The BLT: The Blog of Legal Times

FBI Agent's Lawyers Want D.C. Circuit Ruling Left Alone

Lawyers representing an FBI agent in a retaliation suit against the agency have asked a federal appeals court in Washington to keep intact its ruling that sent the case back to the trial court for further proceedings.

The plaintiff, Wilfred Rattigan, who’d won a $300,000 judgment in Washington federal district court on claims that the FBI retaliated against him, said the appellate ruling in the case, while flawed, should not be overturned.

A divided U.S. Court of Appeals for the D.C. Circuit in June remanded the case for further proceedings, vacating the judgment but not blocking a second trial.

In his complaint, Rattigan, a former legal attaché in Saudi Arabia, alleged the FBI retaliated against him for his complaints about race and national origin discrimination. Rattigan, a Jamaican-born Muslim, said supervisors created a report about him and sent it to the agency’s security division to investigate his security clearance.

Rattigan’s lawyers, Jonathan Moore of New York’s Beldock Levine & Hoffman and James Klimaski & Associates, in Washington, said in court papers (PDF) filed Aug. 26 that the U.S. Justice Department has taken an “extreme” position in the litigation.

Under the DOJ scheme, Rattigan’s attorneys said, an executive branch employee at any level “would be free to discriminate and retaliate against their colleagues as long as they characterize their discrimination or retaliation as related to a security clearance.”

“Vast categories of people would lose their right to be free from discrimination and retaliation in the workplace,” Rattigan’s lawyers said.

Chabad Gets Go-Ahead to Pursue Return of Religious Texts

A Washington federal judge granted Chabad-Lubavitch permission Tuesday morning to execute a judgment against the Russian Federation for the return of thousands of religious texts seized in the early 20th century.

U.S. District Court Chief Judge Judge Royce Lamberth, in an opinion (PDF) published this morning, wrote that Chabad had met the requirements for notifying the Russian government about the judgment and was free to begin seeking means of enforcement. The Russian defendants previously notified the court that they no longer planned to participate in litigation or recognize court orders as binding.

Lamberth denied — at least for the time being — Chabad's request for civil contempt sanctions against the Russian defendants for their failure to comply with Lamberth’s orders. He wrote that the defendants will get an additional 60 days to receive notification of the possibility of penalties and respond.

Although the Russian Federation is no longer litigating the case, it announced a freeze on art loans to the United States and recalled art already on loan in response. Russian officials expressed concern that Chabad would try to enforce the judgment by seizing art on loan from the Russian Federation to the United States.

Chabad has repeatedly said it won’t go after any art protected by international laws governing the exchange of artwork and artifacts. The Justice Department entered a statement of interest in the case in June, expressing similar concerns that any order from the court should make it clear that protected Russian art and artifacts are off limits.

Lamberth said that while the law is already clear on what items can be used to enforce a judgment, he appreciated Chabad’s assurances. The court has to approve any assets Chabad might present to execute the judgment.

Nathan Lewin of Washington’s Lewin & Lewin, an attorney for Chabad, said today that he was encouraged that Lamberth left the door open to civil contempt sanctions in the future. He said he and his clients are seeking any Russian assets that could be used to enforce the judgment, but ultimately just want the texts in question back.

“It would behoove, I would think, the Russian government to work out some arrangement under which they would return these religious treasures,” he said.

Chabad, an orthodox movement within Judaism, wants the Russian government to turn over approximately 12,000 books and manuscripts seized during the Bolshevik Revolution and Russian Civil War in the early 20th century and 25,000 pages of handwritten texts stolen by Nazis during World War II and then taken by Russian soldiers once the war was over.

Yevgeniy Khorishko, press secretary for the Russian Embassy in Washington, declined to comment on the opinion.

Judge Rules Nonprofit Can Sue Ex-Intern Accused of Document Theft

The Council on American-Islamic Relations Action Network can move ahead with a lawsuit against a former intern accused of stealing more than 12,000 internal documents, a Washington federal court judge ruled on Friday.

