The BLT: The Blog of Legal Times

DOJ Asks Judge to Stay Injunction in Stem Cell Case

The Justice Department today asked a federal judge in Washington to stay his ruling this month that blocks the government from funding research that involves human embryonic stem cells.

Last week, Chief Judge Royce Lamberth of the U.S. District Court for the District of Columbia issued a preliminary injunction that DOJ attorneys said today threatens ongoing research projects and potentially negates years of scientific progress toward treatment of certain illnesses.

President Barack Obama in March 2009 removed restrictions on embryonic stem cell research that were put in place by President George W. Bush.

Justice lawyers today filed an emergency motion asking Lamberth to stay his ruling while the government takes the dispute to the U.S. Court of Appeals for the D.C. Circuit. Gibson, Dunn & Crutcher partner Thomas Hungar, a lead attorney for the plaintiffs—Drs. James Sherley and Theresa Deisher—was not immediately reached for comment this afternoon.

The government, Lamberth said, cannot take any action from pursuing National Institutes of Health guidelines that cover human embryonic stem cell research. DOJ lawyers in today’s brief said the guidelines, published last year, cover research “that has been ongoing for years, including under the policies of the prior Administration."

“The issuance of a stay is necessary to prevent the irreparable harm that is certain to occur if, during the pendency of its appeal, NIH is forced to cease all activities pertaining to [human embryonic stem cell] research that is subject to government funding,” the DOJ said in a motion signed by Federal Programs Branch trial attorney Kyle Freeny. (The government's motion is here.)

Lawyers for Sherley and Deisher, doctors who work with adult stem cells and receive NIH funding, argue the NIH guidelines increase the competition for NIH funding and limit the available funds for adult stem cell research.

The DOJ motion said a “stay should not be denied for the benefit of two scientists whose only alleged harm is increased competition from other meritorious research projects that may ultimately save lives.”

NIH Director Dr. Francis Collins wrote a declaration that DOJ included with today's motion. Collins said, among other things, that Lamberth's order prevents NIH from providing $54 million in funds to 24 human embryonic research projects that are underway and expected to receive funds by the end of September.

Lamberth could rule this week. He set a Sept. 3 deadline for the plaintiffs to file an opposition to the government’s request to stay the preliminary injunction.

Judge in Wone Civil Case to Retire, Seek Senior Status

D.C. Superior Court Judge Brook Hedge, who recently set a June 2011 trial date in the Robert Wone wrongful death civil suit, is scheduled to retire effective Dec. 3, 2010, the city's Judicial Nomination Commission said today.

The commission announced two other retirements. Judge Kaye Christian, who hears probate cases, and Judge Judith Retchin, presiding over a domestic violence docket, are also retiring this December. The JNC is seeking applications from qualified lawyers to fill the three vacancies. The commission recommends a group of candidates for review at the White House. Click here for details on submitting an application.

Hedge, who joined the bench in November 1992, is seeking senior status as a judge, meaning she would continue to hear cases if she is approved. It was not immediately known this afternoon, however, whether she would continue to preside over the Wone case after December.

Hedge has presided over two hearings in the Wone case since she picked it up in November 2008. The civil case was on hold for parallel criminal proceedings. In the criminal case, which ended in June in acquittal for the three defendants, the defense unsuccessfully lobbied against a change in judges.

It isn’t automatic that a judge will get senior status. That decision is left to the D.C. Commission on Judicial Disabilities and Tenure. In reviewing an application for senior status, the commission seeks comment from members of the bar, litigants, former jurors and interested organizations. The commission makes a recommendation to the Superior Court chief judge about the judge’s fitness to continue serving. The chief judge determines whether the senior judge will serve.

Hedge was not immediately reached for comment this afternoon about her retirement plans.

Washington Lawyers’ Committee: D.C. Schools Making ‘Substantial’ Improvements

The D.C. Public School Schools have shown “real and substantial” improvements during the past five years, but D.C. has “a long way to go” to be on par with surrounding school districts. That’s according to a new report released today by the Washington Lawyers’ Committee for Civil Rights and Urban Affairs.

During a press conference today, Ronald Flagg, a Sidley Austin partner who sits on the committee’s board, said the schools have made considerable gains since the committee last assessed the district in 2005, but much of the progress is “fragile.”

“Without vigilance and a continued commitment to providing resources, there is a risk of backsliding,” said Flagg, who is also the current president of the D.C. Bar.

