The BLT: The Blog of Legal Times

Meet the DOJ Appointees

The front offices at the Justice Department are filling up. This evening, the department sent out a list of political appointees "onboard" as of Jan. 29. Some names you've seen here before. Some you haven't. We've helpfully included recent employment history in parenthesis.

David Anderson: Counselor to the Assistant Attorney General, Civil Division (former head of the Civil Division's Federal Program's Branch)

David Barron: Principal Deputy Assistant Attorney General, Office of Legal Counsel (professor, Harvard Law School)

John Bies: Counselor to the Attorney General, Office of the Attorney General (partner, Covington & Burling)

Eric Columbus: Senior Counsel to the Deputy Attorney General, Office of the Deputy Attorney General (counsel, Wilmer Cutler Pickering Hale and Dorr)

Rajesh De: Deputy Assistant Attorney General, Office of Legal Policy (partner, Mayer Brown)

Stuart Delery: Chief of Staff and Counselor to the Deputy Attorney General, Office of the Deputy Attorney General (partner, Wilmer)

Steven Fagell: Counselor to the Assistant Attorney General, Criminal Division (partner, Covington)

Lawyers for Bikini Islanders Vow to Continue Compensation Fight

The legal and political fight is expected to continue for Bikini Islanders and their lawyers, who are pushing for greater compensation from the government for nuclear bomb testing in the 1940s and 1950s that displaced islanders, exposed them to radiation, and decimated the land.

A three-judge panel of the U.S. Court of Appeals for the Federal Circuit ruled today against the plaintiffs, saying an agreement between the governments of the United States and Marshall Islands in 1986 is a settlement that is beyond judicial review. The court affirmed a U.S. Court of Federal Claims ruling.

Federal Circuit Judges Randall Rader, Alan Lourie, and Sharon Prost said in the 9-page opinion there is no ambiguity in the agreement. U.S. courts, the panel declared, have no jurisdiction to hear the claims since Congress set aside $150 million to start a trust fund to support the Nuclear Claims Tribunal. The tribunal was established to hear claims from islanders.

The political questions raised in the case are “beyond the power of this or any court to consider,” the judges wrote. “In sum, this court cannot hear, let alone remedy, a wrong that is not within its power to adjudicate,” Rader wrote for the panel.

Lawyers for the plaintiffs—including partners at Akin Gump Strauss Hauer & Feld and at Wilmer Cutler Pickering Hale and Dorr—are seeking enforcement of awards that came out of the tribunal in 2000 and in 2001 that totaled more than $948 million in compensation for the people of the Bikini and Enewetak atolls in the Central Pacific. The awards included loss of the islands; clean-up and resettlement costs; and personal injury and hardship. The Bikini Atoll remains uninhabitable.

But the tribunal, citing a lack of funding, has only paid about $3.8 million to the plaintiffs. Lawyers for the islanders say Congress did not sufficiently fund the tribunal to make it able to provide just-compensation awards. An effort in Congress to fund the tribunal has languished.

In the Federal Circuit, Patricia Millett, an Akin Gump partner, argued for the Bikinian class, which includes 400 U.S. citizens. Wilmer Hale partner Jonathan Cedarbaum argued for the people of the Enewetak atoll. Brian Simkin, assistant director of the Justice Department commercial litigation branch, argued for the government.

Jonathan Weisgall, who has represented Bikini islanders since the 1970s, says the Federal Circuit opinion is unlikely to end the litigation.

“There remains, as there has for 63 years, a moral obligation of the United States to care for victims of nuclear testing,” says Weisgall, who participated on the briefs with the Akin Gump team. “I don’t think we’re at the end yet—not at all. From their perspective, the last chapter of this book ends when they get to go home.”

The lawyers could petition the Federal Circuit for a rehearing en banc or ask the Supreme Court to review the case.

Ogden Confirmation Hearing Set for Next Week

Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) has scheduled the confirmation hearing for Deputy Attorney General nominee David Ogden for Feb. 5, renewing Leahy’s effort to install a new leadership quickly at the Department of Justice.

