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WASHINGTON — The cases to be heard by the D.C. Circuit U.S. Court of Appeals in its fall term once again point to the court’s central role in deciding novel legal, business and social issues, many of which have a national impact. On the schedule for upcoming arguments are two important business cases: one involving the recording industry’s efforts to stop Internet piracy, the other a suit against the government by a major law firm that lost out on a lucrative government contract. The circuit will also take up an attempt by American Gulf War POWs to be compensated by Iraq for torture, a dispute stemming from a high-profile police shooting, and a fight over privacy rights and McCarthy-era FBI files. Today two major cases are being argued before separate three-judge panels. The first — Recording Industry Association of America v. Verizon Internet Services — poses a key test of the recording industry’s get-tough approach with people who share copyrighted music over the Internet. The showdown comes a week after the industry filed 261 piracy complaints against individuals nationwide. In the D.C. Circuit case, the RIAA had a subpoena issued under the Digital Millennium Copyright Act of 1998 to Verizon, an Internet service provider, to obtain the names of subscribers involved in song-sharing. Verizon resisted the subpoena on First Amendment and other grounds, but U.S. District Judge John Bates ruled in the RIAA’s favor last April. VERIZON TAKES STRONG EXCEPTION “Congress clearly did not intend this subpoena power to cover every communication over the Internet,” says Andrew McBride, a partner at D.C.’s Wiley Rein & Fielding who will argue the case for Verizon. “RIAA’s position compromises the First Amendment and privacy rights of every Internet user in this country. Because there is no requirement to file a lawsuit, the [digital copyright act] turns anyone into a roving grand jury.” McBride adds, “Congress could not have considered peer-to-peer file sharing when it passed the act because the technology did not exist.” Donald Verrilli Jr., a partner at the D.C. office of Jenner & Block who will argue for the RIAA, responds, “Congress put subpoena power into the act precisely to combat the risk of massive piracy on the Internet. And there is now massive piracy on the Internet. All we are doing is using the tools that Congress gave us.” The panel will consist of Chief Judge Douglas Ginsburg, Judge John Roberts Jr., and Senior Judge Stephen Williams. Roberts, a former Hogan & Hartson partner, took the bench in June. The second case to be argued today is LeBoeuf Lamb Greene & MacRae v. Spencer Abraham. It’s the latest round in a long-running dust-up involving two law firms that vied for a major government contract. The rivals were LeBoeuf Lamb Greene & MacRae and Winston & Strawn, two of the few D.C. law offices that know the ins and outs of the Nuclear Regulatory Commission. In May 1999, the Department of Energy found it lacked in-house expertise to obtain a license from the nuclear commission for its nuclear waste disposal facility at Yucca Mountain in Nevada. It asked law firms to bid on a contract to represent the department. Winston & Strawn and LeBoeuf were the only two bidders, and Winston & Strawn landed the $16.5 million contract. Two years later, however, the Energy Department dropped Winston & Strawn after it was revealed that the firm had a conflict of interest because it had also lobbied for a nuclear industry trade group. The Energy Department did not put out a new request for bids, instead relying on its in-house lawyers from there on. LeBoeuf, however, filed suit in U.S. District Court for the District of Columbia, asking that it be awarded the contract. In July 2002, U.S. District Judge Ricardo Urbina rejected this effort, ruling that the case was moot since the old contract no longer existed and there was no clear indication that the DOE wanted to retain outside counsel at that point. In its appeal of Urbina’s decision, a team of lawyers for LeBoeuf contends that the “injury to LeBoeuf remains and can be remedied by the directed award of a replacement contract to LeBoeuf as the only remaining qualified bidder.” James Feldesman of D.C.’s Feldesman Tucker Leifer Fidell, a lawyer for LeBoeuf, declines comment, as does spokesman Charles Miller of the Justice Department, which represents the DOE. The panel hearing the case will comprise Judges David Sentelle, Judith Rogers and David Tatel. The circuit’s docket takes a decidedly dramatic turn Friday, when the court is scheduled to hear a case arising from one of the most tragic instances of police error in the D.C. area in recent years. On the night of Sept. 1, 2000, Prince George’s County, Md., police followed Prince Jones Jr.’s SUV into Fairfax County, Va. There, Cpl. Carlton Jones (no relation) shot and killed Prince Jones Jr., who turned out