A Secret Service agent protecting Bill #Clinton is, it seems, suing the agency over alleged sex discrimination.

Get your mind out of the gutter. The case has nothing to do with Clinton's behavior. Indeed, the former president's name is not mentioned in the original complaint or in a decision issued Wednesday to shift the case from Washington, D.C. to the Southern District of New York.

Instead, agent Kate Crowley says the agency discriminated against her by giving her worse travel and overtime assignments than men in the detail, and then retaliated against her when she complained. As summed up by U.S. District Judge James Boasberg:

"When Crowley raised this disparity with her supervisors at USSS, she was 'assigned to a punishing overtime and weekend schedule and received a threat at her home.' Plaintiff also alleges that she has been regularly singled out and mocked by her colleagues."

Ms. Crowley, in her initial complaint and in the judge's decision Wednesday, is described as being part of the protective detail of a "former national leader." Then, the clues start piling up.

The detail is "based in the New York City area." In a declaration cited Wednesday, the Secret Service says "information concerning the creation of the work schedules, including requests for time off, assignments to particular trips, and requests for overtime, would be received by the former presidents’ detail supervisors..." (underlining added.)

And, finally, this, from Judge Boasberg's decision:

"The actual unlawful employment practices – i.e., the creation and approval of the discriminatory schedules – occurred at the detail headquarters in Chappaqua, New York." (underlining added.)

Chappaqua is, of course, Mr. Clinton's post-White House home.

 

#Scotus questioning during the #Voting Rights Act arguments Wednesday provided definite clues as to where individual justices could well be coming from. Seems like a 5-4 decision in the making.

Check out, for instance, this well-prepared one-two punch from Chief Justice John Roberts, Jr., directed at Solicitor General Donald Verrilli, Jr.:

ROBERTS: Do you know which state has the worst ratio of white voter turnout to African American voter turnout?
VERRILLI: I do not.
ROBERTS: Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi....which state has the greatest disparity in registration between white and African American?
VERRILLI: I do not know that.
ROBERTS: Massachusetts.

Ooh, snap!

This is a classic set-up, prepared in advance by the chief justice. Only someone who's got some motivation to score a point would invest in setting such a trap. Sounds like the chief justice seems inclined to join Justice Antonin Scalia, who reliably tipped his hand any number of occasions, as in this extended commentary regarding the overwhelming congressional approval of the law:

SCALIA: I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial
entitlement...Whenever a society adopts racial entitlements, it is very difficult
to get out of them through the normal political processes....That's the concern that those of us who -- who have some questions about this statute have. It's a concern that this is not the kind of a question you can leave to Congress.

No doubt where he's coming from. That's two votes.

So, too, with Justice Samuel Alito, whose strike-it-down inclinations were summed up when he stated:

ALITO: There is no question that the Voting Rights Act has done enormous good...But when Congress decided to reauthorize it in 2006, why wasn't it incumbent on Congress under the congruence and proportionality standard to make a new determination of coverage?

That's three votes.

Justice Clarence Thomas's vote can likewise be predicted, even though his utterances during the hour-long oral argument were confined to:

THOMAS:

That's four votes.

Tellingly, Justice Anthony Kennedy sounded skeptical, as well, as when he attacked the seemingly out-of-date formula for determining which states are covered by the law's pre-clearance requirements.

KENNEDY: If Congress is going to single out separate states by name, it should do it by name. If not, it should use criteria that are relevant to the existing -- and Congress just didn't have the time or the energy to do this; it just reenacted it.

That, perhaps, is five votes.

From the other side, too, justices tipped their hands; in particular, Justice Sonia Sotomayor.

SOTOMAYOR: Do you think that racial discrimination in voting has ended, that there is none anywhere? ...Why should we make the judgment, and not Congress, about the types and forms of discrimination and the need to remedy them?

Justice Elena Kagan sounded close to Sotomayor's position, telling the attorney for Shelby County, Alabama:

KAGAN: But think about this state that you're representing, it's about a quarter black, but Alabama has no black statewide elected officials. If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one state on the list.

 

 

 

An #FEC lawsuit challenging former Sen. Larry Craig's use of #campaign funds for his legal defense needs is now set for a motion-do-dismiss hearing on Wednesday, March 6.

Originally set for Feb. 27, the hearing before U.S. District Judge Amy Berman Jackson will give Craig's attorneys the chance to argue why the Federal Election Commission's lawsuit should be tossed out. The FEC contends Craig improperly converted to personal use more than $216,000 in campaign funds when he used the money to pay for attorneys in connection with his embarrassing 2007 arrest at the Minneapolis-St. Paul International Airport.

"When the events occurred, Senator Craig was engaged in official travel from his home in Idaho to a session of Congress in Washington, D.C. commencing that evening," his attorneys argue.

The FEC counters that Craig's arrest, originally for allegedly soliciting a male undercover police officer staked out in men's room, and the subsequent litigation doesn't count as official activity. Stated the FEC:

"Craig’s trip was not required by the Constitution. Nothing about his official duties as a federal officeholder caused him to engage in that personal conduct in the airport restroom, or to subsequently plead guilty, or to thereafter decide to try to withdraw that guilty plea. His resulting legal expenses were thus personal in nature."

