The BLT: The Blog of Legal Times

DOJ Takes Swipes at D.C. Circuit's Recess Appointment Ruling

The U.S. Justice Department this week offered its first extended, public analysis of the controversial court ruling in Washington that invalidated President Barack Obama's recess appointments to a federal labor board.

Top DOJ officials have until March 8 to decide whether to ask the U.S. Court of Appeals to reconsider its conclusion that Obama overstepped his authority last year when he used his recess appointment power to install three members on the National Labor Relations Board.

On Thursday night, DOJ, in a pending labor dispute in a federal appeals court in Philadelphia, offered a glimpse of legal arguments the government could make in asking the full D.C. Circuit to overturn the three-judge panel decision in Noel Canning v. NLRB.

"The Noel Canning decision conflicts with nearly two centuries of Executive Branch practice and the decisions of three other Courts of Appeals, two of them sitting en banc," Beth Brinkmann, a top DOJ Civil Division appellate lawyer, said in the brief in the U.S. Court of Appeals for the Third Circuit. The ruling's constitutional conclusions, Brinkmann continued, "threaten a serious disruption of the separation of powers."

Congress Considering Cameras in Federal Courts, Again

Congress is once again considering a bill that would give federal judges at all levels the option to open their courtrooms to television cameras and radio broadcasts.

Senator Chuck Grassley (R-Iowa) and Representative Steve King (R-Iowa) have filed the "Sunshine in the Courtroom Act," and Democrats have cosponsored the bills in both chambers, Grassley's office announced.

Grassley has introduced a version of the bill with Senator Chuck Schumer (D-N.Y.) since 1999, and Senate Judiciary Committee chairman Senator Patrick Leahy (D-Vt.) is a cosponsor.

"Openness in our courts improves the public's understanding of what happens inside our courts. Our judicial system remains a mystery to too many people across the country," Grassley said on the Senate floor Thursday. "That doesn’t need to continue."

The Morning Wrap

Filed: The U.S. Justice Department has asked the Supreme Court to strike down California's ban on gay marriage, saying the Constitution projects the right for gays and lesbians to marry. The Los Angeles Times has this report. More coverage here and here.

Arrived: Congress and the White House haven't yet reached a deal to avoid across-the-board automatic cuts. From The Washington Post: "One day before automatic spending cuts were due to hit the Pentagon and other federal agencies, Congress on Thursday abandoned efforts to avert the reductions and left town for the weekend. The sequester is here, and policymakers have no plans to end it."

Merged: From Corporate Counsel today, this story: Most Big M&A Deals Faced Legal Challenges in 2012. "It was a rare merger or acquisition deal in 2012 that escaped legal challenges from shareholders, according to a study released Thursday by Cornerstone Research, which specializes in analyzing financial issues in commercial litigation and regulatory proceedings," the report said.

Dear Congress: Patricia Wald, a former chief judge of the U.S. Court of Appeals for the D.C. Circuit, is urging Congress to fill vacant slots on the Washington-based appeals court. Wald has this op-ed in The Washington Post.

States, Private Plaintiffs Press Suit Against Wall Street Reform Law

Updated 10:09 a.m.

The plaintiffs that are challenging the constitutionality of the Wall Street reform law and the leadership of the Obama administration's new consumer protection agency are fighting to keep alive a suit in Washington federal district court.

The private plaintiffs, including the advocacy group Competitive Enterprise Institute and Texas-based State National Bank of Big Spring, late Wednesday responded to the U.S. Justice Department's effort to end the litigation. The eleven states that have joined the suit include Texas, South Carolina, Oklahoma, Michigan, Oklahoma and Ohio. (The states' response is here.)

The attorneys for the private plaintiffs, including O'Melveny & Myers partner Gregory Jacob and C. Boyden Gray, said in their court papers that the plaintiffs have presented sufficient evidence that the Dodd-Frank Wall Street Reform and Consumer Protection Act gave "unchecked and unprecedented powers" to federal agencies, including the newly created Consumer Financial Protection Bureau.

"[T]he government has manufactured a jurisdictional challenge by mischaracterizing, fabricating and ignoring" the plaintiffs' evidence, the lawyers for the private plaintiffs said in their response to DOJ's insistence the suit should be thrown out. The states that joined the lawsuit are only challenging the government's ability to liquidate the largest banks. The states are not challenging the composition of the consumer protection bureau.

DOJ: Dismiss Suit Over Supreme Court Visitor's 'Occupy Everywhere' Jacket

Fitzgerald Scott was viewing exhibits inside the U.S. Supreme Court last year when a police officer confronted him and demanded he remove his jacket.

Painted on the jacket were these words: "Occupy Everywhere." The deputy chief of the Supreme Court Police, Timothy Dolan, told Scott to take off the jacket or leave the building. Scott, according to Dolan, was violating the law that restricts expression inside the high court: no signs and no demonstrations.

