Month: March 2023

Judge Kato Crews – Nominee to the U.S. District Court for the District of Colorado

Judge Shane “Kato” Crews is the third magistrate judge nominated by President Biden to the federal bench in Colorado, after colleagues Nina Wang and Gordon Gallagher.

Background

A native of Pueblo in South Colorado, Crews graduated in 1997 from the University of Northern Colorado and then received a J.D. from the University of Arizona School of Law in 2000.

After graduating, Crews spent two years at the National Labor Relations Board and then joined Rothberger Johnson & Lyons LLP in 2001. In 2011, he shifted to be a name partner at Mastin Hoffman & Crews LLC and then moved to Hoffman Crews Nies Waggener & Foster LLP in 2013.

In 2018, Crews was appointed to be a U.S. Magistrate Judge and has served as such since.

History of the Seat

Crews has been nominated for a vacancy on the U.S. District Court for the District of Colorado. This seat will open on June 20, 2023 when Judge Raymond Moore takes senior status. Crews was previously recommended by Colorado Senators Michael Bennet and John Hickenlooper to replace Judge William Martinez, but fellow magistrate judge Gordon Gallagher was chosen instead. Crews was then nominated to replace Moore.

Legal Experience

While Crews has shifted positions over the course of his career, he has worked on civil litigation in all of those positions, including in labor law, business law, and real estate. Among the suits he handled in private practice, Crews was part of the legal team defending Pizza Hut against an allegation of violations of the Fair Labor Standards Act. See Smith v. Pizza Hut, Inc., 694 F. Supp. 2d 1227 (D. Colo. 2010).

Notably, Crews represented the Colorado State University System in defending against a lawsuit brought by Rodney Smith, a police officer who alleged a hostile work environment as a result of his race. See Smith v. Bd. of Gov. of the Colorado State Univ. Sys., Civil Action No. 15-cv-00770-REB-KMT (D. Colo. 2017). Judge Robert Blackburn granted summary judgment in favor of Crews’ client, finding that the plaintiff failed to meet his burden to show that any harassment was sufficiently pervasive to constitute a hostile work environment and that animosity was racial rather than personal. See id.

Jurisprudence

Crews has served as a federal magistrate judge since his appointment in 2018. In this role, he presides by consent over civil matters and misdemeanors, assists district judges with discovery and settlement, and writes reports and recommendations on legal issues. Among the cases that he presided over, Crews denied summary judgment in favor of the defendant in a slip and fall case at a Dollar Tree retail store. See Oliver v. Dollar Tree Stores, Inc., Civil Action No. 1:21-cv-3443-SKC (2022). Crews found that material disputes of fact remained about the actions of Dollar Tree employees regarding obstructions in the aisle where the plaintiff fell. See id.

Writings and Statements

In 2016, Crews was among 16 attorneys and law students who were interviewed by the Colorado Bar on diversity, inclusion, and bias in the legal community. For his part, Crews noted that he strove throughout his life to work harder and exceed expectations in a desire to overcome any “unconscious” bias on the part of others, noting:

“My experience with implicit bias has not been a story of suffering, rejection, or hurt. Rather, I have found empowerment and positive results from pushing myself to outperform biased expectations.”

Overall Assessment

As he himself describes it, Crews has lived a “charmed” life, rising at a young age (in his early 40s) to be a federal magistrate judge. He is now poised for confirmation to the federal bench, with little in his record that should cause him delay.

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Jabari Wamble – Nominee to the U.S. District Court for the District of Kansas

After his nomination to the U.S. Court of Appeals for the Tenth Circuit was unexpectedly withdrawn, the Biden Administration has renominated Jabari Wamble to a trial court seat in the District of Kansas.

Background

Jabari Brooks Wamble got a B.A. from the University of Kansas in 2002 and a J.D. from the University of Kansas School of Law in 2006. After graduating, Wamble spent two years in the Johnson County District Attorney’s Office before becoming an assistant attorney general in Kansas.

In 2011, Wamble joined the U.S. Attorney’s Office for the District of Kansas and has served there since.

On September 6, 2022, Wamble was nominated to replace Judge Mary Briscoe on the U.S. Court of Appeals for the Tenth Circuit. However, despite a positive reception from Kansas Senator Jerry Moran, Wamble’s nomination to the court was never processed and Wamble was instead renominated for the district court.

Wamble is married to Marissa Cleaver, the daughter of U.S. Representative Emanuel Cleaver from Kansas City, Missouri.

History of the Seat

Wamble was tapped for the U.S. District Court for the District of Kansas. The seat was vacated by Judge Julie Robinson’s move to senior status on January 14, 2022.

