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Monthly Archives: November 2007

Brief hiatus – see you Monday!

DC Dicta will be taking a brief hiatus and, unlike the Senate, will not be gaveling back in until next Monday, Dec. 3.

In the meantime, click over on your right to get your legal and business blog fixes from some of DC Dicta’s sister sites on Dolan Media, or visit some of our favorite DC blogs on the blogroll. But don’t forget to come on back next week!

Garrow: reporters should search for seizure info

When President George W. Bush makes even a mundane visit to the doctor’s office for a checkup, the press covers every detail. Yet when the man who sits in arguably the second most powerful position in the country suffers a seizure and collapses, then returns to work offering little explanation and refusing to answer questions about it, the press lets him slide.

That’s the position of David Garrow, a University of Cambridge professor and expert on ailing Supreme Court justices, who is blasting the apparent pass news reporters have given Chief Justice John G. Roberts according to the Courtside column in today’s Legal Times (second item).

Garrow isn’t shy about saying what he really thinks about Supreme Court chiefs who are less than chatty about their health issues. After the passing of Chief Justice William Rehnquist, Garrow took the press to task about not diving further into reports of Rehnquist’s alleged liberal use of the sedative-hypnotic Placidyl during his tenure on the Court, given the Chief’s “publicly visible struggle with deleterious overmedication.”

Now Garrow is at it again. Though he usually directs attention to older justices – and even advocated for a constitutional amendment requiring justices to retire at 75 – this time Garrow is taking aim at press for not pressing the current 52-year-old Chief Justice to explain just what the heck happened on that July afternoon in Maine, and whether it could happen again. Roberts has not volunteered information, nor has he provided any when asked.

“He is behaving in completely Rehnquistian fashion, saying absolutely nothing and presuming that ‘the public be damned’ – that justices’ medical conditions do not involve the public interest and are entirely private,” Garrow told the Legal Times’ Tony Mauro.

We don’t know what Roberts thinks of Garrow’s complaint because . . . wait for it . . . he declined comment.

Monday status conference

Good morning! There are 29 shopping days left. Meanwhile:

The U.S. Supreme Court justices return to the bench today to hear the case LaRue v. DeWolff, Boberg & Associates, which deals with whether an employee pension plan participant can sue the plan manager under ERISA for losses caused by breach of fiduciary duties in connection with losses that affect the participant’s personal account.

Democratic senators take turns gaveling in this week to keep President Bush from pulling a Bolton. (Seattle Times)

The Bush administration’s plan to fine – and in some cases, jail – employers whose employees’ are suspected of being illegal immigrants because their social security numbers don’t match government records is being rejiggered, and likely won’t be enforced before mid-2008. (AP)

The FCC meets tomorrow to vote on a plan to expand its ability to regulate cable, but the agency’s chief is having some trouble selling the idea. (NYT)

Never misunderestimate Condi. (NYT)

Friday morning docket: the early (roasted) bird edition

We know it’s not Friday yet. But since DC Dicta will be spending this Friday in a tryptophan-induced coma, we’ll bring you the briefing today:

Next week Congress continues its Thanksgiving break (except for one or two senators, see below). Lawmakers will return Dec. 3.

The Supreme Court will be back in action next week, hearing oral arguments in four cases. Click the case number for a summary care of the folks at Oyez.com:

LaRue v. DeWolff, Boberg & Associates, 06-856, deals with whether an employee pension plan participant can sue the plan manager under ERISA for losses caused by breach of fiduciary duties in administering the plan, even when the losses affected only the participant’s personal account. Monday at 10 a.m.

-Knight v. Commissioner of Internal Revenue, 06-1286, considers whether trusts and estates can fully deduct the cost of investment management and advisory services on their income tax returns. Tuesday, 10 a.m.

-New Jersey v. Delaware, 134, Orig., [PFD file from the Supreme Court’s website] considers whether a Special Master correctly concluded that although New Jersey may make grants of riparian rights beyond the lowwater mark on the New Jersey side of the Delaware River, it cannot make grants of riparian lands beyond the low-water mark. Tuesday at 11 a.m.

