The BLT: The Blog of Legal Times

Lawyers Urge Holder, Supreme Court to Intervene in Asylum Case

Three siblings who are seeking asylum in the United States after fleeing El Salvador to escape gang violence face imminent deportation unless the Supreme Court or top administration officials intervene to temporarily block removal, lawyers for the siblings say.

The Board of Immigration Appeals, a component of the Justice Department, earlier rejected the siblings’ asylum request. An appeal of that decision is pending in the U.S. Court of Appeals for the 8th Circuit. But when the board last month denied an effort to reopen the case, Immigration and Customs Enforcement moved quickly to deport the three.

The board’s original ruling, which held that the siblings did not belong to a sufficiently “visible” social group, was criticized by some advocates as establishing too narrow a definition of social group. Lawyers from Latham & Watkins who represent the siblings say the three belong to a social group--youths who, based on religious and family values, shun membership in a gang.

Without warning, according to the Latham attorneys, federal immigration authorities took two of the siblings into custody July 6 to begin the removal process. The third sibling voluntarily surrendered. Their lawyers say the three are expected to be deported imminently if there is no intervention.

The lawyers are urging Homeland Security Secretary Janet Napolitano and Attorney General Eric Holder Jr. to intervene. Immigration and Customs Enforcement’s “haste is terribly misguided, and we hope that you will intervene to prevent this family from being deported before they have had a full and fair opportunity to pursue their appeal,” wrote Latham & Watkins associate Lori Alvino McGill to Holder on July 10. Click here for a copy of the letter to Holder.

The 8th Circuit on July 14 issued a one-sentence order denying a motion to stay (.pdf) removal pending appeal. Latham lawyers then filed an emergency application to stay pending appeal with Justice Samuel Alito Jr., the circuit justice for the 8th Circuit. The application (.pdf) asks Alito to stay the board’s removal order pending the appellate court’s review of the board’s decision.

Alito today denied the application without referring it to the full court for consideration. The lawyers plan to re-apply today to another justice, which the rules allow, said McGill, who is counsel of record in D.C. with Latham partner Richard Bress.

The petitioners, a 22-year-old woman and her two 19-year-old brothers, fled El Salvador in 2004 to live with their mother, who is in this country legally and living in Minnesota, said McGill.

The siblings said they feared reprisal from the Mara Salvatrucha (MS-13) gang in El Salvador. Gang members threatened to murder the brothers and rape their sister for the brothers’ refusal to join the gang, according to the Latham lawyers.

Dow Jones Gets Patents Tossed

Dow Jones & Co. scored a nice win in federal court today when a judge ruled that it could not have infringed several patents belonging to a British company because the patents are invalid.

The former parent company of The Wall Street Journal, now owned by Rupert Murdoch’s News Corp., had sought a declaratory judgment in the U.S. District Court for the District of Columbia after London-based Ablaise threatened to sue it for patent infringement related to Web-based programs used on Marketwatch.com and WSJ.com. Other companies had agreed to take licenses with Ablaise, but Dow Jones refused to strike a deal.

“Dow Jones decided that it believed the patents were invalid and that it wasn’t going to pay ransom to avoid the costs of litigation,” said Steven Lieberman, a partner at Washington’s Rothwell, Figg, Ernst & Manbeck, which represented Dow Jones.

Senior Judge James Robertson agreed. In granting Dow Jones' motion for summary judgment, he found that the relevant claims of one patent were obvious and the relevant claims of the other were anticipated by the prior art.

The judge also said that Ablaise had operated “a coercive licensing scheme that has more to do with the costs of litigation than with the novelty of the patent.”

Lawyers for Ablaise could not immediately be reached for comment.

D.C. Council Officially Authorizes Bennett to Investigate Barry

The D.C. Council unanimously approved a resolution today that authorizes Robert Bennett, a partner at Skadden, Arps, Slate, Meagher & Flom, to investigate whether Councilman Marion Barry (Ward 8) violated laws or ethics rules when he awarded a personal service contract to his then-girlfriend Donna Watts-Brighthaupt.

The resolution states that the investigation will also review D.C. laws and the council’s own rules, policies and procedures governing personal service contracts by council members and grants awarded to organizations through the budget process.

The resolution passed by voice vote, with even Barry voting in favor of it.

Bennett will have subpoena power throughout the investigation. His report and any recommendations for revisions to rules or laws will be due to the D.C. Council within 45 days of the conclusion of the investigation.