The report released today is the second time the committee has made a comprehensive study of the public school system in Washington. In 2005, the committee released a report on the district’s school system to mark the 50th anniversary of the passage of Brown v. Board of Education and Bolling v. Sharpe, two landmark Supreme Court decisions effecting racial integration in the United States and D.C. respectively.

In 2005, the committee found that when compared to surrounding districts in Maryland and Virginia, D.C. underperformed in “almost every imaginable way,” the report says.

According to the report, teacher and principal salaries were far lower than in surrounding school districts. Funding for school facilities, course offerings, school nurses and special education also lagged behind nearby districts.

Since that time, the D.C. Council has passed legislation that increased funding for school programs and facilities and consolidated authority of the public school system under the mayor and his or her appointed chancellor.

As a result of that legislation and efforts by Mayor Adrian Fenty and Chancellor Michelle Rhee, the report says, the D.C. school district has improved its standing in all of the categories studied by the committee’s report, including funding, school facilities, teacher and principal compensation, testing results, program and course offerings, special education, school health services, and athletics.

The report found that D.C. now spends more money per student than Fairfax, Montgomery and Prince George’s Counties, though less than Arlington and Alexandria

Teacher compensation is much higher than in 2005, thanks to a new collective bargaining agreement between the Washington Teachers’ Union and the D.C. school district, the report says. Principals, however are still making less than in some surrounding districts, especially those with higher levels of experience.

Advanced placement courses are offered in more high schools, and the D.C. school system has announced a goal for all senior high schools to offer at least four AP courses by 2011, the report says. But at the elementary and middle school level, improvements to course offerings were less substantial.

There have also been significant improvements to special education in the District, the report says. “In June 2010, the District announced that the backlog of children awaiting the implementation of hearing officer’s agreements or settlement agreements arising from due process complaints was at an all-time low with a dramatic decrease since June 2007,” the report says.

The District is still making relatively slow progress on its test scores, the report says. Despite District-wide improvements to test scores, less than 50% of African-American students are demonstrating proficiency in math and reading, the report says.

A full copy of the report will be available on the committee’s Web site later today, said Roderic Boggs, who serves as its executive director. Lawyers from Ballard Spahr, Beveridge & Diamond, Covington & Burling, Dickstein Shapiro, Reed Smith, Sidley Austin, Steptoe & Johnson, and Sullivan & Cromwell worked together to author this year’s report.

D.C. Circuit Denies Rehearing in Guantanamo Detainee Case

A federal appeals court in Washington today unanimously denied a full-court rehearing to resolve a dispute over the role that international law plays in restricting the president's war powers.

The nine active judges of the U.S. Court of Appeals for the D.C. Circuit denied the request from lawyers representing Guantanamo detainee Ghaleb Al-Bihani, who has been held in U.S. custody since 2001. Bihani’s lawyers at the federal public defender's office in San Diego said Al-Bihani was a cook when he was captured in Afghanistan.

A three-judge appeals court panel earlier this year upheld Al-Bihani’s detention as lawful. The principles of international law at issue in the Al-Bihani case include whether an individual who is not a member of a nation’s armed forces remains a civilian and whether the government that captures a person must give the detainee prisoner-of-war status or let a tribunal determine the status.

Lawyers for Al-Bihani argue the president's war powers limit detention "for the sole purpose of preventing future acts of terrorism against the U.S. It authorizes preventative, not punitive, detention." Al-Bihani's lawyers maintain the government has failed to prove that Al-Bihani poses a future threat to the United States.

Seven appellate judges—including Chief Judge David Sentelle and Judges Merrick Garland, Douglas Ginsburg and Thomas Griffith—joined in a short statement the chief judge published today in denying the rehearing en banc. The statement said the court does not need to discuss the extent to which international law restrict presidential war power to decide the merits of Al-Bihani's continued detention.

Judges Janice Rogers Brown and Brett Kavanaugh, who each agreed with the overall outcome, wrote separate opinions. Kavanaugh and Brown were on the panel earlier this year that declared international law does not restrict presidential war power. The D.C. Circuit's ruling is here.

Brown and Kavanaugh wrote at length defending the panel holding. Brown said the president holds wide discretion to implement authority, whether or not it is consistent with international law. Lawmakers, she said, “may add whatever limits or constraints it deems wise as the war progresses. The decision-making in wartime, Brown said, should “be informed by the expertise of the political branches.”

