Judge Papak denies KBR’s Motions to Dismiss-Again

In a ground-breaking opinion issued hours ago, Magistrate Judge Paul Papak denied KBR’s motions to dismiss in Bixby v. KBR. I’ve attached a pdf copy of the opinion here: 89 – Opinion and Order

For law geeks: It’s a detailed opinion addressing subject matter jurisdiction that touches on political question doctrine, derivative sovereign immunity, and combat activities under the Federal Tort Claims Act.

I am pleased. So are our vets who I represent. It’s a good day. But there is still far to go.

Onward.

New Report: For-profit trade school misconduct

The Government Accounting Office released its report today,  GAO Report For Profit Colleges (pdf), highlighting a number of abuses by for-profit trade schools.  The GAO engaged in undercover testing to ferret out the fraud and abuse in for-profit admissions and lending.  Pretty scary stuff.

The GAO Report notes that approximately 2,000 for-profit colleges received federal funds of $24 billion in the 2008-2009 school year. At all 15 of the for-profit schools surveyed by GAO, admissions representatives made deceptive and questionable statements about graduation, employment and financial aid.

I’ve been laboring in a trade school class action against Career Education Corp. and Western Culinary Institute, which is now known as Le Cordon Bleu College of Culinary Arts in Portland.  I’m not particularly surprised by the GAO findings. Maybe the GAO report will spur Congress to take a hard look at these issues. That would be a good thing because we have sentenced a generation of kids to a lifetime of debt.

My view is that the current crisis stems from a nasty mix of deregulation and privatization. Give for-profit schools nearly boundless access to federal money. At the same time, do not regulate their conduct. Those were the first steps to sentencing a generation to a lifetime of debt.

Question: Will we be able to fix this thing, or are we just content to continue fiddling while Rome burns?

New information resource for Oregon consumers

Kind of excited to see that the Oregon Consumer web page has gotten its sea legs and is publishing.  Here is the link for some interesting information on a wide range of consumer issues. I’ll be monitoring and noting some of their published reports. My hope is that the web page realizes its potential,  as we consumer advocates need all the help we can get.

KBR Op-ed piece in The Oregonian: Now that’s interesting.

Yesterday, The Oregonian published this interesting piece in the Sunday opinion section. I have a number of reactions, but I think I’ll let it sit for now. My grandmother taught me the value of manners; one of her cardinal rules is that if you can’t say anything nice, don’t say anything at all.

That’s not a rule that we honor in the courtroom where we will have a few things to say. The short version is that I’ll be interested to hear Mr. Williams’ answers to a few questions after he is placed under oath. But now is not the time, and this is not the place.

For those following this case, I’m simply noting yesterday’s publication so that you’re aware that it hasn’t escaped our attention. There will be a time and a place for testing some of the more wild assertions in the linked piece.

Another day in the KBR litigation

Yesterday, Mike Doyle and I appeared in U.S. District Court here in Oregon to argue against dismissal of 26 Oregon National Guard soldiers’ toxic exposure claims against Kellogg Brown and Root.

Judge Papak heard oral argument for close to an hour and half. As always, he was well prepared with tough questions for both sides. Oral argument in his courtroom isn’t so much about arguing the motions as answering his questions.  He really knows how to push and challenge both sides. I have to say that I welcome the challenge of stepping into his courtroom.

KBR claims that it is entitled to a dismissal because: 1) The political question doctrine prevents the court from reviewing the actions of the contractor; 2) KBR, as a government contractor, is immune from claims due to derivative sovereign immunity; and 3) KBR is immune because of the combatant activities exception to the Federal Tort Claims Act.

The soldiers made extensive arguments on all three motions. To prepare the briefs, we reviewed approximately 50,000 pages of documents and took depositions of Army and KBR witnesses in Houston, Dallas and St. Louis. The briefing is voluminous. The issues are complicated. But it seems to come down to KBR claiming that even though it was paid $7 billion on a secret, no bid, cost plus contract, its conduct falls outside the review of our justice system.

We’re waiting for Judge Papak’s ruling on these motions.  The case is on hold until he issues his decision.

Mom called

I’m at home this evening with two computers going side by side. On the desktop, I have a  several thousand page PDF of Army FOIA documents open, as I wade through KBR discovery. My laptop is up with a running digest of the interesting tidbits.  It’s my own odd-duck style of learning the case.

The phone rings, and I answer it absentmindedly.

“David Sugerman?,” asks the woman on the other side brightly.

“Yes?”

She runs on without a pause about how she’s calling to thank me for my great work and wondering whether she can help. Can she send money, or bake cookies, or weed my yard?

I stammer, “Who is this?” I have the presence of mind to not ask her how she got my number or why she’s calling a stranger out of the blue.

She chuckles lightly, “I’m just a Mom.”

“And why are you calling?”

“Because your work makes Portland great. And besides those guys are killers.”

Might be the exhaustion, or maybe it’s that I’ve lately been reflecting on my mother and wondering what she would have said about her son’s latest work. But for whatever reason, I was practically moved to tears.

Turns out that she had collapsed two people into one. She thought that Stu Sugarman, a Portland civil rights and criminal defense attorney, and I were the same person. It happens now and then…. I corrected her. And she STILL wanted to help and to send money. She wondered what she could do.

So this is what I said. “Do something great that you think matters and then drop me a line to tell me what you did.” She liked that.

A few thoughts before I go back to the mind-numbing document review.  There are some days when I know that I am blessed or–if you prefer–profoundly fortunate.  This is one.

