The BLT: The Blog of Legal Times

Justice Stevens Reveals Plan to Write a Book, Talks About Decision to Retire

Anyone who thought that Justice John Paul Stevens, now 91, would slow down after retiring last year should reconsider. In an interview published today on the blog of The Atlantic, Stevens said he is working on a book about the five chief justices he worked with both as a law clerk and justice -- from Fred Vinson to John Roberts Jr.

"I've got it almost done," Stevens said in the interview, conducted by Bill Barnhart, co-author of the 2010 biography of Stevens, titled John Paul Stevens: An Independent Life. Stevens said the book, tentatively titled Five Chiefs, will include personal reminiscences as well as comments about the jurisprudence of the chief justices.

In the interview, Stevens also spoke on the record for the first time about how he reached his decision to retire. He said he had secretly asked colleague Justice David Souter to tell him when it was time for him to retire. When Souter left first in 2009, Stevens said, "I didn't have any safety valve anymore."

The triggering moment for Stevens' own decision to step down, he said, came in January 2010 when he read his impassioned dissent in the Citizens United v. Federal Election Commission. Several media outlets, including The Blog of Legal Times, reported that he stumbled in reading the dissent, mispronouncing several words in a halting voice.

“That was the day I decided to resign,” Stevens told Barnhart. Even though Stevens' doctor later told him he detected no problems, Stevens said, “I learned giving that talk that I had a speech problem.”  

Muslim Nonprofit and Former Intern Accused of Stealing Documents Fight Over Filings

A Washington federal judge has chastised both parties in a lawsuit filed by a Muslim advocacy nonprofit group against a former intern accused of stealing thousands of internal documents as part of an “undercover operation.” The judge took both sides to task for failing to adhere to her instructions in the latest phase of the case.

The Council on American-Islamic Relations Action Network, which is based in Washington, is suing author and self-described counterterrorism researcher Paul Gaubatz and his son, Chris Gaubatz, over the alleged theft of more than 12,000 internal documents.

The group alleges Chris Gaubatz applied for an internship with the organization falsely posing as a Muslim college student. He interned with the group from April to August 2008.

That Chris Gaubatz obtained the internal documents and gave them to his father is undisputed – in a book about the nonprofit written by Paul Gaubatz and co-author Paul Sperry, the entire affair is described as a “daring undercover operation” and cites many of the documents in question – but the two sides dispute whether they were taken unlawfully and also whether the publication of the documents constitutes protected speech.

Since filing the original complaint (PDF) against Paul and Chris Gaubatz, the nonprofit has made two separate motions to file amended versions to include additional defendants and claims as more information has become available. The Gaubatzes are challenging both motions to file amended complaints, arguing the nonprofit has failed to show they would offer anything substantially novel in new pleadings.

The defendants have also filed a motion to dismiss (PDF), arguing that the damages being sought – for the publication of the nonprofit’s internal documents – are protected under the First Amendment.

U.S. District Court Judge Colleen Kollar-Kotelly issued an order on April 13 requesting both sides to meet and file a joint status report on whether any legal issues had been resolved throughout the course of filings, and also whether the motion to dismiss could be denied without prejudice pending a ruling of the motions to amend.

In a minute order issued today, Kollar-Kotelly said that in granting leave for both sides to sort through whether certain aspects of three pending motions might be moot in light of newer filings, she believes they took it “as an opportunity to raise a host of tangential and irrelevant matters that in no way clarify the relationship between the three aforementioned motions.”

In light of the fact that none of the issues could be narrowed, Kollar-Kotelly set a schedule to fully brief the pending motions to amend.

During his time with the nonprofit, according to the complaint, Gaubatz allegedly stole more than 12,000 e-mails, spreadsheets and other internal documents from the organization and delivered them to Paul Gaubatz. Chris Gaubatz is also accused of secretly recording conversations and meetings.