“None of those benefits accrue if the conduct of the military is subject to judicial correction based on norms of international discourse,” Brown said. “Such an approach would place ultimate control of the war in the one branch insulated from both the battlefield and the ballot box.”

Kavanaugh, who wrote an 87-page concurrence, said international law norms are not automatically part of domestic U.S. law and that the president authorization for use of military force did not incorporate the international laws of war. Congress and the president, he said, determine whether and how the United States acts with respect to international obligations.

He said the request from Al-Bihani’s lawyers “contravenes bedrock tenets of judicial restraint and separation of powers."

“International-law norms that have not been incorporated into domestic U.S. law by the political branches are not judicially enforceable limits on the President’s authority under the [Authorization for Use of Military Force],” Kavanaugh wrote.

In a footnote, Kavanaugh praised the “extraordinary efforts” of district judges who have grappled with the “difficult and intricate” question of the relevance of international law to the president’s war powers. “Even when this Court might disagree with a District Court decision, that disagreement is with respect and appreciation for the dedicated work of the District Court on these matters,” Kavanaugh said.

Updated Sept. 3

Revolving Door at the SEC

Two senior lawyers at the Securities & Exchange Commission are headed to law firms, while an agency veteran is returning from the private sector to serve as a deputy director in the Division of Trading and Markets.

Christopher Conte, an associate director in the Division of Enforcement, is leaving after nearly 18 years at the SEC to become a partner at Steptoe & Johnson. And Brian Breheny, the deputy director for legal and regulatory policy in the division of Corporation Finance, is joining the Washington office of Skadden, Arps, Slate, Meagher & Flom as a partner after seven years with the SEC.

At the same time, John Ramsay returns to the SEC from the Regulatory Fundamentals Group - a private consulting firm.

Conte played a lead role in the SEC's enforcement actions against Dell Inc. and its senior officers and against former executives at Comverse Technology. He also helped guide the SEC's cases against Morgan Stanley, JP Morgan and Roberson Stephens Inc. involving unlawful IPO allocation practices, according to the SEC.

He began working at the SEC as a staff attorney in November 1992 and was promoted to the positions of branch chief in 1997, deputy assistant director in 1999, and assistant director in 2000. Conte became an associate director in October 2006.

Breheny joined the SEC from Clifford Chance in July 2003 as chief of the SEC’s Office of Mergers and Acquisitions, and in November 2007 he became a deputy director with responsibility for the Corporate Finance Division’s legal and regulatory policy support offices.

He worked on rule amendments in areas including shareholder director nominations, tender offers, beneficial ownership reporting, electronic delivery of proxy materials, electronic shareholder forums, short sale disclosure, and proxy voting and shareholder communications.

Ramsay, the new deputy director in the Division of Trading and Markets, will oversee several core regulatory functions, focusing in particular on broker-dealer financial responsibility and clearance and settlement. He’s also expected to play a key role in the division’s portion of the SEC-wide implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

Between 1989 and 1994, Ramsay served with the SEC as deputy chief counsel for the Division of Market Regulation (now the Division of Trading and Markets) and as counsel to then-Commissioner Mary Schapiro.

Earlier this month, the SEC also announced that Andrew "Buddy" Donohue, 59, plans to leave the SEC in November after serving more than four years as director of the Division of Investment Management.

In Canada's Supreme Court, Cameras are No Big Deal

U.S. Supreme Court justices still talk about television cameras as if they were deeply mysterious, brain-draining devices not to be approached with anything shorter than a 40-foot pole. But in Canada's Supreme Court, where proceedings have been broadcast for more than 20 years, cameras are just part of the scenery, barely worth a mention.

That was the message of a telling discussion last week at the judicial conference of the U.S. Court of Appeals for the 10th Circuit in Colorado Springs involving Justice Ruth Bader Ginsburg, Canadian chief justice Beverley McLachlin, former 10th Circuit chief judge Robert Henry, and NPR's Nina Totenberg. Media coverage of the conference understandably focused mainly on Ginsburg's earlier appearance, in which she poignantly gave a humorous speech her husband Martin had prepared for the gathering before he died June 27.

