The BLT: The Blog of Legal Times

Annual Report on the Judiciary: Costs are Down, and Pay Needs to Go Up

In his year-end report on the state of the federal judiciary released at 6 p.m. today, Chief Justice John Roberts Jr. praised the courts as frugal, dedicated and crucial to the life and economic recovery of the nation. But to keep the courts strong, Roberts said -- as he has urged in the past -- that Congress needs to pass pay raises, or at least cost-of-living increases, for federal judges as soon as possible.

"Given the judiciary's small cost, and its absolutely critical role in protecting the Constitution and rights we enjoy, I must renew the judiciary's modest petition: Simply provide cost-of-living increases that have been unfairly denied!" Roberts (pictured below) wrote in his report. "We have done our part -- it is long past time for Congress to do its."

As his use of an exclamation point suggests, the tone of Roberts' written report betrays his frustration that his calls -- and those of his predecessor William Rehnquist -- for judicial pay increases have fallen on deaf ears in Congress. "I suspect many are tired of hearing it, and I know I am tired of saying it, but I must make this plea again -- Congress must provide judicial compensation that keeps pace with inflation," Roberts wrote. 

In 2007, Roberts noted, the judiciary committees of both the House and the Senate endorsed substantial pay increases, but the bills languished as the financial state of the nation worsened. "To make a bad situation worse," Roberts added, Congress failed to enact even a cost-of-living adjustment (COLA) in recent months -- making judges the only federal employees to begin 2009 without a COLA. 

"Congress' inaction this year vividly illustrates why judges' salaries have declined in real terms over the last 20 years," wrote Roberts. "The judiciary is resilient and can weather the occasional neglect that is often the fate of those who quietly do their work. But the judiciary's needs cannot be postponed indefinitely without damaging its fabric." District court judges are currently paid $169,300 -- the same as members of Congress -- while circuit judges are paid $179,500, associate Supreme Court justices $208,100, and the chief justice $217,400.

On DNA Collection and Religious Exercise

In an unusual challenge to the Bureau of Prison’s practice of extracting DNA samples from convicted felons, a federal appeals court ruled today that the process does not infringe federal prisoners’ religious freedom.

Russell Kaemmerling, who was convicted of conspiring to commit wire fraud and is being held in a federal prison in Texas, sued to block the BOP from collecting his DNA on the grounds that it amounted to a defilement of “God’s temple” and was “tantamount to laying the foundation for the rise of the anti-Christ.”

By law, the BOP is required to collect DNA samples from prisoners, typically via a blood sample or a mouth swab to collect saliva. The Justice Department recently expanded its DNA collection to include citizens arrested in connection with federal crimes and many immigrants detained by federal authorities.

Kaemmerling, an evangelical Christian, argued that collection of his DNA information could result in his unwilling participation in activities against his religion, including cloning experiments and stem-cell research.

The U.S. Court of Appeals for the D.C. Circuit ruled that Kaemmerling failed to show that his religious exercise was substantially burdened. "The government’s “extraction, analysis, and storage of Kaemmerling’s DNA information does not call for Kaemmerling to modify his religious behavior in any way -- it involves no action or forbearance on his part, nor does it otherwise interfere with any religious act in which he engages,” the court ruled in an opinion penned by Chief Judge David Sentelle.

The panel -- Sentelle was joined by Judge Karen Henderson and Judge Brett Kavanaugh -- spent much less time dispatching Kaemmerling’s claims that the process violated his Fifth Amendment rights to equal protection and against self-incrimination and his Fourth Amendment right to be free from unreasonable searches and seizures.

Kaemmerling did win a small victory, though. The panel reversed the lower court’s ruling that he had failed to exhaust the administrative process before filing his complaint. Turns out, there are no administrative remedies “because the BOP lacks authority to provide Kaemmerling any relief or to take any action whatsoever in response to his complaint challenging enforcement of the DNA Act,” Sentelle wrote.

D.C. Court of Appeals Upholds Election of Michael Brown to D.C. Council

Thanks to a per curiam opinion handed down by the D.C. Court of Appeals today, Michael Brown, managing director of government affairs at Edwards Angell Palmer & Dodge, will hang on to the at-large seat he won on the D.C. Council in November.