The move to authorize an investigation follows a heated press conference on Friday in which Council Chairman Vincent Gray announced that he is developing a code of conduct and ethics for councilmembers and staff. Councilman David Catania (At large) and Councilwoman Mary Cheh (Ward 3) walked out of the press conference when Barry began speaking to defend his innocence.

Bennett, who will work for the council on a pro bono basis, served as President Bill Clinton’s personal attorney in the Paula Jones case, and he represented then-New York Times reporter Judith Miller in the CIA leak investigation. He has also served as special counsel to the Senate Select Committee on Ethics in several major investigations.

Baker Hostetler's Dettelbach Nominated for U.S. Attorney in Ohio

President Barack Obama today nominated Steven Dettelbach, a partner in the Washington and Cleveland offices of Baker Hostetler, to be the U.S. attorney for the Northern District of Ohio.

Dettelbach, who joined Baker Hostetler in 2006 and focuses on white collar criminal defense and corporate investigations, is a former assistant U.S. attorney who participated on the Organized Crime and Corruption Strike Force in the Northern District of Ohio. The U.S. Attorney's Office is based in Cleveland.

Sen. Sherrod Brown (D-Ohio) recommended Dettelbach. “Steve Dettelbach has demonstrated professional achievements and an outstanding commitment to the northern Ohio community,” Brown said in a statement.

Baker Hostetler’s executive partner, Steven Kestner, called Dettelbach’s nomination well-deserved. “His wide-ranging legal background, leadership experience and integrity will serve him—and the public—well in his new role,” Kestner said in a statement.

Dettelbach, who serves as a commissioner on the Ohio Ethics Commission, said in an interview he is honored by the Obama's nomination. "You never expect something great like this to happen," said Dettelbach, a native of Cleveland who notes his "eternal optimism" in pulling for the Cleveland Indians.

Lawyer's Records Request Reveals More Tickets for Flashing Lights

When D.C. solo practitioner Mark Zaid last month challenged an April citation for flashing his headlights to warn fellow drivers of a police speed trap, he knew his case was not the first ever. Several others were in Maryland state court that morning protesting their tickets for "prohibited use of flashing lights."

A judge tossed each ticket because the officer who wrote the citations did not show up to court. Montgomery County, Md., police said the officer was away on a military assignment. More to the point, the police department acknowledged that flashing lights to tip off drivers to a speed trap is not illegal. The department vowed to review the speed enforcement effort.

In late June, Zaid fired off a letter to the police department seeking an historical accounting of how many other drivers have been written up for “prohibited use of flashing lights.” He got his answer July 9 in an e-mail.

Between 2000 and 2008, Montgomery County police wrote 30 tickets to motorists for prohibited use of flashing lights, according to police department statistics provided to Zaid. This year alone, police through April have written 15 tickets to motorists who've been caught flashing headlights.

Count Zaid among those 15 drivers handed a $50 citation. Zaid was not immediately available for comment this morning. “Our community expects that our officers will enforce the law, not create it,” Zaid wrote in a four-page letter to the department last month.

Public Citizen Litigation Group Names New Director

Public Citizen Litigation Group senior attorney Allison Zieve this month was named director of the Washington-based public interest advocacy organization, brining a background in administrative law and federal pre-emption to Public Citizen’s top post.

Zieve, who has argued four cases before the Supreme Court, replaces Brian Wolfman. Wolfman has joined the faculty of Georgetown University Law Center as co-director of the Institute for Public Representation. Zieve has spoken and written about topics that include tobacco regulation and the Freedom of Information Act. Public Citizen's announcement is here.

Zieve runs Public Citizen’s Alan Morrison Supreme Court Assistance Project, which offers assistance to attorneys litigating public interest issues in the Supreme Court. Zieve argued for the petitioners in two recent federal pre-emption cases that were decided in the 2008 termRiegel v. Medtronic and Warner-Lambert v. Kent. The Court in Riegel ruled for federal pre-emption in a suit seeking damages for a faulty medical device. In Warner-Lambert, the Supreme Court rejected the drug industry's immunity claim for suits in Michigan, a win for for the injured patients in the case.

Zieve says she’s excited to “put her stamp” on Public Citizen. “I’m looking forward to both continuing and expanding our vibrant practice on issues of importance to consumers across the country,” Zieve says.

