The BLT: The Blog of Legal Times

Ex-Administrative Law Judge Takes Suit to the D.C. Circuit

D.C. Superior Court was a bust. So was the D.C. Court of Appeals. A related suit in U.S. District Court for the District of Columbia didn't work out, either. Maybe a federal appeals court will see things differently.

Roy Pearson Jr., the former administrative law judge in Washington who gained notoriety for his unsuccessful $54 million suit against a dry cleaners that misplaced a pair of pants, has turned to the U.S. Court of Appeals for the D.C. Circuit.

Pearson, who filed a pro se notice of appearance today, wants the federal appeals court in Washington to overturn the dismissal of a wrongful termination suit he filed in May 2008 against the city, among other defendants, seeking reinstatement to his post as an administrative law judge. Pearson has been a member of the D.C. bar since 1978. He did not immediately return a call seeking comment.

Pearson said in the suit, filed federal district court in Washington, that the failure to reappoint him to a ten-year term of service as an administrative law judge violated constitutional and statutory rights. Pearson said he has a right to complain about alleged supervisory misconduct. He said he has a right to file suit without the fear of retaliation. A commission declined to reappoint Pearson in October 2007.

Judge Ellen Segal Huvelle explores Pearson’s saga in a 37-page opinion (.pdf) published in July.

Huvelle dismissed Pearson’s argument that he was retaliated against for his lawsuit against the dry cleaners. To show protected speech, Huvelle wrote, Pearson’s suit must address a matter of public concern. “A review of the nature of, and motivation behind, plaintiff’s lawsuit demonstrates that plaintiff was not on a mission to protect the public welfare,” Huvelle wrote.

Pearson’s complaint related claims only about himself and sought relief for himself only. “His lawsuit was, in the words of the superior court judge, ‘a one-victim case involving a single pair of lost suit pants,’” Huvelle wrote.

“The mere fact that plaintiff characterizes his status as that of a private attorney general does not alter the general nature of his lawsuit, which more properly should be characterized as a personal vendetta against a dry cleaners over a pair of pants,” the judge said in her opinion. The D.C. Court of Appeals in December upheld a jury's verdict against Pearson.

There’s no guarantee that the D.C. Circuit will hear oral argument in the case.

D.C. Court of Appeals Suspends Ex-Pillsbury Associate

The D.C. Court of Appeals handed down a 60-day suspension today for a former Pillsbury Winthrop Shaw Pittman associate who told clients that he was senior counsel.

According to the per curiam opinion (.pdf), Garland Stillwell also admitted that he "made a false representation on behalf of a friend, improperly charged personal expenses to others, worked outside the law firm against the law firm's written policies, and asserted a position on behalf of clients that was adverse to a position taken by a client of his firm without first obtaining informed consent of all parties."

Stillwell worked at Pillsbury from June 1, 2004, to Feb. 20, 2008.

A hearing committee of the D.C. Board on Professional Responsibility recommended on June 4 that Stillwell receive a 60-day suspension as opposed to a sterner punishment because he admitted his wrongdoing and made attempts to address it. Stillwell reimbursed the firm for its losses and received professional counseling. At the end of suspension, he will not be required to show he is fit to practice law before he is reinstated.

Most recently, Stillwell had been working as an associate at O'Malley, Miles, Nylen & Gilmore in Calverton,  Md., but the firm's managing partner John Davey says he hasn't been employed at the firm since June 30.

"We were aware that he faced the prospect of suspension, and without a license, he is not eligible to practice law at the firm," Davey says. "We felt it was in everybody's best interest to accept his resignation and move on."

Former Kennedy Staffer Remembers

Nicholas Allard, head of the public policy practice at Patton Boggs and a former counsel to the Senate Judiciary Committee under the late Sen. Ted Kennedy (D-Mass.) in the 1980s, said he is still struggling to absorb the news of Kennedy's death earlier this week from brain cancer. 

"It's hard to imagine him not being there in the Senate," Allard said. 

Allard said Kennedy taught him "the importance of not cutting corners and doing things the right way." He also credited Kennedy with showing him that it was possible to show respect for others even while disagreeing. "That's one of the reasons he was so effective in getting deals, getting things done," he said. 

