The BLT: The Blog of Legal Times

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.

The Morning Wrap

Kagan's Early Years: Elena Kagan's 28 months as an associate at Williams & Connolly gets scrutinized by The National Law Journal. At the firm, Kagan worked for a real-estate investment trust, a regional Toyota distributor and, among other clients, the Recording Industry Association of America. U.S. Supreme Court correspondent Tony Mauro of The National Law Journal examines a law review article Kagan wrote in 1995 in which she offered her thoughts on the confirmation process. The process, Kagan wrote, has taken on "an air of vacuity and farce." She described modern-day confirmation hearings as "vapid and hollow charade." The Washington Post writes here about the Ivy League dominance of the Supreme Court.

Case of the Stolen Cross: The seven-foot-tall cross in the Mojave Desert that was a centerpiece of a Supreme Court case has been stolen, The New York Times reports. The theft comes a little more than a week after the Supreme Court ruled the cross could remain in place while a lower court handled additional proceedings. The Los Angeles Times has this write-up on the stolen cross.

Morgan Stanley Inquiry: The Wall Street Journal is reporting that U.S. federal investigators are looking into whether Morgan Stanley misled investors about mortgage derivative products it helped create and sometimes bet against. The New York Times write-up is here.

Setback for Microsoft: The National Law Journal reports on a setback for Microsoft after the U.S. Patent and Trademark Office's confirmation of the validity of a patent that netted i4i Limited Partnership a $290 million infringement judgment. In a lawsuit, i4i claimed Microsoft Word 2007 infringed a patent for processing and storing information about electronic documents' structure. A Microsoft official said the company is considering its options, including a petition to the Supreme Court.

Police Officer Acquitted: A 39-year-old police sergeant in Bellaire, Texas, was acquitted this week in the shooting of an aspiring baseball player who was mistakenly believed to be a car theft suspect, The New York Times reports here. The family of the victim has accused the police department of racial profiling in a pending civil suit. The officer, Sgt. Jeffrey Cotton, had been charged with aggravated assault. The jury found the shooting was justified.

Appeals Court Rules Against Challenge to 'So Help Me God' in Oath

A federal appeals court in Washington today dismissed as moot a challenge to the religious components of last year's inaugural ceremony, including the inaugural prayer and presidential oath, and the court said the plaintiffs do not have standing to challenge the 2013 and 2017 inaugurations.

Michael Newdow, a prominent atheist and lawyer, unsuccessfully sought an injunction in the U.S. District Court for the District of Columbia to block Chief Justice John Roberts Jr. from delivering the phrase “so help me God” to President-elect Barack Obama in January 2009. Newdow claimed, among other things, the phrase is a violation of the Establishment Clause of the First Amendment when it is delivered by the Chief Justice of the United States. Two private ministers, Revs. Rick Warren and Joseph Lowery, spoke at the inauguration.

“Whether the 2009 ceremony’s incorporation of the religious oath and prayers was constitutional may be an important question to plaintiffs, but it is not a live controversy that can avail itself of the judicial powers of the federal courts,” Judge Janice Rogers Brown wrote for the U.S. Court of Appeals for the D.C. Circuit today. “It is therefore moot.” Click here for the opinion.

Newdow argued for the plaintiffs in the D.C. Circuit last December. Justice Department attorney Lowell Sturgill Jr. of the Civil Division argued the case for Chief Justice John Roberts Jr. Dominic Perella, an associate in the Washington office of Hogan Lovells who concentrates on appellate litigation, argued for the Presidential Inaugural Committee, among others.

Brown, writing for a three-judge panel, which included Judges Douglas Ginsburg and Brett Kavanaugh, said there is no law that mandates the president-elect carry out an inaugural ceremony. The appeals court called the ceremony a “peculiar institution,” saying that it is entirely up to the discretion of the president or president-elect.

“The named defendants are powerless to direct, say no to, or otherwise stop the future President if he wishes to have his ceremony contain the offending elements,” Brown wrote. “Therefore, issuing an injunction to prevent them from implementing the future President’s inaugural plan would be folly, akin to enjoining a sound technician from turning the Chief Justice’s microphone on when administering the oath.”

The appeals court said the plaintiffs lack standing to pursue an injunction against those individuals who could be invited to deliver the presidential oath and those persons who could lead a prayer. Brown said the plaintiffs are essentially seeking an "injunction against the world. "There is another name for that type of generally applicable relief: legislation. And that’s not within the power of the courts," the appeals court said.