Legal Career

Wamble has spent his entire career in criminal prosecution, albeit at three different levels. He started his career at the Johnson County District Attorney’s Office. From 2007 to 2011, Wamble served in the Kansas Attorney General’s office. While at the Attorney General’s office, Wamble defended the conviction of Oliver McWilliams for Medicaid fraud. See State v. McWilliams, 283 P.3d 187 (Kan. 2012). While the Court of Appeals reversed McWilliams’ conviction, the Kansas Supreme Court reinstated it over the dissent of Justice Johnson.

Since 2011, Wamble has served as a federal prosecutor for the U.S. Attorney’s Office for the District of Kansas. Among his notable prosecutions with the office, Wamble prosecuted Richard Ballard, who pleaded guilty to wire fraud for collecting investment for environmentally friendly bottled water and pet chews, and then using the funds for personal use.

Wamble has also briefed and argued a number of appeals before the Tenth Circuit. For example, he was counsel of record in a suit that affirmed the defendant’s conviction for failing to pay child support. See United States v. Fuller, 751 F.3d 1150 (10th Cir. 2014).

Overall Assessment

When Wamble was first nominated, we predicted a relatively comfortable confirmation to the Tenth Circuit. It is still unclear why Wamble has instead been put forward for the district court, but his nomination to a seat to which blue slips are still determinative suggests that Kansas senators have indicated that they are willing to back Wamble for the court. It is possible that the White House determined that nominating Wamble to the district court ensures that they fill two seats instead of one.

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Molly Silfen – Nominee to the U.S. Court of Federal Claims

Patent attorney Molly Silfen, who is coming off a stint as a staffer with the Senate Judiciary Committee will have an opportunity to go before the Committee again, this time as a judicial nominee.

Background

Silfen received a B.A. from Yale University in 2002, and her J.D. from Harvard Law School in 2006. After graduation, Silfen joined Finnegan Henderson Farabow Garrett & Dunner LLP.

In 2008, Silfen completed a clerkship for Judge Alan Lourie on the U.S. Court of Appeals for the Federal Circuit and then returned to Finnegan. In 2013, she joined the U.S. Patent & Trademark Office as a solicitor, where she has worked since. Silfen nonetheless completed details at the Department of Justice’s Civil Division and with the U.S. Senate Committee on the Judiciary.

History of the Seat

Silfen 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 Silfen was nominated for opened up on July 13, 2018, with the move to senior status of Judge Susan Braden. On October 3, 2019, the Trump Administration nominated administrative patent judge Grace Obermann to replace Braden. However, Obermann’s nomination never moved and was left unconfirmed by the end of the Congress. Biden appointed Silfen on February 27, 2023.

Legal Experience

Silfen’s career is split between her time in private practice and her time working as a patent solicitor. In private practice, Silfen worked with Judge Kara Stoll, appointed in 2015 to the U.S. Court of Appeals for the Federal Circuit, on behalf of Cardiac Pacemakers in a patent infringement action against St. Jude Medical, Inc. See Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., 576 F.3d 1348 (Fed. Cir. 2009). She also represented defendants in infringement actions. See, e.g., EPlus, Inc. v. Lawson Software, Inc., 700 F.3d 509 (Fed. Cir. 2012).

In her role with the U.S. Patent & Trademark Office, Silfen has joined the legal team in a number of cases before the U.S. Supreme Court. See, e.g., Matal v. Tam, 137 S. Ct. 1744 (U.S. 2017); Iancu v. Brunetti, 139 S. Ct. 2294 (U.S. 2019). Notably, Silfen was part of the government’s legal team seeking approval of the current system of Administrative Law Judges hearing cases regarding the validity of patents. See United States v. Arthrex, Inc., 141 S. Ct. 1970 (U.S. 2021). In a 5-4 decision, the Supreme Court ruled that the administrative judges in question were appointed in violation of the Appointments Clause of the U.S. Constitution. See id.

Political Activity

Silfen has a few political contributions to her name, including one to President Obama in 2008 and three to New Hampshire Executive Council candidate Leah Plunkett.

Writings

Silfen has frequently written both academically and on the law. As a law student, for example, Silfen wrote on the intellectual property implications of the funding of stem cell research and on the impact of the bans on partial birth abortion on privilege. See Molly Silfen, How Will California’s Funding of Stem Cell Research Impact Innovation? Recommendations for an Intellectual Property Policy, 18 Harv. J. L. Pol’y 2 (Spring 2005). See also M Silfen, I Want My Information Back: Evidentiary Privilege Following the Partial-Birth Abortion Cases, Journal of Health Law (Jan. 1, 2005). As a practitioner, Silfen has further elaborated on patent law. See, e.g., Daniel Kazhdan & Molly Silfen, Inventors Beware: The Danger of Getting Too Many Patents, 60 Santa Clara L. Rev. 289 (2020).

Overall Assessment

Despite her youth, Silfen has gained considerable experience in patent and intellectual property litigation. While her writings are sure to be scrutinized closely in the confirmation process, Silfen should still expect to see a comfortable confirmation.

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