Ginsburg shifted quickly to the roundtable discussion where, inevitably, the subject of cameras in the court came up. (See video of the discussion via C-SPAN, after the jump.) Ginsburg recited the objections raised by now-retired justice David Souter, the only one of her colleagues who had direct experience with cameras, when he was a justice on New Hampshire's Supreme Court. "He thought the lawyers were acting up, for the cameras," said Ginsburg. "Worse," she added, "he felt inhibited. He was censoring his own questions," for fear that an exchange that would make sense to lawyers would confuse or mislead lay viewers.

Even though Souter is no longer a sitting justice, Ginsburg quaintly concluded that on a collegial court, if any justice has feelings as strong as his on the subject, colleagues should defer. It's safe to conclude that in Souter's absence, one or more justices have gladly seized Souter's mantle of stubborn resistance to the premier medium of the twentieth century.

McLachlin responded with the grace and deference you would expect from a dignitary on foreign turf. But it was possible to infer from her tone that this was a discussion that for her was very 1980s, a topic she has not had to talk about in Canada for a decade or two, but has to refresh every time she speaks in the United States.

"We decided to do this on a trial basis about 21 years ago," McLachlin said. "We were very wary. But what we have is this: We have some stationary cameras. We are just oblivious to them. I don’t think I ever think about them in the course of a hearing … They’re unobtrusive."

The Morning Wrap

Two Suspected Terrorists Arrested in Amsterdam: CNN reports that two men held in the Netherlands may have been trying to test U.S. airport security by putting bottles with electronic devices attached in checked baggage. The two men departed from Chicago.

Obama's Speech on Iraq has Risks: In a speech tonight, President Barack Obama will promote the decision to end combat operations in Iraq. But The Washington Post reports that some of the president's detractors are using the same moment to question the wisdom of doing so.

Congressional Travel Stipends Probed: The Wall Street Journal reports that a half-dozen lawmakers are being questioned by congressional investigators for possibly misspending government funds meant to pay for overseas travel. The investigation follows a March Wall Street Journal article that said lawmakers had used daily cash stipends, meant to cover certain costs of official government travel overseas, to cover expenses that appeared to be unauthorized by House rules. An independent ethics board has referred the matter to the House ethics committee.

Army Changes Training to Deal With Unfit Recruits: As more and more overweight and unfit recruits sign up for the military, the Army has implemented a revised training program that does away with the old standby, the sit up. The New York Times reports that exercises like pilates or yoga routines are in. And the traditional bane of the new private, the long run, has been downgraded.

Administrative Law Judges Call for More Security

A federal administrative law judge said today that in the past four years, there have been more than 200 threats, including death threats, against ALJs and that there is not enough being done to ensure that judges who hear administrative cases are adequately protected.

D. Randall Frye, a North Carolina-based ALJ with the Social Security Administration and president of the Association of Administrative Law Judges, said, “These aren’t just the kind of ‘I’ll see you later’ threats.” As an example, Frye pointed to an instance where a claimant assaulted an ALJ with a chair, forcing her to take disability retirement.

Frye’s remarks came at panel discussion at the National Press Club designed to raise awareness of the threats against ALJs and to ask Congress to set aside more funding for their protection.

Frye said small hearing rooms, too few security guards, a lack of metal detectors, and highly emotional cases make for a dangerous combination. Because Social Security hearings are often held in rented commercial office space, Frye said many courtrooms are “no larger than an average bedroom.”

Frye called on Congress to provide additional funding to the Federal Protective Service, which provides security to ALJs, and to pay for larger spaces for courtrooms. Frye said that additional metal detectors and higher railings could also offer ALJs more protection from irate claimants.

Frye was joined by Dana Marks, a San Francisco-based immigration judge with the Justice Department; and Mark Brown, a St. Louis-based ALJ at the Social Security Administration.

Brown, who serves as chairman of the safety and health committee of the Association of Administrative Law Judges, said that installing metal detectors in administrative law courtrooms could be done for about $500,000 total. But he added that his organization has made little headway in securing the necessary funding because “there is a concern that if we install them in our courtrooms, we’ll have to install them in the 1,300 field offices across the country. That was a much different matter.”

Marks, who is president of the National Association of Immigration Judges, said the decisions that immigration judges “are often life-or-death” because when an individual is ordered to be removed from the United States they may be forced to return to a country where their lives are in danger. “Understandably, that can be incredibly stressful,” Marks said.

Marks said there are often as many as 50 people in her courtroom and no baliff. “We’re making decisions in real time, sitting eye-to-eye with the claimant. If I order someone removed [from the United States], I may be riding the elevator with them the next minute,” Marks said.