The Senate is scheduled to vote on Ogden’s expected boss, Attorney General nominee Eric Holder Jr., on Monday, three days before Ogden’s hearing would begin.

“The time for partisanship is over. We must move forward and confirm the Justice Department’s leadership team without delay,” Leahy said in a statement.

Ogden, a partner at Wilmer Cutler Pickering Hale and Dorr, held several top Justice Department jobs during the Clinton administration. He was head of the Civil Division from 1999 to 2001 and previously was chief of staff to then-Attorney General Janet Reno and as counselor to Reno.

“Mr. Holder will need his Deputy, Associate, and Assistant Attorneys General in place as soon as possible,” Leahy said. “I expect to consult with the Ranking Member [Arlen Specter (R-Pa.)] to accommodate Republican scheduling requests and to move forward with further confirmation hearings for Justice Department nominees.”

Ogden's nomination was announced Jan. 5.

The Judiciary Committee has posted Ogden’s questionnaire and several letters supporting his nomination, including one from Wilmer colleague and former Solicitor General Seth Waxman.

Learned in the Law

In a blog post Wednesday about Solicitor General-designate Elena Kagan, we invoked the oft-repeated chestnut that the solicitor general is the only position whose occupant is required by statute to be "learned in the law."

Well, not quite. A careful reader alerted us to 2 U.S.C. Sec. 288(a)(2), which states that the counsel and deputy counsel of the U.S. Senate also "shall be learned in the law." 

Live and learn. But did former solicitor general Seth Waxman once make the same mistake we did? In a 1998 speech he gave on the history of the solicitor general's office, Waxman said the solicitor general is "the only officer of the United States required by statute to be learned in the law."  The speech is deemed so authoritative that the text can be found on the official Web site of the solicitor general. 

It appears Waxman was technically correct. Senators and Senate staff are not regarded as officers of the United States, while those who toil in the executive branch and in the judiciary are. So, as framed by Waxman, his assertion was right. (A quick search of the U.S. Code indicates no other specific job carries the same requirement, though under 18 U.S.C. Sec. 3005, those accused of treason and other federal capital crimes are supposed to be represented by at least one counsel "learned in the law" relevant to capital crimes.)

We reached out to the current Senate counsel, Morgan Frankel, who declined comment except to say, "If I am learned, I got learned at Yale."

Robert Kabel Re-elected as D.C. Republican Committee Chairman

On Tuesday night, the D.C. Republican Committee unanimously elected Robert Kabel, a senior adviser at B&D Consulting, to another term as chairman of the committee.

The election of Kabel as chairman marks the third time he will serve in that post, which has a two-year term.

In November, Kabel led the charge against newly elected D.C. Councilman Michael Brown, managing director of government affairs at Edwards Angell Palmer & Dodge, saying that Brown was ineligible to take office because although he registered as an independent in May 2008, many of his campaign materials listed him as an “Independent*Democrat.”

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.

The D.C. Court of Appeals dismissed the Republican Committee’s claim on Dec. 31.

The elections also added former Ward 2 D.C. Council candidate Christina Culver, who runs her own practice in global venture philanthropy, and former At-Large D.C. Council candidate Patrick Mara, manager of government relations at ML Strategies, to the executive committee.

Lawyers Seek Stay in Wone Wrongful Death Suit

Lawyers representing the three men charged in connection with the death of Robert Wone have no interest in simultaneously participating in a civil wrongful death action while the criminal charges are pending.

The lawyers, including David Schertler, are accusing counsel for the Wone family of gaming the judicial system, pressing for information in the wrongful death case to bolster the criminal prosecution. The Wone family lawyers at Covington & Burling say the accusations are meritless.

Schertler fired off a letter to Covington partner Benjamin Razi this month demanding answers about an apparent private investigator in Florida who reportedly was pretending to be a lawyer for Schertler's client Dylan Ward. Schertler, alerted to the man by Ward's friends, wrote that the person must "cease any and all representations that he is Mr. Ward's attorney or works for Mr. Ward is any way."

