The BLT: The Blog of Legal Times

Supreme Court Declines Review of Judicial Pay Case

By Marcia Coyle

The U.S. Supreme Court on Monday refused to hear the government's appeal of a decision finding that Congress violated the compensation clause when it withheld cost of living salary adjustments for federal judges in the 1990s and in 2007 and 2010.

The denial of review in U.S. v. Beer ended litigation that had roots more than three decades ago.

The en banc U.S.. Court of Appeals for the Federal Circuit ruled last fall that a 1989 law prevented Congress from abrogating the law 's "precise and definite commitment" to automatic yearly cost of living adjustments for sitting members of the judiciary. The appellate court ruling is here.

Check back in later for an update on today's Supreme Court action.

U.S. Supreme Court Visitor Presses False Arrest Case

A man who was arrested inside the U.S. Supreme Court last year for refusing to remove his jacket is fighting to keep alive his lawsuit in Washington federal district court.

The high court visitor, Fitzgerald Scott, was wearing a jacket painted with the words "Occupy Everywhere." The authorities determined the clothing, with its accompanying message, violated a federal law that restricts certain expressive activity inside the Supreme Court. Scott refused to remove the jacket. He was arrested.

Scott alleges in his suit in U.S. District Court for the District of Columbia that the authorities had no ground to arrest him. U.S. Justice Department lawyers said in February, in court papers seeking the dismissal of the case, that federal law prohibited the political message on Scott's jacket. Police had ample cause to ask Scott to remove the jacket or leave the building, according to DOJ.

Scott's attorney, Jeffrey Light, a Washington solo practitioner, this week responded to the government's effort to end the case. How to resolve the dispute? Light pointed to a 1971 case in which the high court reversed the conviction of a man who wore a jacket that said "F---k the Draft" inside a courthouse in Los Angeles.

Judge Orders Man Jailed in Landmark GPS Case

The Washington man who was at the center of the U.S. Supreme Court’s landmark ruling over GPS tracking will remain locked up pending his fourth trial, a federal judge ruled today.

U.S. District Judge Ellen Segal Huvelle concluded no condition of release would “reasonably assure” the safety of the public. The defendant, Antoine Jones, has remained in custody since his arrest in late 2005 for his alleged role in a drug trafficking ring.

Prosecutors brought Jones to trial three times since then. After the first mistrial in 2007, prosecutors a year later landed a conspiracy conviction and a life sentence. But the U.S. Court of Appeals for the D.C. Circuit, in 2010, erased the victory.

Judge: DOJ Victory a 'Warning, Not an Invitation'

A federal appeals court in Washington today unanimously overturned the suppression of evidence in a drug trafficking case, giving the government a second chance. But one judge on the panel cautioned that the U.S. Justice Department and police should not celebrate.

"[W]hile the government ultimately prevails, its victory should be looked upon as a warning, not an invitation," Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit said in the court's ruling. "We have found probable cause by only a hair’s breadth."

The issue in the case: whether an officer's alleged false statements in a search warrant affidavit doomed the entirety of the warrant and, as a result, all the stuff the police seized.

The lawyers for the defendant, a man named Jared Cardoza, successfully argued in the trial court that a District of Columbia police officer lied in the affidavit about certain visual observations of Cardoza and certain statements he allegedly made.

Bingham Bolsters Antitrust, White-collar Practice in D.C.

Bingham McCutchen is adding two attorneys from the U.S. Justice Department and the Federal Trade Commission to the firm’s Washington office.

Darren Tucker, a former senior competition advisor at the FTC, and Michael Whitlock, a DOJ Antitrust Division prosecutor, join the firm as partners in the antitrust, competition and trade regulation group.

At the FTC, Tucker was the top advisor to Commissioner Joshua Wright. Tucker was also the primary drafter of the In the Matter of North Carolina Board of Dental Examiners decision. The FTC in 2011 ruled the board violated the agency's rule on deceptive trade practice when it sought to block non-dentists from providing teeth whitening services.

During his tenure at DOJ, Whitlock investigated price fixing, bid rigging and market allocation by auto-part companies. Whitlock participated in the antitrust price-fixing prosecutions of freight services companies Horizon Lines LLC and Sea Star Lines LLC.

Judge Reverses Suspensions of Two Prosecutors in Ted Stevens Case

The U.S. Justice Department violated internal procedure in disciplining two federal prosecutors accused of ethical misconduct in the corruption case against Ted Stevens, a judge concluded in a ruling that voids the suspensions imposed on the two attorneys.

Benjamin Gutman, an administrative judge who hears Merit Systems Protection Board disputes, said the department shirked procedure when a senior management attorney was allowed to take over for the rank-and-file lawyer who was assigned to make a recommendation about whether the prosecutors committed misconduct.

The ruling vacating the suspensions marked the latest chapter in the saga of the Stevens case, which collapsed in Washington federal district court in 2009 amid allegations of prosecutorial misconduct. A court-appointed attorney who investigated the failures in the case did not recommend criminal charges against any of the Stevens prosecutors.

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.

The Morning Wrap

Corporate Scorecard: The value of corporate transactions in 2012 was up in both mergers and acquisitions and capital markets work, The American Lawyer reports. For its annual Corporate Scorecard, the publication interviewed practitioners at a dozen firms about the deal environment in 2012 and their thoughts on 2013.

Texas Slayings: Texas authorities are investigating the slayings of a state prosecutor and his wife who were found dead on Saturday, The Dallas Morning News reports. The murders of Kaufman County District Attorney Mike McLelland and Cynthia Woodward McLelland came less than two months after Kaufman County Assistant District Attorney Mark Hasse was killed.

FBI Director: Lisa Monaco, who stepped down this month as the head of the U.S. Justice Department's National Security Division to become President Barack Obama’s chief counterterrorism adviser, is among the top contenders to replace FBI Director Robert Mueller when he leaves the bureau on September 4, The Washington Post reports.

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.