Year. "In a shaky recovery, corporate lawyers played an even more crucial role than they did in boom times," the report says.

Off-limits: An appeals court in Georgia has upheld an order barring a divorcing couple from using social media to communicate. The Daily Report has the story here. "Facebook is the new megaphone," said Randall Kessler, former chairman of American Bar Association's family law section. "It sounds like the judges are catching up with society." In other Facebook news, this piece in The New Jersey Law Journal: Party's Deletion of Facebook Page Found To Be Spoliation of Evidence.

Billy clubs excluded: "The U.S. Supreme Court may have guaranteed the right to possess a gun in the home, but it's still illegal to carry a baseball bat modified into a billy club in the backseat of one's car, the First District Court of Appeal ruled Thursday," The Recorder reports.

First, procedure: The Wall Street Journal reports on the Supreme Court's same-sex marriage arguments: "Justices discussed scenarios in which California's Proposition 8 and the federal Defense of Marriage Act might fall not because the court found them unconstitutional in substance, but because the unusual journey of the cases left the court with no legitimate dispute to resolve."

In Public Records Suit, No Extra Time for the FBI

A federal judge today refused to allow the U.S. Justice Department to put on hold, for more than a year, a suit that seeks information about the FBI's use of technology to collect mobile phone data.

U.S. District Judge Colleen Kollar-Kotelly said the government failed to convince her that "exceptional circumstances" exist to temporarily stop the litigation. The Electronic Privacy Information Center in Washington sued the FBI in April 2012 over access to documents about the bureau's use of "StingRay" technology.

"The large volume of requests that the FBI must process, as well as the size and complexity of those requests and the limited resources available to process them, present exceptional circumstances," Kimberly Herb, a Justice Department lawyer, argued in court papers.

Kollar-Kotelly didn't buy the argument. The bottom line, the judge said, is that the FBI didn't show that the bureau is "deluged" with so many public records request to justify a delay in the court action. Click here for the opinion.

Law Firm Diversity Panel Highlights Role of Corporate Legal Departments

On a panel about law firm diversity, Joseph West, president and CEO of the Minority Corporate Counsel Association, said diversity has become a numbers game, which he called "a blessing and a curse."

On the one hand, West said, the legal profession clearly had ramped up efforts in recent years to recruit minorities and women. But those numbers didn't reflect the poor job many firms and corporate legal departments were doing at keeping and promoting those lawyers, said West, a panelist at the National Consortium on Racial and Ethnic Fairness in the Courts annual conference in Washington.

The panelists highlighted how diversity affected their bottom line. Grace Speights, managing partner of the Morgan, Lewis & Bockius office in Washington, said she found that lawyers from different backgrounds approached cases and client matters in different ways, all for the better.

DOJ Urges D.C. Circuit to Allow Import of Lethal Injection Drug

A U.S. Justice Department lawyer today urged a federal appeals court in Washington to overrule a judge who blocked the import of a drug used in lethal injections.

U.S. District Judge Richard Leon ruled last year that food and drug regulators had a mandatory duty to disallow the entry of the drug, sodium thiopental, because it fails to meet certain requirements under federal law. The plaintiffs, represented by a team from Sidley Austin, are a group of death row inmates in Arizona, California and Tennessee.

The closely watched case before the U.S. Court of Appeals for the D.C. Circuit tests the scope of FDA's discretion to decline to enforce its own regulations. The appellate panel—senior judges David Sentelle and Douglas Ginsburg, sitting with Judge Judith Rogers—didn't immediately rule following an hour-long hearing.

The prisoners' lawyers contend the FDA lacks discretion to pass up enforcement. The federal law in question, the challengers argue, mandates that the agency "shall" refuse the admission of a foreign drug that is unapproved in the United States. "Normally, that's a mandatory expression," Sentelle said in court today.

The Morning Wrap

Disbarred: From today's National Law Journal: "Plaintiffs attorney Stanley Chesley has been disbarred from practicing law in Kentucky, and the move may crimp his ability to practice in Ohio, where his firm, Waite Schneider Bayless & Chesley, is based."

Charged: Federal prosecutors on Thursday charged the brother of Galleon Group's Raj Rajaratnam with insider trading allegations, The New York Times reports. “As alleged, Rengan Rajaratnam and his brother shared more than DNA; they also shared a penchant for insider trading,” Preet Bharara, the United States attorney in Manhattan, said.

Released: "After spending some 23 years in prison for a murder he says he did not commit, David Ranta walked out of a Brooklyn courtroom a free man yesterday after prosecutors conceded the evidence against him had "degraded" to the point that they could not prove his guilt beyond a reasonable doubt," The New York Law Journal reports today. The New York Times background piece on the case.

Quitting: A California judge who's charged with bilking an elderly neighbor has resigned from the bench, The Recorder reports. "Judge Seeman has had a distinguished career, and he felt this was an appropriate action to take at this time for the good of the court," said Seeman's attorney, Kathleen Ewins of Long & Levit in San Francisco.