The criminal case against Arent Fox partner Joseph Price (pictured at left), Victor Zaborsky, and Ward—the men are charged with conspiracy, obstruction of justice, and evidence tampering flowing from the fatal stabbing of Wone in August 2006—shares the same facts as the wrongful death suit filed in November.

Lawyers for the defendants in the civil case—Schertler, Larissa Byers, and Craig Roswell—argue in motions filed Jan. 23 in D.C. Superior Court that the civil matter should be put on hold and that the defense should not have to participate in discovery, including depositions, while the criminal case is pending.

Anything Price, Zaborsky, and Ward might say in a deposition could be used against the men in the prosecution. And silence in a depo? That could expose the men to liability, the lawyers note.

“Permitting civil discovery at this juncture could therefore undermine the integrity of the criminal prosecution currently underway as well as violate the defendants’ due process rights,” the defense lawyers say. Schertler, Byers, and Roswell argue the “public interest in the just and constitutional enforcement of the criminal laws outweighs the private interest of any single individual in pursuing money damages for an alleged wrong.”

Counsel Could Rake in $5 Million from Veterans Settlement

On Tuesday the federal government coughed up a $20 million settlement agreement with military veterans whose personal data was stolen from Veterans Affairs Department computer. Each veteran who signs on to the class action will get a payment of between $75 and $1,500 if they can prove that the risk of identity theft caused them some sort of emotional harm or financial burden. Not bad, considering the original class action asked for $1,000 per veteran, and the VA already offered to pay for a year of credit monitoring for each of the victims.

So what’re the lawyers taking home? According to the settlement documents, filed yesterday in the U.S. District Court for the District of Columbia, the class counsel has agreed not to ask for more than $5 million in fees and $500,000 for expenses when it heads to a fairness hearing in the case.

The firms due for a payday include: Murdoch, Goldenberg, Schneider & Groh from Cincinnati; Ogletree, Deakins, Nash, Smoak & Stewart of Columbia, S.C.; The Mason Law Firm in Washington; Weiss & Laurie in New York; and Marc Mezibov, from The Law Offices of Marc Mezibov, also in Cincinnati.

The class action stems from a routine burglary in 2006, in which a laptop was stolen from the home of a Veterans Affairs Department data analyst. The computer and its external drive, which the analyst had taken home without permission, contained personal data such as birth dates and Social Security numbers for up to 26.5 million veterans and active duty service members.

What's Next for Fred Fielding?

While President Barack Obama has been busy staffing up his Office of White House Counsel, George W. Bush’s last White House counsel, Fred Fielding, has been vacationing at his home in Sanibel Island, Florida. “I just wanted to take a little time off, and clear my head,” Fielding said during a brief phone call today. “I’m going to take my wife on a cruise.”
 
Fielding, who was a name partner at Wiley Rein before Bush tapped him as White House counsel in 2007, said he has not decided on his next career move. “I’ve made no plans at this point,” he said. When asked if he’s considering returning to Wiley Rein, Fielding said he would get in touch with name partner Richard Wiley to discuss his plans once he gets back to D.C. Fielding said he would be back in town by the middle of next month.
 
In the weeks leading up to Obama’s inauguration, Fielding said he worked with Obama’s White House counsel pick, Gregory Craig, to “accommodate what he needed…and also brief him up on the office.” Fielding said he would advise any incoming White House counsel to “remember the responsibilities that you have, and who your client is.” He speaks from experience, since Fielding was also White House counsel to Ronald Reagan, and associate counsel to Richard Nixon.
 
Though Fielding did not discuss in-depth his time in the Bush administration, he said President Bush was a “terrific” client, and that he listened to the legal advice Fielding supplied. 

Barnett Rejoins Covington

Thomas Barnett, who recently stepped down as the Justice Department’s antitrust chief, has rejoined Covington & Burling, the firm announced today.

Barnett (Yale, Harvard Law) resigned in November, after leading the Antitrust Division for more than three years, in both acting and Senate-confirmed capacities. He began his career in private practice at Covington in 1990, where he remained until his 2004 appointment. At Covington, he’ll lead firm’s global antitrust and competition law practice and will also work closely on criminal antitrust enforcement and investigative matters.

