The BLT: The Blog of Legal Times

Ex-EEOC GC on Background Checks in Hiring Decisions

Updated 9/4

On August 9, U.S. District Judge Roger Titus in Maryland dismissed an Equal Employment Opportunity Commission lawsuit against Freeman Cos., which the agency claimed was discriminating against minority and male job applicants.

The EEOC said in a September 2009 compliant that the event-services company used discriminatory hiring criteria against minorities by looking at the credit history of some of its job applicants and by considering candidates' criminal history. The agency alleged that Freeman's hiring policies led to disparate impact on proposed class members.

Titus wrote in his opinion that while some specific uses of criminal and credit background checks could be discriminatory, the EEOC gave unreliable expert testimony to demonstrate disparate impact stemming from Freeman's practices.

CorpCounsel.com this week discussed the case with Akin Gump Strauss Hauer & Feld partner Donald Livingston, who was Freeman's lead attorney. The Washington, D.C.-based lawyer is a former EEOC general counsel. The following conversation has been edited for length and clarity.

D.C. Circuit Rejects FOIA Access to White House Visitor Logs

The U.S. Court of Appeals for the D.C. Circuit ruled today that records of visitors to the White House were off limits to requests under the Freedom of Information Act (FOIA). Allowing public access to the information would circumvent Congress' intent to give the president discretion to keep his appointments calendar secret, the court said.

The unanimous three-judge panel, however, did affirm a federal district trial judge's finding that the public could submit requests for visitor records related to other agencies housed within the White House complex, such as the Office of Management and Budget.

Tom Fitton, president of Judicial Watch, the group that sued the U.S. Secret Service for access to the records, said the ruling "punched another hole through FOIA." He said the group's lawyers were weighing whether to ask the full D.C. Circuit to hear the case or to pursue a petition in the U.S. Supreme Court.

Consumer Agency Urges Court to Toss Suit Against It

The Consumer Financial Protection Bureau this week struck back against a company that's challenging the constitutionality of the agency's structure, arguing in court papers that the plaintiffs "utterly fail to show that the Bureau's authority is out of step with that exercised by other federal regulatory agencies."

Morgan Drexen, which works with law firms to provide debt relief services to consumers, sued the CFPB last month in U.S. District Court for the District of Columbia, alleging that the agency's structure violates the violates the "Constitution's separation of powers given: (1) the extraordinary scope of power delegated to CFPB; and (2) the lack of political oversight and necessary checks and balances."

But the CFPB in a motion to dismiss argued that Morgan Drexen's claim is "completely unmoored not only from precedent, but also from any separation-of-powers principle," and that the agency is accountable to the president, Congress and the courts.

Q&A: Ropes & Gray's Douglas Hallward-Driemeier

It's been a busy summer for Douglas Hallward-Driemeier, the managing partner of Ropes & Gray's Washington office. On the last day of the Supreme Court term, the high court said it would review the limits of power of bankruptcy judges; the firm is involved in the case. Then in early July, Hallward-Driemeier, the leader of Ropes & Gray's appellate and Supreme Court practice, took over as office managing partner.

From 2004 to 2009, Hallward-Driemeier was an assistant to the Solicitor General at the U.S. Department of Justice. At Main Justice, Hallward-Driemeier argued 13 cases before the high court and filed more than 150 briefs. He returned to Ropes & Gray in 2010 to lead its appellate and Supreme Court practice.

Legal Times sat down with Hallward-Driemeier in Ropes & Gray's 12th Street N.W. office to discuss the previous Supreme Court term, his pending brief in the bankruptcy case and, overall, what’s keeping the office busy.

Georgetown Law School Donor's Lawsuit Moved to D.C.

A breach of contract suit filed against Georgetown University by a multimillion-dollar donor to the law school was transferred this week from Texas federal district court to Washington, where it'll play out just several blocks from the law school campus.

Scott Ginsburg, who graduated from the law school in 1978, accused the school of violating a contract to name a new recreational facility after him, in recognition of a $5 million donation. He sued to recover $7.5 million in donations he made over the years. The school said Ginsburg agreed to give up his naming rights after he was found civilly liable for insider trading, and filed a counterclaim for $9 million it said he still owed.