Despite a challenge filed in late November by the D.C. Republican Committee over Brown’s Independent party affiliation, the court ruled that the definition of “affiliation” stretches only to encompass a candidate’s voter registration.

Under the D.C. Home Rule Act, only three at-large members of the council, including the chairman, may be from the same party. With the Democrats’ overwhelming majority in Washington, that essentially means two at-large seats are reserved for non-Democrats—Republicans, Independents, and others. While Brown had changed his party affiliation from Democrat to Independent in May, many of his campaign materials listed him as an “Independent*Democrat.”

In a letter submitted to the D.C. Board of Elections and Ethics on Nov. 20, Charles Spies, of counsel at McKenna Long & Aldridge who represents the Republican Committee, accused Brown of being a “sham” Independent.

“The problem for Mr. Brown, however, is that the D.C. Home Rule Act is written to promote real minority representation, not sham self-proclaimed ‘independent’ Democrats who nonetheless attend the Democratic convention, call themselves a Democrat on TV, and brag of their Democratic affiliation in their biographies,” Spies wrote.

Spies went on to say that allowing Democrats to change their party affiliation “in name only” would end up costing minority parties their voice in District government.

The court’s ruling, handed down by Judges Vanessa Ruiz and Michael Farrell and Senior Judge Frank Nebeker, also says the elections board sold short its own role in certifying candidates. Previously, the board had said that its role was limited to deciding whether candidates met the qualifications for holding office and that it was not able to hear specific challenges to a candidate. But the court says the board does have that power.

In that regard, Spies tells the BLT, the D.C. Republican Committee “considers the opinion a win because minority parties can hold the board accountable” by filing challenges to a candidate’s eligibility.

Michael Brown did not return calls for comment.

Blackwater Malpractice Suit Against Wiley Rein Dismissed Again

For Wiley Rein, perhaps the second time is the charm. On Dec. 29, Judge Jennifer Anderson of D.C. Superior Court dismissed the $30 million malpractice suit brought against the firm by Blackwater Security Consulting on summary judgment. She’s the second judge to throw out the case since it was filed last January.

“They have the right to ask more judges to look at it,” says Zuckerman Spaeder partner Mark Foster, who represents Wiley Rein in the matter. But if Blackwater’s lawyer, Barry Nace of Paulson & Nace, chooses to do so, Foster says, “I think he’d be wasting his time.” (Nace is on overseas travel and could not immediately be reached for comment.)

Blackwater alleged that Wiley botched its defense of the security contractor in a wrongful death case brought on behalf of four Blackwater guards killed in Iraq in 2004. Blackwater claimed the suit would have been dismissed if it had been heard in federal court, instead of in a North Carolina trial court. Blackwater said the Wiley lawyers failed to get a venue change because they didn’t invoke the federal officer removal statute, which grants federal jurisdiction to claims involving federal officers.

D.C. Superior Court Judge Judith Retchin first dismissed the case last June, saying Blackwater couldn’t prove damages. Blackwater filed a motion for reconsideration later that month, and the case was transferred to Anderson’s docket in July. In her order dismissing the case for the second time, Anderson noted that Blackwater could have proved it was owed legal costs associated with Wiley’s failed effort to transfer the case to federal court. However, Anderson ultimately concluded the federal officer removal statute would not have applied, meaning that damages were “consequently unavailable.”

Morning Wrap

Lobbyist Sues Newspaper: Vicki Iseman, a Washington lobbyist sued The New York Times for $27 million yesterday after the paper published an article that suggested she had an affair with Sen. John McCain in 1999, according to The Associated Press, via Law.com. The defamation suit names the paper’s executive editor, Washington bureau chief, and four reporters as defendants.

Associate Suspended After Sex Sting: A former Kirkland & Ellis associate, who was fired in 2004 after attempting to meet a minor for sex, was suspended from practicing law in New York for three years by a New York appellate court, according to the New York Law Journal, via Law.com. With a lack of precedent, the court was split, 3-2. The dissenting judges wanted the lawyer disbarred.

Madoff Mess: Yesterday, a U.S. Bankruptcy Court judge approved a $28.1 million transfer to cover expenses tied to the liquidation of Bernard Madoff's investment firm. The money will cover employee salaries and other costs. The Associated Press, via Law.com, reports none of the transferred funds will affect any recovery for investors who lost money in Madoff’s Ponzi scheme.

