The BLT: The Blog of Legal Times

D.C. Judge Dismisses Suit Challenging Health Care Law

Updated 8:45 p.m.

A federal judge in Washington today sided with the Justice Department in dismissing a suit that challenged the Obama administration's health care reforms, adding to the divide in the federal judiciary over the constitutionality of the controversial legislation.

The plaintiffs in Washington federal district court sought a declaration from Senior U.S. District Judge Gladys Kessler that the individual insurance mandate in the health care law is unconstitutional on the ground it violates religious freedom.

Kessler called the individual mandate a “critical element in Congress’s comprehensive plan to reduce the spiraling health care costs that this country has experienced and is expected to experience in the future.” Click here for the 64-page ruling.

Kessler granted DOJ's motion dismiss the plaintiffs' amended complaint [.pdf], which was filed last July. A copy of the Justice Department's motion to dismiss, signed by Civil Division trial attorney Eric Womack, is here.

A lawyer for the plaintiffs, Edward White III of the American Center for Law and Justice, said the ruling disappointed the plaintiffs and that they are planning an appeal.

The plaintiffs include a 62-year-old self-employed resident of North Carolina, Margaret Peggy Lee Mead, who has not had health insurance for about 18 years. Mead and two other plaintiffs intend to refuse medical service for the remainder of their lives. Two plaintiffs in the suit said they want to pay for medical services with their own money.

Three of the plaintiffs, including Mead, believe “God will provide for their physical, spiritual and financial well-being,” Kessler wrote.

The health care law, Kessler said, will not impose a “substantial burden” on the exercise of religious beliefs. The judge said it’s unclear how the law “puts substantial pressure on plaintiffs to modify their behavior and to violate their beliefs, as it permits them to pay a shared responsibility payment in lieu of actually obtaining health insurance.”

Kessler said the individual mandate provision “serves a compelling public interest and is the least restrictive means of furthering that interest.” The government, the judge said, “has a compelling interest in safeguarding the public health by regulating the health care and insurance markets.”

The litigation, Kessler noted, is one of many similar suits in federal district courts around the country.

“The controversy surrounding this legislation is significant, as is the public’s interest in the substantive reforms contained in the Act,” wrote Kessler, appointed to the federal trial bench under President Bill Clinton. “It is highly likely that a decision by the United States Supreme Court will be required to resolve the constitutional and statutory issues which have been raised.”

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Judge Orders D.C. to Produce Wage Data for Firefighters, Paramedics

A federal judge in Washington this week ordered the District to hand over information about the wages and hours of emergency responders to the attorneys seeking economic damages for a group of paramedics and firefighters the city discriminated against.

Judge Richard Leon of the U.S. District Court for the District of Columbia told the city to produce records as part of discovery on issues of lost wages and benefits. Earlier this year, a senior judge said the city is liable for economic damages in the suit, not damages for emotional stress.

The plaintiffs, including Calvert Potter and Steven Chasin, first sued the District in 2001 over the city’s ban against facial hair for firefighters and paramedics. For religious reasons, the plaintiffs refused to shave their beards. City officials maintained facial hair posed a safety hazard for the responders, blocking a complete seal on masks.

Last year, the U.S. Court of Appeals for the D.C. Circuit upheld a trial court ruling that said the facial hair ban violated the Religious Freedom Restoration Act. The appeals court remanded the case back to the trial court for additional proceedings. For background, click here.

A lawyer for the plaintiffs, Arthur Spitzer of the American Civil Liberties Union, filed a motion to compel in October the District to produce employment-related information, including time and attendance records, overtime and retirement benefits. The plaintiffs’ attorneys want to calculate economic damages.

Spitzer, legal director of the ACLU National Capital Area, said the discovery request was first filed in December 2009 and that the District failed to provide the information months ago. “The District of Columbia’s message to the Court is that the District of Columbia does as it pleases and answers to no one,” Spitzer said in court papers this week.

Leon, the judge, gave the District about two weeks to produce the records the plaintiffs’ lawyers want to review.

