The BLT: The Blog of Legal Times

Lawyers for FBI Agent Urge Court to Keep Retaliation Ruling in Place

The lawyers representing an FBI agent in a retaliation suit against the bureau are urging a federal appeals court in Washington not to disturb a three-judge panel decision that kept the case alive and alarmed the U.S. Justice Department.

The U.S. Justice Department recently asked the full U.S. Court of Appeals for the D.C. Circuit to overturn the panel decision.. The ruling ordered additional proceedings in the trial court to explore the retaliation claim that the FBI agent, Wilfred Rattigan, lodged against the bureau.

Rattigan contends the FBI targeted him for possible revocation of his security clearance based on a discrimination complaint he filed. The agency, however, ultimately did not pull Rattigan's clearance. He alleges in the suit in Washington's federal trial court that bureau officials reported false security-related information about him, potentially jeopardizing his career.

Federal trial judges don't have the authority to review an executive agency's denial or revocation of a security clearance. But can judges review the report of allegedly unfounded information about a person? Rattigan's lawyers on Wednesday argued in support of the power of judges to review reports of false information.

Lawyers in Black Farmers Case Renew Request for $90M in Fees

The attorneys who secured a $1.25 billion settlement for black farmers in a high-profile discrimination case in Washington renewed their request Monday for $90.8 million in legal fees, the highest amount allowed in the deal.

The lead class counsel filed an updated fee petition in Washington's federal trial court, arguing that the amount constitutes "fair and appropriate compensation for the enormous amount of work class counsel have performed" and for the results achieved in the deal.

The settlement, which Congress approved in November 2010 and the president signed off on that December, provides money to tens of thousands of black farmers who missed out on an earlier deal with the U.S. Department of Agriculture over claims of discrimination in loan processing.

The lead class attorneys—Crowell & Moring's Andrew Marks; Henry Sanders of Chestnut, Sanders, Sanders, Pettaway & Campbell in Alabama; and Gregorio Francis of Orlando's Morgan & Morgan—said claim assistance has been provided to more than 25,000 people between November 2011 and May 2012. The process is ongoing.

Judge Finds Online Travel Companies Owe D.C. Taxes

A District of Columbia Superior Court judge handed a win to city officials today, finding in D.C.'s favor in a lawsuit against online travel companies accused of not paying enough local taxes.

The city sued seven online travel companies, including Expedia Inc., Orbitz LLC and other major sites, in March 2011, accusing them of failing to pay the proper amount of taxes on hotel rooms sold in the District. The city claimed that the companies were unlawfully paying taxes based on discount rates they negotiated with hotels, instead of the higher rates they charged consumers.

In today's order (PDF), Judge Craig Iscoe found that because consumers pay for the rooms through the online travel companies, those companies should be considered the vendor under D.C. law and the full amount paid for a room should be taxable.

D.C. Circuit Questions Secrecy Over Drones in Records Dispute

The U.S. Justice Department today in a federal appeals court in Washington continued to press the government's claim that it has not officially acknowledged any CIA role in the use of drones to target and kill suspected terrorists abroad.

A top Justice lawyer, Stuart Delery, the acting head of the department's Civil Division, told the U.S. Court of Appeals for the D.C. Circuit that it should uphold the dismissal of a suit that seeks records about drones and targeted killing of alleged terrorists. A trial judge in Washington earlier ruled against the American Civil Liberties Union, which sued to access records about drones. The CIA has refused to confirm or deny the existence of any documents about drones.

Delery today disputed the notion that statements about drones by President Barack Obama and former CIA Director Leon Panetta amount to anything more than "ambiguous" remarks about the effort to fight terrorism. Statements from the president and Panetta, now the Defense Department secretary, are not "official acknowledgement" that the CIA has participated in drone strikes, Delery argued.

Judge Merrick Garland, who heard the case with judges David Tatel and Thomas Griffith, appeared the most skeptical of the government's position. Garland questioned Delery about whether disclosure of information about drones—for instance, any collateral damage assessment—would harm the national security. Likening the CIA to an "emperor," Garland said DOJ wants the appeals court to find the agency has clothes "even when the emperor's bosses say it doesn't."

Privacy Group Pushes TSA to Start Review of Airport Screening Program

Privacy advocates are urging a federal appeals court in Washington to pressure the Transportation Security Administration to begin the rulemaking process on the agency's controversial airport screening program.

The Electronic Privacy Information Center in July filed a petition in the U.S. Court of Appeals for the D.C. Circuit asking the court to force the transportation agency to initiate the process, which would allow the public to provide comment about the use of whole body imaging screeners.

EPIC's lawyers, including Marc Rotenberg, said in court papers filed Monday that the appeals court should not tolerate "substantial agency delay." The D.C. Circuit, he said, should require the TSA to begin rulemaking within 60 days.