Blagojevich Makes Senate Pick: Illinois Gov. Rod Blagojevich, selected former state attorney general Roland Burris to take President-elect Barack Obama’s Senate seat yesterday. According to The Washington Post, five Senate Democratic leaders said, in a joint statement, they would block the appointment, saying that Blagojevich is unfit to make the selection.

Two Guantanamo Prisoners Denied Release

A federal judge gave the government the go-ahead today to continue holding two Guantánamo Bay inmates, ruling it had enough evidence to justify their detention.

Judge Richard Leon of the U.S. District Court for the District of Columbia denied habeas petitions from Hisham Sliti and Moath Hamza Ahmed Al Alwi, both of whom were accused by the government of participating in terrorist activities in Afghanistan during 2000 and 2001.

This is Leon’s second ruling on Guantánamo detainees. In November, he ordered the release of five Algerian inmates, while allowing the government to keep one in custody. Three of the five who he ordered released have since been flown to Bosnia.

Both Sliti and Al Alwi were captured by Pakistani authorities in 2001, shortly after the United States began its military campaign against the Taliban in Afghanistan. According to the government’s lawyers, Sliti, a native Tunisian, traveled from London to Afghanistan in 2000 using a fake passport. He was eventually arrested by the Pakistani government, escaped, and traveled to Jalalabad. There, he allegedly lived with a group of known extremists and helped them form a terrorist cell before he was recaptured by the Pakistanis.

Sliti argued that he had traveled to Afghanistan to kick a drug habit and find a wife. Leon said this explanation was “not credible.”

Al Alwi traveled from Saudi Arabia to Afghanistan sometime around 2000, where U.S. officials said he joined an al-Qaida training camp before joining a unit of Taliban fighters. Alwi allegedly abandoned his Taliban unit after several U.S. bombing attacks and was eventually picked up by Pakistani authorities.

Leon said that despite the lack of evidence that Al Alwi had personally taken up arms against the United States, the fact that he had close ties to the Taliban and al-Qaida, as well as the fact that he had stayed with his military unit during the U.S. strikes were enough to classify him as an enemy combatant.

“I’m disappointed based on just how slim the government’s case was,” said Cori Crider, one of Sliti’s lawyers. “If that’s the kind of evidence that can be used to hold someone for what could be an indefinite period of time, it’s discouraging.”

Atheists Sue Chief Justice Over Inaugural Oath

The oath of office that presidents take on Inauguration Day is right there in the U.S. Constitution -- at the end of Article II, Section 1. Take a look, and you will see that the oath does not include the words "so help me God" at the end, though presidents and the chief justices who swear them in have apparently added the words in every inauguration since 1933. Some historians say George Washington used the same words in the first inaugural, but others dispute that, and in any case the practice did not become common until the inaugurations of Franklin Roosevelt. 

California atheist Michael Newdow -- famed for challenging the words "under God" in the Pledge of Allegiance -- has gone to the U.S. District Court for the District of Columbia seeking an injunction to prevent Chief Justice John Roberts Jr., as well as the congressional sponsors of the Jan. 20 inaugural and several other defendants, from inserting the words "so help me God" into the oath.

According to the complaint the plaintiffs "have no objection at this time" if Obama chooses to add the words himself. "The president, like all other individuals, has Free Exercise rights, which might permit such an alteration." But, the complaint adds, "no such free exercise rights come into play on the part of the individual administering the oath to the President." 

In other words, it would be okay if Obama adds the phrase on his own. But if Roberts "prompts" Obama to recite the offending phrase by offering the words himself, that would amount to a "state actor" endorsing religion, Newdow asserts. And that would violate the First Amendment's establishment clause, as well as the Religious Freedom Restoration Act, according to Newdow.  

The complaint also states, "It is well known that defendant Roberts is a Catholic" and adds that Rev. Rick Warren, whom Obama has chosen for the invocation, has repeatedly said he would never vote for an atheist. Inclusion of an invocation and a benediction in the program, Newdow adds, is "completely exclusionary, showing absolute disrespect to plaintiffs and others of similar religious views."

Joining Newdow in the suit are several individual atheists, the American Humanist Association, the Freedom From Religion Foundation, and other atheist groups.