 

 

 

Secret Service agents who claim racial #discrimination have gotten a huge boost, with a federal judge's decision to certify their lawsuit as a class action.

In a potent 54-page decision dated Monday, U.S. District Judge Richard W. Roberts certified the class-action that will now probe whether the Secret Service had "a pattern and practice of engaging in race discrimination in making promotions."

Specifically, the lawsuit will now proceed on behalf of "all current and former African-American Special Agents" who bid for certain promotions between 1995 and either 2004 or 2005, depending on the position. The current and former agents who filed the initial suit, many years ago, include Luther Ivey, Reginald Moore and Yvette Summerour, among others.

This has been an excruciatingly long-running case, first filed in 2000 and subsequently litigated up and down the appellate ladder. Prior attempts to win class-action certification failed; this time, though, the aggrieved Secret Service agents presented some new expert testimony involving statistical analysis or promotion data.

Noted the judge:

"(The expert) further found that for the years 1998 to 2000, the difference between expected African-American promotions in the absence of discrimination, taking as a given the presence of African-Americans on the best qualified list, and actual African-American promotion to GS-14 positions was statistically significant."

 

For her next #movie topic, Lee Storey might consider #Tax Court.

Hot on the heels of Oscar night, a U.S. Tax Court judge on Monday rejected Storey's bid to be reimbursed legal and administrative costs after prevailing in an earlier dispute with the Internal Revenue Service.

In that earlier decision issued last April, closely watched in the documentary film community, Tax Court Judge Diane S. Kroupa ruled in favor of Storey's bid to write off losses from her film work even though she lost money for six straight years. Despite the string of losses during Storey's work on the documentary  entitled “Smile ‘Til It Hurts: The Up With People Story," Kroupa ruled that Storey was engaged in the business for profit and could write off production costs.

After beating the IRS on the core issue, Storey then sought reimbursement for about $160,000 in administrative and legal costs. On Monday, Kroupa concluded that Storey was ineligible because she had failed to seek administrative relief before suing. Moreover, the judge reasoned that though the IRS had lost in the earlier trial, the agency's position was "substantially justified."

So the same judge that rules against the IRS on the merits also rules that the agency's position was "substantially justified;" how does that work?

"The Commissioner’s position may be incorrect yet nevertheless substantially justified if a reasonable person could think it correct," Kroupa explained, adding that the IRS "presented facts supporting his position that petitioner’s primary objective in conducting her film activity was not to make a profit. And respondent’s arguments with respect to this highly fact-intensive issue were reasonable."

Several organic California #almond ranchers have lost a #legal challenge to #USDA food safety rules imposed after a salmonella outbreak.

In a decision issued Friday, the D.C. Circuit Court of Appeals rejected the challenge brought by Nick Koretoff and other organic almond growers who argued the Agriculture Department exceeded its authority when it required that California almonds sold domestically to be treated with heat or chemicals.

A trial court had ruled against the farmers, several times. In the decision Friday, the D.C. Circuit concluded that the farmers had waived their claims by failing to raise them during the USDA rulemaking process.

The decision is a victory for the Modesto-based Almond Board of California, which administers the agricultural marketing order by which the industry regulates quality control, research and advertising. The board recommended new safety rules in 2006 following incidents of salmonella contamination, and the Agriculture Department subsequently put them in place.

The appellate decision, though, is another defeat for Koretoff and others who complain the required treatments undermine their ability to sell organic produce for a premium price.

An endless #legal battle over an #Armenian Genocide Museum and Memorial in Washington, D.C. will not be re-tried, according to the federal judge who has slogged through this case.

In a set of decisions Wednesday, U.S. District Judge Colleen Kollar-Kotelly rejected the bid for a new trial made by the Armenian Assembly of America. In doing so, the judge also made clear, once more, her weariness with the whole mess, stating:

"In the mid to late 1990s, several individuals set about to construct a museum in Washington, D.C., dedicated to the Armenian Genocide. Over a decade later, no such museum exists. The parties, through the three consolidated actions pending before the Court, have spent as much if not more time litigating who is to blame for the museum’s failure as they spent attempting to make the museum a reality."

The request for a new trial arose from a nasty falling-out between Gerard Cafesjian, who made his bundle with West Publishing, and his former lieutenant John Waters, Jr. The two men worked closely together on the stalled plans for the Armenian museum. Then, Waters sued for $5 million he says he was owed, and Cafesjian counter-sued claiming Waters had embezzled money.

The competing lawsuits, Armenian Assembly of America officials argued, revealed problems with Waters' testimony during the original museum trial.

Kollar-Kotelly concluded that the recent allegations were "insufficient to show Waters committed perjury" during the trial. Moreover, the judge added, "even discounting all of Waters’ testimony, the Court would still reach the same legal conclusions."

Of course, the litigation end is by no means at hand, as the original trial decision has been appealed.