Dolan, according to prosecutors, warned Scott he'd be arrested if he didn't comply. Scott was charged, under District of Columbia law, with unlawful entry. (He wasn't booked on the federal law that prohibits certain expressive activity inside the Supreme Court building.) Prosecutors, however, later abandoned the case. Scott filed suit in Washington federal district court.

This afternoon, the U.S. Attorney's Office for the District of Columbia asked a federal judge in Washington to dismiss Scott's case, which claims the authorities had no basis to make an arrest. The complaint also said the jacket's "pure speech" was protected under the First Amendment.

Judge Approves Class in Race Discrimination Suit Against Secret Service

More than a decade ago, a group of U.S. Secret Service agents sued over allegations that agency officials denied promotions on the basis of race. Yesterday, a judge in Washington approved a class of 120 current and former agents, setting up the potential for a trial that would explore claims that discrimination has persisted at the agency.

The agents, who filed suit in 2000 in Washington federal district court, had asked three times before for class certification. In the latest round, lawyers for the plaintiffs narrowed claims to certain groups of African American agents whose promotion bids, for specific government service levels, were denied in the late 1990s and early 2000s.

Judge Richard Roberts of U.S. District for the District of Columbia concluded that the plaintiffs, through anecdotal evidence and an expert's statistical analysis, established sufficient commonality to allow the case to proceed as a class action.

The "interests of efficiency and uniformity support a finding that a class action is a superior method of adjudicating the plaintiffs’ claims," Roberts said in the ruling, published Tuesday.

D.C. Circuit Appears Skeptical of FCC in Tennis Channel Case

A federal appeals court in Washington today appeared poised to strike down a Federal Communications Commission decision that found the country's largest cable television provider discriminated against the Tennis Channel by restricting its distribution to a sports package.

A lawyer for the commission, Peter Karanjia, faced tough questions from a panel of the U.S. Court of Appeals for the D.C. Circuit, where Comcast Cable Communications LLC is fighting the FCC order. The agency ruling was the first-ever in two decades under a provision of federal communications law that Congress enacted to promote competition and diversity in cable television programming.

Judges on the D.C. Circuit panel expressed concern about whether the Tennis Channel's complaint is time-barred and whether the agency order could expand the power of the government to regulate the speech of other entities. One judge, Brett Kavanaugh, said the FCC "has a serious problem with the First Amendment here."

The appeals court didn't immediately rule in the closely watched case. Bloomberg L.P. filed papers in support of the FCC. On the other side, the National Cable & Telecommunications Association wants the FCC order vacated. A team from Gibson, Dunn & Crutcher represents Comcast.

Experts Debate Effects of Voting Rights Act Provision on Native Americans

Days before the U.S. Supreme Court was set to hear arguments in Shelby County v. Holder, a case challenging the constitutionality of Section 5 of the Voting Rights Act, legal experts said they feared that striking it down would hurt Indian Country and Native American voters.

Enacted in 1965 as a temporary provision, Section 5 freezes election practices or procedures in certain states and local governments, mostly in the south, until the new procedures have been subjected to review or "precleared" by the Justice Department or a federal court. Congress has since reauthorized Section 5 four times. Currently, it is set to expire in 2031.

In order to make changes to their voting rules, the states in question must demonstrate that the rules do not have the purpose of discriminating — or that regardless of intent, that the new rules will not have a discriminatory effect — based on race or color, or against a “language minority group,” including persons who are American Indian, Asian American, Alaskan Natives, or of Spanish heritage.

D.C. Federal Judge Oberdorfer Dies at 94

U.S. District Senior Judge Louis Oberdorfer died last night at age 94, according to an announcement from the U.S. District Court for the District of Columbia.

Oberdorfer was appointed in 1977 by President Jimmy Carter and took senior status in 1992. He died of natural causes.

"Judge Oberdorfer's entire life was devoted to the highest principles of equality, fairness and the rule of law," said U.S. District Chief Judge Royce Lamberth in a statement. "He was an exemplary jurist, a gentleman to all, and dear friend and mentor to those of us who had the good fortune to work beside him. We will miss him greatly."

The Morning Wrap

Spending Cuts: The economy, the middle class and several basic U.S. Justice Department priorities would suffer if Congress fails to stop severe federal spending cuts from taking effect on March 1, President Barack Obama said on Tuesday, The National Law Journal reports. Federal prosecutors "will have to close cases and let criminals go," he said.

SCOTUS: The U.S. Supreme Court on Tuesday issued four opinions on issues ranging from antitrust to drug-sniffing dogs. The National Law Journal takes a look.

Jackson Case: Former Representative Jesse Jackson Jr. (D-Ill.) and his wife are set to appear before U.S. District Judge Robert Wilkins in D.C. on Wednesday, The Associated Press reports. They are facing charges related to an alleged scheme to spend $750,000 in campaign funds on personal items.