News

Federal Practice Seminar 2018

The annual Federal Practice Seminar will be held at the Tennessee Bar Center in Nashville this Thursday. Highlights of this year’s CLE include best practices for presenting a case in federal court, analysis of key local rules for the three federal districts in Tennessee, best practices for e-discovery, and an update on Federal Probation Office policies and procedures. 
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U.S. Indicts 12 Russian Agents in Election Probe

Twelve Russian intelligence officers were indicted on Friday for their part in the hacking of the Democratic National Committee and the Clinton presidential campaign, The New York Times reports. The accusations made in the inditement are to date the most detailed account of the Russian government’s interference in the 2016 election. According to the indictment the intelligence officer used phishing attacks to gain access to Democratic operatives, along with money laundering, and attempts to break into state elections boards. The indictment did not include any accusations that the Russian efforts succeeded in influencing the election results, nor evidence that any of President Trump’s advisers knowingly coordinated with the Russian campaign.

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ABA President Asks for Congressional, Public Input on Administrative Judge Executive Order

Hilarie Bass, president of the American Bar Association, sent a letter to the U.S. House Committee on Rules today, saying a recent executive order that changes how administrative law judges are hired could “politicize the appointment process and interfere with the decisional independence of ALJs.” President Trump’s July 10 order eliminates the nationwide, uniform, competitive selection exam process for federal administrative law judges, and weakens existing qualification standards. Bass said that no changes should be made until “there has been an opportunity for Congress and the public to engage in an open and deliberative process.”
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U.S. Senate Confirms Nashville Attorney Ney as DOD General Counsel

Nashville attorney Paul Ney has been confirmed by the U.S. Senate as the new general counsel for the Department of Defense, The Tennessean reports. President Donald Trump nominated him for the job in January. His new position will give him a key role in the Defense Department, where he will weigh in on issues involving personnel, conduct and other matters.
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Brian Benczkowski Confirmed to Lead the Justice Department’s Criminal Division

The Senate on Wednesday voted 51 to 48 to confirm President Trump’s nominee Brian Benczkowski to lead the Justice Department’s criminal division, amidst the objection of Democrats who expressed concern regarding his representation of a Russian bank and lack of prosecutorial experience, reports The Washington Post. Benczkowski once represented Alfa Bank — a Russian firm that was referenced in a dossier containing allegations about Trump, his advisers and their possible Russian connections — at the request of a partner in his firm, Kirkland & Ellis. Benczkowski told lawmakers he would recuse himself from any matters involving the bank for two years and would permanently step aside from any matters that touched on his work for the institution.

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Trump Chooses Kavanaugh for Supreme Court

President Donald Trump announced the selection of federal appellate Judge Brett Kavanaugh to the U.S. Supreme Court to replace retiring Justice Anthony Kennedy, CBS News reports. Trump touted Kavanaugh’s “impeccable credentials” and called him a “judge’s judge.” Kavanaugh previously clerked for Kennedy and has served on the D.C. Appeals Court since 2006.
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Trump Narrows Short List for SCOTUS Nominees to 3

President Trump has completed interviews with candidates for the upcoming nomination for the U.S. Supreme Court, and three have risen to the top of the list, Fox News reports. Brett Kavanaugh, Raymond Kethledge and Amy Coney Barrett, all federal appeals court judges, have been identified as frontrunners. Trump is expected to make an announcement about his selection on Monday.
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Potential Trump SCOTUS Pick a Rhodes College Graduate

Amy Coney Barrett, one of the potential replacements for retiring U.S. Supreme Court Justice Anthony Kennedy, has a Tennessee connection – she’s a Rhodes College graduate, The Commercial Appeal reports. Barrett is currently a judge on the U.S. Court of Appeals for the 7th Circuit, a seat she assumed after an appointment by Trump last October.
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Justice Kennedy to Retire from U.S. Supreme Court

U.S. Supreme Court Justice Anthony Kennedy announced today that he is retiring, The Hill reports. His retirement on July 31 will end a career of more than 30 years on the court. Kennedy is the court’s longest-serving member and its second-oldest justice after Ruth Bader Ginsburg. Nominated by President Ronald Reagan in 1988, he has served as a pivotal swing vote on some of the court’s most impactful decisions of the past 30 years, including LGBT marriage equality and Citizens United.
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Tennessee May Receive Increased Funding for Parks

U.S. Senator Lamar Alexander, R-Tenn., recently gained Senate committee approval for a bill he sponsored — the National Park Restoration Act — that intends to allocate increased funding for the maintenance backlog at national parks, The Herald-News reports. The project will be funded using excess money from energy leases for onshore and offshore federal land to pay for the repairs. The bill is expected to have a great impact on Tennessee, providing money to restore campgrounds, trails and roads in the Smokies, Cherokee National Forest, and the Skinner Mountain Forest among others. The legislation is now ready for consideration by the full Senate.