Drinker Biddle & Reath Picks Up Six Former Thelen Lawyers

The dust from the Thelen implosion continues to settle, and that means Washington firms are still reaping the benefits of having an influx of experienced attorneys to bring on board.

Drinker Biddle & Reath’s Washington office has added six former Thelen lawyers to its labor and employment practice.

The group, which joined Drinker Biddle on Dec. 18, includes three partners, two associates, and one counsel.

The additions to Drinker Biddle mark a continuation of the D.C. firms adding former Thelen lawyers to their ranks. Earlier this month, Morgan, Lewis & Bockius announced that two lawyers had joined the employee benefits practice in Washington, and Troutman Sanders added four lawyers to its D.C. tax group.

Bethesda Company Sues Realtor For Copyright Claim

Ever used a friend’s account to sign on to a Web site instead of paying its subscription fee? Of course you have. After all, who actually ponied up for New York Times Select? Heck, maybe you’re doing it right now.

In the meantime, one real estate agency is facing down a hefty suit in Maryland for allegedly doing something similar, albeit on a much bigger scale.

The suit, filed by Bethesda-based CoStar Realty Information, alleges that managers at New York’s Dumann Realty illegally accessed CoStar's Web site, a subscription to which costs hundreds of dollars a month and provides clients with real estate information such as photos and vacancy databases, by borrowing another customer's user information. According to the complaint, filed yesterday in the U.S. District Court for Maryland, the attempted swindle cost CoStar more than $5,000 in fees.

But here’s the wrinkle: CoStar is accusing Dumann, as well as the alleged co-conspirators who lent it the account, of copyright infringement. By accessing its Web site on the sly, CoStar claims, Dumann’s employees did the equivalent of illegally distributing its content. Costar is asking that Dumann pay $150,000 a pop for every photo or database it accessed.

This is the seventh copyright suit CoStar has filed in Maryland since March. The company, represented in this latest suit by Shari Lahlou and William Sauers of Crowell & Moring, decided in late 2007 that it needed to do more to clamp down on illicit use of its site. It realized that copyright claims could ad extra punch to its efforts. Until then, CoStar had settled for filing run-of-the-mill breach-of-contract or computer fraud suits.

"We're using copyright because it gives us access to enhanced damages compared to a straight breach of contract suit," says Chris Winters, CoStar's associate general counsel and director of intellectual property. Winters adds that the company's enforcement effort has gone way beyond just the cases that have shown up on the docket.

"We have copyrights and we'll use them," he says.

Plea Deal in Wone Case? Not Right Now

Government prosecutors are not talking plea deals—not now, at least—with the three men charged with obstructing the police investigation of the murder of Robert Wone.

Arent Fox lawyer Joseph Price, his domestic partner Victor Zaborsky, and their roommate Dylan Ward are accused of obstruction stemming from the murder of Wone, killed in August 2006 in the Swann Street home of Price and Zaborsky. D.C. police say Wone, general counsel for Radio Free Asia, was restrained, sexually assaulted, and fatally stabbed.

Price, Zaborsky, and Ward individually talked with D.C. police without counsel for more than 25 hours, according to court records. The men deny any involvement in the murder and have since hired lawyers. None of the men are charged with murder.

Defense lawyers Thomas Connolly, Bernie Grimm, and David Schertler say their clients have provided everything they know to police and have cooperated in the investigation. Prosecutors don’t buy it. More charges—including conspiracy and evidence tampering—could be added in a couple of weeks, prosecutors say.

“Until your respective clients participate in an open, frank, and truthful discussion of their full knowledge of the circumstances surrounding the murder with us, the government will not consider extending a plea offer in this case,” an assistant U.S. attorney, Glenn Kirschner, said in a memo this month that was provided to the defense lawyers.

Kirschner recently handed over discovery to Connolly, Grimm, and Schertler. The documents include search warrant affidavits for the Price and Zaborsky rowhouse on Swann Street; for an apartment in Silver Spring; and for a house in the 5100 block of Lee Street in N.E.

Police also searched a BMW, served a warrant on a Yahoo! e-mail account and for a BlackBerry, and inspected several personal computers, according to court records. Price’s office space also was targeted in a search warrant. The discovery documents include Ward's polygraph report.