As a young staffer, Allard and others competed to get memos into Kennedy's briefcase at night. "It's called the bag," Allard said of the briefcase, "and sometimes, it was a two-bag night. No matter what he was doing, he read those memos every single night, and he'd mark them up and have a question for you. He knew every single thing about ...legislation that I was working on." 

Rehearing Denied in Prosecution Immunity Suit

A federal appeals court in Washington this week rejected the government's request that the entire court pick up and review a case in which a former grand juror is suing a prosecutor and a D.C. Superior Court official.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit in June sided in large part with the former grand juror, Peter Atherton, who government lawyers say was kicked off of a grand jury in 2001 for failing to follow rules and procedures.

The appeals court unanimously revived Atherton’s pro se suit against assistant U.S. attorney Daniel Zachem and D.C. Superior Court official Suzanne Bailey-Jones. The court reversed the dismissal of Atherton’s suit, saying that Zachem and Jones are not entitled to absolute immunity. The trial judge must determine whether the two officials are protected by qualified immunity. The government was seeking a rehearing of the panel decision.

Zachem, according to court papers, said several other jurors had complained about Atherton's behavior, and the prosecutor passed on that concern to Jones. Jones sent Atherton packing. Superior Court rules say only a judge has the power to dismiss a sitting grand juror. The chief judge learned about the Atherton’s dismissal after the fact. The former chief judge, Rufus King III, said in an affidavit in the case that the court took steps after the Atherton case to make sure that judges, and not court employees, were making decisions on dismissing sitting grand jurors.

Atherton said he was improperly removed because he was asking too many questions of the prosecution and demanding too much information about the crimes alleged. He told Legal Times that grand jurors were rushing through indictments without a complete understanding of the elements of the charges. In the appeals court, a Duke Law School student, Sarah Campbell, argued in the D.C. Circuit in March on behalf of Atherton's interests.

The Morning Wrap

Talking Baseball. And Steroids: The U.S. Court of Appeals for the 9th Circuit is the talk of the sports world right now. The court, sitting en banc, has ruled that federal agents were wrong to seize drug test results from labs in Nevada and California, a blow to the Justice Department's investigation of steroid use in the big leagues, The Recorder reports. The government seized computer files that contained information about far more people than allowed by a search warrant. The en banc opinion split the conservatives on the court. The ruling was a win for the baseball players union, The New York Times reports.

High Court Praise: Front pages across the country today are dedicated to the life of Sen. Ted Kennedy (D-Mass.). The Supreme Court issued two statements on the Kennedy's death, one from Chief Justice John Roberts and the other from Justice Stephen Breyer, reports The National Law Journal. Unrelated to Kennedy, but on the Supreme Court front: retired Justice David Souter has placed an unusually long restriction on public access to his papers, The BLT reports. The New Hampshire Historical Society will acquire the papers. But Souter placed a 50-year restriction on access to the documents—the longest seal on papers in recent memory.

Messing with Odometers: A ruling in the U.S. District Court for the Southern District of New York was a win for a potential class action by customers who say Subaru sold or leased vehicles with defective odometers, The New York Law Journal reports. Judge George Daniels rejected argument from Subaru's lawyers at Herzfeld & Rubin that the Federal Odometer Act does not apply to the plaintiffs' allegations. The customers allege, among other things, defective odometers inflated mileage and thus shortened warranty periods and decreased resale values. A copy of the judge's opinion is here.

Bloodshed in Suburbia: The Washington Post looks at how drug-fueled violence in Mexico is spilling into suburbia in the United States, and at least one police chief in Texas is complaining about a lack of information sharing between local and federal law enforcement agencies. One police lieutenant in El Paso, Texas, told the Post: "We've never worked well with ICE," Lowe said. Earlier this month, the Justice Department and Immigration and Customs Enforcement announced a plan to foster increased communication.

Souter Blocks Access to His Papers for 50 Years

The New Hampshire Historical Society has announced that retired Supreme Court Justice David Souter is donating his personal and professional papers to the society. But don't book travel to New Hampshire quite yet to take a peek; Souter has placed an extraordinarily long restriction on public access to his papers, barring anyone -- researchers, historians, friends, journalists -- from viewing the material for 50 years. That's a lengthier seal than any justice has placed on papers in recent memory.