Kavanaugh wrote a separate, concurring opinion, that said the plaintiffs do have standing to challenge the religious components of the inauguration. But Kavanaugh said the longstanding practices that the plaintiffs challenge do not violate the Establishment Clause. Kavanaugh notes that the U.S. Supreme Court has, over many years, ruled in religious display and speech cases.

“To ignore the import of those cases for the standing analysis, one would have to believe the Supreme Court repeatedly overlooked a major standing problem and decided a plethora of highly controversial and divisive Establishment Clause cases unnecessarily and inappropriately,” Kavanaugh wrote. “I find that prospect extremely unlikely.”

Kavanaugh said the words “so help me God” in the presidential oath are not “proselytizing or otherwise exploitative” and the use of the phrase is “deeply rooted in the Nation’s history and tradition.”

It's Jefferson's Birthday, So Censors Beware

Today is Thomas Jefferson's birthday, which means it is also time for presentation of the completely uncoveted Jefferson Muzzle awards by the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville. The awards are given to those who have committed egregious or ludicrous offenses to free expression. To get a sense of the awards, there have been only two lifetime winners in the 19-year history of the presentations: one to the Federal Communications Commission and the other to former new York City mayor Rudolph Giuliani.

"People don't want to be on our list," said center director Robert O'Neil with pride. He said some of the planned recipients, when they learn about their impending distinction, try to negotiate their way out. O'Neil is former president of the University of Virginia and clerked for the late Supreme Court Justice William Brennan Jr.

This year's awardees, oddly enough, recognize only one federal offender -- U.S. Rep. Alan Grayson, (D-Fla.), who last October complained to Attorney General Eric Holder Jr. about a parody web site called mycongressmanisnuts. The site was launched in response to his own seemingly defunct "mycongressmanhas guts" site. Grayson wanted Holder to examine possible election law violations, and suggested a prison term of five years. "Whatever the offense, that is way over the top," said O'Neil.

There were also no awards given to censorious private companies or individuals this year. The rest of the winners are state officials or agencies, including the Virginia Department of Corrections, for telling an inmate he could only listen to musical CDs, not a Christian sermon, in his cell. Southwestern College in California was cited for its "free speech patio," aimed at confining all campus protests to a small area. And then there's the Oklahoma Tax Commission, which denied a resident's request for a vanity plate "IM GAY," even though plates like "STR8SXI" have been allowed.

For all the gory details on these and many more Jefferson Muzzle awards, check out the center's web site.

DOJ: Midwest Militia Planned Attack on Law Enforcement

Updated 12:45 p.m.

An indictment unsealed today in federal district court in Detroit charges six Michigan residents and three others for their alleged involvement in a Christian militia whose members had allegedly been planning to kill local, state and federal law enforcement in armed conflict in April.

Charging documents filed in the U.S. District Court for the Eastern District of Michigan alleged that the nine defendants were members of a Michigan militia called Hutaree. Federal prosecutors said the Hutaree planned to kill a law enforcement officer and then attack the officers who gathered in Michigan for the funeral.

The Hutaree, according to charging documents, intended to use improvised explosive devices to attack law enforcement vehicles during the funeral procession.

Charges against the nine defendants, seven of whom made their initial appearance in federal district court this morning, include seditious conspiracy, attempted use of weapons of mass destruction and carrying a firearm during a crime of violence. Attempted use of a weapon of mass destruction carries a maximum penalty of life in prison. A follow-up detention hearing is scheduled for Wednesday at 1 p.m. before Magistrate Donald Scheer in Detroit.

The alleged Hutaree leader, David B. Stone, 45, researched improvised explosive devices on the Internet and e-mailed diagrams to a person he thought could build the bomb, according to prosecutors. Stone is charged along with his wife and two sons. One of the sons, Joshua Stone, 21, is a fugitive, according to prosecutors.

Federal agents raided several sites this weekend, according to press reports in Michigan. “Because the Hutaree had planned a covert reconnaissance operation for April which had the potential of placing an unsuspecting member of the public at risk, the safety of the public and of the law enforcement community demanded intervention at this time," U.S. Attorney Barbara McQuade said in a statement today.

The Hutaree is a “radical and extremist fringe group,” according to a statement today from Andrew Arena, an FBI special agent who was part of the investigative team. “The FBI takes such extremist groups seriously, especially those who would target innocent citizens and the law enforcement officers who protect the citizens of the United States,” Arena said.