-Rowe v. New Hampshire Motor Transport Association, 06-457, deals with whether the Federal Aviation Administration Authorization Act of 1994 preempts a state law requiring air and motor carriers take steps to ensure that tobacco is not sold to minors. Wednesday at 10 a.m.


President Bush granted pardons to two turkeys, May and Flower (AP), but PETA wants him to go a step further and give the overstuffed birds “expert” health care and “retirement at a peaceful sanctuary” for their remaining days (WSJ’s Washington Wire). But we’re sure his mind will be on other matters this holiday weekend (ABC News).

While lawmakers are back in their home states eating turkey leftovers next week, the Senate will technically be in session, a move that keeps President Bush from making recess appointments. (CNN)

As bargain hunters get more computer savvy in their hunt for Black Friday deals, retailers’ lawyers get tougher and threaten legal action. (NYT)

Happy Thanksgiving!

High Court to hear DC handgun ban case

In a case that could redefine the Second Amendment right to “keep and bear arms” in the modern era, the U.S. Supreme Court agreed to hear a case challenging the constitutionality of Washington D.C.’s ban on handguns.

The case, District of Columbia v. Heller, is an appeal by Washington D.C. city officials of a decision by the Court of Appeals for the D.C. Circuit, which struck down a law prohibiting the private possession of handguns in the district. [The cert petition, briefs and other materials can be found here on the ABA’s website.]

In granting certiorari in the case, the Court ordered that the case would be “limited to the following question: Whether the following provisions, D.C. Code §§ 7-2502.02(a)(4), 22-4504(a), and 7-2507.02, violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?”

Despite the word “limited,” Heller promises to yield the first major Second Amendment case from the Court since the case of U.S. v. Miller in 1939.

Barely an hour after the cert grant, groups are already weighing in.

“By agreeing to hear the appeal by the District of Columbia in [this] case, the U.S. Supreme Court has the chance to reverse a clearly erroneous decision and make it clear that the Constitution does not prevent communities from having the gun laws they believe are needed to protect public safety,” said Paul Helmke, President of the Brady Center to Prevent Gun Violence in a statement released minutes after the cert petition was granted. “The decision by the DC Circuit Court of Appeals in the Parker case was an example of judicial activism at its worst. It ignored longstanding Supreme Court precedent, discounted the express language of the Second Amendment, and substituted its policy preferences for those of the District’s elected representatives. We are hopeful that the Supreme Court will reverse this flawed ruling.”

Today the Court also granted certiorari in the case Chamber of Commerce v. Brown, Where it will consider whether the National Labor Relations Act preempts a California law that prohibits private employers that receive state grant and program funds from using those funds “to assist, promote, or deter union organizing.” [See summary here from the website Employment Law Memo.]

High Court ruling forcing PI lawsuit winners to pay employers

Did a 2006 U.S. Supreme Court decision make it easier for employers who provide health benefits to take a cut of their employees’ damages awards from personal injury verdicts?

Yes, according to a report in today’s Wall Street Journal (hat tip to the ABA Journal), which reports that since the Court’s decision last year in Sereboff v. Mid Atlantic Medical Services, Inc. [PDF file], employers who pay health benefits to employees who are injured have been much more aggressive in pursuing subrogation claims against the employees after they win personal injury verdicts or settlements.

Employers say that the practice is necessary to ensure that medical expenses are not paid twice, and to protect against giving some employees cash windfalls at the expense of other employees and the employer, who would otherwise bear the cost burden.

But plaintiffs say the practice is cruel and leaves some injured employees unable to make ends meet.

From the article [sub. req’d]:

Such recoveries represent a tempting savings for insurers, employers and union-administered plans. The American Benefits Council and America’s Health Insurance Plans, the health-insurer lobby, estimate health plans recoup some $1 billion a year in medical claims from accident settlements and other third parties. . . .

