Brief hiatus – see you Monday!

November 26, 2007

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

November 26, 2007

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

November 26, 2007

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

November 21, 2007

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

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

November 20, 2007

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

November 20, 2007

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

November 19, 2007

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)