Scenes from the Court: Snyder v. Phelps

The U.S. Supreme Court today heard argument in the controversial First Amendment case Albert Snyder v. Fred W. Phelps, Sr., where the high court is addressing whether protesters at a funeral are protected from liability.

Check back in with The National Law Journal's Supreme Court Insider for more on oral argument. Below are scenes outside the high court today.

Barley Snyder partner Sean Summers, above at left, argued for Snyder

Margie Phelps of Topeka, Kan., center, argued for Phelps

Seth Phelps outside the Court

Photos by Diego M. Radzinschi / The National Law Journal

Five Justices, Vice President Attend Red Mass

Five Supreme Court justices, along with Vice President Joe Biden and a host of judges and legal luminaries were on hand this morning for the unofficial launch of the Court's fall term: the annual Roman Catholic Red Mass at the Cathedral of St. Matthew the Apostle.

With soaring organ and choral music, smoldering incense, and enough red-garbed priests to cause a traffic jam in the cathedral's central aisle, the mass is a dazzling ritual that brings together civic leaders, diplomats, law deans and others to pray for a successful year in administering justice.

With the Supreme Court now composed of six Catholics, three Jews, and no Protestants, here is the official tally of Sunday's attendees: Chief Justice John Roberts Jr. and Justice Antonin Scalia, Clarence Thomas, and Samuel Alito Jr., all Catholics, and Jewish justice Stephen Breyer, all with spouses. Roberts' wife Jane is a leader of the John Carroll Society, which sponsors the event. There was one notable hands-across-the-aisle moment: Roberts and Biden shook hands during the traditional "sign of peace" exchange.

During the 1980s and early 1990s, the sermons delivered at the Red Mass were sometimes laced with messages about abortion and the right to die. Justice Ruth Bader Ginsburg stopped attending after one sermon that she later described as "outrageously anti-abortion." More recently, the homilies have been less heavy-handed, and today, the reference to controversial issues was brief.

Archbishop J. Augustine Di Noia, an American-born theologian and high Vatican official, began the sermon blessing "the distinguished justices, the judges, attorneys, and lawmakers, professors and students of the law, the law clerks and paralegals" who serve in the legal profession -- possibly the highest-level recognition of the importance of law clerks and paralegals on record.

The archbishop showed empathy for those in the legal profession. "No informed observer can fail to acknowledge that the social and cultural pluralism of our times -- not to mention the relentless and sometimes often pitiless public scrutiny to which you are subjected -- makes the work of judges and lawyers today very hard indeed."

Di Noia asserted that the principles of positive or man-made law are based on "respect for the natural law, the dignity of the human person, the inviolability of innocent life from conception to natural death, the sanctity of marriage, justice for the poor, protection of minors, and so on." That list could be read to include references to abortion, the right to die, and same-sex marriage.

Later, Di Noia lamented the perilous trend in society toward "exclusive humanism" that leaves no room for God. "That innocent human life is now so broadly under threat has seemed to many of us one of the signs of this growing peril." Washington archdiocese spokeswoman Susan Gibbs said after the sermon that Di Noia told her this reference to "innocent life" was not an allusion to abortion.

Footnote: As in past years, the Red Mass was picketed by demonstrators from a roped-off area across Rhode Island Avenue from the cathedral. This year, protestors held up signs with messages such as "Arrest the Pope," and "Pope Protects Pedos." In a way the scene served as a prelude to this Wednesday's oral argument before the Court in the First Amendment case Snyder v. Phelps involving unrelated demonstrators from the Westboro Baptist Church at the funeral of a U.S. Marine near a church in Maryland. Westboro protesters have shown up at Catholic funerals in the Washington archdiocese as well.

And those who attended the 1997 funeral of Justice William Brennan Jr. at St. Matthew's will recall that the angry voices of anti-abortion protestors outside could be heard in the cathedral during the service.

 

Federal Judge Orders Russia to Return Religious Documents

Updated 4:15 p.m.

