The BLT: The Blog of Legal Times

Congress Fights Over DOJ's Civil Rights Division

The U.S. Department of Justice's Civil Rights Division has become political fodder this week, as Assistant Attorney General Thomas Perez, the head of the division, has his confirmation hearing to be the leader of the U.S. Labor Department.

Republicans on Capitol Hill are launching political attacks. On Monday, three members of Congress released a 65-page report on their investigation into Perez's involvement in a "secret deal" to settle a whistle-blower case in Minnesota, which they said was essentially an inappropriate exchange for dropping a U.S. Supreme Court appeal in an unrelated case.

The title of the report: "Department of Justice's (DOJ) Quid Pro Quo with St. Paul: How Assistant Attorney General Thomas Perez Manipulated Justice and Ignored the Rule of Law."

Good News, Bad News and Uncertainty for Defense Lawyers

Updated at 5:10 p.m.

Depending on which side of John Marshall Memorial Park in downtown Washington criminal defense lawyers practice, the budget cuts known as sequestration could mean a pinch to the bottom line at the end of the summer—or nothing at all.

Private lawyers who are paid under the Criminal Justice Act to represent indigent defendants in the U.S. District Court for the District of Columbia could go for weeks without pay this summer. The word down the street at the District of Columbia Superior Court has been cheerier. Court officials don't expect to cut CJA attorney pay, with the caveat that circumstances could change if, for instance, crime rates suddenly skyrocketed.

As officials in both courts grapple with the effects of sequestration between now and the end of the federal fiscal year on September 30, members of the CJA panels say they're waiting for official word.

D.C. Circuit Invalidates Class in Special Education Case

The U.S. Court of Appeals for the D.C. Circuit reversed the certification of a class in a sprawling lawsuit against the District of Columbia over the provision of special education services, a setback for the plaintiffs more than a year after a judge found the city liable.

In the April 12 ruling, the appeals court vacated the liability finding, ordering U.S. District Chief Judge Royce Lamberth to reconsider class certification under the U.S. Supreme Court's decision in 2011's Wal-Mart Stores Inc. v. Dukes. In Wal-Mart, the high court said a class had to suffer common harm from a policy or practice that affected each member. The three-judge appellate panel found that the plaintiffs in the special education case failed to meet that "commonality" standard.

Writing for the panel, Judge Judith Rogers said the D.C. Circuit decision did not rule out the possibility of a class or set of subclasses, a solution that the plaintiffs previously suggested. But as the class currently stood, she said, Lamberth failed to identify a "single or uniform policy or practice that bridges all their claims," except that the class members were all allegedly denied an appropriate education under federal law.

Twenty-One Lawyers Apply for Superior Court Vacancy

Magistrate and administrative law judges dominated the pool of Washington lawyers who applied to fill an upcoming vacancy on the District of Columbia Superior Court.

Of the 21 applicants hoping to fill Judge A. Franklin Burgess Jr.'s seat after he retires, seven are Superior Court magistrate judges and five are local administrative law judges. The other nine attorneys come from private practice, civil legal services groups, and government agencies.

Burgess is set to step down August 3 after serving 30 years on the bench; he has said he plans to ask for appointment as a senior judge. The District of Columbia Judicial Nominations Commission, the local body that recommends applicants to the White House for consideration, is accepting comments on the applicants by April 29.

House Votes to Shut Down Labor Board

The House voted Friday to shut down the National Labor Relations Board, with one Republican congressman calling the board "worse than useless" since a recent appeals court ruling voided the recess appointments of two board members.

The bill, called the Preventing Greater Uncertainty in Labor-Management Relations Act, calls for the NLRB to stop activity until the Senate confirms new members or the U.S. Supreme Court rules on the constitutionality of President Barack Obama’s appointments.

The House voted 219-209 to pass the bill, which will likely stall in the Democrat-controlled Senate. Under the bill, the board would also be prevented from enforcing any decision, rule or vote made after January 4, 2012, when President Barack Obama made the recess appointments.

Appeals Court Affirms Wilmer Win in Malpractice Suit

Updated at 4:24 p.m.

The District of Columbia Court of Appeals yesterday affirmed the dismissal of legal malpractice claims against Wilmer Cutler Pickering Hale and Dorr and denounced the "contumacious behavior" of the lawyer who brought the case.

