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Shot down and taken prisoner by North Vietnamese troops in 1967, George Day managed to escape and get within a mile of an American base before being recaptured. He spent the next five years in a series of prison camps. So it’s understandable why Day, now a Florida trial lawyer, doesn’t sound daunted because the U.S. Court of Appeals for the Federal Circuit recently took back a far-reaching victory he’d won on behalf of veterans suing the government. “It’s a different kind of warfare, one that makes me thoroughly angry,” says Day, who received the Medal of Honor for his stubborn resistance as a prisoner of war. Day represents William Schism and Robert Reinlie, World War II veterans who claim the government in 1995 broke recruiters’ promises for free lifetime health care if they stayed in the military for 20 years. In February, a three-judge Federal Circuit panel agreed. Chief Judge Robert Mayer, Judge Pauline Newman, and Senior Judge S. Jay Plager concluded the government had tried to “unilaterally amend the contract terms” with Schism, Reinlie, and quite possibly other vets who’d received similar promises from the 1940s through 1956. Lawyers from the Justice Department and the Pentagon sought a rehearing, arguing that Congress had not authorized the recruiters’ promises and pointing out that the decision could affect as many as 1.5 million vets and cost the government $15 billion. On June 13, the Federal Circuit announced that the full court would hear the matter, meaning at least six of the nine other active judges voted for rehearing. The court asked the lawyers to rebrief the issues, including new discussion of a law Congress passed last year in response to veterans’ complaints. The new law, part of last year’s defense appropriation, provides all of the would-be litigants free lifetime health care. While delighted with the new law, Day still wants the government to reimburse the veterans for Medicare premiums they have paid for the past six years and will, in part, continue to pay, even under the new law. Representing the government in William Schism and Robert Reinlie v. United States, No. 99-1402, is Roy Hawkens of the Department of Justice. GOING NUCLEAR Veterans aren’t the only litigants whose claims against the government are getting en banc treatment from the Federal Circuit. Also on June 13, the full court announced it would rehear Commonwealth Edison Co. v. United States, No. 00-5069, which deals with the government’s longtime role enriching uranium for nuclear power plants. From 1969 until 1992, the government charged nuclear power producers, including Chicago-based Commonwealth Edison, a set price to enrich low-grade uranium with the U-235 isotope. But in 1992, in order to fund cleanup costs for terminating the program, Congress charged a special assessment to the plants that had purchased the enrichment services. Many utilities sued, claiming the assessment was an unconstitutional retroactive tax. A 1997 ruling by the Federal Circuit rejected that argument, but the plaintiffs have continued to pursue the litigation under different theories. Commonwealth Edison, represented by the Washington, D.C., office of Chicago’s Winston & Strawn, claims that the assessments violate the takings and due process clauses of the Fifth Amendment. Judge Francis Allegra of the U.S. Court of Federal Claims threw out Commonwealth Edison’s claims last year, concluding that the takings clause did not support the claims and that the 1997 Federal Circuit ruling precluded the new theories. A three-judge panel of the Federal Circuit heard Commonwealth Edison’s appeal in April, but referred the matter to the full court, which agreed to hear the matter again on Oct. 3, with no new briefing. Winston & Strawn partner Robert Mangrum represents Commonwealth Edison. James Bruen of the Department of Justice represents the government. Jerry Stouck of Spriggs & Hollingsworth and Melvin Garbow of Arnold & Porter, who represent other utilities with claims similar to Commonwealth Edison’s, are listed as amici. CRIME ON CANVAS Federal Circuit watchers are scratching their heads over a bizarre incident in which portraits of two deceased Federal Circuit judges were slashed by an unknown vandal. The targets were portraits of Judge Giles Rich, the legendary patent expert who died in 1999, and Judge Oscar Davis, who served for 26 years on the U.S. Court of Claims and the Federal Circuit before his death in 1988. Both portraits are normally on display at the Federal Circuit building in Washington. But in March, along with a painting of retired Chief Judge Howard Markey, the portraits were included in an exhibition at the Cosmos Club, a 123-year-old exclusive salon on Embassy Row. On June 12, club officials discovered that someone had driven long vertical slashes through the Rich and Davis paintings, which had been hanging near a door on adjoining walls of the dining room. The Markey portrait, hung high on a wall across the room, was untouched, as were 32 other works. D.C. police are investigating but have so far not announced any leads or suspects. The club president, Marianne Shuelein, would not discuss the case, according to a club official. “It’s just a nightmare,” says the portraits’ painter, club member judy Horowitz, who does not capitalize her first name. “Everybody has a different theory of who it could be,” she adds. Horowitz dismisses speculation that a disgruntled Cosmos Club employee did the crime. Other guesses range from an angry club member to an outsider who performed a random act of vandalism. More elaborate hypotheses exist. One is that the attacker held a grudge against the federal judiciary and chose a time late on June 11, the day of Timothy McVeigh’s execution, to attack the only two accessible portraits of federal judges. Another suggestion is that the attacker was an inventor or other patent litigant who lost an appeal before the Federal Circuit, or Rich and Davis specifically. Pinpointing such a perpetrator seems impossible, given that the two judges handled dozens if not hundreds of cases together. Rich was a member of the Cosmos Club, says club member and current Federal Circuit Judge Pauline Newman. So is another sitting Federal Circuit judge, Alan Lourie, and Senior Judge Wilson Cowen. The Federal Circuit and the Cosmos Club had been closely linked long before the mysterious crime. From 1882 until 1952, the club was located in a building on Madison Place, the now-blocked-off street cater-corner to the White House, which is now part of the Federal Circuit complex. The club and two anonymous donors have established a $1,500 reward for information leading to an arrest and conviction, says the club’s general manager, William Caldwell. Jonathan Ringel is senior reporter in American Lawyer Media’s Washington, D.C., bureau.

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