Attorney General Eric Holder Jr. said in a statement this afternoon:

“The indictment unsealed today outlines an insidious plan by anti-government extremists to murder a law enforcement officer in order to lure police from across the nation to the funeral where they would be attacked with explosive devices. Thankfully, this alleged plot has been thwarted and a severe blow has been dealt to an dangerous organization that today stands accused of conspiring to levy war against the United States."

Over an Alito Dissent, Supreme Court Denies Review in School Band Case

When a controversial decision of the U.S. Court of Appeals for the 9th Circuit is appealed to the Supreme Court, the justices often take the bait and reverse. But this morning, the Supreme Court denied review of a 9th Circuit ruling that nixed the performance of a religious instrumental piece by a public high school band in Washington state. Justice Samuel Alito Jr. dissented from the Court's denial of review.

A high school band in Everett, Washington chose to perform "Ave Maria" at graduation ceremonies, but school officials vetoed the plan, explaining that the piece's title alone had religious connotations, even though, as an instrumental piece, it contained no religious words. The officials noted that the year before, graduation attendees had complained about a school choir piece that referred to God and angels. Kathryn Nurre, a senior, challenged the officials' action as a violation of her freedom of speech. Both the district court for the western district of Washington and the 9th Circuit upheld the officials' actions.

The 9th circuit ruling said that "it is reasonable for a school official to prohibit the performance of an obviously religious piece” especially “when there is a captive audience at a graduation ceremony, which spans a finite amount of time, and during which the demand for equal time is so great that comparable non-religious musical works might not be presented.” Judges Robert Beezer and Richard Tallman joined in the ruling, and Judge Milan Smith dissented in part. Smith voiced concern that upholding the school's action would encourage banning speech simply out of fear that some in the audience might object.

Alito voiced concerns about the suppression of student expression. "School administrators may not behave like puppetmasters who create the illusion that students are engaging in personal expression when in fact the school administration is pulling the strings," Alito wrote. He added that the Supreme Court's precedents bar censorship of student speech just because it is religious or "because some in the audience may find that speech distasteful." Alito called the school's action a form of viewpoint discrimination that the Court has not permitted.

"The decision below will have important implications for the nearly 10 million public school students in the Ninth Circuit," Alito added. "Why, for example, should the Ninth Circuit’s reasoning apply only to musical performances and not to other forms of student expression, including student speeches at graduation ceremonies and other comparable school events?"

Footnote: Curiously, the text of Alito's dissent available at the end of this document persistently misspells the word "superintendent" as "superintendant," though it is correctly spelled in the caption of the case, which refers to superintendent Carol Whitehead.

The Morning Wrap

EEOC Slapped with Fees: The Equal Employment Opportunity Commission has been ordered to pay $4.56 million in attorney fees and expenses to a Cedar Rapids trucking business after a federal judge in Iowa dismissed the agency's sexual harassment suit, The National Law Journal reports. A Jenner & Block team led the defense of CRST Van Expedited in the lawsuit.

Brocade Retrial: Statements made to the press by the defense lawyer representing former Brocade CEO Gregory Reyes could be used in court against Reyes during his retrial on charges of backdating stock options, The Recorder reports. Skadden, Arps, Slate, Meagher & Flom partner Richard Marmaro, who no longer represents Reyes, made the statements during the first backdating trial. Jury selection begins Thursday in San Francisco.

Renewed Questions: The New York Times today examines the murder case against Abdulhakim Mujahid Muhammad, charged with killing a soldier last May on a military recruiting center in Little Rock. Muhammad claimed in a recent letter to a judge in Arkansas that Muhammad was a member of Al Qaeda in the Arabian Peninsula, a terrorist group based in Yemen. That note has renewed questions about the case about how someone suspected of extremist ties was allowed to buy a firearm.

The Bob Bennett Report: Hogan & Hartson partner Robert Bennett yesterday delivered to the D.C. Council an investigative report that accused council member Marion Barry of corruption for allegedly taking a cut of a $15,000 contract he reportedly secured for his ex-girlfriend, The Washington Post reports. Amy Sabrin, a partner at Skadden, Arps, Slate, Meagher & Flom, served as deputy special counsel in the investigation. Click here for The BLT write-up on the Bennett report.

Starvation Death Trial: Prosecutors in Baltimore say the alleged members of a cult starved to death a 16-month-old boy because he refused to say "amen" at meals, The Sun reports. Testimony is expected to begin this week.

ACLU Wants Deadline Extended in Homeless Shelter Dispute

The American Civil Liberties Union is urging District of Columbia officials to extend the deadline for proposals for the acquisition and renovation of the historic Gales School, property that is the centerpiece of an ongoing suit in federal district court in Washington.