The group is suing the former intern, Chris Gaubatz, and his father, author and self-described counterterrorism researcher Paul Gaubatz. The Washington-based Muslim advocacy nonprofit claims Chris Gaubtz posed as a Muslim college student as a ruse to secure an internship, and then stole the documents and e-mails for his father.

That Chris Gaubatz obtained the internal documents and gave them to his father is undisputed; in Paul Gaubatz’s 2009 book, “Muslim Mafia: Inside the Secret Underworld that’s Conspiring to Islamize America,” he describes the plan at-length. The two sides dispute whether the documents were taken unlawfully and also whether the publication of the documents constitutes protected speech.

The father and son filed for dismissal (PDF), claiming that Paul Gaubatz had a First Amendment right to publish information based on the documents his son obtained from the organization, among other things.

In an opinion (PDF) issued Friday, U.S. District Court Judge Colleen Kollar-Kotelly disagreed, writing that the First Amendment doesn’t always protect the publication of information that was unlawfully obtained. The question of lawfulness in this case is one for discovery and trial, she wrote.

“The protections afforded by the First Amendment, far reaching as they may be, do not place the unlawful acquisition of information beyond the reach of judicial review,” she wrote.

Kollar-Kotelly did dismiss one of CAIR-AN’s claims against the defendants, relating to allegations that Chris Gaubatz unlawfully made copies of e-mails and other electronic documents. The judge dismissed the group’s conversion claim, writing that the complaint is “devoid of any allegation that Defendants deleted, corrupted, or otherwise interfered with Plaintiffs’ control over their electronic data.”

The nonprofit is being represented by in-house counsel Nadhira Al-Khalili, who could not be reached this afternoon. Lead counsel for the defendants is Martin Garbus of New York’s Eaton & Van Winkle, who also could not immediately be reached.

U.S. to Russia: No Artwork Seizures in Chabad Case

In enforcing a judgment against the Russian Federation over the return of sacred texts to a Jewish group, the Justice Department filed a notice (PDF) last night that it would not support the seizure of any Russian art or artifacts on loan to U.S. museums.

Expressing fear for the safety of its artifacts in light of the judgment, the Russian government ordered a ban on art loans to the United States and the return of objects already on loan.

Chabad-Lubavitch, the plaintiff in the case, filed several notices last month with U.S. District Court Chief Judge Royce Lamberth that it had no intention of going after Russian art at U.S. museums. Chabad has asked for civil sanctions if the Russian government continues to disobey Lamberth’s order last summer that the texts be returned.

The Justice Department told the court it was weighing possible involvement in the case in April, but at the time didn’t specify a reason. Later filings from Chabad showed that both U.S. State and Justice Department officials were concerned about the Russian Federation’s art ban.

In the statement of interest filed last night, the department repeated its support for the return of the texts, noting that, “Since the early 1990s, the Executive Branch has made extensive diplomatic efforts to help Chabad gain possession of those materials.”

Thanking Chabad’s attorneys for acknowledging that they would not go after Russian art in the U.S., the department wrote that it wanted to make sure any future attachment orders are as specific as possible and rule out any claim to Russian cultural objects.

“If the Russian government continues with these threats about the exchange of artwork, it’s only doing it as a ploy to prevent enforcement of the judgment in our case. It calls the Russian’s bluff on this, which I think is very good,” said Chabad's attorney, Nathan Lewin of Washington's Lewin & Lewin.

Legal Misconduct Accusations Fly In Suit Against Muslim Civil Liberties Group

A fraud suit against Washington-based Council on American-Islamic Relations is fast becoming more about the credentials and political leanings of the attorneys involved than about the underlying case.

CAIR, a national Muslim civil liberties organization, is facing several separate cases in U.S. District Court for the District of Columbia. The complaints allege (PDF) that the organization sent individuals seeking legal help to a man who had falsely represented himself as an attorney, and then took steps to cover it up when clients complained.

While CAIR has denied any wrongdoing – the group claims the man was an outside contractor and that they took immediate action after they learned he was a fraud – filings show the case has increasingly become about the behavior and background of attorneys on both sides.