Skadden's Robert Bennett to Investigate Marion Barry Contracts

The D.C. Council has tapped Robert Bennett of Skadden, Arps, Slate, Meagher & Flom, veteran of many highly political cases, to investigate whether Councilman Marion Barry (Ward 8) violated ethics rules when he hired his then-girlfriend Donna Watts-Brighthaupt as a contractor in his office in October.

During a spirited press conference this evening, from which two council members walked out, Council Chairman Vincent Gray said he will introduce a resolution on Monday to officially hire Bennett and lay out the scope of his investigation. Gray said the investigation was sparked by the Watts-Brighthaupt contract, but he would not rule out the possibility that other contracts issued by Barry and three other council members might also be looked at.

Gray mentioned 11 contracts, mostly for information technology work for specific committee Web sites and similar projects. He said that, in addition to Barry, council members Kwame Brown (At large), Michael Brown (At large), and Jim Graham (Ward 1) have issued contracts.

According to Gray, Barry had the largest contract, hiring a media relations professional for $22,500. So far, Watts-Brighthaupt has been paid $15,000 to focus (according to Barry) on poverty issues.

Bennett, who will work for the council on a pro bono basis, is no stranger to high-profile controversies. He was President Bill Clinton’s personal attorney in the Paula Jones case, and he represented then-New York Times reporter Judith Miller in the CIA leak investigation. He has also served as special counsel to the Senate Select Committee on Ethics in several major investigations.

At the press conference, Bennett said he plans to put together a team of three or four lawyers for the investigation "as soon as [he] sees the resolution and the contracts." Robyn Carr, a Skadden associate, joined him at the conference, and he said she will be working on the investigation.

Bennett said it was too early to say how long the investigation might take. "But you'll find that when someone is working pro bono, they tend to move much more quickly," he joked.

Gray, who said he knew Bennett, explained that he asked Bennett to conduct the investigation based on his "sterling reputation and impeccable credentials." Gray added that Bennett will have subpoena power during the investigation.

Barry, who also attended the press conference at the John A. Wilson Building, said he plans to fully cooperate with the investigation.

Barry limited his comments to a brief statement. In that statement, he said, "When Mr. Bennett finishes his investigation, he will find that [Watts-Brighthaupt's] qualifications exceed the requirements, and the work product exceeds the $15,000 she was paid."

Barry added, "I also want to say I believe in innocent until proven guilty." At those words, Councilman David Catania (At large) said, "I can't take any more of this," and walked out. Councilwoman Mary Cheh (Ward 3) followed.

According to Gray, a review of how the council issues contracts was already being considered, but it was pushed to the forefront by the recent controversy. Gray said he plans to have the council put together a new code of ethics regarding contracts by the start of the next fiscal year.

Court Rules For Government in 'Jerusalem, Israel' Passport Dispute

Treading into Middle East foreign policy, a federal appeals court in Washington today upheld the dismissal of a suit where a U.S. citizen born in Jerusalem wants "Israel" identified as the birth country.

The federal government does not recognize any one country or political body as having sovereignty over Jerusalem, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit noted in its opinion today.

A provision in the Foreign Relations Authorization Act of 2002 said a person who is born in Jerusalem can have Israel designated as the country of birth. President George W. Bush, in a signing statement that year, declared that section of the bill would interfere with the president’s authority to conduct foreign affairs. Bush said the policy regarding Israel had not changed.

The parents of Menachem Zivotofsky, a boy who was born in Jerusalem in October 2002, sued the government in U.S. District Court for the District of Columbia. A judge dismissed the suit on, among other things, the ground that the court lacked jurisdiction to decide a question reserved for the political branches.

Nathan Lewin of D.C.’s Lewin & Lewin argued for Zivotofsky in the D.C. Circuit in Ocober, saying that Congress has enough authority over passports to declare that a person born in Jerusalem should be able to identify the birth country as Israel. Lewin argued that he was not asking the court to decide the status of Jerusalem because Congress had already done that in the law it passed. Justice Department attorney Lewis Yelin argued for the government.

Writing for the appeals court, Judge Thomas Griffith said the president “has exclusive and unreviewable constitutional power to keep the United States out of the debate over the status of Jerusalem.” Griffith and Senior Judge Stephen Williams decided the case on a jurisdictional ground and did not reach the merits over whether the provision in the Foreign Relations Authorization Act of 2002 is constitutional.

