Judge Peter Phipps – Nominee to the U.S. Court of Appeals for the Third Circuit

The 46-year-old Peter Phipps faced an uncontentious confirmation to the U.S. District Court for the Western District of Pennsylvania last year.  Now, just a few months later, Phipps is up for a seat on the U.S. Court of Appeals for the Third Circuit.

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] 

Phipps was nominated in February 2018 to a seat on the U.S. District Court for the Western District of Pennsylvania.  He was confirmed by voice vote on October 11, 2018, and has served on the federal bench since then.

History of the Seat

Phipps has been nominated to Judge Thomas Vanaskie’s seat on the U.S. Court of Appeals for the Third Circuit.  Vanaskie, a Democrat, was appointed to the U.S. District Court for the Middle District of Pennsyvania by President Bill Clinton in 1994 and to the Third Circuit by President Obama in 2010.

Phipps’ nomination is opposed by Democratic Senator Bob Casey, who argues that Phipps lacks the experience on the bench for a seat on the Court of Appeals.[5] 

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.[6]  Overall, Phipps has worked as counsel of record in three civil trials, as well as handling appellate matters in other cases.[7]

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.[8]  Through the litigation, which lasted ten years, Phipps worked through two separate trials, and managed to negotiate a settlement in the case.[9] 

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.[10]  In yet another case, Phipps defended the constitutionality of HHS grants for faith based organizations that have religious objections to abortion and contraception.[11] 

More recently, Phipps defended the constitutionality of the Professional and Amateur Sports Protection Act of 1992 (PASPA).[12]  PASPA’s constitutionality was challenged by New Jersey, which sought to legalize sports betting in its state in violation of the Act.[13]  Phipps represented the government in several suits before the District Court, the Third Circuit, and in certiorari arguments before the U.S Supreme Court.[14]

Jurisprudence

Phipps has served as a U.S. District Judge on the Western District of Pennsylvania since late October 2018.  In his short time on the bench, Phipps has presided over just one case that has gone to verdict or judgment, a $125,000 jury verdict for a plaintiff in a workplace injury trial.[15]  In other notable opinions, Phipps granted summary judgment against a plaintiff who was injured in a slip-and-fall, finding that there was not enough evidence to support plaintiff’s contention that there was a wet floor on the premises.[16]

Overall Assessment

When Phipps was nominated for the district court, we predicted a painless confirmation due to his relatively apolitical background and strong background.  Notwithstanding Casey’s opposition, there is still little in Phipps’ record to warrant strong opposition to the Third Circuit.  Phipps’ record does not suggest that he is particularly conservative, let alone an activist.  While the White House should have accommodated Casey’s concerns regarding Phipps’ level of experience, the nominee has more judicial experience than five out of the last six nominees selected for the Third Circuit.  As such, I predict a swift, if not entirely painless, confirmation for Phipps to the Third Circuit, and a relatively centrist tenure on the court.


[1] Sen. Comm. on the Judiciary, 116th Cong., Peter J. Phipps: Questionnaire for Judicial Nominees 1.

[2] Id.

[3] See id. at 2.

[4] See id.

[5] Press Release, Alliance for Justice, Peter Phipps Should Not Be Confirmed to Third Circuit (May 31, 2019).

[6] Id. at 10.

[7] Id. at 11-12.

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

[9] See id.

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

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

[12] 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.).

[13] See id.

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

[15] Powers v. Norfolk Southern Ry. Co., Case No. 2:17-cv-648 (W.D. Pa.).

[16] Wood v. Speedway LLC, Civil Action No. 2:17-cv-1408, 2019 WL 2248671 (W.D. Pa. May 24, 2019).

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