Counsel for the plaintiffs, solo practitioner David Yerushalmi, filed a motion for a protective order (PDF) yesterday afternoon, claiming that CAIR in-house counsel Nadhira Al-Khalili has been using depositions to personally attack Yerushalmi.

“In each deposition, Defendant CAIR’s counsel, Nadhira Al-Khalili, asked Plaintiffs whether they had investigated their attorney before retaining him,” Yerushalmi wrote in the motion. “Al-Khalili then resorted to a patently false public narrative that Defendant CAIR has propagated throughout the Internet that Plaintiffs’ counsel is an Islamophobe, bigot, racist, and misogynist.”

The case has been politically-tinged from the beginning. CAIR, in its motion to dismiss (PDF) the case, accused Yerushalmi of pursuing the fraud cases in an attempt to “take down” the organization. The organization has previously labeled a group Yerushalmi founded, the Society of Americans for National Existence, as a “hate group.”

On the other side, Yerushalmi has referred to allegations unrelated to the underlying case about CAIR’s purported ties to terrorist organizations. In response to admonitions from U.S. District Court Judge Paul Friedman to keep the case focused on the facts, Yerushalmi claims that he brought those issues up to combat CAIR’s argument that it is a legitimate civil rights group.

Yerushalmi and Al-Khalili did not immediately return a request for comment this morning.

Rabbi Pursues Class Action Over D.C. Special Election During Passover

Updated at 2:02 p.m.

Washington's April 26 special election is long over, but a local rabbi is continuing his legal action against the city for failing to remedy the election date's conflict with a Jewish holiday.

Rabbi Shmuel Herzfeld, who leads Ohev Shalom - The National Synagogue, had originally sued the city before the election, pointing out that April 26 is one of several days when observant Jews are barred from signing their name or completing an electronic circuit, in effect precluding them from casting a ballot.

Herzfeld unsuccessfully asked the court for an injunction requiring the District of Columbia Board of Elections and Ethics to keep the polls open late, since the religious prohibition on voting would end after sundown.

U.S. District Court Judge Emmet Sullivan criticized the city’s handling of the elections schedule, but denied the request. Since early absentee voting was already underway and the city was offering several alternative absentee voting options, Sullivan said, the rabbi’s claims did not meet the standard for the “extraordinary” measure of an emergency injunction.

Herzfeld’s attorney, Steven Lieberman of Washington’s Rothwell, Figg, Ernst & Manbech, said at the time that his client was mulling an appeal, but subsequent amended complaints filed with the court show Herzfeld opted to pursue a class action against the city to prevent future conflicts. The most recent amended complaint (PDF) was filed Friday.

"The whole purpose of the continuation of the lawsuit is to get the board of elections to agree to do the right thing, to agree to do what the judge told the board it should be doing," said Lieberman (Lieberman represents the National Law Journal's parent company, ALM).

A representative with the elections board could not immediately be reached for comment today.

At issue is D.C. law that lays out scheduling in the event of a special election. The board is required to schedule a special election on the first Tuesday following 114 days since the certification of a vacancy.

During the emergency injunction hearing, attorneys for the board and the city had argued that the law only allows for an extension of polling hours in the event of an emergency or by court order. Religious observances do not qualify as an emergency, they argued, going so far as to say that they wouldn’t be able to change the scheduling even if the election fell on Christmas Day. Herzfeld and Lieberman have expressed doubts about that statement.

The city's attorney had also argued that Herzfeld and other observant Jews were not being denied the right to vote entirely, pointing to several options provided for absentee voting.

In denying Herzfeld’s request, Sullivan had expressed his disappointment with election officials for failing to seek a court order to alter voting hours, saying he “would have happily granted such an order.”

Herzfeld and his co-plaintiffs are alleging that by requiring observant Jews to take more steps to vote than other residents, the board violated their First and Fifth Amendment rights. The class is seeking a court order that would require the city to take any necessary steps to prevent a future scheduling conflict, or, in the event a conflict cannot be avoided, to extend polling hours.

