Jon Katchen – Nominee for the U.S. District Court for the District of Alaska

Jonathan W. Katchen is President Trump’s nominee for the U.S. District Court for the District of Alaska.  His career has been in natural resources law, both in the private and public sectors.

Background

Jonathan Katchen, 42, lives in Anchorage, Alaska.[1]  He grew up in the affluent town of Gladstone, New Jersey.[2]  He earned his B.A., cum laude, and his M.A., both in Theology, from Boston College in 1998 and 2001, respectively, and his J.D. from the University of California, Hastings College of the Law in 2004.[3]  Katchen worked in Alaska as a Jesuit volunteer before beginning a summer internship in the state during law school.[4]  He clerked for now retired Judge Maryanne Trump Barry of the U.S. Court of Appeals for the Third Circuit (President Trump’s older sister) upon graduating law school.[5]

Katchen has served as Special Assistant to Alaska’s former attorney general, Dan Sullivan, and as an Assistant Attorney General in the Oil, Gas & Mining Section.[6]  As Assistant Attorney General, Katchen counseled the Attorney General, Governor, and senior state officials on oil and gas lease disputes, permitting natural resource development on federal lands, and pipeline regulatory issues.[7]

From 2010-12, Katchen served as the Intergovernmental Coordinator for the Alaska Department of Natural Resources, advising senior administration officials and state legislators on natural resource issues and leading the department’s administrative appeals and litigation and providing counsel to the the then-Commissioner, Dan Sullivan.  Sullivan is currently Alaska’s U.S. senator (R).[8]

In 2012, Katchen began working in private practice at the Anchorage office of Crowell & Moring LLP, a large corporate law firm, where he practiced in environmental and natural resources law and regulatory industries.[9]  In 2017, he moved to Holland & Hart, where he currently practices oil and gas law.[10]

History of the Seat 

Katchen has been nominated to a vacancy on the U.S. District Court for the District of Alaska.  The vacancy opened with Judge Ralph Beistline’s move to senior status on December 31, 2015.  No nomination was put forward to the vacancy during the Obama Administration.

Katchen was one of five names submitted by Alaska’s senators, Sullivan and Murkowski, an unusually large number.[11]  Alaska’s former senator Mark Begich has suggested that the longer list may have been the product of the state’s senator’s disagreeing on who to send forward.  As Murkowski put it, ”We put forth a longer list in an effort to align our priorities.”[12]

Some have criticized Katchen’s nomination as the product of his connections and politics, rather than merit.[13]  Retired Superior Court Judge Elaine Andrews, who presided over Alaska’s Anchorage courts, has indicated that Katchen is not qualified for the position: “We should be taking the very best we have, and he may be decent, he may be very good, but he’s not the best we have.”[14]  Katchen ranked 13th out of 20 applicants on the Alaska bar association poll, with 31 percent rating him “extremely qualified” or “well qualified,” compared to 66 percent who gave those ratings to the top applicant, Eric Aarseth, a highly rated state judge since 2005.[15]  As writer Charles Wohlforth noted, “Two law school summer jobs and a clerkship are the extent of [Katchen’s] criminal law experience.”[16]

Legal Career

As outlined above, Katchen’s relatively short career has been primarily in the public sector.  He does not appear as counsel in any published cases on Westlaw.