“Because the judiciary has no authority to order the Executive Branch to change the nation’s foreign policy in this matter, this case is nonjusticiable under the political question doctrine,” Griffith wrote.

Senior Judge Harry Edwards wrote separately but agreed with the outcome. In his opinion, Edwards found the provision in the act unconstitutional.

D.C. Circuit Judge Calls for En Banc Court to Review Speech-or-Debate Protection

A judge on the U.S. Court of Appeals for the D.C. Circuit is calling for an en banc hearing to clarify the scope of protection accorded to statements made during congressional ethics investigations, according to an opinion unsealed today.

Judge Brett Kavanaugh was part of a three-judge panel that ruled from the bench in favor of a congressman whose lawyers argued in January in a rare-closed door hearing that documents and testimony provided to the House Ethics Committee cannot be used against the congressman during a grand jury investigation.

The D.C. Circuit provided its first public analysis of the case in the opinion unsealed today. The appeals court unanimously reversed a trial court ruling that the congressman must turn over documents and other testimony to prosecutors via a grand jury subpoena. Then-Chief U.S. District Judge Thomas Hogan of the District of Columbia had ruled for the Justice Department in May 2008. The appellate court's redacted opinion, dated June 23, is here. Hogan has not released his opinion.

The D.C. Circuit opinion does not reveal the congressman’s identity, and it does not name his lawyers. But after oral argument in the case this year, The Washington Post identified the congressman as ex-Rep. Tom Feeney (R-Fla.), who was part of the government's investigation of lobbyist Jack Abramoff. Feeney’s lawyer, Patton Boggs partner Robert Luskin, declined to comment to the Post and to Legal Times in February. Luskin was not reached today for comment.

According to the D.C. Circuit opinion, lawyers for the congressman argued that the documents the government wants to review are protected by attorney-client privilege and the work product doctrine. They also said the documents are protected congressional speech under the Constitution’s Speech or Debate Clause. The D.C. Circuit rejected the government’s position that the congressman was acting in his personal capacity—and not in a legislative one—when his lawyers provided statements to the House Ethics Committee.

After a federal grand jury began its own investigation, the congressman refused to meet with prosecutors to talk about his Ethics Committee submissions, according to the appellate court opinion. Prosecutors hit lawyers and a law firm with subpoenas compelling the release of documents and testimony submitted to the Ethics Committee.

Judge Douglas Ginsburg, joined by Kavanaugh and Senior Judge Stephen Williams, wrote that the material at issue is protected and cannot be compelled by subpoena in a criminal investigation.

Writing separately, Kavanaugh called for an en banc court—at an appropriate time—to harmonize conflicting opinions in the D.C. Circuit. The appeals court has twice ruled on whether information provided to a congressional ethics committee is protected and reached two differing opinions.

Those opinions, Kavanaugh noted, are in “great tension with one another” and have created uncertainty. The scope of the privilege, the judge said, “must be clear and predictable” for it to work. Kavanaugh's position: a congressman's testimony in a congressional investigation is protected without qualification.

“In the context of a specific case, the need for evidence usually will seem weightier than those long-term structural safeguards,” Kavanaugh wrote in the opinion released today. “But courts must respect the constitutional balance between the Legislative and Executive Branches regardless of the perceived needs of the moment.”

Council for Court Excellence Publishes Guide to D.C. Juvenile Justice System

The Council for Court Excellence has published a Guide to the D.C. Juvenile Justice System that is designed to explain to the public how the system operates.

The guide, the first of its kind, discusses how a case moves from arrest to discharge, what roles various government and non-governmental agencies and individuals play, and what rights victims of juvenile crime have.

The CCE’s guide grew out of an effort to improve the juvenile justice system in Washington, but before long, the board realized that few people understood how it worked in the first place, says Marie Johns, the chairwoman of the council’s board.

In a statement, Robert Spagnoletti, a partner at Schertler & Onorato who led the committee that produced the guide, said "Last year nearly 3,400 youth were prosecuted in the D.C. Superior Court's juvenile court. For these youth and their families, the system has been utterly bewildering. They have had to rely on information gained in a haphazard fashion and often by word-of-mouth. The information in this guide will be a great help to youth and their families, but it will be just as important to victims of juvenile crime, who also need to know how things work."

Electronic copies of the guide may be obtained by downloading it here.