The BLT: The Blog of Legal Times

'Birther' Orly Taitz Takes on Obama in D.C. Federal Court

Update Feb. 1

California lawyer-dentist Orly Taitz, a vocal member of the "birther" movement, is hitting the nation's capital to try to persuade a federal judge here in Washington that President Barack Obama is not a qualified United States citizen to hold the office of president.

Taitz's latest suit, filed Wednesday in the U.S. District Court for the District of Columbia, resembles those she has unsuccessfully filed on behalf of clients in other courts. Taitz filed the suit in Washington pro se as the sole plaintiff. Click here for a copy of the latest complaint.

Taitz said in the complaint that letters, e-mails and faxes to the Justice Department seeking answers have gone unreturned. “This game of hide and seek by the Attorney General Holder and US attorneys was infantile at best and treasonous at worst, and National Security is on the line,” Taitz writes.

The suit demands, among other things, that Secretary of State Hillary Clinton provide a copy of Obama’s birth certificate. The case has been assigned to Chief Judge Royce Lamberth.

Former U.S. Attorney Roscoe Howard Jumps to Andrews Kurth

Roscoe Howard Jr., who served as the U.S. attorney for the District of Columbia from 2001 until 2004, has joined the Washington office of Houston-based Andrews Kurth.

Howard brings with him Daniel Seikaly, who served as criminal division chief in the U.S. attorney’s office under Howard, and Meena Sinfelt. Seikaly joins as counsel, and Sinfelt joins as an associate.

All three lawyers will focus on white-collar criminal matters, corporate compliance, ethics issues, internal investigations and complex civil litigation.

Howard’s move to Andrews Kurth marks the third firm he has joined since leaving the U.S. attorney’s office in 2004. First he worked at Sheppard, Mullin, Richter & Hampton, but left after 15 months because of client conflict issues, he said. He spent the past five years at Troutman Sanders. He said he made the latest move because he was interested in joining a smaller office. Andrews Kurth has about 30 lawyers in Washington.

“When they approached me, it seemed like a great opportunity,” Howard said. “I have nothing bad to say about Troutman Sanders. This was a purely business decision as happens sometimes in this town.” Howard added that he is looking forward to helping Andrews Kurth grow its white-collar and securities litigation practice.

While in private practice, Howard has represented such clients as Scott Bloch, who is under investigation by the FBI for investigation into whether he destroyed evidence of retaliation against his own employees while leading the Justice Department’s Office of Special Counsel under President George W. Bush. Howard has also represented former Pittsburgh U.S. attorney Mary Beth Buchanan during the investigation into the U.S. attorney firing controversy and conducted an investigation for the Seneca Nation of Indians in New York state.

As U.S. attorney, Howard led several cases that garnered headlines, including the investigation of the 2001 anthrax mailings, Pacific Health Systems Inc.'s alleged overcharges to the Federal Employees Health Benefits Program, and the Washington Teachers Union embezzlement scandal.

Troutman Sanders did not immediately respond to calls for comment.

Ex-Judge of Pants Suit Fame Takes Swipe at Federal Bench

Roy Pearson Jr., the former D.C. administrative law judge who famously sued over a lost pair of pants, is now picking a fight with U.S. District Judge Ellen Segal Huvelle.

Huvelle was the presiding judge in the U.S. District Court for the District of Columbia who, last year, tossed Pearson’s suit for damages that targeted—among others—city officials and judges.

Pearson, recall, gained national attention for a 2007 trial in D.C. Superior Court in which he sought $54 million from a dry cleaner that allegedly misplaced a pair of his pants. When Pearson was then not re-appointed to a full 10-year term as an administrative law judge, he turned around and sued in federal court on a claim that he was retaliated against for suing the dry cleaners.

The pants suit didn’t go anywhere. Neither did his suit against the city. Huvelle dismissed it last July. Now, with the case on appeal, Pearson is taking a personal swipe at Huvelle in court papers in the U.S. Court of Appeals for the D.C. Circuit, where Pearson is pro se.

