Carolyn Lerner – Nominee to the U.S. Court of Federal Claims

Carolyn Lerner, who currently serves as Chief Mediator for the Washington D.C. federal court system, has built up a significant portfolio of government service and litigation experience, including six years as the top whistleblower advocate in the nation. She has now been nominated for a seat on the U.S. Court of Federal Claims.

Background

Born on January 13, 1965 in Detroit, Carolyn N. Lerner graduated from the University of Michigan in 1986 with a Bachelor of General Studies, and earned her J.D. from the New York University School of Law in 1989. Upon graduating from law school, she clerked for Judge Julian Cook of the U.S. District Court for the Eastern District of Michigan before joining Kator, Scott, Heller & Huron as a litigation attorney. In 1996, Lerner helped found the civil rights firm Heller, Huron, Chertkof, Lerner, Simon & Salzman. In 2011, Lerner was confirmed to head the Office of Special Counsel, where served until 2017. Since 2017, Lerner has been the Chief Mediator for the U.S. Courts of the D.C. Circuit.

History of the seat

Lerner has been nominated for a seat on the U.S. Court of Federal Claims (CFC), an Article I court that hears monetary claims against the federal government. Judges to the CFC are appointed for 15-year terms, and can be reappointed. The seat Lerner was nominated for opened up when Judge Margaret Sweeney’s term expired on October 24, 2020. The Trump Administration nominated Stephen Kubiatowski to fill this vacancy, but his nomination was not confirmed before the end of the Administration.

Legal Career

For the first twenty years of her legal career, Lerner primarily practiced employment and whistleblower protection law. For example, she represented Larry Bryant, a civilian employee in the Department of the Army who was blocked from publishing letters supportive of allowing homosexuals to serve openly in the military. See Bryant v. Secretary of the Army, 862 F. Supp. 574 (D.D.C. 1994). She also represented Melodi Navab-Safavi, a contractor who was terminated after participating in a music video protesting the Iraq War. Navab-Safavi v. Broad. Bd., 650 F. Supp. 2d 40 (D.D.C. 2009) (affirmed by 637 F.3d 311 (D.C. Cir. 2011)).

From 2011 to 2017, Lerner headed the United States Office of Special Counsel after being unanimously confirmed by the Senate for the role. Among other roles, Lerner served as the primary advocate for government whistleblowers, working to ensure that they were safe from retaliation and investigating allegations of misconduct.

Lerner’s tenure as Special Counsel was met with widespread support for her aggressive advocacy on behalf of whistleblowers. See, e.g., Press Release, Office of Rep. Rod Blum, Blum Leads Effort to Retain Special Counsel Lerner (Feb. 10, 2017). See also Press Release, Washington Accountability Project Organization, Trump Withdraws Reappointment Nomination of Popular Whistleblower Advocate (Mar. 24, 2017). For example, in 2012, Lerner issued a directive finding that the FDA broke the law in monitoring the personal emails of whistleblowers, and urging agencies to review their electronic surveillance practices. See Johnathan Rickman, Lawyers for FDA Whistleblowers Tie Surveillance Guidance to Email Flap, Washington Drug Letter, June 25, 2012.

One of Lerner’s most prominent investigations involved alleged abuses of overtime at the Department of Homeland Security. See Jennifer Scholtes, DHS Announces Suspension of Overtime Privileges Ahead of Hearing, Congressional Quarterly Homeland Security, Jan. 28, 2014. Lerner also investigated allegations that the remains of war dead were mishandled at Dover Air Force Base. See Mackenzie Weinger, Probe: War Dead Mishandled at Dover, Politico, Nov. 8, 2011.

As Special Counsel, Lerner was also charged with enforcing the Hatch Act, which bars political activity by federal employees while on duty. In that role, Lerner ruled, in response to complaints, that the White House Office of Political Strategy and Outreach did not appear to have violated the Hatch Act. See Lauren French, W.H. Cleared of Hatch Act Violations, Politico, July 24, 2014. In contrast, Lerner found that HUD Secretary Julian Castro violated the Hatch Act by promoting Hillary Clinton’s candidacy during a TV interview. Joan Lowy, Gov’t Watchdog: HUD Secretary Violates Hatch Act, A.P. State & Local, July 18, 2016.

Speeches and Writings

Throughout her career, Lerner has commented on developments in the law. For example, in the 1990s, she encouraged companies to develop usage guidelines for company emails, noting that such emails were frequently relevant to employment litigation. See Loretta Prencipe, E-mail: The Litigation Time Bomb; Your E-Mail Can Become Evidence, So Craft a Usage Policy That You Can Stand Behind, Network World, Apr. 8, 1997.

As Special Counsel, Lerner also spoke out in favor of reform of the Hatch Act, arguing that the law is difficult to interpret and apply to modern technologies. See Josh Gerstein, Hatch Act Enforcer Seeks Reforms, Politico, Oct. 6, 2011. In a New York Times op-ed, Lerner urged Congress to rewrite the law to allow candidates tied to negligence amounts of federal funds to run for state and local office. See Carolyn Lerner, A Law Misused for Political Ends, N.Y. Times, Oct. 31, 2011. She also urged Congress to allow more flexibilities in penalties offered under the Act, noting that the standard of termination often leads to agencies refusing to report violations in an effort to avoid the harsh penalty. See Gerstein.

Overall Assessment

The last time Lerner came before the Senate, she received bipartisan support on her way to a smooth confirmation. Given the widespread accolades she has received for her service in the Office of the Special Counsel and extensive experience with the law, it is likely that she will be confirmed the Court of Federal Claims with similar bipartisan support.

7 Comments

  1. This seems to be an exceptionally qualified nominee. While I usually want younger judges from the Biden administration, these types of courts that do not offer life time tenure should be the ones President Biden appoints older qualified nominees to. She should be confirmed overwhelmingly.

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  2. Odd choice – she has no experience at the Court of Federal Claims and she’s not a diverse pick. The CFC doesn’t have jurisdiction over employment or civil rights cases. Is she even a member of that court’s bar? For the Trump-nominated judges you commented on this, even where they had extensive litigation experience – don’t you think you should do so for the Biden picks too?

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    • She is qualified but I don’t see her for a circuit court because she was born January 13, 1965. 56 is too old in my opinion for appeals court nominees for President Biden. He should be looking for nominees in their high 30’s to low 50’s with an emphasis on the former over latter.

      I know Maryellen Noreika is being looked at for possible consideration to the Federal Circuit & she is 55 but I would give her a pass since she is from President Biden’s home state & you can replace the Trump nominee on the district court (She was part of a package deal & is a Democrat) fairly quickly with Delaware having two Democrat senators.

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  3. Pingback: Where We Stand: Assessing Vacancies and Nominations in the Federal Judiciary – The Atlantic Coast | The Vetting Room

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