The elder Gaubatz published a book on the nonprofit in 2009, called “Muslim Mafia: Inside the Secret Underworld that’s Conspiring to Islamize America.” In the book, Gaubatz describes Chris Gaubatz’s time at CAIR as a counterintelligence operation in which the younger Gaubatz gathered documents and other information on the group. The book cites numerous internal documents the group alleges were unlawfully stolen, and even describes Chris Gaubatz’s internal monologue as he prepared to take on his false identify.

The nonprofit sued both Chris and Paul Gaubatz in October 2009 and is being represented by in-house counsel Nadhira Al-Khalili. The defendants are being represented by Bernard Grimm of Washington’s Cozen O’Connor, California attorney Daniel Horowitz and Martin Garbus of New York’s Eaton & Van Winkle.

Zuckerman Spaeder to Former Client: Pay Up

A lawyer representing a former Zuckerman Spaeder client in a legal fee dispute in Washington told a federal appeals court today that the case belongs in arbitration.

The attorney, David Holzworth of Yoss LLP, who represents James Auffenberg Jr., asked the U.S. Court of Appeals for the D.C. Circuit to reverse a trial judge’s refusal to move the dispute from court to arbitration.

Zuckerman lawyers represented Auffenberg in a criminal tax case, winning acquittal for the St. Louis-based automobile dealer. The firm alleges Auffenberg owes more than $834,000 on top of the $1.5 million he has already paid. Auffenberg’s lawyers argue the firm said he would have to pay no more than $1.5 million. The firm sued Auffenberg in Washington’s federal trial court.

Auffenberg’s attorneys moved to stay the fee case in the U.S. District Court for the District of Columbia almost a year into the litigation. Judge Reggie Walton rejected the effort, saying Auffenberg “actively” participated in the litigation and failed to timely invoke arbitration. More background on the case here and here.

Holzworth said today in court that Auffenberg asserted his arbitration rights orally at the beginning of the litigation. He noted there was no “substantial” discovery in the litigation before Auffenberg moved to stay the proceedings.

Zuckerman lawyers are advocating an “extreme” standard that would require a client to invoke a right to arbitration of a fee dispute before answering a complaint, Holzworth said in court papers filed in December.

Zuckerman partner Francis Carter, representing the firm, argued today in the D.C. Circuit that Auffenberg’s participation in the litigation meant he waived his right to mandatory arbitration. Carter said there were numerous “mile posts” at which Auffenberg could have asked for arbitration.

“If he wanted to arbitrate, he knew how to start it,” Carter said. In court papers, Carter noted that Auffenberg responded to the initial complaint and subsequent amended complaints, among other documents. Auffenberg, Carter noted, did not assert arbitration as a defense.

Judges Douglas Ginsburg and Merrick Garland, sitting with Senior Judge Stephen Williams, did not immediately rule.

Morning Wrap

Howrey Defections: The "down times" at Howrey influenced Northern California regional managing partner Henry Bunsow's decision to jump to Dewey & LeBoeuf, our Jeff Jeffrey reported last night here on BLT. It's the latest of several defections.

Dead on Arrival: The House of Representatives approved a bill to repeal health-care reform Wednesday, but as The Washington Post reports here, it won't even come to a vote in the Senate.

Corporate Personhood: Slate's Dahlia Lithwick's dead-on take on yesterday's Supreme Court oral argument in FCC v. AT&T, which raised issues of corporate personhood, is here. Our report is here, with a more detailed version available to subcribers to our newsletter Supreme Court Insider. You can preview it at this link.

State Dinner: At last night's state dinner for China's president Hu Jintao, Supreme Court Justice Stephen Breyer was in attendance, and his wife Joanna's outfit drew positive attention here (though her name was misspelled.)

Sheed Dead: Wilfrid Sheed, an elegant, wry writer of journalism and fiction alike, died Wednesday in Massachusetts. Read about him in this New York Times story.

BAR/BRI Settlement Payments Coming Soon

Claimants in the long-running BAR/BRI class action are set to begin receiving settlement payments to help compensate them for the alleged conspiracy between BAR/BRI and Kaplan that caused about 130,000 prospective law students to overpay for bar-review prep courses. Those payments will begin being sent to claimants next month.