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Schedule Time to Read Email

A Tip from the TBA Attorney Well-Being Committee

Rather than checking on every e-mail as it arrives, schedule time in your calendar for reading and managing e-mail (and leave e-mail notifications silent during the other times of the day). This will enable you to have focused time for given tasks without constant interruption and distraction.

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Legal Battle Over North Carolina 'Bathroom Bill' Returns to Federal Court

The U.S. District Court in Winston-Salem on June 25 will hear pending motions in Carcaño, et al. v. Cooper, et al., regarding North Carolina’s controversial House Bill 2, which has been criticized as being discriminatory against gay and transgender people, reports The Winston-Salem Journal. The bill —repealed last year — was replaced with North Carolina House Bill 142, which omitted restroom, locker room and shower use requirements and prohibited local governments from putting forth any anti-discrimination ordinances through Dec. 1, 2020. You can view the complaint here.

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Nursing Home Chain Settles in Columbia Medicare Fraud Case

Two former occupational therapists at a Columbia nursing home were whistleblowers in a Medicare fraud case that was settled this month for $30 million, The Columbia Daily Herald reports. Kristi Emerson and LeeAnn Holt tipped-off the U.S. Health and Human Services Department, providing documentation that showed the company pressured employees to perform unneeded therapy and manipulated therapist schedules to maximize profit. You can view the complaint here.

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SCOTUS Overturns Process for SEC Administrative Judicial Appointments

The U.S. Supreme Court has ruled that administrative law judges must be appointed by the president, courts or heads of federal agencies, overturning the process currently used by the Securities and Exchange Commission, the ABA Journal reports. The SEC contended that the judges were employees, and therefore were subject to appointment by staff members. SEC judges were being selected by the chief judge and approved by the SEC personnel office.
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Judge Tosses Kansas' Proof-of-Citizenship Voter Law, Rules that Attorney Must Take Extra CLE

A federal judge on Monday decided that Kansas cannot require people to prove their U.S. citizenship before they can vote, ruling the state's election law is unconstitutional, reports NPR. Chief District Judge Julie A. Robinson blasted Kansas Secretary of State Kris Kobach — who led President Trump's voter fraud commission — over disclosure violations, stating the violations “document a pattern and practice by [Kobach] of flaunting disclosure and discovery rules that are designed to prevent prejudice and surprise at trial.” Kobach was ordered by the judge to take continuing legal education classes on the rules of evidence or procedure in addition to any other CLE education required by his law license. Kobach is running for governor of Kansas, reportedly locked in a tight Republican primary race against the incumbent. You can read the full opinion here.

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No New Trial for Federal Inmate Who Couldn’t Prove Lawyer’s Racism Affected Trial

A federal court has denied an inmate’s request for a new trial in his murder case because he was unable to show that racism by his appointed lawyer affected the trial, the ABA Journal reports. Though numerous people including his own daughters testified that attorney Donald Ames behaved in a racist fashion towards African-Americans, the 9th Circuit Court of Appeals wrote in its opinion that the court was bound by precedent stemming from a case involving the same lawyer.
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SCOTUS Rules States Can Purge Voters Who Don’t Show Up to the Polls

The U.S. Supreme Court today ruled that it was OK for the state of Ohio to purge voters from registration lists if they haven’t voted in six years, USA Today reports. Justice Samuel Alito, who wrote the majority opinion, said that the Ohio law was valid because the voters who were purged also failed to respond to notices. The ruling protects similar laws on the books in Pennsylvania, Georgia, Oregon, Oklahoma, West Virginia and Montana.
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NBA Addresses Proposed Changes to the Local Rules for the Middle District of Tennessee