to be an innocent man mistaken by police for someone else. Mabel Jones, the mother and personal representative of Prince Jones Jr., sued Carlton Jones, the police department, and others in U.S. District Court. D.C. solo practitioner Gregory Lattimer will represent Mabel Jones in a trial before U.S. District Judge Richard Roberts. But before the trial can begin, the D.C. Circuit must resolve, in Mabel S. Jones v. Prince George’s County, whether anyone else besides his mother has the right to sue on behalf of Prince Jones Jr. Prince Jones Sr., the father of the deceased, has filed motions in the D.C. case seeking to protect his interests in any judgment. His lawyer, Terrell Roberts III of Roberts & Wood in Riverdale, Md., cites Maryland law, which permits the parents of a deceased adult to obtain damages under some circumstances. Prince Jones Sr. also filed in Maryland state court on behalf of his son; his right to do so was rejected there but is on appeal. In the District, Judge Richard Roberts rejected the father’s right to intervene. Prince Jones Sr. had no contact with his son for decades, says Lattimer, counsel for Mabel Jones. “This case has evolved from the greed of Prince Jones Sr.,” he says. “He never gave a single dime to the education of his son. But as soon as there is a tragedy, he rises from the ashes as a concerned father, solely for the cash.” Terrell Roberts denies this, saying, “He had to fight his way back in to the family, but he had a very close relationship with his son before Prince Jones Jr.’s death.” Hearing the case are Judges Tatel, Karen LeCraft Henderson and Merrick Garland. Then, on Oct. 3, the circuit will hear a case stemming from the 1991 Persian Gulf War that has been dramatically affected by this year’s war in Iraq. In Clifford Acree v. John Snow, former prisoners of war tortured and beaten by Saddam Hussein’s henchmen in 1991 are trying to get their hands on Iraqi assets confiscated by the U.S. government in order to collect a judgment of nearly $1 billion. The case, like the Prince Jones Sr. suit, stems from a ruling by Judge Richard Roberts. On July 7, Roberts awarded the ex-POWs a default judgment of $653 million in compensatory damages and $306 million in punitive damages. Two weeks later, the Justice Department sought to intervene in the case and to have the judgment vacated on the grounds of sovereign immunity. The department also argued that on May 7, 2003, after Hussein’s regime fell, President George W. Bush made an official determination rendering a 2002 statute that permits payment of judgments from frozen assets inapplicable to Iraq. In view of this, Justice contended, summary judgment for the government is required. On July 30, Judge Roberts agreed and granted summary judgment for the government. The government’s position “seems extreme,” the judge wrote, but he said it was correct. Stewart Baker, a partner at D.C.’s Steptoe & Johnson, will argue the appeal on behalf of the former POWs. Judges Sentelle, A. Raymond Randolph and Rogers will hear this case. And on Oct. 17, a D.C. Circuit panel will be asked to answer the question, When can a person be presumed dead? Ellen Schrecker is a professor at Yeshiva University who is doing research on the McCarthy era. She is trying to use the Freedom of Information Act to obtain records of Federal Bureau of Investigation probes from the 1940s and early 1950s. In responding, however, the FBI frequently deletes references to specific people on privacy grounds, asserting that it is not convinced that they are deceased. Case law holds that once a person has died, privacy interests are not strong enough to justify withholding an identity. The issue before the court in Ellen W. Schrecker v. United States Department of Justice revolves around what kind of checking the FBI must do to determine whether someone is dead. The bureau has said that it consults a few published sources that list dates of death. If the person’s death does not appear there, and if the bureau’s records indicate that the person was born more than 100 years ago, it assumes that the person has died and releases the information. U.S. District Judge Royce Lamberth upheld the FBI’s position. Schrecker’s lawyer, D.C. solo practitioner James Lesar, says this policy “inhibits scholars from being able to review what happened in these cases.” He contends that 50 or 55 years after an investigation closes, the FBI should presume that the persons involved have died. Public Citizen filed an amicus brief on Schrecker’s side, representing the American Historical Association and other historians’ groups, as well as the Reporters Committee for Freedom of the Press. The panel in this case consists of Chief Judge Ginsburg, Judge Harry Edwards and Senior Judge Williams. Jonathan Groner is editor at large at Legal Times , a Recorder affiliate based in Washington, D.C.

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