Earlier this month, the U.S. District Court for the Central District of California approved a partial payment plan that will dole out some of the money in the settlement that has languished for years while plaintiffs’ lawyers and Los Angeles federal judge Manuel Real sparred over the amount that those lawyers would receive in fees.

In February, Real determined that McGuire Woods was not entitled to the $12 million it sought in fees after it scored a $49 million antitrust settlement with BAR/BRI parent company West Publishing Corp. in July 2007 because of a conflict of interest that violated ethics rules. McGuire Woods has appealed that finding to the U.S. Court of Appeals for the 9th Circuit, which has already upheld the settlement but remanded the case to the trial judge to re-evaluate attorneys’ fees.

But due to a motion filed in October by lead plaintiffs’ attorney Sidney Kanazawa, an L.A.-based McGuire Woods partner, the money in the settlement fund that isn’t affected by the appeal will begin being handed out in January.

“We felt that it didn’t make sense for that money to sit waiting in the fund until all of the appeals were exhausted. This was a way to start getting some of that money to the people to which it is owed,” Kanazawa said.

According to the Web site set up to inform claimants of the case’s status, $30 million of the settlement fund will be distributed. The total amount of the payment class members can receive cannot amount to more than 30% of the amount paid by the claimant for their bar review course.

In the case of the partial payments, for each recognized claim of $2,000, a partial reward of $277 will be sent out. Kanazawa said that once the fee issue is settled, claimants stand to receive more money.

The class action was filed on behalf of all prospective law students who purchased a full-service bar review course from BAR/BRI anywhere in the United States anytime from Aug. 1997 through July 2006. In order to have their claim considered, claimants must have had their claim form postmarked no later than Sept. 17, 2007.

Updated 3:58 p.m. to include link to BAR/BRI settlement Web site.

The Best In Legal Writing, 2010

The Green Bag, billed as an entertaining journal of law, today announced the results of its annual "exemplary legal writing" contest, and none of the winners are among the nine justices of the Supreme Court.

To be fair, none of the justices were nominated in the main category of "court opinions," but four were candidates in the "concurrences and dissents" category.

Instead, the winners were: Judges Frank Easterbrook and Diane Wood of the U.S. Court of Appeals for the 7th Circuit for their majority and dissenting opinions in Bodum USA v. La Cafetiere, a "trade dress" decision that delved into French law; the 9th Circuit's Alex Kozinski; federal trial judges John Gleeson (Eastern District of New York) and John Kane (District of Colorado); and Minnesota appellate judge Kevin Ross.

Kozinski won for a heated dissent in United States v. Pineda-Moreno, a Fourth Amendment search case in which Kozinski declared, "1984 may have come a bit later than predicted, but it's here at last."

Ross won for his decision in Minnesota v. Wiggins, a novel case testing the constitutionality of a police search in which the officer ordered a suspect to raise his hands overhead, then pulled up his pants, which had dropped to knee level. In the process, the officer felt a gun in the suspect's pocket and made an arrest. Even given the "baggy-pants fashion trend," the judge wrote, the officer was justified in hitching them up from knee-level for the sake of decency.

In the non-judicial category of books, Harvard Law School dean Martha Minow won for her book In Brown's Wake, as did Jack Rakove for Revolutionaries: A New History of the Invention of America, and John Langbein, Renee Lerner and Bruce Smith for History of the Common Law: The Development of Anglo-American Legal Institutions.

Journalistic offerings that won included Jeffrey Toobin's New Yorker profile of Justice Stephen Breyer, Without a Paddle; Jeffrey Rosen's New Republic article Roberts versus Roberts; and Nina Totenberg's NPR tribute to Justice Ruth Bader Ginsburg's late husband Martin. The full list of winners has been posted on Green Bag's main Web page. (Disclosure: The author of this post is one of the large number of unpaid judges for this contest.)

