The BLT: The Blog of Legal Times

Protester's Claim of Unlawful Arrest for Profanity Can Proceed

An Occupy D.C. protester who claims he was unconstitutionally arrested for using profanity can proceed with his claims, a Washington federal judge ruled.

U.S. District Judge Ketanji Brown Jackson yesterday denied the government’s bid to dismiss claims against three U.S. Park Police officers. Based on facts alleged in the complaint, the judge said no officer would have reasonably found probable cause to arrest the protester, Anthony Michael Patterson, for disorderly conduct.

Jackson highlighted the First Amendment's protection of profanity. She said there was no evidence in Patterson's complaint that his speech risked provoking violence—one of the standards spelled out in the D.C. Code for disorderly conduct arrests.

Boies Schiller Partner Nominated to D.C. Federal Trial Court

Tanya Chutkan, a partner in the Washington office of Boies, Schiller & Flexner, is President Barack Obama's latest pick to serve on the U.S. District Court for the District of Columbia.

Chutkan was one of eight U.S. district court nominees the White House announced late yesterday. The president also named two nominees to federal appellate courts.

An attorney at Boies Schiller since 2002, Chutkan's practice specializes in antitrust class actions and other complex litigation. She was part of the legal team that won a $162 million judgment earlier this year in a price-fixing class action against Chinese manufacturers of Vitamin C. Her practice also includes white-collar defense.

Court Reverses Sanctions Against Tax Office for Faulty Computer System

The District of Columbia Office of Tax and Revenue's computer system was like something out of "The Terminator," Senior Judge Frank Schwelb of the D.C. Court of Appeals wrote: a machine "defying the will of those who programmed it."

For John and Sara Shuman, the faulty computer system meant years of fighting erroneous notices from the tax office, long after city officials admitted the couple was right. Schwelb had bad news for the Shumans, though—the administrative law judge who ordered the tax office to fix its computer system and imposed sanctions lacked authority to do so.

A three-judge panel today said only a D.C. Superior Court judge could have offered the type of relief the couple sought. In the same breath, though, the court said its opinion should not be read to suggest the tax office's handling of the Shuman's case was "justifiable."

Report: Former Bush Lawyer Harbored Anti-Gay Animus

Driven by an animus against homosexuals, Scott Bloch, a former head of the Office of Special Counsel in the George W. Bush administration, improperly reassigned a group of Washington employees to Detroit, according to a government report released Wednesday.

Bloch, who served as special counsel from 2003 to 2008, told a government contractor that he planned to "ship out" gay staffers and "had a license to do this," according to the 56-page report. The contractor, Richard Trefry, is a founder of Military Professional Resources Inc. and a former Army inspector general. Trefry spoke about Bloch as part of an Office of Personnel Management inspector general investigation into former employees' allegations about prohibited personnel practices Bloch may have carried out at the agency, which advocates for federal whistleblowers.

"Mr. Bloch and his immediate staff offered an array of ostensible explanations [for the reassignments] in press releases, Congressional testimony, and interviews with the investigative team, seeking to link the reassignments to the bona fide operational needs of the agency," says the report, which OPM Inspector General Patrick McFarland signed Dec. 5. "However, our investigation developed evidence which tended to undermine the proffered explanations."

Bloch, who is a solo practitioner in Washington, said in a written statement that the report is "nothing new" and "a rehash of old unsubstantiated stories and muddled statements," which he claimed he never made. He said its motive is political, adding that he has a pending lawsuit against OPM.

Lawyers Recommended to Fill D.C. Appeals Court Vacancy

The District of Columbia's solicitor general, a D.C. Superior Court judge and a law firm partner are a local commission's top picks to fill an open seat on the D.C. Court of Appeals.

Eleven lawyers and judges applied to fill Judge Kathryn Oberly's position on the city's highest local court. Oberly retired this month.

The D.C. Judicial Nomination Commission announced today that it was recommending Solicitor General Todd Kim, Judge Neal Kravitz and Paul Wolfson of Wilmer Cutler Pickering Hale and Dorr to the White House.

DOJ Wants Retrial for Accused Somali Pirate Negotiator

The U.S. Department of Justice wants another opportunity to put an accused negotiator for Somali high-seas pirates on trial.

A Washington federal jury acquitted Ali Mohammad Ali in late November on a piracy count—the most serious charge against him. The jury hung on two lesser charges related to the taking of hostages. A lawyer for the government today told the court that prosecutors planned to retry Ali on the hostage-taking charges.

Ali was accused of boarding a ship that had been taken over by pirates and helping the perpetrators negotiate a ransom. Ali maintained he was trying to free the ship's crew and gather information.

Verizon Wants Claims in NSA Surveillance Suit Dismissed

Shortly after a federal judge in Washington ruled that a National Security Agency phone surveillance program is "almost certainly" unconstitutional, Verizon Communications Inc. moved to dismiss claims against the company in the case.

The challengers sued to hold Verizon liable for allegedly complying with government requests for American citizens' phone records. Verizon said that if it was obeying court orders to provide that information-a claim the company didn't admit-that would make the telecommunications company immune from liability for any alleged privacy violations.

"Companies are required to comply with court orders and cannot be sued for allegedly doing so," Verizon's attorney, Randolph Moss of Wilmer Cutler Pickering Hale and Dorr, argued in the brief.

Judge Finds NSA Surveillance 'Almost Certainly' Violates Privacy Rights

The National Security Agency's bulk collection of telephone records likely violates privacy rights of individual Americans, a federal trial judge in Washington ruled today.

Describing the government's surveillance efforts as "almost-Orwellian," U.S. District Judge Richard Leon found the challengers in a lawsuit in Washington were likely to succeed on their Fourth Amendment privacy claims.

Leon granted an injunction that would have stopped national security officials from collecting telephone record data on two of the plaintiffs. (The challengers have not certified a class to date.) However, the judge put that order on hold pending the government’s likely appeal.

Judges Releases Report on Evidence Issues in Mass Arrests Case

A federal magistrate judge in Washington today released a 157-page report detailing evidence and testimony in a dispute over the handling of evidence from mass arrests of protesters in downtown Washington in 2002.

U.S. District Magistrate Judge John Facciola did not, however, offer his conclusions on the central issue of whether city or police officials mishandled, concealed or destroyed evidence.

Facciola, who was appointed by U.S. District Judge Emmet Sullivan to probe the evidence-related allegations as a special master, wrote that he wasn't clear on the scope of his authority at this point.

Court Adopts Broad Definition of 'Performance of Duty' in Police Case

A lieutenant in the Metropolitan Police Department who said she suffered psychological problems after facing retaliation at work should be considered an employee injured in "performance of duty," the District of Columbia Court of Appeals said.

A three-judge panel yesterday reversed the police department's decision to charge Lt. Ronda Nunnally with sick leave for missing work. Nunnally claimed she suffered psychological injuries due to retaliation from coworkers after she complained of sexual harassment by a superior.

Uniformed police department employees are not charged sick leave for injuries they sustain "from the performance of duty," according to yesterday's opinion. The appeals court was asked to decide whether Nunnally's claims met that standard.