December 05, 2009

Gary Aguirre versus the SEC (Updated)

 An earlier Suits & Sentences post regarding a ruling in the case pitting Gary Aguirre versus his former employers at the Securities and Exchange Commission was based on a misunderstanding of the judge's procedural decisions. Mr. Aguirre writes to state:

"(The story) gives the false impression to your readers that a judge has ruled on the core contention in my dispute with the SEC. You state, “The judge did, though, reject out of hand Aguirre's request for damages based on his firing.” The statement is utterly false. I made no request to the judge that he decide I was entitled to damages under the Due Process claim, nor did judge address that possibility, nor did the judge make such a ruling."

The complete Dec. 2 decision has the necessary detail, but this is how Judge Ellen Segal Huvelle stated her summing up:

"The Court will grant defendant’s motion to dismiss plaintiff’s due process claim based on his termination. The Court will stay plaintiff’s due process claim based on injury to his reputation, pending the outcome of his proceedings before the (Merit Systems Protection Board.) The Court will dismiss plaintiff’s Privacy Act requests made on May 27, 2008...(and) made on November 24, 2008. Finally, the Court will stay plaintiff’s claims for damages under the Privacy Act pending the resolution of his case before the MSPB."

Mr. Aguirre points out that that "the only relief sought under the Due Process Clause is a name clearing hearing" and not damages.

Suits & Sentences regrets the error.

December 04, 2009

Citizens United: Might it be ready?

The Supreme Court expects "a normal day" next Tuesday, Dec. 8, the court's public information office has announced. And that just might mean it's an extraordinary day, in fact.

Normal, here, means the court will be issuing one or more opinions. (But not so many that it would be described as a "heavy day," which is what we get at the end of the Term.) This will mark the first release of opinions during the 2009-2010 Term that began in October.

Could this mean a decision is upcoming on the Citizens United v. Federal Election Commission campaign finance case argued in late September? If so, that's something to pay attention to, as the court might use the case to strike down limits on corporate campaign spending. So get the talking heads ready. Campaign Legal Center was first out of the box, announcing that Democracy 21 President Fred Wertheimer and others will be available for comment at 1:30 on the day -- whichever day it is -- that a Citizens United decision is rendered.

Of course, the court could also be ready to dispense with several of the more mundane cases it has heard so far this year, as well.

December 03, 2009

Shipping out a midshipman

Suits & Sentences  feels a melancholic tang when learning of young cadets and midshipmen being ejected from the nation's military academies. There's something...sad...about a person of proven Eagle Scout-ian promise and commitment losing their place and being, in a sense, permanently branded. How does one get past all that?

So: Michael K. Stainback.

In April 2004, just a few months before he was scheduled to graduate from the U.S. Naval Academy and earn his commission as an ensign, Stainback was terminated. Kicked out, in other words, only three tests short of graduation and after having endured nearly four years of military discipline. And, under the terms of the deal all midshipmen agree to, he was required to pay back the cost of his education. That's more than $120,000.

An Academic Board had determined that Stainback "possessed insufficient aptitude to become a commissioned officer in the naval service." And, in fact, the Academy had tried to bring Stainback up to speed, without apparent success.

Stainback sued, represented by well-known military law attorney Eugene Fidell and Matthew S. Freedus. He claimed the Academic Board was administratively infirm; mainly, it seems, Stainback is seeking relief from the requirement to pay back his education bill.

In a mid-course ruling late Wednesday, U.S. District Judge Reggie Walton put off until another day the reimbursement question but sided with Stainback in determining there were "procedural errors" that need to be reviewed further. Specifically, the Academy's dean of admissions was absent from a hearing he was supposed to have attended, and there was an apparent absence of factual findings to support Stainback's termination. The judge thus rejected the government's bid for summary judgment.

December 01, 2009

Obama inaugural lawsuit tossed out

Tampa resident Michael A. Steinberg wanted to celebrate Barack Obama's presidential inauguration.

And unlike desperate-for-attention White House fame whores  dedicated Obama fans Michaele and Tareq Salahi, Mr. Steinberg went about his plans the right way. He dutifully obtained two complementary tickets from his congressman, Republican Gus Bilirakis, and arrived in time for his Jan. 20 seating.

The tickets were for the Blue Section. For anyone who remembers what happened on Inauguration Day in the Blue Section, this is where the scary music starts to play.