“There is a reasonable expectation that Observant Jewish voters residing in the District of Columbia may be subject to the same problems in the future – particularly since there are ten Tuesdays within the next three years on which Observant Jews would be prohibited from voting,” the complaint states.

Government Weighing Action in Chabad Lawsuit Against Russian Government

The U.S. Department of Justice is considering whether to get involved in a lawsuit brought against the Russian Federation over the return of Jewish religious documents seized in the early 20th century.

On Friday, attorneys for the U.S. government filed a notice of potential participation (PDF) in the case, stating that they would decide whether to file a formal statement of interest by May 16. The notice comes two weeks after the plaintiff in the lawsuit, Chabad-Lubavitch, asked the court to place civil contempt sanctions on Russia for failing to comply with a previous court order to turn over the documents. That motion can be found here (PDF).

Attorneys for the U.S. government, referring to Chabad’s request for sanctions, stated in their notice that, “Certain issues raised by that Motion may be of interest to the United States,” but did not specify further. DOJ spokesman Charles Miller said in an e-mail this morning that more information on the government’s interest in the case would only become available if they decide to formally participate.

Chabad, an orthodox movement within Judaism, is suing the Russian government in U.S. District Court for the District of Columbia, seeking the return of approximately 12,000 books and manuscripts seized during the Bolshevik Revolution and Russian Civil War in the early 20th century and 25,000 pages of handwritten texts stolen by Nazis during World War II and then taken by Russian soldiers once the war was over.

U.S. District Court Chief Judge Royce Lamberth entered a default judgment against the Russian government on July 30, ordering authorities to turn over the texts. The Russian government had previously notified the court that it no longer intended to recognize its orders as binding.

On April 4, Chabad filed a motion asking Lamberth to place steep monetary penalties on the Russian government in light of their failure to comply with Lamberth’s order.

The government has asked the court to hold off on ruling on Chabad’s motion until the May 16 deadline.

Chabad’s lead counsel, Nathan Lewin of Washington’s Lewin & Lewin, said Monday that attorneys for the government have not told him the extent of their possible involvement in the case.

“I would trust they would come out on our side,” he said. “[U.S. officials] have made public promises to Chabad that they would be supportive to get those documents back.”

Judge Denies Request to Reschedule D.C. Election for Passover

U.S. District Court Judge Emmet Sullivan has denied the request of a Washington rabbi seeking to have an upcoming local election rescheduled because it conflicts with a Jewish holiday.

In a ruling late this afternoon, Sullivan said that because the city was offering several alternative absentee voting options, the rabbi’s claims did not meet the standard for the “extraordinary” measure of an emergency injunction.

Rabbi Shmuel Herzfeld, the rabbi of an Orthodox synagogue in northwest Washington, had sued the District of Columbia Board of Elections and Ethics over a special election scheduled for 7 a.m. to 8 p.m. on April 26, also the eighth and final day of Passover. On the first, second, seventh and eighth days of Passover, observant Jews are prohibited from signing their name or completing an electronic circuit, in effect precluding them from casting a ballot.

The rabbi had claimed that the city’s failure to act on the conflict was a constitutional violation, because officials were “imposing a burden on observant Jewish voters that is not imposed on any other voters.” Herzfeld had asked the judge to either reschedule the election or extend voting hours until 10 p.m., since Passover ends on April 26 at 8:40 p.m. The city had argued that the alternative options for voting were more than sufficient, and also that its hands were tied in scheduling by election statutes.

In denying the rabbi’s request for an emergency order (PDF), Sullivan did not dismiss Herzfeld’s case against the city, adding that the rabbi could still pursue his original claims (PDF) that his First and Fifth Amendment rights had been violated in how the election was handled.

The judge also expressed disappointment that election officials had failed to ask the court for an order to fix the conflict as soon as they were aware of it in late March; under D.C. law, only a court order can alter voting hours in these special elections.

“This court would have happily granted such an order,” he said.