 

 

 

#Tax Court Judge Mark Holmes showcases fine judicial writing yet again, in a decision that might be of interest to lawyers everywhere.

A definite Suits & Sentences favorite for the consistent clarity, verve and wit of his writing style, Judge Holmes always seems to lay out each case with admirable forthrightness. In his latest 79-page opinion, Holmes starts this way:

"Three personal-injury lawyers from the Rio Grande Valley in Texas hit the jackpot in 2001 when each got paid over $1 million for their work in cases involving faulty Firestone tires. Each tried to reduce his tax bill with a complicated transaction that featured almost perfectly offsetting bets on foreign currency.

Each of these lawyers was in the business of estimating risk and reward in evaluating every case he considered, but in this instance each sought refuge in a tax shelter whose builders used flawed designs and constructed it from bad materials that do not survive close inspection."

See that? The conversational "hit the jackpot" is vivid and direct; the geographic reference to "Rio Grande Valley" and citation to "Firestone tires" provides specificity instead of generality and the summing up of the case tells the reader immediately what's going to be explained in later detail. As the opinion develops, Holmes shows as well his customary human sympathy even for characters he ends up ruling against.

Personal-injury lawyers and tax-shelter promoters should check this out

 

#Justice Dept. lawyers and defense attorneys huddled with a judge for nearly two-and-a-half hours on Thursday afternoon, working out discovery issues in the ever-unfolding Chandra Levy mystery.

Under the first-watchful, then bored, then distracted, and then watchful once-more gaze of eight or nine reporters, the attorneys talked among themselves and D.C. Superior Court Judge Gerald I. Fisher. Though their discussions were masked by the courtoom's white noise generator, Fisher said at the end of the hearing that redacted briefs and transcripts of two prior hearings could be made public in about a week.

The reporters keeping themselves entertained while observing lawyers say things that couldn't be heard include some characters, like the Washington Post's Keith Alexander, Fox 5's Paul Wagner and Mark Segraves, now with WRC-TV, who had covered the original November 2010 murder trial that ended in the conviction of Ingmar Guandique. The reporter gaggle also included others, like USA Today investigative reporter Brad Heath, WTOP's bike-loving Kate Ryan and the National Law Journal's University of Pennsylvania-educated Zoe Tillman, who are relative newcomers to the seemingly never-ending Levy case.

The hearings that began in December, sealed so far, deal with government revelations that impeachment information has been obtained concerning one of the prosecution's witnesses. The identity of the witness and the nature of the information has not yet been made public, and it's not entirely clear whether this information will be part of what's released in a week or so.

Fisher said the hearing Thursday was to deal with discovery. This could mean, for instance, how the defense attorneys will find out what the government knew and, crucially, when the government knew it. Periodically throughout the hearing, the three Justice Department attorneys and three appellate defense attorneys would peel away into separate huddles to hash out positions.

For most of the session, the man convicted of killing Levy, Ingmar Guandique, sat at a table, occasionally conversing quietly with defense attorney Santha Sonenberg. With no jury to impress, he was in full prison regalia: orange jumpsuit and shackles, with some well-muscled U.S. Marshals Service dudes standing close by at all times.

Another hearing is scheduled for April 11. In the meantime, Guandique has apparently been relocated from the Talladega Federal Correctional Institution in Alabama to the D.C. area.

 

#Meth labs have surged in the #South and #Midwest, due in part to new illicit production techniques, the Government Accountability Office found in a new report.

While reported lab "incidents" continue to fall in the West, the 70-page new report noted that "the South and Midwest regions have experienced significant increases overall in the number of incidents since 2007." The report, moreover, notes how the illegal methamphetamine business has risen, fallen, and risen again as drug gangs confront new legal restrictions and then adapt and overcome.

To wit: States reported over 24,000 meth lab incidents in 2004, a record. By 2007, the number fell to 7,000. Law enforcement officials attributed the dramatic decline to new state and federal restrictions on the purchase of precursor drugs used in the illicit labs.

By 2010, though, the number of lab incidents had bounced back up to 15,000. Officials cite two primary reasons. A production method popularly called the One Pot method simplified the entire meth production process down to a single two-liter plastic bottle.  The second reason is smurfing, a term for a gang of individuals  buying the maximum per-person allowed amount of the pseudoephedrine precursor chemicals.

The informative report looks closely at Oregon and Mississippi, two states that have put in place a prescription requirement for pseudoephedrine. Democratic Sen. Dianne Feinstein, who released the report as chair of the Senate Caucus on International Narcotics Control, declared that "prescription-only laws attack the problem at its source by preventing meth manufacturers from obtaining the basic chemicals to produce it."

As it happens, Rep. Jerry McNerney, D-Calif., is introducing legislation on Thursday to aid communities hurt by the various consequences of meth production and addiction.

The report adds a bit more nuance, noting:

"Although the prescription-only approach appears to have contributed to a reduction in the number of meth labs in the states that have adopted it, the experience of these states to date has shown that the prescription-only approach does not preclude individuals from traveling to neighboring states to purchase PSE products for use in meth labs."