On August 26, Judge Sam Lindsay of U.S. District Court for the Northern District of Texas granted Georgetown's motion to move the case to Washington. The judge agreed with the law school that Washington was a more appropriate forum, given the proximity to key witnesses and strong public interest in litigating the case where Georgetown and the facility at issue were located.

The Morning Wrap

Preparing: "The administration insisted Thursday that President Obama has both the authority and the determination to make his own decision on a military strike against Syria, even as a growing chorus of lawmakers demanded an opportunity to vote on the issue and Britain, the United States’ closest ally, appeared unlikely to participate," The Washington Post reports today. In this National Law Journal report, legal scholars debate the president's authority to order a strike Syria.

Settling: The National Football League will pay $765 million to resolve players' claims concerning concussions. More coverage here and here.

Disclosing: The Obama administration has agreed to release annual totals of surveillance orders issued by the Washington-based Foreign Intelligence Surveillance Court. POLITICO reports today: "Yet the government’s new, promised disclosures might prove a disappointment to companies like Google and Microsoft, which find themselves in a legal battle that’s doubled as a public-relations war."

U.S. Chamber of Commerce Labor Day Message: Be Worried

With a still-sluggish economy and ongoing concerns about U.S. government labor policies, the U.S. Chamber of Commerce's economic and workplace outlook suggested U.S. businesses have little to celebrate.

Speaking Thursday at the Chamber's annual Labor Day briefing in Washington, D.C., Martin Regalia and Randy Johnson, senior vice presidents at the group, painted a gloomy picture for U.S. companies in the coming months. Businesses should expect an economy that shows only minimal improvement and brace for a more progressive labor agenda, they said.

"It's very hard for me to be greatly optimistic on this Labor Day [that] we're going to be able to employ the people in the future that we used to employ in the past,” said Regalia, who serves as the Chamber's chief economist, “and be able to provide the people in the future the kind of increases in the standard of living they have become accustomed to over the last decade."

Justice Dept. Won't Block Colorado, Washington Marijuana Laws

Residents in Colorado and Washington might want to think about stocking up on Cheetos or goldfish.

The U.S. Department of Justice announced Thursday it will not move to challenge laws that legalized small amounts of marijuana in those states as long as a strict regulatory system is in place.

The long-awaited decision at Main Justice clears the air for governors in those states who wanted to implement voter-approved marijuana legislation that was in conflict with federal law, which considers marijuana a dangerous drug. "Don't break out the Cheetos or goldfish too quickly," Colorado Governor John Hickenlooper said after the November vote approving the measure in his state.

Murder Conviction Tied Up Over Exclusion of Family From Court

Updated at 3:58 p.m.

A judge's decision to exclude a defendant’s family and friends from the courtroom has snagged post-conviction proceedings in a murder case for eight years. In the latest development, the District of Columbia Court of Appeals today ordered an evidentiary hearing on whether the defense lawyer's decision to agree to the exclusion was wrong.

The defendant, Travis Littlejohn, was found guilty in 2004 of fatally stabbing Nadir Farooq. During his trial in District of Columbia Superior Court, tensions escalated between family and friends of the defendant and the victim, according to today's opinion. Following an altercation outside the courthouse, the judge weighed options for how to proceed with Littlejohn's lawyer and the prosecution.

The judge ordered Littlejohn's family to leave the courtroom at 4 p.m. and Farooq's family a half hour later. When the trial resumed, the judge dismissed Littlejohn's family as planned at 4 p.m., but continued with testimony from a key prosecution witness. Littlejohn argued on appeal that this was a violation of his Sixth Amendment right to a public trial.

Cuts to Private Lawyers Good News for D.C. Defender Office

At the start of the summer, the federal public defender office in Washington was bracing for significant layoffs—at least 30 percent of attorneys and staff—by the end of September. Layoffs could still be on the table, but a recent decision by the executive committee of the U.S. Judicial Conference means they wouldn't be as dramatic.

Earlier this month, in an effort to protect federal public defender offices against "permanent damage," the committee announced a plan to reduce and delay compensation for private lawyers appointed under the Criminal Justice Act to represent indigent defendants.

As previously reported by The National Law Journal, the cuts would save around $50 million from the federal courts' defender services budget, which funds both the federal public defender offices and the private court-appointed attorneys. As a result, A.J. Kramer, the District’s federal public defender, said his office was expecting budget cuts in fiscal year 2014 of around 10 percent, instead of the 24 percent anticipated at the start of the summer.