Marks said the National Association of Immigration Judges is arguing to have immigration courts moved out from under the Justice Department umbrella and reorganized into a separate Article I court. “There is a concern that people don’t see us as independent because we are an arm of the Justice Department. They see us as too closely affiliated with the prosecution,” she said.

Orrick Adds Appellate Counsel From O’Melveny & Myers as Partner

Mark Davies, who until recently was a counsel in O’Melveny & Myers Supreme Court and appellate practice, has joined Orrick, Herrington & Sutcliffe’s Washington office as a partner.

Davies served as a member of the appellate staff in the Justice Department’s Civil Division from 1999 until 2006. In that position, Davies represented the Patent and Trademark Office, the Copyright Office, the Federal Communications Commission, the Department of Health and Human Services, the Office of Federal Housing Enterprise Oversight, and other federal agencies.

He argued more than 25 cases in nine different appellate circuits, including the en banc appeal to the U.S. Court of Appeals for the Federal Circuit in Festo Corp. v. SMC Corp. which examined the relationship between the doctrine of equivalents and the doctrine of prosecution history estoppels; and the en banc appeal to the U.S. Court of Appeals for the 3rd Circuit in Southco Inc. v. Kanebridge Corp., which examined whether serial numbers were protected by copyrights.

Davies is also the author of “Patent Appeals: The Elements of Effective Advocacy in the Federal Circuit.”

In private practice, Davies primarily handles intellectual property appeals. At O'Melveny, he was part of a team that worked on the Supreme Court appeal in Morgan Stanley Capital Group Inc. v. Public Utility District No. 1 of Snohomish County, which questioned the validity of billions of dollars of long-term energy contracts entered into during the chaos in the California electricity markets eight years ago. The justices ultimately ruled in favor of O'Melveny's client, Morgan Stanley.

Last year, Davies represented Hynix in an appeal to the Federal Circuit in Hynix Semiconductor Inc. v. Rambus. In June, the appeals court ordered reargument in the case.

Davies, who is Orrick's first appellate lawyer in Washington, said he has been charged with growing the practice in D.C.

Roger Clemens to Judge: 'Not Guilty, Your Honor'

By Mike Scarcella

Former Major League Baseball star Roger Clemens today pleaded not guilty in Washington federal court to perjury and other charges tied to congressional testimony in which he denied using steroids during his pitching career.

"Not guilty, your honor," Clemens declared, his voice booming in a crowded courtroom. Clemens was flanked by his lawyer Rusty Hardin at the podium in the ceremonial courtroom of the E. Barrett Prettyman U.S. Courthouse in downtown Washington.

Clemens, who was dressed in a dark jacket and khakis, must check in with pretrial services once every two weeks, Judge Reggie Walton said. Walton declined to order Clemens to surrender his passport, a request by federal prosecutors. Walton, citing Clemens's fame, suggested it's unlikely that the authorities will have any trouble finding Clemens.

Sitting with Clemens and Hardin were defense lawyers Michael Attanasio, a partner in the San Diego office of Cooley Godward Kronish, Anthony Drumheller and Derrick Hollingsworth. Drumheller and Hollingsworth work in Hardin's office in Houston.

Walton set a status hearing for Dec. 8 and a trial date for April 5. Last week, Walton said in an unrelated hearing that he wanted a spring trial. Walton said the speedy trial clock has been temporarily stopped, giving the lawyers the chance to review the voluminous discovery in the case.

Assistant U.S. Attorney Steve Durham said in court today that the government has already given over a significant amount of evidence to Clemens's lawyers. Durham, the chief of the fraud and public integrity section of the U.S. Attorney's Office in Washington, said the government will also turn over grand jury transcripts and FBI reports.

Durham said he doesn't expect Walton will have to resolve any discovery issues. The prosecutor said the government wants to avoid splitting hairs over the government's obligations to turn over favorable material.

Hardin said there is a "good deal" of scientific evidence the defense wants to test. Any trial date, he said, will come at the "mercy" of experts.

Clemens left the courthouse about 2:30 p.m., declining to speak to the throng of reporters who had gathered outside the courthouse annex entrance. He got into a black Cadillac Escalade with his lawyers.

Last week, Walton issued a gag order, telling Clemens, the lawyers in the case and potential witnesses to refrain from making public comments.