Sanctions Requested Against Russian Government for Failure to Return Jewish Texts

Eight months after the Russian Federation was ordered to turn over tens of thousands of pages of texts seized from Jewish religious leaders during the early 20th century, the books, manuscripts and other sacred documents are nowhere to be found.

Chabad-Lubavitch, an orthodox movement within Judaism, filed a motion on Monday in Washington federal court asking for civil contempt sanctions (PDF) to be placed against the Russian government. On July 30, U.S. District Court Chief Judge Royce Lamberth entered a default judgment (PDF) against Russia, ordering them to turn over the texts; the Russian government had previously notified the court that they no longer planned to recognize its orders as binding, claiming a lack of jurisdiction.

Chabad is fighting for the return of approximately 12,000 books and manuscripts seized during the Bolshevik Revolution and Russian Civil War in the early 20th century and 25,000 pages of handwritten texts stolen by Nazis during World War II and then taken by Russian soldiers once the war was over. More on the case can be found here.

The lawsuit was moved from a California federal court to Washington in 2006. Following a ruling from Lamberth that granted Chabad only some of the documents in question, both sides appealed to the U.S. Court of Appeals for the D.C. Circuit. The appellate judges found Chabad had grounds to sue for the return of all of the texts.

In June 2009, the Russian government notified the court (PDF) that they no longer planned to participate or recognize the court’s rulings as binding; their relationship with attorneys from Washington’s Squire, Sanders & Dempsey ended shortly after. Chabad moved for default judgment, which Lamberth granted on July 30, 2010.

The defendants were served with a notice of the order, according to Chabad’s motion for sanctions filed yesterday, but “both Chabad and the Court continue to wait empty-handed for delivery of the Library and Archive.”

Chabad is asking the court to place significant monetary sanctions on the Russian government, noting that civil contempt sanctions are not punitive and are meant to force action. The motion cites previous cases in which the court levied sanctions as high as $500,000 per day to force compliance with court orders.

In previous filings, the defendants have stated that diplomacy, not the courts, is the proper realm to settle the dispute.

Chabad’s attorney, Nathan Lewin of Washington’s Lewin & Lewin, said in a phone interview this morning that a recent appeals court decision upholding monetary contempt sanctions against the Democratic Republic of Congo set the stage for Chabad to file its motion yesterday.

“As the D.C. Circuit said… you can enter a contempt order and that’s certainly within the court’s power,” he said. “We’re just going to move ahead aggressively.”

Updated at 1 p.m. to correct the definition of Chabad.

Morning Wrap

Verrilli Grilled: Yesterday's confirmation hearing for Solicitor General nominee Don Verrilli Jr. showed that Republicans are still angry over the Obama administration's decision to no longer defend the Defense of Marriage Act. We had the story on the hearing for Verrilli and two other Justice Department nominees here last night.

Budget Breakthrough? The bipartisan bickering over the federal budget may be morphing into real negotiations between both parties with a goal of $33 billion in cuts, according to this story in The Washington Post.

Bloch Sentenced: A federal judge in D.C. yesterday sentenced former special counsel Scott Bloch to one month in prison for contempt of Congress, concluding a lengthy debate over whether the conviction carried a mandatory prison sentence. Mike Scarcella's report is here. An appeal is likely.

Law School Standards: The Association of American Law Schools is raising concerns about the American Bar Association's revamp of law school accreditation standards, our Karen Sloan reports here. Tenure and distance learning are among the sticking points.

Scalia's Lead Foot: News of Supreme Court Justice Antonin Scalia's recent fender-bender did not surprise those who knew of his reputation for fast driving. Justice David Souter even made a crack about it during oral an argument in 1996, as we reported here yesterday. The story first appeared in our newsletter Supreme Court Insider.

Mum Mormons: You might expect that the debut of a Broadway musical that mocks Mormons would draw angry criticism from church leaders. But The New York Times reports here that the church, for the most part, is ignoring the musical "The Book of Mormon," instead trying to benefit from the publicity. Some Mormons are even attending the show and liking it.