Thurgood Marshall Federal Judiciary Building in Washington, D.C. (Photo: Diego M. Radzinschi / NLJ)
Federal defender offices, which lost approximately 400 employees because of last year’s mandatory budget cuts known as sequestration, have enough money in this year’s budget to begin backfilling most of those positions, court officials said on March 11.
Following the biannual meeting of the Judicial Conference of the United States, Chief Judge William Traxler Jr. of the U.S. Circuit Court of Appeals for the Fourth Circuit, chairman of the judicial conference’s executive committee, said Congress’ fiscal year 2014 appropriation to the judiciary would allow officials to fill about 350 of those jobs.
The defender services budget was “hit particularly hard” under sequestration, Traxler said. The judiciary also reduced hourly rates for private lawyers appointed by judges to represent indigent criminal defendants. The full rates were restored in February.
The appropriations bill approved by Congress in January included an increase of $316 million in discretionary spending for the courts — restoring most of the $350 million cut under sequestration. Traxler said the appropriation gave the judiciary “a little bit of breathing room,” although officials would not rush to fill vacant positions given uncertainty about next year’s budget. “We’re not out of the woods,” Traxler said.
The judicial conference’s biannual meetings are closed to the public. Responding to questions from reporters about the substance of its meeting, Traxler said the judges did not discuss several topics in the news, including a cyberattack that temporarily brought down the judiciary’s electronic filing system and the status of a pilot project to put cameras in courts, which expires next year. — Zoe Tillman
CIA, CONGRESS CLASH OVER SPYING ALLEGATIONS
Sen. Dianne Feinstein (D-Calif.) last week described one of the big calls that Robert Bauer had to make when he was White House counsel. In a Senate speech, Feinstein, chairwoman of the Senate Intelligence Committee, accused the Central Intelligence Agency of interfering with the ­congressional investigation of the agency’s detention and interrogation program. She said the agency ­electronically removed committee access in 2010 to CIA documents after earlier providing them to members. “I went up to the White House to raise this issue with the then-White House counsel, in May 2010,” Feinstein said. “He recognized the severity of the situation and the grave implications of executive branch ­personnel interfering with an official congressional investigation. The matter was resolved with a renewed commitment from the White House counsel, and the CIA, that there would be no ­further unauthorized access to the committee’s network or removal of access to CIA documents already ­provided to the committee.” — Todd Ruger
COALITION PUSHES CAMERAS
A coalition of media and public interest groups last week urged Chief Justice John Roberts Jr. to allow the video recording and broadcast of U.S. Supreme Court proceedings. “We believe the Supreme Court should embrace contemporary expectations of transparency by public officials,” the Coalition for Court Transparency wrote in a letter to Roberts.
“Though the Supreme Court is in a unique position as the nation’s highest court, that status provides more reason to open its educational opportunities to a wider public, instead of making access more difficult.” The letter went to the court on the 50th anniversary of the 1964 ruling New York Times v. Sullivan, which the group said “helped media outlets cover controversial topics of national import without fear of frivolous lawsuits.” The high court, it said, should now “enact policies that will help the public better understand its important work.” — Tony Mauro
FOURTH CIRCUIT FAST TRACK
Virginia’s same-sex marriage litigation is now on a fast track at the U.S. Court of Appeals for the Fourth Circuit.
The appellate court on March 10 approved an expedited schedule for briefing and argument in Bostic v. Rainey, a challenge to Virginia laws prohibiting gay and lesbian couples from marrying and barring recognition of same-sex marriages conducted outside of the commonwealth.
Last month, Judge Arenda Wright Allen of U.S. District Court for the Eastern District of Virginia struck down the laws as violations of the 14th Amendment’s equal-protection and due-process clauses. The appeal is being brought by Janet Rainey and George Schaefer III in their official capacities as state registrar of vital records and the clerk of the Circuit Court for Norfolk. Prince William County Circuit Court Clerk Michele McQuigg intervened as a defendant-appellant.