Katchen was the state’s lead negotiator in a multi-year negotiation over Point Thomson, one of the largest undeveloped oil and gas fields in North America situated in a remote arctic area off of Alaska’s northern coast.[17]  The negotiation revolved around a long-standing dispute between Alaska’s Department of Natural Resources (DNR) and Exxon regarding Exxon’s drilling in Point Thomson.[18]  Although Point Thomson holds 8 trillion to 9 trillion cubic feet of natural gas and hundreds of millions of barrels of gas and oil liquids, as of 2005 it had never produced oil or gas.[19]  The state of Alaska leases acreage to developers who seek to drill for oil and gas, and Exxon had long held the rights to a significant portion of the Point Thomson acreage.  In 2005, the DNR Director denied as inadequate Exxon’s plan of development for Point Thomson, which led to the state’s revoking their leases to drill, prompting several years of litigation challenging that decision.[20]  The state argued that Exxon was obligated either to produce the liquids and send them down the existing trans-Alaska oil pipeline, or relinquish the leases so they could be auctioned off to another developer.[21]  These legal battles were finally put to rest with the 2012 settlement agreement, negotiated primarily by Katchen, which required Exxon to build a pipeline from Point Thomson to deliver product to the trans-Alaska pipeline and to produce 10,000 barrels per day of natural-gas condensates by the winter of 2015-16.[22]  Point Thomson has been developed since the agreement was finalized and now contributes the agreed-upon 10,000 barrels of product per day, which one commenter called “a major victory for the Alaska economy.”[23]

Katchen has received accolades from Alaska’s former governor, Sean Parnell, and former Attorney General (now U.S. Senator (R)), Dan Sullivan, who describe him as “an extremely competent attorney” and someone who will “make an exceptional jurist who will faithfully apply the law and uphold the Constitution.”[24]  He was named in Chambers USA’s 2015 publication, America’s Leading Lawyers for Business, in the environment, natural resources, and regulatory industries category.[25]

Speeches/ Writings

Katchen has written a handful of opinion pieces for the Anchorage Daily News since 2014.[26]  One such piece responds to Ray Metcalfe, a former Alaska lawmaker, who criticized then Attorney General Dan Sullivan for allegedly not criminally prosecuting Alaska oil giant Bill Allen for child sex crimes.[27]  Katchen explained that Allen was not prosecuted because his abuse of a minor violated only federal (not state) law, and the U.S. Department of Justice would not cross-designate the Alaska Department of Law so as to give Sullivan the authority to prosecute Allen for federal crimes.  “Thus, the only question that needs to be answered is why did Obama administration officials refuse Dan’s request to cross-designate state prosecutors to pursue a federal criminal action against Allen.”[28]

Katchen has also been openly critical of Alaska’s current governor, Bill Walker, for not prioritizing or developing policies that will result in additional oil production through the Trans-Alaska Pipeline.[29]  Decline in oil production means decline in the state’s economy, on top of the problems caused Walker’s “erratic” tax reform attempts, which Katchen criticizes as discouraging investors from investing in further developing Alaska’s oil and gas fields.[30]

Katchen authored a 2016 amicus on behalf of Alaska’s congressional delegation submitted in the U.S. Supreme Court case Sturgeon v. Frost, 136 S.Ct. 1061 (2016).  The case arose out of the National Park Service informing an Alaskan hunter that he could not pilot his hovercraft on a particular river.  The hunter filed suit, arguing that federal law limited the Park Service’s jurisdiction to portions of the river owned by the state of Alaska, and that the river where he operated his hovercraft was not state-owned.  The district court and the 9th Circuit rejected this argument, finding the exercise of jurisdiction appropriate.  On his involvement as amicus for appellant’s Supreme Court case, Katchen explained: “Right now, they haven’t done this, but the Park Service has the authority to say to a Native corporation, ‘You can’t build a lodge on your lands. You can’t build a trail. You can’t do berry-picking. You can’t land a plane.’ If the Ninth circuit’s decision in Sturgeon doesn’t get overturned they will have that authority.”[31]  The Supreme Court agreed, reversing the lower courts in a unanimous opinion, holding the Park Service may only regulate “non-public” lands in Alaska according to Alaska-specific laws.

Overall Assessment

Katchen has unimpeachable expertise in natural resources law and has earned the respect of his colleagues.  However, it is unclear how his expertise would translate to the federal judiciary, where judges’ dockets are widely varied and typically center on criminal law (where Katchen’s experience is more limited).

So far, Katchen has strong support from senator Sullivan, while senator Murkowski’s support is unclear.  He has also not yet been rated by the ABA.  As noted above, Katchen’s nomination has received some criticism for his youth and his perceived leapfrogging over more experienced candidates.  However, there is no requirement that a judicial nominee be the “most” qualified candidate in the state.  As there is little public controversy surrounding Katchen’s career and as he has accomplished himself professionally, he will likely be confirmed.