A federal judge in Washington has sided against Russia in a dispute over the return of thousands of religious books, manuscripts and rabbinical teachings that remain overseas.

The Chabad-Lubavitch sect sued the Russian Federation in the U.S. District Court for the District of Columbia to recover some 12,000 books and manuscripts seized during the Bolshevik Revolution and Russian Civil War, and 25,000 pages of handwritten teachings and writings of Chabad religious leaders that Nazi Germany seized during the 1941 invasion of Poland. Click here for background on the dispute.

The Russian Federation’s lawyers at Squire, Sanders & Dempsey withdrew their representation last year, and the defendants announced the federation would no longer participate in the suit. The federation said it would not find an order of the court binding.

Chief Judge Royce Lamberth on July 30 issued a default judgment against Russia. The opinion was posted in the court file today.

Lamberth ordered Russia to surrender to the U.S. embassy in Moscow the complete collection of religious books, manuscripts and documents in question that are being held by the Russian State Library and the Russian State Military Archive.

Russia was also ordered to provide “whatever security and authorization is needed to insure prompt and safe transportation” of the library and the archive to a destination that the plaintiffs choose.

The judge wants the plaintiffs, represented by Nathan Lewin of Washington’s Lewin & Lewin, to report back to the court in 30 days on the progress of securing the return of the religious material. Lamberth's ruling is here.

Lewin said today the plaintiffs are prepared to move forward in federal district court to compel Russia to comply with the terms of Lamberth’s order.

“Russia walked off the court, and it can’t do that,” Lewin said. He said the plaintiffs could decide to pursue civil contempt or put financial pressure on Russia by targeting Russian assets in the United States.

A team from Bingham McCutchen that also represented the chabad issued a statement this afternoon that said in part:

“This victory is a triumph for justice for the Jewish people and others who abhor the Nazi and Soviet exploitation of victims of genocide, and the unlawful and immoral suppression of religious faith by the current Russian government,” said Bingham McCutchen Seth Gerber, a trial lawyer in the firm's Los Angeles office.

Divided D.C. Circuit Declines Review in Passport Case

A divided U.S. Court of Appeals for the D.C. Circuit this week declined full-court review in a dispute about a boy's passport, leaving one senior judge frustrated and concerned the court denied the rehearing for mere convenience's sake.

The full court decided 6-3 on June 29 not to rehear a dispute over whether the U.S. State Department can decline to stamp “Israel” as the place of birth on a passport for an American citizen born in Jerusalem. The parents of Menachem Zivotofsky sued when the government refused their request.

That suit was dismissed by the lower court, and a three-judge D.C. Circuit panel affirmed in July 2009 on the ground that the dispute raised a political question, which the court may not answer. Now, the full court has passed on taking up the case. And that’s left Senior Judge Harry Edwards miffed. (Edwards did not vote on whether to hear the case en banc. Only active judges can participate in en banc votes.)

The United States does not recognize any one country or political body as having sovereignty over Jerusalem. Still, a provision passed in 2002 as part of the Foreign Relations Authorization Act says an American citizen born in Jerusalem can have Israel designated as the birth country. President George W. Bush in a signing statement said that provision interferes with the executive’s foreign affairs authority.

Edwards was part of the panel that upheld the dismissal of the suit last year. But he disagreed with his colleagues, Judge Thomas Griffith and Senior Judge Stephen Williams, on the application of the political question doctrine. Edwards said the doctrine has no place in the suit.

This week, Edwards expressed dismay that the full court declined to hear the case en banc. (Judges Douglas Ginsburg, Judith Rogers and Brett Kavanaugh voted in favor of having a second look.) Edwards said the court is making a "serious mistake" in not taking up the case.

Elena Kagan and the Religion Clauses

Many assume that if confirmed as a Supreme Court justice, Elena Kagan's votes on the Court will come out pretty much the same way as those of her predecessor John Paul Stevens. But two separate reports issued Wednesday suggest that Kagan may part company with Stevens in cases involving religious liberty. The reports highlight  her views on the Establishment Clause and the Free Exercise Clause of the First Amendment, suggesting she may chart a different course.