Pearson wants the appeals court to take notice of a photograph showing Huvelle standing with several Superior Court judges, including Anita Josey-Herring, who is a defendant in Pearson’s suit. Pearson included the photo—taken in May at the annual Law Day Dinner Program hosted by the Washington Bar Association—in his opening brief, filed Jan. 21 in the appeals court.

An aside: appellate briefs rarely include photos. More about the photo after the jump.

Women Still Under-Represented on the Bench

Women currently make up 22% of all federal judges, a new study has found, and 26% of state-level judges.

The study by the University at Albany-SUNY's Center for Women in Government and Civil Society found that only two states - New Jersey and Connecticut - had achieved a "critical mass" of 33% women among the state's federal judgeships.

As for state judges, eight states have hit the one-third women mark, but 13 are below 20%.

The 33% threshold is “important because it is the point where women become a critical mass and where their number is large enough to induce change in the normative conception of leadership,” said center director Dina Refki in a statement.

Women’s share of the federal bench is at 10% or less in eight states – and nearly non-existent in Montana and New Hampshire.

The report says that the disparity cannot be attributed to a lack of qualified women. According to the American Bar Association, women comprise 48% of law school graduates and 45% of law firm associates. Instead, the report blames a lack of opportunity and access.

DynCorp Lawyers Accuse Farmers of Playing Loose With Facts

Lawyers for security contractor DynCorp have accused a group of Ecuadorean farmers involved in a major legal battle against the company of repeatedly changing the facts of their claims. DynCorp asked the judge to dismiss several plaintiffs whose cases had been heading for trial in the U.S. District Court for the District of Columbia.

The new allegations were filed late Tuesday afternoon in a pair of lawsuits brought by farmers who say DynCorp aircraft sprayed their land with powerful, and possibly toxic, chemicals while on missions to eradicate Colombian coca farms. The spraying program is a part of Plan Colombia, a controversial U.S. effort to eradicate the country’s cocaine production. Some 2,021 farmers claim they suffered health problems and financial losses after their property was covered with the herbicides.

In July, U.S. District Judge Richard Roberts allowed the plaintiffs’ lawyers to select 20 test cases from among their clients to go to trial. But according to DynCorp’s lawyers – a team from Washington, D.C., boutique Hollingsworth LLP — the test plaintiffs have begun changing their stories about when and how their farms were sprayed, and what kinds of health effects it has had on them and their families.

Between the time they filled out a batch of detailed questionnaires and a recent series of depositions, plaintiffs have offered conflicting answers about the years spraying happened, the number of aircraft involved, whether crops were sprayed and what illnesses they have suffered as a result, DynCorp argues.

Plaintiffs’ lawyer Terry Collingsworth, a Washington-based partner with Conrad & Scherer, said DynCorp was “grossly exaggerating” what were in fact small discrepancies in his clients’ testimony.

“The defendants have consistently refused, strategically, to understand that the plaintiffs in this case are largely uneducated indigenous people living in the rain forest of Ecuador who don’t have watches, calendars, computers or diaries, or other record keeping systems,” Collingsworth said. “And that its natural there are going to be some minor inconsistencies when relating these terrible events that happened to them.”

According to DynCorp’s motion, one family had claimed that they were exposed to spraying while living at their “current home address” in Puerto Mestanza, a small town on the border of Ecuador and Colombia. At a deposition, however, the family said their home, both now and at the time of the spraying, was actually in a town 275 miles from the border.

Other examples provided in the motion: A man claimed at deposition that he had lost his sight as a result of the spraying, even though he had not previously in the lawsuit mentioned any vision problems. A woman who claimed in 2002 that the spraying had led to her husband’s death said recently that his illness began before his alleged exposure.

“[E]very time these test plaintiffs are asked about their alleged exposures to Plan Colombia spraying, they come forward with a different story – a pattern that defendants can only assume will continue if these cases ever get to trial,” the motion contends.