Mr. Steinberg and his guest shivered in line for several hours before being informed they would not be seated. It was a bitter disappointment; more than that, he says it was a breach of contract. As the U.S. Court of Federal Claims notes in a newly public opinion:

"Mr. Steinberg asserts that the (inaugural committee) knew that many ticket holders would be unable to be admitted to the inauguration ceremonies and that the (committee) had a contractual duty to advise him of this fact publicly before he incurred the expense of traveling to Washington."

But claim court Judge Emily Hewitt, in an opinion dated Nov. 24 but available now, reasoned that the elements of a contract -- bargaining and consideration -- were never met in Steinberg's dealings with the inaugural committee. No contract, no breach. And, for Mr. Steinberg, nothing left but a sour taste in the mouth.

November 30, 2009

Jerry Garcia or Serena Williams: Who was more dangerously profane?

So tennis great Serena Williams is being fined $175,000 for her obscene tirade against a lineswoman during this year's U.S. Open.

Take that, Jerry Garcia.

Suits & Sentences dislikes speech fines; particularly those, as in Williams' case, that are imposed on athletes for their verbalizations during competition. Witness, for instance, $10,000 fines imposed several years ago by the National Hockey League on two coaches who dared to publicly criticize referees.

Speech suppression is rarely a good idea; speech suppression by a monopoly that aims to fashion a particular public image for the purpose of maximizing profit is especially obnoxious. Just sayin'.

The Williams' fine, though, does provoke consideration of who else has been financially dinged for daring speak what's on their fevered mind. A very useful Washington Post chart from several years back, for instance, identified the Federal Communications Commission's fines imposed between 1970 and 2004. 

The first fine cited was imposed April 1, 1971 on radio station WUHY. The fine imposed: $100. The offense: priceless. As the summary states:

"Grateful Dead frontman Jerry Garcia utters string of profanities."

In other words: spontaneous expressions uttered by a frustrated perfectionist in the midst of a performance are to be punished.

The FCC went on to pound broadcasters and radio personalities of much less talent with much bigger fines, from a $500,000 fine imposed for shock jock Howard Stern's 1993 "discussion of the size of actor Richard Gere's penis, among other sexual matters," to a $715,000 fine imposed in 2004 after "Bubba the Love Sponge describes sexual activity between cartoon characters, include George and Jane Jetson."

Of course, Jane Jetson was kind of hot...

November 25, 2009

Court martial tossed for prosecutors' failure to disclose

Sailor Richard R. Mott arrived for duty on the U.S.S. Cape George on March 6, 2007. Two days later, with no apparent provocation, he attacked and stabbed another sailor who was eating breakfast.

Mott explained his actions this way, according to a new ruling by the U.S. Navy-Marine Corps Court of Criminal Appeals:

"(Mott) apparently believed that in the summer of 2003, the victim and upwards of fifteen unknown males lept 'from the closet of his girlfriend’s apartment and raped him. The men shoved 'an unknown liquid and powder' in the appellant’s anus and then began 'cutting his anus with small plastic pieces.'"

Ever since, Mott said he had been wary of getting jumped again. He needed to protect himself. One problem, though: there was no evidence Mott and his victim had ever actually met. Mott was a head case, suffering from paranoid delusions.

But was he capable of understanding his act of violence; that is to say, was he morally culpable and legally responsible? A defense witness appeared to be equivocal, contending Mott was a paranoid schizophrenic but then under cross-examination stating Mott knew what he was doing. The prosecutors had a potential psychiatric expert of their own, who likewise agreed Mott was suffering from paranoid schizophrenia. This witness was never called, and his conclusions never divulged to the defense.

Mott 's attorney on appeal, Navy Lt. Sarah E. Harris, was able to convince the appellate panel to overturn the court martial verdict and order a new hearing. Reasoned the court:

"We have no doubt that knowledge of the existence of a Government medical expert whose professional opinion wholly supported the opinion of the defense expert is a fact both favorable to the appellant and material to an assessment of his guilt and/or punishment."

November 24, 2009

The National Audit Defense Network is no defense at all

An estimated 100,000 people reportedly bought tax breaks through the late, unlamented National Audit Defense Network. One by one, they continue to face the reckoning.

On Monday, it was Wayne and Nanette Risley's turn. The California couple lost their challenge in Tax Court; they are liable for about $11,000 in tax deficiencies and another $2,300 or so in penalties.