The unusually severe bar on access is surprising in one sense, but very Souter-esque in another. Souter is an avid historian -- in fact joining the board of trustees of the New Hampshire Historical Society as part of the announcement of his decision to donate his papers there. He knows well the "call of history," the obligation of historical figures and public officials to help flesh out the how and why of important events.

But Souter is also an intensely private person, especially protective of the Supreme Court on which he served for 19 years. He was a lifelong diarist and may have decided that his files were too sensitive to be made public while any of his colleagues or many of his law clerks are still alive. Other justices have solved similar issues by making some segments of their papers available earlier, others later.

"I would have been surprised by anything under 25 years," said University of Cambridge professor David Garrow, a Court historian who has written extensively about Souter. "I guess I would have hoped for 25. But, given his diary keeping (though we don't know for sure whether or to what extent he continued that at the Supreme Court) I could imagine him wanting to believe, for instance, that pretty much all his clerks would be gone by the time that everything came open."

Fomer New York Times reporter Linda Greenhouse, who mined the papers of the late Justice Harry Blackmun for her 2005 book Becoming Justice Blackmun, said of Souter's restriction, "I'm disappointed. There must have been a targeted way that Justice Souter could have removed memos or other information that he didn't want to make public, while at the same time not locking away for the next two generations the records of a fascinating period in Supreme Court history. David Souter has a great deal of wisdom to offer the country, and I hope that he will continue to offer it in person, especially since he won't be doing it through his papers."

Slot Opens on Federal Circuit, More on the Way?

By Marcia Coyle

President Obama this fall will have his first opportunity to put his stamp on the patent-heavy U.S. Court of Appeals for the Federal Circuit. Judge Alvin Schall recently told the White House that he will take senior status in October. That will create the first of what could be as many as eight vacancies on the appellate court in the president's first term.

Eight of the court's 12 judges will be eligible to retire or to take senior status in less than two years. The judges currently eligible for senior status include Chief Judge Paul Michel, Pauline Newman, Haldane Mayer and Alan Lourie. Those eligible this year are Schall, Timothy Dyk, Arthur Gajarsa and, in early 2010, William Bryson. Four senior judges now sit on the court: Daniel Friedman, Glenn Archer, S. Jay Plager, and Raymond Clavenger.

The potential changeover would be the greatest since the court was established in 1982. Often mentioned by patent practitioners and academics as potential nominees are: U.S. district judges Kathleen O'Malley of the Northern District of Ohio in Cleveland; Jeremy Fogel of the Northern District of California in San Jose; and Patti Saris of the District of Massachusetts in Boston, along with Judge Mary Ellen Coster Williams of the U.S. Court of Claims in Washington.

The pool of new judges from which Obama could choose might be narrowed somewhat because of the so-called Baldwin Rule. That's a 25-year-old statutory requirement that every active judge and the chief judge of the Federal Circuit must live within 50 miles of the court's home base, the District of Columbia.

The Federal Circuit is the only federal appellate court with a residency requirement. For all other circuit courts, the law only requires that at least one circuit judge in regular active service be appointed from the residents of each state in that circuit.

The historical origin of the residency requirement is not known precisely, but many practitioners and scholars credit the view of one intellectual property practitioner present at the circuit court's birth in 1982--Harold Wegner, partner in D.C.‚s Foley & Lardner.

Wegner dubbed the residency requirement the "Baldwin Rule," the goal of which was to block the eventual succession of Judge Phillip Baldwin of Texas to chief judge of the new circuit. Baldwin was a judge on the U.S. Court of Customs and Patent Appeals which was merged with the appellate division of the U.S. Court of Claims into the new Federal Circuit. Baldwin was unlikely to move from his Texas home to D.C., according to Wegner, hence the anti-Baldwin rule.

Recent versions of patent reform legislation would repeal the Baldwin Rule, but patent reform legislation, like the crocus in springtime, is perennial.

Supreme Court Statements on Death of Sen. Kennedy

The Supreme Court has issued a pair of statements on the death of Sen. Ted Kennedy (D-Mass.) -- one from Chief Justice John Roberts Jr., and the other from Justice Stephen Breyer, who worked for Kennedy 30 years ago as chief counsel to the Senate Judiciary Committee. Kennedy pushed for Breyer's nomination to the high court in the early 1990s, and opposed Roberts' nomination in 2005.

