Court in NY gives government victory against ACORN

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NEW YORK  — A federal appeals court on Wednesday handed the government a victory by temporarily blocking a judge’s finding that Congress was wrong to halt federal funding to the activist group ACORN.

The 2nd U.S. Circuit Court of Appeals in Manhattan also agreed to expedite the government’s appeal of U.S. District Judge Nina Gershon’s rulings that the funding cutoff was unconstitutional. Oral arguments were likely to occur before July.

The appeals court’s one-paragraph decision to freeze Gershon’s two rulings that found Congress acted unconstitutionally will remain in place until the 2nd Circuit rules on the merits of the government’s appeal. It acted a day after hearing arguments.

The government had argued that it was necessary to block the Brooklyn judge’s ruling to ensure that federal agencies weren’t required to commit funds that haven’t been appropriated by Congress. It said Congress did the same as several states and localities when it tried to protect federal funds by stopping certain federal agencies from pledging money to ACORN and its affiliates because of evidence of systemic mismanagement by the group.

Attorney Jules Lobel, of the Center for Constitutional Rights, represented ACORN and said he was considering taking the unusual step of appealing the temporary order to the U.S. Supreme Court. He said government lawyers needed to show the appeals court that it would suffer irreparable harm to block Gershon’s rulings.

“They never even attempted to show that,” he said.

Lobel, who argued against the stay before a three-judge panel of the 2nd Circuit on Tuesday, said the decision was another blow to ACORN, which has suffered through a national scandal and been driven to near ruin after three employees were caught on video apparently advising a couple posing as a prostitute and her boyfriend to lie about her profession and launder her earnings.

“It further drives the nail into ACORN,” he said. “It just delays crawling out of the hole. Justice delayed here is justice denied.”

Mark B. Stern, a Washington attorney in the civil division of the U.S. Department of Justice who argued Tuesday on the government’s behalf, declined to comment.

In written arguments submitted to the appeals court, the government said ACORN had acknowleged embezzlement and subsequent coverup at the highest levels of the organization, including the taking of nearly $1 million from the group by the brother of its founder in 1999 and 2000.

And it said irregularities beyond already documented instances of fraud and mismanagement were under investigation at the federal, state and local levels.

On Tuesday, Bertha Lewis, the chief executive officer for the group, said legal fees because of investigations of ACORN were costing the group money sorely needed by the disadvantaged population it was formed to help.

She said the negative publicity had given the group a scarlet letter, drying up its funding from foundations and individuals so that its one-time $25 million budget was now only $4 million.

Lewis said Wednesday that she was disappointed the lower court ruling was blocked because that “hurts real people.”

“I feel a total miscarriage of justice,” she said.