Until recently, employers and insurers generally didn’t go after small claims. But more-sophisticated claims tracking has made it easier. Recovery companies systematically search claims for certain medical codes — say, a sprained ankle or head trauma — that flag a potential accident. Claims examiners then mail a questionnaire and often follow up with calls. If the injured person confirms it was an accident, the firm tracks whether the patient files an injury suit.

If there is a lawsuit settlement, employers may seek to recoup money they paid for medical expenses. In many cases, it’s relatively cut and dried: Often medical expenses are just a portion of the overall damages award, or the accident victim’s attorney reaches a compromise with the health plan ahead of any settlement.

Monday status conference

We know everyone is already thinking about the turkey and football to come on Thursday (despite our Washington location, DC Dicta is a Lions fan, so for us Turkey Day is always football day), but there is still a bit of work to be done first:

The Supreme Court will conference tomorrow, and some cert grants could be forthcoming, including an eagerly-awaited decision on whether the Court will consider the constitutionality of Washington DC’s handgun ban. Across the street, the House is not in session this week, and the Senate has only a pro forma session on tomorrow’s schedule.


Are you a defense attorney whose client was convicted based on forensic comparative bullet-lead analysis? You may want to read this. (WaPo, 60 Minutes)

Labor groups are very unhappy with the NLRB. (LUSA, more from WaPo)

The Bush administration loses another official: homeland security adviser Frances Fragos Townsend will announce today that she’s leaving the White House. (Politico)

Stevens reaches milestone of the ages

Today, Supreme Court Justice John Paul Stevens reached a milestone only one other person has ever reached before: He is a sitting Supreme Court justice at the ripe age of 87 years and 210 days.

That makes the bowtied jurist the second-oldest person to ever grace the high court’s bench. To take the top spot, Stevens will have to stay on the bench for nearly three more years and surpass Justice Oliver Wendell Holmes, Jr., who served until the age of 90.

Justice Roger B. Taney, who served until the age of 87 years, 209 days, is now in third place.

As far as the justices who have spent the longest amount of time on the bench, Stevens – despite being the only remaining Supreme Court appointee of President Gerald Ford – is still only in 10th place. Those who had served longer than Stevens’ 31+ years are Justices William O. Douglas (36 years), John Marshall, Stephen Field, Hugo Black (all served 34 years), John Harlan, William Brennan, William Rehnquist, Joseph Story (all served 33 years) and James Wayne (32 years).

[Source: The Washington Post, citing a forthcoming entry in the Encyclopedia of the Supreme Court and “The Third Branch“]

Friday morning docket: Pre-Turkey Day edition

THE SUPREMES: There are no oral arguments scheduled for next week. The justices will conference on Tuesday, and they may decide whether to take up the constitutional challenges to Washington D.C.’s handgun ban.

Elsewhere inside the beltway:

A bill that would create a state-based licensing system for residential mortgage originators in an effort to stem the subprime mortgage lending bust passed the House, despite some Republican opposition. (Reuters via Yahoo! News)

And President Bush isn’t too thrilled with some aspects of the bill, particularly a provision that give borrowers the right to sue firms that repackage loans. (WaPo).

Rep. Dennis Hastert, the longest-serving Republican Speaker of the House, will leave Congress before his current term is up. In his farewell address, he urged his colleagues to play nice. (Chicago Tribune)

President Bush said that Congress’ approach to judicial confirmations is “search and destroy.” (ABA Journal)

The president also announced his picks for five Justice Department posts. He has tapped Chicago federal District Judge Mark R. Filip as deputy attorney general. No word yet on a confirmation process timeline. (NYT).

Conservative jurists party like it’s their birthday. (BLT)

Supreme Court halts another execution

The U.S. Supreme Court today halted the execution of Mark Dean Schwab, a Florida man convicted and sentenced to death for the murder of 11-year-old Junny Rios-Martinez.

This is the latest of several stays of execution by the Court in recent weeks after it agreed to consider whether a three-drug injection cocktail used in Kentucky and other states is unconstitutional in the case Baze v. Rees.

More from the Associated Press here.