Merry Christmas and Happy Holidays

The National Law Journal will not publish to The BLT for the next several days in observance of Christmas. We wish you plenty of holiday cheer.

Morning Wrap

DADT Repeal: The effort to repeal the Don't Ask Don't Tell policy on gays in the military seemed dead, but a stand-alone measure  passed the House on Thursday and could get to the Senate before it quits for the year, The Washington Post reports. 

Tea Time: Justice Antonin Scalia will kick off a series of "conservative constitutional seminars" in January in conjunction with the House Tea Party Caucus, The Daily Caller reports. His topic on Jan. 24, aptly enough, will be separation of powers.

Hiring Again: After years of belt-tightening, law firm hiring may pick up in 2011, according to this report from The American Lawyer on a survey of recruiters.

Lady Justice: She's been depicted as shoeless and blindfolded, naked or clothed. Lady Justice, that is, as revealed in a new book Representing Justice by Yale Law School profs Judith Resnik and Dennis Curtis, reviewed here in The New York Times.

Reading List: Heading out of the office for the holidays but can't quite leave the law behind? Here's a good list of top articles, essays, even court opinions from the past year from CBS News commentator Andrew Cohen at The Atlantic blog. 

Appeals Court Could Shed Light on Rejected Pardon Applications

A Justice Department attorney encountered a skeptical panel of judges today in trying to convince the court to allow the government to keep secret the list of people whose clemency applications were denied under the presidency of George W. Bush.

A retired Washington Post reporter who is writing a book on clemency is demanding the list under the Freedom of Information Act. Bush rejected more than 9,200 applications over eight years. Last year, a federal district judge in Washington ordered the government to turn over the names. Background on the case is here.

The Justice Department took the case to the U.S. Court of Appeals for the D.C. Circuit, which heard oral argument this morning. At issue in the case is the extent to which releasing the names invades the privacy of individuals who were denied pardon and commutation requests.

The plaintiff, George Lardner, represented by Public Citizen Litigation Group director Allison Zieve, wants to determine whether ethnic consideration played a role in Bush's rejection of thousands of applications. DOJ will confirm whether a specific person received a pardon; the department will not disclose a blanket list of rejected applications. DOJ publicizes the names of applications the president approves.

Today in court, DOJ Civil Division attorney John Koppel called any public interest in the names “negligible and highly speculative.” Publishing a list of names of rejected applicants brings renewed attention to past crimes and only serves to stigmatize the applicant, Koppel said.

Judge Douglas Ginsburg said the applicant, not the public, is dredging up old crimes. “They do that by seeking clemency,” the judge said. “They bring it to the attention of the president.” Ginsburg said it’s “ordinarily a matter of public interest what the president is doing.”

Ginsburg said the denial of an application could generate as much attention as the grant of one. He noted the “great deal of press attention” surrounding President Bill Clinton’s decision to grant a pardon to fugitive financier Mark Rich. Attorney General Eric Holder Jr., a top official in the Clinton Justice Department, apologized during his confirmation hearing for mistakes in the Rich pardon.

Judge Merrick Garland noted in court that applicants are made aware that their neighbors, friends and employers could be contacted during the investigation of whether to grant a pardon. “They know that there’s a risk,” Garland said in court. “They’re on notice about that.”

Koppel argued that federal officials make every effort not to reveal the nature of the inquiry when talking with employers and others about any application. Applicants do not expect that their request for a pardon will become known, Koppel said.

“We can change that expectation,” Ginsburg said.

Kagan Adds to Her Reading List

Supreme Court nominee Elena Kagan opened her confirmation hearing Monday saying she would make only one pledge: that she would listen to others with an open mind.

"I'll make you another," Kagan told Sen. Tom Coburn (R-Okla.) on Wednesday as her testimony neared an end. "I'll re-read the Federalist papers."

Count that as a minor victory for Coburn, one of the Senate’s most conservative members. He frequently cites passages from the Federalist papers promoting a limited federal government, quoting one of them, James Madison’s No. 44, to Kagan on Tuesday.

Click here for online copies from the Library of Congress.