So Mom, your call was a boost. Hope you don’t mind that I’m putting it down here. I imagine doing so will help me remember this moment as we trudge on toward trial.

Thanks and love-Just a son

Interesting: Souter takes on originalists at Harvard

For those who watch the U.S. Supreme Court, a theory of constitutional interpretation–so-called “originalism”–is now in vogue. The theory, which is often mouthed by politicians, suggests that the only way to interpret the U.S. Constitution is to look at what the founders wanted and thought and felt back when they wrote the document.

It’s got simplistic appeal, even if it’s a fairly goofy notion. It’s goofy, in that history is rarely anything if not subjective, such that anyone who claims to know what the founders thought centuries ago is necessarily guessing. Sometimes it’s an educating guess, but it’s a guess all the same. As well, it presumes that all should be set in stone, without considering the tremendous changes brought over the centuries by technology, population growth, culture and the like.

Maybe I can explain what I mean better by asking this simple question: What would Thomas Jefferson or James Madison have thought about Google? Originalists claim to be able to apply the founders’ intentions to free speech issues in the Google-era. I think that’s fanciful at best. “My answer, for what it’s worth, is, “Who knows?!”

Originalist thinking seems to go beyond constitutional adjudication. For that reason, the airy concepts are more important to consumers than we might realize.

So all of that is background for big props to CBS legal correspondent Andrew Cohen, a Twitter friend, who wrote this thoughtful piece on Justice Souter’s commencement speech at Harvard. Justice Souter, who retired recently, takes a reality-driven view of the constitution. He understands that much of work of constitutional interpretation is difficult because the values embodied in the constitution co-exist in tension. That tension creates ambiguity, which is necessarily at odds with originalists and sound-bite politicians whose world is black and white.

I’m a fan. If the U.S. Constitution and the Supreme Court matter to you, it’s worth a read. Hats off to Andrew Cohen for noting and explaining what many of us missed.

Addendum: Link to the text of the Souter speech…I would credit a particular Philadelphia rock star lawyer who passed it along, but that would be wrong for reasons I can’t begin to explain.

Calling out Oregon lawyers by name

Yes, I’m going to name names here. That’s how we do things. But before I start throwing the dirt, I want to be clear about what they’ve done.

Last week, a case I’ve been working on–Bixby v. KBR–got a lot of press. This is the Oregon National Guard soldiers’ toxic exposure injury case against KBR, Inc. (New motto: “We’re no longer Halliburton.”) [Brief note to KBR/Halliburton: That was a joke. -ed.]

Anyhow, I received a number of comments from friends and colleagues. Invariably, some included gentle ribbing about the picture of the middle-aged attorney who seems way more serious and sober than usual. Some included the kind of “Attaboy” comments from colleagues with whom I’ve shared foxholes.

Those are good. But there were a few that were better.

Over the course of the years, I’ve been up against talented and tough opposing counsel in all manner of cases. Two former (and future) adversaries took time to send notes and emails lauding my efforts and wishing me well on these cases. And these are the two Oregon lawyers who I want to call out by name.

Carol Bernick, Partner-in-Charge at Davis Wright Tremaine, and W.A. Jerry North, a shareholder at Schwabe Williamson Wyatt, have both been opposite me in hard-fought cases.  We’ve each had our wins and our losses in big cases.

Each of them wrote notes about the Oregon National Guard cases. The recognition is nice, but what’s better is what it says about the legal profession in Oregon. Both are top-notch opponents. Neither gives an inch in their cases. Still, they can recognize the work of a colleague.

This is why I treasure practicing law in Oregon.  Despite our differences and our courtroom fights, we still have the sense and wisdom to recognize the good works of our colleagues and opponents. When I talk to colleagues in other states, they can’t believe that we generally get along with opposing counsel, work toward stipulations on things on which we can agree, and then bring it full force to fight when we cannot agree. Our clients are well-served by all of this, and we who fight for a living gain a measure of comfort by knowing that the places and times we battle are simply what we do.

So Jerry and Carol show by quiet act what professionalism means to Oregon attorneys. I am deeply appreciative of their kind private messages. But more, it speaks to a vision of how Oregon attorneys carry themselves.  Thank you, friends, for your grace.

Update: Bixby v. KBR-today’s story

Mike Doyle and I were in court this morning fighting off more KBR motions. The KBR defendants asked Judge Papak to prohibit us from taking discovery because–according to KBR–their motion to dismiss for lack of subject matter jurisdiction required no discovery. They also asked Judge Papak to prohibit discovery until the soldiers proved their levels of exposure–a so-called “Lone Pine” order. Judge Papak ruled that we can get our discovery to respond to the next KBR motion to dismiss. He is allowing us full discovery from U.S. Army witnesses–subject, of course, to Army regulations. He denied the KBR motion for an order requiring us to prove the cause and existence of soldiers’ injuries before we could get discovery.  It’s a win for the Oregon soldiers.

Also from today, here’s a link to a story in today’s Oregonian. I think I can speak for all the soldiers when I express my admiration for The Oregonian‘s  Julie Sullivan.  Her tenacity in refusing to let this story die inspires me. Telling their story is a powerful thing.

Our next hearing is scheduled for July 12 at 10:00 a.m.  At that time, Judge Papak will hear KBR’s next motion to dismiss. Meantime, we’ll be doing discovery and filing our opposition.

My good friend and frequent collaborator, Oregon trial lawyer extraordinaire Robert Neuberger, tells me that every big case needs a theme song. I’ve got ours for this case, courtesy of Tom Petty:  “Stand My Ground.”