Old lawsuit back to 3 judges

The D.C. Circuit Court of Appeals last week handed Rep. John Boehner (R-Ohio) a key victory in his ongoing lawsuit against Rep. Jim McDermott (D-Wash.), making it more likely that McDermott will be forced to pay punitive damages and lawyer’s fees for leaking a taped conversation of GOP leaders way back in 1996.

Sitting en banc, the appeals court denied McDermott’s request to empanel a more sympathetic three-judge bench to review an October district court decision that ordered McDermott to pay Boehner $60,000 in damages, plus legal fees that could mount to more than $500,000, said Boehner’s lawyer, Mike Carvin.

Boehner could expect a final decision in a suit that he initiated against McDermott in March of 1998 by the end of this year, according to Carvin.

McDermott is also the subject of a separate and ongoing, investigation by the House Ethics Committee based on a complaint filed by Rep. David Hobson (R-Utah) last year on the leaked tape issue.

McDermott’s legal predicament stems from his leaking to several newspapers a transcript of an audiotape recorded by a Florida couple with eves-dropping equipment of a conference call of GOP leaders on how to handle issues surrounding then-Speaker Newt Gingrich (R-Ga.).

Boehner sued McDermott for violating his privacy and McDermott has since admitted that he provided the tape to reporters.

McDermott, however, has consistently argued that the First Amendment protected his decision to share confidential material with the media.

McDermott wanted the three-judge panel that would review the October decision by Judge Thomas Hogan to be selected randomly. But a decision by the nine active judges (sitting en banc) on the appeals court denied that motion.

In the case’s seven-year lifespan and several trips up and down the appellate ladder, a three-judge panel at the D.C. Circuit of Appeals, composed of Chief Judge Douglas Ginsberg and Judges Raymond Randolph and David B. Sentelle, has heard two previous appeals and decided in Boehner’s favor.

“It’s going to go back to the same panel and McDermott lost before them,” said Carvin, a litigator at the Washington firm, Jones Day.  “McDermott was obviously nervous and couldn’t change the normal procedure.”

McDermott’s lawyer, Frank Cicero, of the Chicago offices of Kirkland and Ellis said, “Our request was for the full court of 9 judges to hear the entire case from the outset instead of waiting for a three judge panel first. The court denied that motion and said go to the three judges first. We’re happy to do that.”

Cicero said he expects further appeals, perhaps all the way to the Supreme Court.

The case will be briefed over the summer with arguments before the three-judge panel in the fall.

It’s unclear where Hobson’s ethics complaint stands before the committee. Ethics investigations carry over from one Congress to the next if the Committee does not dispense with the matter.

But the Ethics Committee has not been able to constitute itself this year, preventing lawmakers like McDermott, and potentially others, from putting the matter behind them.  Democrats have refused to allow the committee to organize in protest at new rules they feel neuter the committee.

The inability to organize also prevents the panel from launching an investigation in House Majority Leader Tom DeLay (R-Texas).