DynCorp’s lawyers argue that the shifting stories have made it impossible to prepare for the trials and asked Judge Roberts to dismiss the 20 test plaintiffs. They also asked him to require the remaining plaintiffs to either rewrite or recertify the questionnaires in which they explain their injuries. The DynCorp lawyers say that most of the questionnaires still do not contain any specific explanation of how the spraying caused individual injuries, despite explicit instructions from the court that they should.

Leahy Lashes Out at Citizens United Ruling

Continuing the Capitol Hill drumbeat against the Supreme Court that President Barack Obama started last night in his State of the Union address, Senate Judiciary Committee chairman Patrick Leahy this morning called the Court's decision in Citizens United v. FEC a "threat to the rule of law." The Vermont Democrat took to the floor of the Senate to attack the decision and assert that it was made possible only by the changed composition of the Court, rather than legal reasoning.

"This decision puts the special interests of big oil, banks and insurance companies ahead of the interests of the American people, and it risks corrupting our political process," Leahy said. "It shows no deference to Congress and no respect for the rule of law as reflected in the precedents of the Supreme Court.

Calling it the most partisan Supreme Court ruling since Bush v. Gore, Leahy added, "I believe that the activist conservatives now on the Supreme Court got this decision dramatically wrong as a matter of constitutional interpretation and common sense."

The Morning Wrap

SOTU: The BLT was live during last night's State of the Union address, and there's plenty to check out this morning. Of course, the biggest legal news was President Obama's dig at the Supreme Court for it's decision in Citizens United. Tony Mauro writes that criticism of the justices during a State of the Union is nearly unprecedented. Also, check out the video of Justice Samuel Alito's reaction.

Carrie Levine writes that lobbyists are skeptical about the new restrictions Obama said he wants to place on their industry.

And David Ingram has Obama's comments about a fair pay crackdown and the Justice Department's Civil Rights Division.

International Crime Fighting:The Washington Post has a story about the controversial efforts by New York's federal prosecutors to aggressively pursue international crime -- from terrorism to public corruption. Some critics say the approach may not be the best use of government resources.

Edwards Family Values: Former senator and vice presidential candidate John Edwards and his wife Elizabeth have formally separated, according to several news reports.

iPad: Apple debuted its hotly anticipated new tablet computer, the iPad, to mixed reactions yesterday. The Wall Street Journal sums up the big unveiling and what it could mean for the company.

Justice Alito's State of the Union Dissent

In case you missed it, here's a video clip that shows Supreme Court Justice Samuel Alito's reaction to President Barack Obama's remarks about the Citizens United v. FEC decision last night:

As you'll see, Alito started shaking his head while Obama was talking about the Court reversing a "century of law" and in so doing will "open the floodgates" of corporate spending in campaigns. If it was the first part of the sentence Alito objected to, it could be argued that he has a point: the Court did not go back a century to overturn the Tillman Act of 1907, which bars direct corprate contributions to candidates. Instead, the Court struck down statutes of more recent vintage affecting independent expenditures -- legally different from direct contributions -- by corporations.

If Alito was objecting to the "floodgates" imagery, that remains to be seen. Some commentators have suggested that corporations, not wanting to irritate shareholders and customers, might not throw their money around lavishly in partisan campaigns. Others say that if a door -- or floodgate -- is opened that will allow corporations to exert greater influence over candidates, they will inevitably rush through. 

Alito might also have been objecting to Obama's reference to foreign corporations being among those whose money can now start flooding into campaigns. Citizens United explicitly declined to rule on foreign corporations separately, suggesting that government might have a more compelling interest in regulating their expenditures than in checking domestic corporations. Our posts on the references to the Supreme Court in Obama's speech last night appear here, here, and here. The BLT also ran several posts on  other parts of Obama's speech with ramifications for lawyers and lobbyists.