Wilmer represented the lawyer, James Pietrangelo II, as part of a legal challenge to the now-defunct "don't ask, don't tell" policy. Pietrangelo was one of a dozen former armed service members that the firm represented pro bono. He was a Wilmer client from 2004 to 2006, and then split off to pursue his own challenge on his own.

Pietrangelo accused Wilmer of interfering with his efforts to take his case to the U.S. Supreme Court, according to yesterday's opinion. Trial judges who handled the dispute at different times dismissed most of his claims, and a jury found for Wilmer on the remaining counts. A three-judge appellate panel yesterday affirmed the dismissal of Pietrangelo's claims.

DOJ Wants to Add Attorneys in 2014

The U.S. Department of Justice's budget request for 2014 seeks to add dozens of attorney positions, boosting efforts to combat cybersecurity, prosecute financial and mortgage fraud and combat international piracy of intellectual property.

The $27.6 billion request is a 3 percent increase over the budget enacted two years ago in 2012, and restores the $1.6 billion in cuts in this year's budget as part of government-wide cuts called sequestration. Released Wednesday, the budget includes additional attorneys in the Criminal Division, Civil Division and Civil Rights Division, but removes attorney positions in the Antitrust Division.

"The President's budget request reflects a strong commitment to building upon the record of progress we have established in fulfilling the Justice Department's most critical missions," Attorney General Eric Holder Jr. said in a written statement.

Here is what the budget proposes for key divisions at DOJ:

Hearing Turns Political for D.C. Circuit Nominee

Sri Srinivasan strode confidently into a Senate room today for his confirmation hearing as a judge for the U.S. Court of Appeals for the D.C. Circuit. He elicited chuckles from Senate Judiciary Committee Chairman Senator Patrick Leahy (D-Vt.) during pre-hearing chit-chat. His bipartisan supporters in the room included the two Virginia senators who introduced him, five congressman and Solicitor General Donald Verrilli Jr.

But before Srinivasan even got a chance to speak, the hearing devolved into partisan arguments about the speed of judicial nominations in general. Senator Chuck Grassley (R-Iowa) used the opening statements at the hearing to announce a bill that would reduce the number of judges on the D.C. Circuit from 11 to 8.

Grassley announced he would file the legislation, cosponsored by other Republicans on the judiciary committee like Senators Mike Lee (R-Utah), Orrin Hatch (R-Utah), Jeff Sessions (R-Ala.), Jeff Flake (R-Ariz.) and Ted Cruz (R-Texas). The bill would essentially transfer those judge positions to the U.S. Court of Appeal for the Second Circuit and the Eleventh Circuit, which Grassley contends has higher caseloads per judge.

The move underscored how, despite Srinivasan’s broad support and excellent legal pedigree, his nomination to the second highest court in the United States will have to navigate one of the most gridlocked parts of a gridlocked Senate.

Check back on The National Law Journal’s web page here for more from the hearing.

DOJ Official Testifies on 'Significant Challenges' in Campaign Finance Investigations, Prosecutions

The U.S. Justice Department is “hampered” from uncovering corruption and enforcing campaign finance laws in the aftermath of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission, a top prosecutor testified Tuesday on Capitol Hill.

Current laws don’t always give prosecutors the warning signals needed to investigate when individuals or certain nonprofits might be violating campaign finance laws, said Mythili Raman, the acting assistant attorney general in DOJ criminal division.

The result: it is easier to get away with illegally buying influence over elections and concealing the conduct, said Raman, who took over the leadership of the division after the departure of Lanny Breuer last month.

U.S. Senate Confirms Patty Shwartz for Third Circuit Seat

The U.S. Senate on Tuesday confirmed Patty Shwartz of New Jersey to the U.S. Court of Appeals for the Third Circuit, more than 18 months after President Barack Obama first nominated her.

Shwartz, a federal magistrate in New Jersey since 2003, drew some opposition from Republicans who felt they did not get an opportunity to fully follow up on key issues such as her opinions on the campaign finance issues in Citizens United v. Federal Elections Commission and her views on Roe v. Wade.

Shwartz was first nominated in October 2011. The vote Tuesday was 64-34.