In an interview with Legal Times, Barnett said Covington’s strong international platform drew him back to the firm. “Competition is very much an international enterprise,” Barnett says. “As a result, dealing with competition has never been more important or more challenging for companies.”

In a statement, Timothy Hester, chair of Covington’s management committee, called Barnett "among the most able, experienced, and versatile antitrust practitioners on the global scene."

"We are extremely pleased that he is rejoining Covington, where he distinguished himself early on for his abilities as a top-notch antitrust counselor and litigator and as a superb colleague,” Hester said.

Merger numbers were low during Barnett’s tenure at the Justice Department -- the division filed 34 cases -- but Antitrust’s cartel enforcement was robust, netting $1.8 billion in criminal fines against 50 corporations and 91 individuals. A large chunk of those fines came from four major airlines, which handed over $504 million to settle air cargo price-fixing charges over the summer. Barnett's division was also active in the Supreme Court. Antitrust filed 14 amicus briefs with the Supreme Court on competition related issues, and the Court consistently adopted the division's analysis.

Barnett oversaw several large-scale industry mergers, including Delta-Northwest and XM-Sirius. Days before he announced his resignation, Google Inc. backed out of an ad-sharing deal with Yahoo! Inc., fearing a protracted legal battle. The Justice Department threatened to file a lawsuit to block the deal.

When asked about the possible direction of the division under the new administration, Barnett says he hopes it will “continue on the basic track that it’s been on for, really, the last couple of decades. Most of the people there are career folks who are very dedicated individuals and the vast majority of issues are decided on a consensus basis.”

At his Jan. 15 confirmation hearings, Attorney General nominee Eric Holder Jr. spoke generally of the need for “smart antitrust enforcement to punish unlawful conduct that hurts markets, excludes competition, and harms consumer welfare.”

President Obama has nominated Hogan & Hartson’s Christine Varney, a former FTC commissioner, to head the Antitrust Division. If confirmed, Holder and Varney will confront an economic crisis that could force them recalibrate their thinking on merger enforcement. Barnett says the economy could play out in a couple ways.

“It can affect the number of transactions, bringing them way, way down,” he says. It can also dramatically affect the analysis of potential mergers, though Barnett said it’s difficult to generalize. “It may make some transactions easier to or it may make them harder. It just depends.”

His advice for Varney, if she’s confirmed: “Listen to the very dedicated and capable staff in the division, roll up your sleeves and dive into the facts and the law, and do your best to make the right calls. I think that’s all we can ask for.”

Barnett resumes work at Covington next week. When asked whether he’ll get his old office, Barnett says, “We’ll have to figure that all out.”

D.C. Bar Set to Move to K Street

After almost 16 years at 1250 H St. N.W., the D.C. Bar has found some new digs and plans to move in at the end of May.

The bar, which signed a 12-year lease for office space at 1101 K St. N.W. this past weekend, had been looking for a new location for about a year in preparation of its lease running out in May. Cynthia Kuhn, D.C. Bar spokeswoman, says the bar had considered buying office space outright, but the D.C. Bar’s building committee, which scouted out "hundreds" of locations, said leasing space in the 10-story building at 1101 K St. was the best value.

Though the D.C. Bar was not immediately able to provide the particulars of the lease, real estate brokers who handle legal real estate estimated the rent at somewhere between $55 and $65 per square foot.

“Rent is a significant cost of our operation. It always has been,” Kuhn says.

Kuhn says the new location is fairly close to the old one and will encompass 52,375 square feet of office space, conference rooms, and meeting areas, an increase of about 10,000 square feet.

Last September, the D.C. Court of Appeals approved a $90 increase to the maximum amount in annual dues the bar can charge, a move largely driven by the bar’s effort to find a new location amid the ongoing economic crisis. The court’s approval allows the D.C. Bar’s board of governors to raise annual dues as it sees fit up to the ceiling of $285. If bar leaders vote to raise dues, an increase could come as early as July 1.