In 2008, the ACLU sued the city in the U.S. District Court for the District of Columbia to block a transaction between the city and Central Union Mission, which would revive the property as a homeless shelter. The ACLU challenged the proposal on the ground that the Mission requires homeless men and women to participate in Christian religious activities. The suit has been stayed since December 2008.

Late last month, the city Department of Real Estate Services issued the request for proposals for the lease of the Gales School, according to the ACLU’s letter. The District set a Feb. 16 deadline. ACLU National Capital Area legal director Arthur Spitzer said in a Feb. 8 letter to District officials that the deadline gives an unfair advantage to the Mission.

The Mission has had years to visit the Gales site, on Massachusetts Avenue N.W., and craft plans to develop it for a homeless shelter, Spitzer said.

“Based on the history of the District of Columbia’s contacts with the Central Union Mission and the unreasonably short timeframe for responding to the RFP, it appears to us that the RFP process has been designed to provide an insurmountable advantage to the Mission and its religion-infused shelter services, and that organizations interested in providing secular services at the Gales School will not have a fair opportunity to compete,” Spitzer said in the letter to officials who include Mayor Adrian Fenty and Attorney General Peter Nickles.

Click here for a copy of the letter, which was also signed by Alex Luchenitser, senior litigation counsel for Americans United for Separation of Church and State.

Arent Fox represents the Mission in the litigation. Timothy Brown, a litigation partner in Washington, was not immediately reached for comment today on the ACLU’s letter. Jacques Lerner, an assistant attorney general for the District, also was not immediately reached for comment today.

DOJ Appeals $300,000 Award in FBI Agent's Retaliation Suit in D.C.

The Justice Department is appealing a jury verdict and $300,000 judgment won by a former FBI supervisor in Saudi Arabia who said the agency retaliated against him for complaining about discrimination.

The FBI agent, Wilfred Rattigan, who now works as an assistant special agent in charge in a field office in Mississippi, won the verdict in July in the U.S. District Court for the District of Columbia. The Justice Department's appeal reached the U.S. Court of Appeals for the D.C. Circuit on Jan. 26.

Lawyers for Rattigan have filed a cross-appeal to challenge trial court orders that limited allegations against the FBI and Justice Department. In May 2007, Judge Ellen Segal Huvelle granted the Justice Department’s motion to dismiss discrimination claims and allegations of a hostile work environment.

From July 2000 to July 2003, Rattigan was the legal attaché in Riyadh. Rattigan was part of the team of agents who transmit FBI investigatory leads to the Saudi state security service and to six other Arab countries.

Rattigan, represented by the New York firm Beldock Levine & Hoffman, filed suit in November 2004 in the U.S. District Court for the District of Columbia. Rattigan, a black male of Jamaican descent who converted to Islam in December 2001, said in the suit that in response to complaints about workplace discrimination, the government retaliated against him by monitoring and investigating him. The FBI investigated Rattigan to determine whether he was a security risk.

D.C. Circuit Takes Up Presidential Oath Case

Atheist lawyer Michael Newdow, who has unsuccessfully challenged religious trappings of presidential inaugurations past, took his latest dispute--this one involving Barack Obama's inauguration--to the U.S. Court of Appeals for the D.C. Circuit today.

A little background: Last December, Newdow and his fellow plaintiffs sued the Presidential Inaugural Committee and Chief Justice John Roberts Jr., among others, in an effort to block Roberts from feeding then President-elect Obama the line “so help me God” at the end of the oath of office and Obama from repeating it. The plaintiffs say the phrase violates the establishment clause of the First Amendment.

The plaintiffs are also suing over other religious remarks by clergy during the larger inaugural ceremony.

Judge Reggie Walton of the U.S. District Court for the District of Columbia denied an injunction and ultimately dismissed the suit, saying that the plaintiffs lacked standing. Walton also determined he didn’t have the authority to tell Roberts what to do. At issue on appeal are the plaintiffs’ standing and the mootness of the claims.

Newdow, arguing for himself and the plaintiffs today before Judges Douglas Ginsburg, Brett Kavanaugh and Janice Rogers Brown, said he has suffered “stigmatic” injury. “I think there’s a stigma when you’re an atheist,” he said in court. Atheists, he said, are considered “second-class citizens” in the United States. And he argued that the claims are not moot since there’s a good chance that presidents-elect down the line will also use the phrase “so help me God” during the swearing-in ceremony.