Said Roberts: "I am very saddened by Senator Kennedy's passing. He was -- all his life -- a sincere, dedicated, and tireless public servant."

Breyer's statement: "The country has lost a great senator. We who worked for him remember and will always cherish his practical wisdom, his sense of humor, his determination, and his love of his country and its history. He was dedicated to helping others. Our hearts go out to Vicki and to his family. Senator Kennedy was a great American."

Kennedy's Legal Legacy

By Marcia Coyle

With his death last night at age 77, Sen. Ted Kennedy leaves a legal legacy that spans not just decades but touches nearly every major area of the law. The Kennedy imprint, either as original sponsor or a leading proponent, is on the nation’s landmark voting rights laws, its workplace discrimination laws, immigration reform, judicial nominations and other major issues.

As a member of the Senate Judiciary Committee and, later, its chairman from 1979 to 1981, he pushed successfully for greater diversity in nominations to the federal courts. He participated in the nomination hearings for every member of the current Supreme Court with the exception of Justice Sonia Sotomayor, beginning with Justice John Paul Stevens in 1975 and ending with Justice Samuel Alito in 2006.

During those hearings, his aggressive questioning reflected the areas of concern that dominated his years in the Senate: Access to the courts and discrimination against minorities, women and the disabled.

His impact and influence weren't confined to the committee room or to legislation. On the Senate floor, Kennedy was a leader in the effort to defeat confirmation of Robert Bork's nomination to the Supreme Court in 1987.

Kennedy's one-sentence description of "Bork's America" resounded throughout the media and the nation, and is remembered to this day.

"Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, children could not be taught about evolution," he said.

More than a decade later, he voted to confirm his former staffer, Stephen Breyer, as an associate justice on the Supreme Court. And a decade after that, Kennedy voted against the confirmation of President Bush's Supreme Court nominees, Chief Justice John Roberts and Justice Alito.

Some highlights of his career include:

His maiden speech to the Senate on the Civil Rights Act of 1964, which outlawed segregation in public accommodations.

The first major bill that he managed on the Senate floor was the Immigration Act of 1965-- considered a major turning point in immigration and civil rights policy because it eliminated discriminatory immigration quotas which favored European immigration, but restricted immigration from other parts of the world.

He amended the Voting Rights Act in 1970 to lower the voting age to 18, laying the basis for a constitutional amendment moving the voting age from 21 to age 18.

In 1975, he was an original cosponsor of the Education for All Handicapped Children Act, which later became the Individuals with Disabilities Education Act and requires a free and appropriate public education for children with disabilities in every state.

He was the chief sponsor in 1982 of the Voting Rights Act Amendments, which led to increased minority representation in Congress and state legislatures nationwide.

In 1990, his bill, the Americans with Disabilities Act, became law. "It was my opportunity as well to work with Senator Kennedy on the passage of the Americans with Disabilities Act while I served as Attorney General in the administration of President George H. W. Bush," recalled Richard Thornburgh, now of counsel to K&L Gates. "His efforts were tireless during the often-challenging effort to enact this significant civil rights legislation. July 26, 1990 saw the signing of this landmark legislation on the South Lawn of the White House - a true tribute to the work of Senator Kennedy and others who believed in the empowerment of people with disabilities."

Kennedy was chief sponsor of the Civil Rights Act of 1991, which overturned a series of Supreme Court decisions narrowing the reach of discrimination laws.

Ted Kennedy's Note to Rehnquist

Many of the early appraisals of Sen. Edward Kennedy (D-Mass.), who died overnight, make the point that Kennedy was adept at making alliances and extending courtesies across the aisle and with adversaries. One example can be found in the papers of the late Chief Justice William Rehnquist, recently opened at the Hoover Institution Archives at Stanford University.

Kennedy was a leader of the opposition to Rehnquist's confirmation as chief justice in 1986, but that did not stop him from wishing Rehnquist well in his battle with thyroid cancer in 2004 and 2005. Soon after Rehnquist's diagnosis was announced, Kenned sent him a handwritten note: "Dear Mr. Chief Justice -- I was saddened to hear about your illness -- I wish you a speedy recovery -- Best Wishes, Ted Kennedy."