Thomas Kleeh – Nominee for the U.S. District Court for the Northern District of West Virginia

A West Virginia legislative attorney and labor and employment lawyer, Thomas Kleeh is the first federal judicial nominee in sixty years to be proposed by a West Virginia Republican senator.  While Kleeh shares strong conservative bona fides, he is also supported by his Democratic home state senator.

Background

A West Virginia native, Thomas Shawn Kleeh was born in Wheeling on September 14, 1974.  He graduated summa cum laude from West Virginia University in 1996 and received a Juris Doctor from the West Virginia University College of Law in 1999.[1]  After graduating from law school, Kleeh joined the Bridgeport, WV office of Steptoe & Johnson as an Associate and became a Partner with the firm in 2006.[2]  He continues to work there today.

Additionally, from 2015 to 2017, Kleeh served as a Per Diem Staff Attorney to the West Virginia Senate Judiciary Committee.  In 2018, Kleeh serves as Staff Attorney to Senate President Mitch Carmichael.[3]

History of the Seat

Kleeh has been nominated to fill a vacancy on the U.S. District Court for the Northern District of West Virginia.  The seat opened on August 12, 2017, when Judge Irene Keeley moved to senior status.  Interestingly, Kleeh did not apply to be considered for the judgeship.  Rather, he was contacted by Senator Shelley Moore Capito (R-WV) in May 2017.[4]  After interviews with Capito, Rep. David McKinley (R-WV), and Sen. Joe Manchin (D-WV), Kleeh’s name was submitted to the White House.  Kleeh was nominated on February 15, 2018.

Legal Experience

While Kleeh has served as a Staff Attorney in the West Virginia Senate for the past three years, his primary legal experience has been with the Labor and Employment Department at Steptoe & Johnson.  In his 19 years at the firm, Kleeh has handled six jury trials and three bench trials.[5]

As a labor and employment attorney, Kleeh defended many employers in discrimination and wrongful termination suits filed by their employees.[6]  For example, Kleeh successfully defended West Virginia State University against a wrongful termination suit filed by an employee who was dismissed for allegedly abandoning her duties to chaperone a group field trip.[7]  Kleeh has also frequently defended schools and school boards against suits brought by students.[8]

Writings

As a law student, Kleeh authored an article criticizing the common law distinction between invitees and licensees with regard to property owner liability.[9]  West Virginia common law, also followed by many other states, lays out different duties of care that a landowner must abide by with regard to guests on his property based on whether the guest is a trespasser, licensee (present for their own pleasure), or invitee (present for the benefit of the property owner).  In his article, Kleeh criticizes this distinction, suggesting that injured parties shouldn’t go uncompensated “because of the purpose of their particular visit[.]”[10]

Interestingly, Kleeh also criticizes the longetivity of the distinction, noting that it was developed “in feudal England.”[11]  Instead, Kleeh suggests that the distinction be abandoned and the duty of care be left to juries, noting:

“Perhaps West Virginia should place more trust in juries to decide what constitutes reasonable behavior rather than relying on eighteenth century common law to do so.”[12]

Political Activity

Kleeh has frequently supported Republican West Virginia candidates as a donor, including donating $1750 to Capito’s senate run in 2014.[13]  Kleeh has also given to $1000 each to McKinley and fellow Republican Rep. Evan Jenkins, as well as donating to the Congressional Campaign of controversial West Virginia Supreme Court Justice Spike Maynard.[14]  Additionally, Kleeh supported the Supreme Court campaign of Justice Beth Walker, who challenged and defeated Justice Brent Benjamin by running as a conservative.[15]

Overall Assessment

As he has attracted little media attention so far and is strongly supported of both his home state senators, Kleeh looks likely to be confirmed on a bipartisan vote.  (Even if some Democrats are skeptical of Kleeh’s conservative political background, they are unlikely to embarrass Manchin by airing such concerns publicly).

