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WHITE HOUSE OK NEEDED FOR JOB HUNTING OFFICIALS When former Medicare chief Thomas Scully asked ethics officials at the Department of Health and Human Services for a waiver to look for law firm jobs while finishing up his work related to the Medicare bill, he says he didn’t think it would cause such a stir. But on Jan. 6, the White House ordered agency heads to stop issuing waivers for Senate-confirmed officials without consulting the White House Counsel’s Office. Because it’s illegal for officials to work on matters in which they may have a financial interest, political appointees like Scully � who was administrator of the Centers for Medicare and Medicaid Services and is now senior counsel at Alston & Bird � must apply for waivers from agency heads. Officials must prove their financial interest is not “so substantial” that it could affect their work. In Scully’s case, the HHS associate general counsel for ethics granted a waiver last May. That allowed Scully, while still working on the Medicare bill, to have general employment discussions with law firms whose clients included health care organizations and drug manufacturers. But after news of his waiver became public, watchdog groups and some politicians called for an investigation. The White House memo, written by Chief of Staff Andrew Card, didn’t mention Scully’s waiver, but implied that agencies could be stricter about granting waivers. The White House did not return calls seeking comment. Gregory Walden, of counsel to Patton Boggs and an ethics adviser to President George W. Bush’s transition team, calls the change “a good move.” White House control will ensure that waivers will be granted consistently and without “the element of surprise,” he says. The change will help shield both the White House and the officials from public criticism, says Amy Comstock, former director of the Office of Government Ethics. “They deserve the protection afforded by the consultation by the White House,” says Comstock, now executive director of the Parkinson’s Action Network. But Frank Clemente, director of Public Citizen’s Congress Watch, which filed a complaint with the Office of Inspector General of the HHS over the waiver, says the White House move is an important step, but “there needs to be greater clarity” in the waiver process. Scully, who left his HHS post in December shortly after the Medicare law took effect, says he hopes the uproar doesn’t cause problems for others, but adds that he has a “totally clear conscience.” His waiver, he says, was prompted by unsolicited calls from law firms. � Marie Beaudette D�J� VU? The Justice Department’s Civil Rights Division filed an employment discrimination suit against the city of Erie, Pa., on Jan. 8, alleging that a rigorous physical fitness test used by the Erie Police Department unlawfully excludes women from jobs on the force. According to the complaint, since 1996 only 13 percent of female candidates have passed the test, compared with 71 percent of male candidates. The case is precisely the type of high-impact “pattern or practice” litigation that civil rights advocates have been urging the Bush administration to pursue more aggressively. What’s odd is how similar the Erie lawsuit is to another case that the Bush administration dropped out of in late 2001. That suit, brought against the Southeastern Pennsylvania Transportation Authority during the previous administration, challenged a running test used by the transit police force. “Maybe this reflects some renewed will to scrutinize the employment practices of police departments,” says Jennifer Brown, legal director of the NOW Legal Defense and Education Fund. According to the Justice Department, the Civil Rights Division has opened 62 employment-related investigations since June 2003, including 49 investigations into allegations of systemic “pattern or practice” violations. � Vanessa Blum REAL DEAL Sheldon Weisel, a 29-year Shaw Pittman veteran and a founder and former head of the firm’s 40-lawyer real estate practice, moved to Boston-based Goulston & Storrs Jan. 12. Weisel will manage Goulston’s small D.C. office and help to build the 170-lawyer firm’s mid-Atlantic real estate practice. Goulston has 80 real estate lawyers in Boston and two in the District. Weisel expects to hang on to a number of his clients, including Boston Properties Inc., which manages more than 30 properties in the D.C. metro area. “I have many friends at Shaw Pittman and invested much of my career in the firm, but I felt that I had done everything there that I had set out to do,” says Weisel. � Lily Henning NO DOUGH In a stinging rebuke, Judge David Tatel of the U.S. Court of Appeals for the D.C. Circuit slashed a fee request by lawyers from the D.C. office of Chicago’s Sidley Austin Brown & Wood, awarding the firm only $72,000 out of the $342,000 it requested. The bill stemmed from work Sidley did in 2003 on behalf of Role Models America, a nonprofit educational organization that wanted a chance to bid on a mothballed army base. A Sidley team led by P. David Richardson won the group the chance to compete to purchase Fort Ritchie in Maryland, where they want to build a private magnet high school. Under the Equal Access to Justice Act, the government must pay the legal fees of small businesses that prevail against it in litigation. The fees must be “reasonable,” however � and Tatel found that Sidley had justified only 410 