Here was the deal:

The Las Vegas-based National Audit Defense Network billed itself as a conglomerate of former Internal Revenue Service agents, enrolled agents, certified public accountants, and tax attorneys who could help U.S. taxpayers pay no federal income tax.

OK, the Las Vegas bit might have been the first clue that some funny game was afoot.

Anyway, the NADN informed participants that they could qualify for significant tax benefits by forming a Web site and then paying the NADN to modify the Web to comply with the Americans with Disabilities Act. Somehow, this was supposed to render the participants eligible for tax credits and deductions.

It didn't.

November 23, 2009

Lawyer's Full Employment Act: McKesson Corp. v. Islamic Republic of Iran

Suits & Sentences will just flat-out assert: there must be attorneys working on the case McKesson Corp. v. Islamic Republic of Iran who were not yet born when the case was first filed in 1982.

And this case that makes Charles Dickens' Jarndyce and Jarndyce look like a day in traffic court still keeps chugging along. A weary sounding U.S. District Judge Richard Leon noted Monday:

"In its 27 -year history, this case has reached the United States Court of Appeals five times."

In his latest procedural decision Monday, an important one, Judge Leon concluded that McKesson can proceed with it case. Stated the judge:

"McKesson does have a cause of action under Iranian law...customary international law continues to provide McKesson with a cause of action...and the act of state doctrine does not apply in this case."

In brief -- very brief, McKesson accuses Iran of appropriating a dairy business established back in 1960. A 2000 trial concluded that McKesson was owed $20 million but there have been ongoing disputes ever since.

November 20, 2009

Listen up, all you prisoner litigants

Convicted bank robber Ronald Mitchell is the epitome of the abusive litigant. As the D.C. Circuit Court of Appeals noted Friday:

"(Mitchell) has filed at least sixty-five unsuccessful lawsuits and appeals in the federal courts, virtually all of
which challenged the legality of his conviction."

Vexing!

And in the ruling, the appellate panel rejected Mitchell's latest effort to proceed in forma pauperis. In other words, citing Mitchell's vexingly long litigation history, the appellate court said he'll have to pay his full court fees if he wants to continue.

But here's the thing. It appears that while Mitchell lost his latest court bid, his student counsel -- Sara Kaiser of the Georgetown University Law Center -- secured some useful precedent for other prisoners. Here's why.

Even as it rejected Mitchell's suit, the appellate panel led by Judge David Tatel concluded that "prisoners who face imminent danger of serious physical injury" may be exempted from the limits imposed on abusive prison litigants. As the panel states:

"Although IFP status may be constitutionally denied to prisoners who have abused the privilege...recognizing an imminent danger exception eases any constitutional tension that might result  from denying access to the courts to prisoners facing life threatening conditions."

Mitchell couldn't make this cut, but other prisoners in the future might. So here's a case, it seems to Suits & Sentences,  that Kaiser and her fellow student counsels -- James E. Burke, Tony Diab and Prashina Gagoomal -- as well as professor Steven H. Goldblatt might reasonably consider a short-term loss and a long-term victory.

Anti-Bush protesters' ruling tossed by DC Circuit

The D.C. Circuit Court of Appeals has now delivered a victory for Washington, D.C. police accused of violating the constitutional rights of Washington, D.C. protesters.

Mass arrests will now be easier than ever.

In a ruling Friday, a somewhat divided three-member appellate panel partially reversed a trial judge's 2008 decision that the police had acted improperly when they conducted a mass roundup of demonstrators. Activist Sarah Carr and others had filed a class action suit, alleging the January 2005 roundup violated their First and Fourth Amendment rights, in part because police hadn't individually identified wrongdoing by each individual picked up in the sweep..

U.S. District Judge Ellen Segal Huvelle had partly agreed, ordering the arrest records expunged. But now the appellate panel says: No so fast.

The panel members go into considerable detail about the riotous behavior of some demonstrators -- "Commander (now DC chief, Cathy) Lanier saw a number of marchers use their flaming torches to set fire to debris in trash containers along the street and the undercover officer witnessed marchers spray painting buildings and cars" -- before reasoning that police acted appropriately.

The bottom line: You will be judged by your associations if you are part of a crowd. Or, as the appellate court stated:

"Police witnesses must only be able to form a reasonable belief that the entire crowd is acting as a
unit and therefore all members of the crowd violated the law. A requirement that the officers verify that each and every member of a crowd engaged in a specific riotous act would be practically impossible in any situation involving a large riot."