High Court is Rare Topic for State of the Union Speeches

President Barack Obama's pointed criticism of the Supreme Court in tonight's State of the Union address, which we reported on here and here was beyond unusual; it was almost unprecedented. The third branch rarely even merits a mention in the State of the Union speeches, according to a search we've made going back to Woodrow Wilson's speech in 1913 in this University of California Santa Barbara database. (Thanks to editor David Brown for the research.)

Presidents have mentioned the Supreme Court by name only nine times since that Wilson speech nearly a century ago, according to the search, and it would be hard to categorize many of those nine as criticisms. Even President Franklin D. Roosevelt, who had a lot of grievances with the Court, never mentioned it in any of his State of the Union messages. And Richard Nixon, who campaigned against the Warren Court, mentioned the Supreme Court in a State of the Union talk only once, in 1972, in a bland, welcoming way.

In 1988 President Ronald Reagan made an indirect jab at the Court's school prayer rulings when he said, "And let me add here: So many of our greatest statesmen have reminded us that spiritual values alone are essential to our nation's health and vigor. The Congress opens its proceedings each day, as does the Supreme Court, with an acknowledgment of the Supreme Being. Yet we are denied the right to set aside in our schools a moment each day for those who wish to pray. I believe Congress should pass our school prayer amendment." In the same speech Reagan also urged the Senate to confirm Anthony Kennedy to the Supreme Court -- the very justice whose handiwork in Citizens United Obama was criticizing.

President Warren Harding in 1922 also urged passage of a constitutional amendment to counteract Supreme Court rulings -- the decisions that placed child labor "outside the proper domain of federal regulation," as he put it. Harding added, "We ought to amend [the Constitution] to meet the demands of the people when sanctioned by deliberate public opinion."

In 2006, President George W. Bush thanked the Senate for confirming John Roberts Jr. and Samuel Alito Jr. and paid tribute to Sandra Day O'Connor, whose retirement become official the day of the speech.

Only President Calvin Coolidge routinely included the Supreme Court in his State of the Union addresses, but not to praise or damn it. It appears he had a "laundry list" approach to the speech, making sure to mention every sector of government, including the Supreme Court. In 1924, Coolidge offered the Court a helping hand, urging Congress to give the justices more discretion over their docket to reduce a congested docket. "Justice long delayed," Coolidge said, "is justice refused."

UPDATE: An alert reader notes that in his January 1937 State of the Union address, Roosevelt criticized the Supreme Court without using those words. Upset that the Court had thwarted his efforts to pull the nation out of the Depression, Roosevelt a month later introduced his ultimately unsuccessful "court-packing" plan that would have allowed him to expand membership of the Court and add justices of his own choosing. Here is what Roosevelt said in his State of the Union address: "The Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good. The process of our democracy must not be imperiled by the denial of essential powers of free government."

Lobbyists React Skeptically to Obama Lobbying Proposals

Lobbyists on both sides of the political aisle raised eyebrows at President Barack Obama's call for more disclosure by lobbyists and more restrictions on their campaign contributions.

"Please...limit my campaign contributions. Please," Richard Gold, a Democrat and head of the public policy group at Holland & Knight, wrote in an e-mail after the speech. But "disclosing every contact will encourage more people to de-register and provide less, not more transparency."

One prominent Democratic lobbyist declined to be named speaking about the president's proposals, but sardonically e-mailed that "banning donations from lobbyists -- finally Obama is doing something that is really popular with the lobbyists."

Wayne Berman, a prominent Republican who co-chairs Ogilvy Government Relations, called the proposals part of the administration's efforts "to curtail free speech." Lobbyists are currently required to report every contact under the Foreign Agents Registration Act, but Berman wrote in an e-mail that those requirements strike a balance between First Amendment rights "and the constitutional requirement to protect our national interest. Contacts on behalf of American unions, workers, companies or interest groups are protected by the right to petition and the freedom of speech. This proposal is an attempt to further empower the permanent bureaucracy at the expense of the citizenry."