out of 820 hours. In the unanimous Jan. 13 opinion, Tatel called Sidley’s record keeping “manifestly inadequate,” citing “inadequate documentation, failure to justify the number of hours sought, inconsistencies, and improper billing entries.” The court also found no justification for Sidley’s attempt to claim partner rates of $400 per hour. It restricted the firm to $143.25 per hour � the normal EAJA rate of $125, plus inflation adjustment � saying that the firm did nothing particularly unusual to deserve the higher fee. Sidley’s Richardson notes that the EAJA imposes a high standard for reimbursement from taxpayer funds. “We’re pleased with the outcome,” Richardson says. “We submitted what we felt was an appropriate level of detail, and the court disagreed.” � Jonathan Groner A VALENTINE FOR UTC Former Federal Trade Commission General Counsel Debra Valentine joined the United Technologies Corp. from O’Melveny & Myers’ D.C. office Jan. 12. Valentine will be vice president and associate general counsel for the huge Hartford, Conn.-based company, whose six business units include the Otis Elevator Co. and the airplane engine producer Pratt & Whitney. The job offers a blend of responsibilities from previous positions at the FTC and in private practice, combining oversight of a team of attorneys with a broad range of antitrust and merger and acquisition work, says Valentine, who was co-chair of O’Melveny’s antitrust practice. “I’m trying to take the best from private practice and the FTC,” she says. � Lily Henning DUDAS’ DAY Two years after he was appointed second in command at the U.S. Patent and Trademark Office, Jon Dudas has become the agency’s new acting director. He takes over from former California Republican Rep. James Rogan, who stepped down Jan. 9 to complete his memoir. Rogan, meanwhile, has rejoined the D.C. office of his old firm, Venable, as a partner in the legislative group. Dudas will be acting head of the agency until President George W. Bush officially appoints him � a likely scenario, sources say � or taps someone else. Dudas joined the PTO after serving in Congress as counsel to the House Subcommittee on Courts and Intellectual Property and deputy general counsel for the House Judiciary Committee. He takes over at a time when the agency is seeking more funds from Congress, facing public pressure to improve patent quality, and moving its 7,000 employees to a new campus in Alexandria, Va. Alan Kasper, a member of the American Intellectual Property Law Association board of directors, describes Dudas as bright, knowledgeable, and enthusiastic. Still, he warns, “The question always is: What can he really accomplish in an election year?” � Christine Hines RECESS TIME The clock is ticking for Charles Pickering Sr. Named to the U.S. Court of Appeals for the 5th Circuit last week in a recess appointment by President George W. Bush, the federal trial judge will have only one year on the bench if the Senate doesn’t confirm him. While the White House’s maneuver is surprising, it is not unusual. When President Bill Clinton gave a 4th Circuit recess appointment to Roger Gregory in 2000, his administration noted that presidents had made more than 300 recess appointments to the federal bench since 1789. On the Supreme Court, 15 justices have received recess appointments � the most recent being Potter Stewart in 1958. Of the 15 justices, 14 eventually won confirmation. The sole unlucky one was John Rutledge, who served for four months after being nominated by President George Washington to chief justice in 1795. Pickering supporter C. Boyden Gray of Wilmer, Cutler & Pickering says the veteran trial judge should be able to merge into the appellate system with minimal training. There seems little chance Pickering will get a permanent slot. Since 2001, his nomination has been blocked by Democrats citing his record on race, voting rights, and abortion. � Tony Mauro and Tom Schoenberg THINNING THE RANKS Houston-based Vinson & Elkins has asked 40 lawyers to find new jobs, according to managing partner Joseph Dilg, including two in the firm’s 85-lawyer D.C. office. That’s about 10 percent of associates in the firm and is slightly higher than in previous years, says Dilg. He says the associates were let go for performance reasons and lack of work. “It’s not economic issues as much as it is making sure that we keep the associates here that are progressing here,” he says. The firm is letting the associates, mostly in transactional practices, stay until they find new jobs, says Dilg. � Brenda Sapino Jeffreys, Texas Lawyer MOVING ON The chief architect of the California expansion of Howrey Simon Arnold & White is leaving the firm after being lured to Skadden, Arps, Slate, Meagher & Flom for the chance to be a full-time litigator again. Thomas Nolan will join Skadden in Los Angeles Feb. 1 after nearly 12 years with Howrey. Nolan, the firm’s managing partner in California, helped engineer Howrey’s expansion from 18 lawyers in one Los Angeles office in 1995 to its current roster of 150 lawyers in four California locations. But Nolan says that while trying four cases in the past year, his administrative duties had become taxing. “I came to appreciate my true passion is to try cases, and I was seeking a way to step down from some of my management responsibilities at Howrey in order to concentrate on my trial practice,” Nolan says. � Renee Deger, The Recorder

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