Interestingly, Kleeh’s paper on property owner liability suggests that he supports basing rules of jurisprudence on the practicalities of modern litigation rather than “eighteenth century common law.”  While views expressed in a 20-year-old article cannot be given excessive importance, the article’s reasoning suggests that Kleeh’s jurisprudence may be adaptable to legal and practical changes.

While District Court judges do not have the same scope to shape jurisprudential rules that Circuit Court judges do, it will be interesting to see if Kleeh shows a similar willingness to adapt the law to modern considerations as a judge.


[1] Sen. Comm. on the Judiciary, 115th Cong., Thomas Kleeh: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Id.

[4] See id. at 33.

[5] Id. at 24-25.

[6] See, e.g., M. Tim Crum v. Mingo Community Action Partnership, Inc., Circuit Court of Mingo County, West Virginia, Civil Action No. 09-C-287; Legg v. Rivers Edge Mining, Inc. et al., Circuit Court of Boone County, West Virginia, Civil Action No. 04-C-207 (2006).

[7] See Fuller v. Bd. of Governors of West Virginia State University, Circuit Court of Kanawha County, West Virginia, Civil Action No. 13-C-454, affirmed at 2016 WL 3369566 (2016).

[8] See, e.g., Danielle T. v. Kanawha Cnty. Bd. of Educ., et al., United States District Court for the Southern District of West Virginia, Civil Action No. 2:01-0514 (S.D.W.V.); Epps v. Putnam Cnty. Bd. of Educ., United States District Court for the Southern District of West Virginia, Civil Action No. 2:00-0069 (S.D.W.V. 2001).  

[9] Thomas S. Kleeh, Self v. Queen: Retaining Eighteenth Century Feudalistic Jurisprudence to Determine a Landowner’s Duty of Care, 100 W. Va. L. Rev. 467 (Winter 1997).

[10] Id. at 467.

[11] Id. at 492.

[12] See id.

[14] See id.

[15] See Kleeh, supra n. 1 at 22.

Peter Phipps – Nominee for the U.S. District Court for the Western District of Pennsylvania

A DOJ litigator with extensive experience in the federal courts, the 45-year-old Peter Phipps looks likely to join the Western District of Pennsylvania before the end of the year.

Background

Peter Joseph Phipps was born on April 8, 1973 at Dyess Air Force Base in Abilene, TX.[1]  Phipps attended the University of Dayton, getting a B.A. in History and a B.S. in Physics.[2]  He continued on to the Stanford University Law School, graduating with a J.D. in 1998.  He then joined the Washington D.C. Office of Jones Day (a firm that has sent many alumni to the Trump Administration and the federal bench).[3]

In 2001, Phipps left Jones Day to clerk for Judge R. Guy Cole on the U.S. Court of Appeals for the Sixth Circuit.  He then joined the Federal Programs Branch of the Civil Division of the U.S. Department of Justice.[4]  He is still with the same office in Washington D.C., working as Senior Trial Counsel.  Phipps has also served as an Adjunct Professor at Duquesne University School of Law in Pittsburgh since 2014.[5]

History of the Seat

The seat Phipps has been nominated for opened on September 30, 2013, with Judge Terrence McVerry’s move to senior status.  On July 30, 2015, President Obama nominated Judge Marilyn Horan from the Butler County Court of Common Pleas to fill the vacancy.[6]  The nomination of Horan, a Republican, was made as a package along with those of three Democrats to other vacancies.

While all four nominees in the package received a hearing on December 9, 2015, two of them, Judge Robert Colville, and Judge John Milton Younge, were blocked from Judiciary Committee consideration by Chairman Chuck Grassley, who was unhappy with their support of abortion rights.[7]  At the same time, Horan and Judge Susan Baxter were blocked by Senate Majority Leader Mitch McConnell on the Senate floor and were never confirmed.  Both were ultimately renominated by Trump.[8]

Phipps applied to the bipartisan judicial selection committee set up by Pennsylvania Senators Bob Casey and Pat Toomey in April 2017.[9]  Phipps interviewed with Toomey and Casey and was then recommended to the White House.  He was formally nominated on February 15, 2018.

