The BLT: The Blog of Legal Times

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.

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 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.

Georgetown Law Argues for Dismissal of Age Discrimination Lawsuit

A Washington federal judge heard arguments Monday on whether the use of words such as "young" or "pick of the litter" in discussing law professor applicants was evidence of discrimination against older applicants in Georgetown University Law Center's hiring process.

Former North Dakota Attorney General Nicholas Spaeth sued Georgetown and five other schools after he failed to get an interview through the Association of American Law Schools faculty recruitment conference in 2010.

Georgetown moved for summary judgment, arguing that they had non-discriminatory reasons for rejecting Spaeth, in particular his lack of expressed interest in legal scholarship. U.S. District Judge Ellen Segal Huvelle heard arguments yesterday afternoon.

Sequestration Drives Scheduling Changes at D.C. Federal Court

To accommodate expected furloughs in federal law enforcement and defender services agencies, the U.S. District Court for the District of Columbia will stop scheduling most criminal matters on alternating Fridays from April 26 through September 30, court officials said.

Unlike those agencies and some federal courts, however, the D.C. court isn't planning to furlough or fire staff before the end of the fiscal year in September as part of mandated federal budget cuts known as sequestration. Under sequestration, which took effect March 1, non-defense agencies faced five percent in budget cuts.

New arrests will still be processed on the alternating Fridays, U.S. District Chief Judge Royce Lamberth said, while ongoing criminal trials will be recessed. He said the decision was made in consultation with the local U.S. attorney, U.S. Marshal, and Federal Public Defender's offices. Civil cases won't be affected; Lamberth said the U.S. attorney's office indicated that they expect to have lawyers available.

Lanny Breuer Returns to Covington & Burling in New Leadership Role

Lanny Breuer, one of the longest-serving leaders of the U.S. Justice Department’s criminal division, is returning to Covington & Burling to take on a newly created role as vice-chairman of the firm.

Breuer is joining his former firm on Thursday, after nearly four years as the assistant attorney general in charge of the Criminal Division. "As I said to my wife, this will be my third first day at the firm," Breuer said during an interview this week.

In the role of vice chair, Breuer will serve as a liaison for the firm, its clients and government officials. He'll resume his former practice in white-collar criminal defense and civil litigation, representing both companies and individuals. "In that way, those are some things I did for the division," Breuer said. "I do think there will be a balance and I'll have to figure it out."

Judge Awards $40.5 Million in 30-Year Iranian Dairy Dispute

Just as the mythological Greek king Sisyphus was doomed to forever roll a boulder up a hill, only to watch it fall as he reached the summit, a 30-year dispute over interests in an Iranian dairy seemed destined to make endless trips to the U.S. Court of Appeals for the D.C. Circuit without resolution.

But in an opinion today, U.S. District Judge Richard Leon wrote that he hoped he was near the end of litigation that the D.C. Circuit once described as "Sisyphean labor." Following a D.C. Circuit opinion last February finding that U.S. courts did have jurisdiction over the case, Leon today ordered Iran to pay $40.5 million in damages, interest and attorney fees to plaintiff McKesson Corp.

Leon may not get his wish just yet, however. A lead attorney for Iran, Christopher Wright of Wiltshire & Grannis, said in an email that "Iran is reviewing the court’s decision and considering whether to appeal." Mark Bravin of Winston & Strawn, lead counsel for McKesson, declined to comment.

Still Cautious, Supreme Court May Overturn Federal Marriage Law

The Supreme Court could be on the verge of a historic ruling striking down the federal Defense of Marriage Act -- if, that is, the justices overcome their concerns about standing and jurisdiction.

Oral arguments Wednesday in United States v. Windsor revealed a court that, like the day before, wanted to proceed cautiously on such a hot-button issue. On Tuesday in Hollingsworth v. Perry,  justices' concerns focused on the impact of same-sex marriage, a relatively new phenomenon, on society and children.

But in the Windsor case, the justices voiced more traditional concerns about whether the case could proceed at all under the constitutional requirement that the court decide only "cases and controversies" -- given that the Justice Department is no longer defending DOMA, and a group of House members is standing in its place.

Plaintiff Edith Windsor of New York state, which recognizes same-sex marriages, challenged the 1996 law, which defines marriage as between a man and a woman for federal purposes. She claimed that in spite of her legally recognized marriage to a woman, Thea Spyer, the law required her to pay a federal estate tax that opposite-sex married couples don't have to pay.

In 2011, the Obama administration announced it would no longer defend the statute in cases like Windsor's. A Republican-led House group, called the Bipartisan Legal Advisory Group, intervened to defend the statute.

Allowing the House group to defend the law instead of the United States is "very strange," in the words of Justice Sonia Sotomayor. Justice Antonin Scalia said courts should not decide cases "just for fun" when the original parties in litigation end up on the same side. And Chief Justice John Roberts Jr. said that asking the court to decide a case in which "all parties agree" is "something we've never done before."

Nonetheless, it appeared that Deputy Solicitor General Sri Srinivasan made headway when he told the court it does have jurisdiction anyway, in part because the government has continued the appeal in spite of its stance on the law to show "respect" for Congress.

After 50 minutes of discussion of the standing issues, the court turned to the merits of whether the federal law violates "equal protection" guarantees by treating legally married same-sex couples differently than their opposite-sex counterparts.

Former solicitor general Paul Clement, now a partner at Bancroft, argued on behalf of the House Republicans that Congress is entitled to establish uniform rules for federal benefits -- even if they differ from state definitions. By staying uniform across the nation, Clement said the law also has the benefit of keeping the federal government, "a big player," out of the state-by-state debate over same-sex marriage.

Justice Ruth Bader Ginsburg immediately challenged Clement, asserting that the federal law has such a pervasive effect on taxes, Social Security and family leave, among other issues, that same-sex couples are entitled to wonder, "What kind of marriage is this?" Later, she said DOMA consigns states to offering "two kinds of marriage: real marriage and then this sort of skim milk marriage."

Justice Anthony Kennedy, widely viewed as the pivotal vote, also said the pervasive nature and lure of federal benefits, denied by DOMA to legally married same-sex couples, poses "the real risk of running in conflict with what has always been thought to be the essence of the state police power, which is to regulate marriage, divorce, custody." Given the critical comments about DOMA made during oral argument by Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, Kennedy could provide a fifth vote to strike down the law.

After the argument was over Judith Schaeffer, vice president of the liberal Constitutional Accountability Center said, “A majority of justices today appeared to regard DOMA for what it is: a pervasive program of discrimination that changes 1100 laws and touches every aspect of life."