The legal action flows from a ruling in the appeals court last year that said the TSA failed to conduct notice-and-comment rulemaking before using whole body-imaging scanners at airports across the country. The D.C. Circuit, however, did not vacate the agency's underlying rule, saying that such a move "would severely disrupt an essential security operation." The appeals court instead instructed TSA to "promptly on remand" fix the "defect" over the implementation of the new scanners.

DOJ: No Privacy Rights in Cell Phone Tower Data

Prosecutors in Washington are fighting back in a closely watched legal dispute over whether the government violated privacy rights by tracking a man's movement through the mobile phone calls he made.

The man, Antoine Jones, the nightclub owner who was at the center of the U.S. Supreme Court ruling in January over the warrantless use of Global Positioning System tracking devices, wants a judge here to block the government from using cell phone tower information as evidence. When the high court struck the ability of prosecutors to use the GPS data, citing a violation of the Fourth Amendment, the government switched up and turned to cell site evidence.

Prosecutors want to link Jones to a drug house in Maryland, connecting him to the house through his use of certain mobile phone towers. Government lawyers said in court papers filed Tuesday that cell phone subscribers don't have a privacy expectation in the business records a company keeps about which towers were used to transmit a call. Those records are created in the normal course of business, the government said, and they do not, furthermore, provide the same location precision as GPS tracking.

The FBI agents who were investigating Jones in 2005 obtained three court orders to obtain the cell tower information. That data, collected over a six-month period, shows the towers Jones' phone used to make and receive phone calls. The towers, prosecutors contend, do not pinpoint a precise location for a person who makes a mobile phone call. Government lawyers argue there's a far diminished privacy interest--if any at all--in the location of a tower compared to a dialed number or bank records.

DOJ: No Criminal Charges in Detainee Death Investigation

Updated 5:29 p.m.

The Justice Department today announced prosecutors will not pursue criminal charges rooted in the death of two detainees in United States custody overseas.

A special prosecutor, John Durham of the U.S. Attorney's Office for the District of Connecticut, announced last June the opening of a full criminal investigation of the deaths of the two detainees. That investigation is now closed.

"Based on the fully developed factual record concerning the two deaths, the Department has declined prosecution because the admissible evidence would not be sufficient to obtain and sustain a conviction beyond a reasonable doubt," Attorney General Eric Holder Jr. said in a statement issued this afternoon.

Judge Dismisses Suit Against Bank of America Over Outsourced Calls

A federal district judge in Washington tossed a lawsuit (PDF) yesterday that accused Bank of America of putting customers' financial data at risk of surveillance by the U.S. government by diverting service calls overseas.

The plaintiffs claimed that by sending calls to call centers in other countries where U.S. laws governing financial privacy don't apply, the bank was giving the National Security Agency potential access to private financial information without the customer's knowledge.

U.S. District Judge Reggie Walton found that the complaint failed to offer any proof that Bank of America had released or provided any financial documents to the federal government, let alone detail specific injury to the plaintiffs.

D.C. Judge Denies Restraining Order for 'Smart' Taxi Meters

A District of Columbia Superior Court judge denied a motion for a temporary restraining order this afternoon filed by a company challenging the city's $35 million contract with VeriFone Inc., to install new "smart" meters in taxis.

Following a hearing on Friday, Judge Laura Cordero ruled (PDF) today that the city could continue installing the meters even as administrative challenges surrounding the contract are still pending. Cordero found that the company challenging the contract and fighting to halt installation, Creative Mobile Technologies LLC (CMT), failed to prove they would suffer "irreparable harm."

CMT filed a challenge to the contract in July, but the Office of Contracting and Procurement made a determination later that month that installation plans could proceed in the interim. The company appealed that determination and is expecting a ruling by August 31, so they argued that the city shouldn't be allowed to begin installation until that issue is decided. Cordero found that even if they win on August 31, too few meters would be installed by then to pose irreparable harm.

The Morning Wrap

Throwing in the jersey: Acclaimed professional cyclist Lance Armstrong is dropping his fight against doping charges, saying "enough is enough." Armstrong now risks losing his seven titles for wins in the Tour de France cycling event. Armstrong called the U.S. Anti-Doping Agency's pursuit of him "an unconstitutional witch hunt." More coverage here and here.

Glossy: All those postcards and letters and glossy magazines that law schools publish to tout achievements? A new study of the influence the material has on U.S. News & World Report rankings shows "little correlation between the amount and content of the mailings and improved rankings," The National Law Journal reports. "Most of this stuff is not making a difference, year-to-year," the author of the study said.

Facebook flap: From The Recorder: "A juror who posted comments on Facebook about his case during trial will have to turn over the posts." The California case has drawn close attention over defendants' fair-trial rights and privacy expectations of social media users.