Legal Experience

While Phipps’s primary legal occupation has been as a litigator at the Department of Justice, he began his career as an Associate in the Washington D.C. Office of Jones Day, representing corporations in civil litigation.[10]  Overall, Phipps has worked as counsel of record in three civil trials, as well as handling appellate matters in other cases.[11]

As Senior Trial Counsel at the Federal Programs Branch of the Department of Justice, Phipps litigated many contentious cases.  In one case, Phipps defended the U.S. Department of Housing and Urban Development against a class action suit brought by African American plaintiffs alleging racial discrimination in public housing.[12]  Through the litigation, which lasted ten years, Phipps worked through two separate trials, and managed to negotiate a settlement in the case.[13]

In another notable case, Phipps defended the constitutionality of the military’s “Don’t Ask, Don’t Tell” policy, which barred individuals engaging in homosexual conduct from serving openly in the armed forces.[14]  In yet another case, Phipps defended the constitutionality of HHS grants for faith based organizations that have religious objections to abortion and contraception.[15]

More recently, Phipps defended the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (PASPA).[16]  PASPA’s constitutionality was challenged by New Jersey, which sought to legalize sports betting in its state in violation of the Act.[17]  Phipps represented the government in several suits before the District Court, the Third Circuit, and in certiorari arguments before the U.S Supreme Court.[18]

Overall Assessment

While Phipps, at 45, is a relatively young judicial nominee, his qualifications for the federal bench are unquestionable.  As an attorney with the Federal Programs Branch of the Department of Justice, Phipps has had experience in some of the most consequential litigation the Department engages in, preparing him well for the  issues he would face as a trial judge.

Skeptics may draw opposition based on Phipps’ defense of DADT and grants to faith-based organizations.  However, as an attorney at Federal Programs, Phipps has an ethical responsibility to present defenses to federal laws and regulations and his views in litigation cannot necessary be imputed as his personal views.

Overall, given that Phipps has the support of his Democratic and Republican home-state senators, as well as a fairly noncontroversial record, he looks set for a relatively painless confirmation.


[1] Sen. Comm. on the Judiciary, 115th Cong., Peter J. Phipps: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id. at 2.

[4] See id.

[5] Id.

[6] Press Release, White House, President Obama Nominates Seven to Serve on the United States District Courts (July 30, 2015) (on file at https://obamawhitehouse.archives.gov).

[7] Philip Wegmann, After Facing Questions on Abortion, 2 Obama Judicial Nominations Fail to Advance, The Daily Signal, Jan. 29, 2016, http://dailysignal.com/2016/01/29/after-facing-questions-on-abortion-2-obama-judicial-nominees-fail-to-advance/.  

[8] Press Release, President Donald J. Trump Announces Ninth Wave of Judicial Nominees and Tenth Wave of United States Attorney Nominees (December 20, 2017) (on file at www.whitehouse.gov/thepressoffice).

[9] Sen. Comm. on the Judiciary, 115th Cong., Peter J. Phipps: Questionnaire for Judicial Nominees 24.

[10] Id. at 10.

[11] Id. at 11-12.

[12] Thompson v. HUD, No. 95-395 (D. Md.) (Garbis, J.) (Grimm, J.).

[13] See id.

[14] Witt v. United States Air Force, No. 06-5195 (W.D. Wash.) (Leighton, J.).

[15] American Civil Liberties Union of Northern California v. Hargan, No. 16-3539 (N.D. Cal.) (Beeler, M.J.).

[16] See NCAA v. Christie, Nos. 3:12-4947; 3:14-6450 (D.N.J.) (Shipp, J.); Nos. 13-1713,-1714,-1715 (3d Cir.); Nos. 14-4546,-4568,-4569 (3d Cir.) (subsequently en banc); Nos. 13-967; -979; -980, Nos. 16-476,-477 (U.S.).

[17] See id.

[18] Commonwealth v. Opperman, 780 A.2d 714 (Pa. Super. Ct. 2001).