Their briefs are due on March 28. The reply of the challengers — whose legal team includes Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner — is due on April 11. Oral arguments in the Fourth Circuit are tentatively scheduled for the week of May 12. — Marcia Coyle
JUDGE WON’T SEAL RULING
A federal trial judge in Washington last week turned down a request by lawyers for the contractor Kellogg Brown & Root Services Inc. to remove a ruling from the public docket. The ­underlying ­ruling, from U.S. District Judge James Gwin, ordered KBR to produce 89 documents to the lawyers for a whistleblower who’s suing the company for alleged violations of the False Claims Act. KBR’s lawyers, including Vinson & Elkins counsel Tirzah Lollar, argued that the Gwin’s ruling “quotes directly from, and describes in detail” ­documents the company contends are protected by the ­attorney-client privilege.
Gwin refused to put his ruling under wraps. “The Court finds that the KBR defendants have not shown any privacy interest that should close the public’s right to open courts,” Gwin wrote in his March 11 ruling. Gwin said “the only privacy interests at issue appear to be an interest in secrecy for secrecy’s sake.”
Lawyers for the whistleblower, Harry Barko, fought KBR’s effort to put the ruling under seal. “KBR has filed a frivolous motion to seal the court’s order to prevent public scrutiny of its conduct as a fiduciary of the United States as a government contractor,” David Colapinto of Kohn, Kohn & Colapinto wrote. — Mike Scarcella
NSA RESPONDS TO THE ABA
Last month, amid reports that an Australian intelligence agency intercepted the communication of a U.S. law firm, the American Bar Association pressed the National Security Agency for information about the protection of attorney-client privilege. The NSA on March 10 tried to alleviate any concern about whether the government is picking up information that should remain walled off.
“We absolutely agree that the attorney-client privilege deserves the strong protections afforded by our legal system, and that it is vital that proper policies and practices are in place to prevent its erosion,” NSA director Keith Alexander wrote to ABA president James Silkenat.
The NSA employs “provisions that expressly address privileged material and require consultation with the Office of General Counsel when such situations arise,” Alexander said. The general counsel’s office, he added, has provided “clear guidance” on the necessary steps to protect privileged information. — Mike Scarcella
SOLVING THE SALES TAX PUZZLE
Lawyers for online and brick-and-mortar retailers on March 12 urged Congress to pass Internet sales tax legislation — but they couldn’t agree on what the bill should look like. Testifying before the House Judiciary Committee, representatives of an electronic-commerce group and shopping malls offered different proposals that would aim to make it easier for states to collect taxes from online retailers.
William Moschella, a Brownstein Hyatt Farber Schreck shareholder who represents mall owner Simon Property Group, said his client supports the Senate’s Marketplace Fairness Act, elaborating in his written testimony that the legislation would put all ­retailers on a level playing field. The measure, which the Senate passed in May 2013, would force online retailers to collect sales taxes for every state in which they have customers.
Chris Cox, a Bingham McCutchen partner who represents e-commerce group NetChoice, said the legislation wouldn’t level the playing field. “If [the Marketplace Fairness Act] were the only option, NetChoice would strongly prefer today’s system,” said Cox, a former U.S. Securities and Exchange Commission chairman. — Andrew Ramonas
NEW APPELLATE CASES DROP
The number of new cases filed in federal appellate courts nationwide, excluding the U.S. Court of Appeals for the Federal Circuit, decreased by 1.8 percent in 2013, according to data the judiciary released on March 11. Criminal appeals dropped by 13 percent, in large part because appeals involving drugs other than marijuana declined by 27 percent.
Non-marijuana appeals jumped by 42 percent in 2012, when prisoners convicted of crack cocaine offenses became eligible to seek sentence reductions under changes to the federal sentencing guidelines, according to the judiciary. The federal appeals courts continued to make progress clearing their dockets last year. The number of pending cases has steadily dropped during the past five years, from 49,885 in 2009 to 41,670 in 2013. — Zoe Tillman