In one report, scholar Melissa Rogers suggests Kagan could "move the Court closer to reinvigorating the Free Exercise Clause and thus closer to providing additional protection for the peaceful practice of all faiths." Her study, issued by the Brookings Institution, notes that Justice John Paul Stevens, whom Kagan is set to replace, was an ally of Justice Antonin Scalia when it came to free exercise matters; both approved of generally applicable laws that burdened religious practices, as long as they weren't aimed at undermining those practices. Stevens joined Scalia's majority opinion in Employment Division v. Smith, the controversial 1990 decision that gave a "weak reading" of the Free Exercise Clause, as Rogers put it.

Based on some of Kagan's writings revealed in recent documents released by the Clinton presidential library, Rogers suggests that Kagan may have markedly different views on the issue, and her nomination "could mark the first time a critic of the 1990 Smith decision ... replaces a supporter of that decision."

Rogers points to a 1996 memo from Kagan in the White House counsel's office concerning a California court ruling that upheld the application of a law barring housing discrimination against a religious landlord who refused to rent to an unmarried couple. Kagan called the California decision "quite outrageous" and urged an appeal of the ruling, lest it undermine the Religious Freedom Restoration Act, which was aimed at countering the 1990 Smith decision. Rogers acknowledges that Kagan might have been just advancing President Clinton's agenda on the issue, not her own view of the matter. But she said the memo "points toward a deep understanding of some of the fundamentals of religious freedom."

The other report issued Wednesday treats Kagan's views on the issue with alarm. Her memo on the California case "raises many questions," according to Americans United for Separation of Church and State. Kagan also described herself as "the biggest fan" in the White House of RFRA and its successor the Religious Liberties Protection Act. For Americans United executive director Rev. Barry Lynn, these views raise concerns that she may slight civil rights protections in the name of protecting religious practices. "For Americans United, maintaining civil rights protections in federally funded programs and in the private sector is absolutely critical," Lynn wrote in a letter to the Senate Judiciary Committee, urging senators to ask Kagan about religious liberty issues.

Americans United also questions Kagan's views on the Establishment Clause. Various Clinton-era memos suggest she did not support a legislative amendment that would have prevented "pervasively sectarian" organizations from receiving government funding for social services. Senators, Lynn said, "should determine whether Kagan is committed to the Establishment Clause principle that the government may not fund 'pervasively sectarian' organizations and that, as a Supreme Court justice, Kagan would not bargain away those core religious freedoms."

Rubashkin Lawyers to Challenge 27-Year Sentence in Fraud Case

Updated 6 p.m.

Lawyers representing Iowa slaughterhouse manager Sholom Rubashkin, who will receive a 27-year prison sentence today in a bank fraud case, want the U.S. Justice Department to closely examine the handling of the case to determine the fairness of the conviction and sentence.

Justice Department officials have publicly said DOJ is concerned about growing disparities in white collar sentencing, and the Rubashkin case is likely to add fodder to that ongoing debate. Earlier this year, Assistant Attorney General Lanny Breuer declined to intervene in the Rubashkin prosecution, which was handled by the U.S. Attorney’s Office for the Northern District of Iowa.

Rubashkin, 51, was convicted at trial last November on more than 80 fraud counts for his leadership role in a scheme that bilked a bank out of tens of millions of dollars. Rubashkin, according to his lawyers, did not personally benefit from the alleged scheme. He was trying to keep his father’s company afloat, Grefe & Sidney partner Guy Cook in Des Moines said today.

In April, prosecutors in Iowa backed down from a recommendation of life in prison and instead pitched a 25-year sentence. Yesterday, Chief Judge Linda Reade of federal district court in Cedar Rapids, issued a 52-page ruling that said Rubashkin will be sentenced to 27 years behind bars. Rubashkin and his lawyers are due in court this afternoon for the oral pronouncement of the judgment.