Nashville lawyer Tricia Herzfeld outlines some of the more important alterations to the current Local Rules of Civil Procedure for the Middle District of Tennessee that should be considered when the draft Rules are published for public comment. As reported, the proposed changes will address existing ambiguities and better meet the needs of modern civil litigators. Read her outline in this Nashville Bar Association article.
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Sen. Bob Corker Intends to Advance Legislation on Controversial Tariffs

Sen. Bob Corker on Wednesday morning told President Donald Trump that he plans to go through with his legislation that would stifle Trump's ability to impose controversial tariffs, CNBC reports. Trump said last week that he would not exempt Canada, Mexico and the European Union from tariffs on steel and aluminum imports. The affected nations responded swiftly, stating that they will explore retaliatory measures of their own. Senate Majority Leader Mitch McConnell said Tuesday that he would not take up Corker's tariff bill as separate legislation, however, it may be added as an amendment to other legislation such as the National Defense Authorization Act.

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A Wellness Tip from the Attorney Well-Being Committee

Making an effort to notice the positive aspects of your life can have specific and beneficial results. Positive psychologists asked volunteers to each night write down three good things that happened that day and reflect for a few minutes on each one.  Benefits resulting from this exercise included increased happiness, increased moments of gratitude and other positive emotion, enhanced capacity for hope and optimism, improved physical health, and decreased depression.  Why not give this simple exercise a try? Think of three instances of something that went right during the past 24 hours, write them down, and spend a few minutes reflecting on them (i.e., cause of the good thing, my contribution to the good thing, similar good things can happen in the future if I do X, what this good thing means).  Do this for two weeks and see whether you notice a difference!

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Trump Administration Unveils Medicaid Scorecard

The Trump Administration on Monday unveiled its initial version of a “scorecard” that compiles and publicizes data from states for both Medicaid and the Children’s Health Insurance Program (CHIP), The Washington Post reports. The scorecard will make public government measures of performance such as how long both state and federal health officials take when states request “waivers” to deviate from Medicaid’s ordinary rules and detailed, state-by-state averages on specific demographics and procedures/benefits utilized. The scorecard’s initial information is based on states that voluntarily report a series of measures about the health of their Medicaid and CHIP enrollees. You can view more information on the scorecard here

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Report: Federal Judges Have Responsibility to Report Harassing Behavior

A new report analyzing harassment in the federal courts system submitted to the Judicial Conference of the United States emphasized the judiciary’s role in addressing workplace misconduct, the ABA Journal reports. Judges have a “special responsibility” to promote appropriate behavior, and to report misconduct by others, including other judges, the report says. It also notes that confidentiality obligations don’t prevent an employee from revealing or reporting misconduct.
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10 New U.S. Attorney Positions Coming to Tennessee

U.S. Attorney General Jeff Sessions today announced the appointment of 311 new assistant U.S. attorney positions, with 10 allocated across Tennessee’s three divisions. Seven of those will be violent crime prosecutors – three to the Eastern Division, three to the Middle Division and one to the Western Division. Each grand division will also see the appointment of one new prosecutor who will support the newly created Prescription Interdiction & Litigation Task Force, which targets the opioid crisis.
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Investiture Ceremony Held for Judge William Campbell

An investiture ceremony was held today in Nashville for U.S. District Judge William L. Campbell Jr., with Judge Waverly Crenshaw presiding. The ceremony took place in the Ceremonial Courtroom of the United States District Court with a reception following. U.S. Senator Lamar Alexander and John Tarpley delivered remarks, and TBA President-elect Jason Pannu presented Campbell with a gavel. See photos from the ceremony here.

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9th Circuit Reassigns Case Over Judge’s Anti-Government, Anti-Lawyer Views

The 9th Circuit Court of Appeals overturned two cases and reassigned one because of concerns about the trial judge’s expressed opinions about the federal government and lawyers, the ABA Journal reports. U.S. District Judge Robert Clive Jones of Nevada had told federal prosecutors that he was developing a policy of disallowing or debarring U.S. attorneys from Washington, D.C., because of “concerns about adherence to Nevada Bar standards and ethical standards.” The prosecutors noted they were from Idaho and Colorado, which briefly changed Jones’ mind, but he ultimately banned them.
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