Rubashkin’s attorneys, including Nathan Lewin of Washington’s Lewin & Lewin, immediately attacked the prison sentence, calling it excessive. “The sentence is far greater than necessary. We think it is unfair, unjust and excessive,” said Grefe & Sidney partner Guy Cook, a lead trial attorney for Rubashkin. “Indeed, the sentence is greater than the sentence the government requested.”

Lewin said today he intends to urge the Justice Department to review the case “in light of the outcome.”

Cook and Lewin said Rubashkin will appeal the conviction and sentence to the U.S. Court of Appeals for the 8th Circuit. That’s the same court that declined, earlier this year, to free Rubashkin pending sentencing. Lewin is expected to take a lead role in the appeal. Also, former U.S. Attorney Robert Barr of Atlanta, who runs a consultancy called Liberty Strategies, has joined the defense of Rubashkin.

“This sentence is inconsistent with the overwhelming view of the legal community, including six former U.S. attorneys general, who have all said a first-time, non-violent offense does not warrant a multi-decade sentence,” Barr said in a statement Monday. “The court’s sentence today is even more than prosecutors asked for, which is a very disturbing development.” (Click here for a letter that the six former attorneys general wrote to Reade.)

Rubashkin’s lawyers had asked Reade to impose a sentence of no more than six years. Reade's ruling is here.

U.S. Attorney Stephanie Rose issued the following statement:

“Sholom Rubashkin expended enormous efforts to hide his many crimes from the public and law enforcement. On top of that, there have been orchestrated efforts to spread false information intended to elicit sympathy for him. It is a tragedy that many people were misled by this misinformation calculated to distract the public from the truth. The truth came out at trial and sentencing. No one won anything today as the damage caused by Mr. Rubashkin cannot be fully tallied. However, today the house of cards he constructed finally was brought down. When something is built on lies, it should be no surprise when it collapses under the weight of those lies.”

In Beard Brawl, D.C. is Liable For Economic Damages

A federal judge in Washington has ruled the District of Columbia is not liable for emotional distress by a group of firefighters and paramedics who refused to shave their beards despite a city ban on facial hair for emergency responders. But the city could be on the hook for economic damages.

Senior Judge James Robertson said the plaintiffs may have experienced missed promotions and overtime pay while the suit was pending. The suit was first filed against the city in 2001 in the U.S. District Court for the District of Columbia. Back pay is a remedy in discrimination cases, and it should be available under the Religious Freedom Restoration Act (1993), the judge said. Robertson's decision is here.

Robertson found the District’s shaving requirements on firefighters and paramedics who wear beards for religious reasons violated the RFRA.

The U.S. Court of Appeals for the D.C. Circuit last year affirmed the decision. The plaintiffs, represented by the American Civil Liberties Union, moved in November 2009 for partial summary judgment on the issue of whether the city is liable for compensatory damages.

“A man who is unafraid of running into a burning building … may nevertheless suffer substantial distress when he is forced to violate his religious beliefs by shaving his beard in order to maintain his income to support his [family],” Arthur Spitzer, legal director of the ACLU National Capital Area, said in court papers last November.

A lawyer for the District, Robert Utiger, said in court papers that the plaintiffs, who include Calvert Potter and Steve Chasin, are not entitled to any damages. Utiger defended the city’s ban on beards, saying it was “based on a good-faith position in the available science, not a lack of respect for the plaintiffs’ beliefs.”

Robertson said the plaintiffs are on shaky ground in arguing that compensatory damages for non-economic loss are available under the Religious Freedom Restoration Act.

“Establishing claims for emotional distress … would inevitably lead to discovery of and disputes about the sincerity and importance of religious beliefs – something I would expect plaintiffs’ counsel vigilantly to guard against,” Robertson wrote.

Robertson, who retired from the federal bench June 1, urged the lawyers to meet and confer to resolve the remaining issues without judicial intervention. The case was reassigned to Judge Richard Leon.