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Judge Robin Meriweather – Nominee to the U.S. Court of Federal Claims

U.S. Magistrate Judge Robin Meriweather, who has served on the federal bench in D.C. for the past six years has been nominated to a seat on the U.S. Court of Federal Claims.

Background

Meriweather received a B.A. from the University of Michigan in 1995, and her J.D. from Yale Law School in 1998. After graduation, Meriweather clerked for Judge Merrick Garland on the U.S. Court of Appeals for the D.C. Circuit and subsequently joined Jenner & Block as an Associate.

In 2007, Meriweather joined the U.S. Attorney’s Office for the District of Columbia where she stayed until appointed as a U.S. Magistrate Judge in 2017.

History of the Seat

Meriweather 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 Meriweather was nominated for opened up on September 30, 2023 with the retirement of Judge Patricia Campbell-Smith.

Legal Experience

Meriweather started her legal career at the firm of Jenner and Block, where she worked on a number of communications cases. See, e.g., Consumer Electronics Ass. v. Fed. Communications Comm’n, 347 F.3d 291 (D.C. Cir. 2003); Verizon Pennsylvania v. Pennsylvania Pub. Utility, 380 F. Supp. 2d 627 (E.D. Penn. 2005). Notably, she was appointed as an amicus on behalf of a former D.C. employee on a disability discrimination case. See Smith v. Dist. of Columbia, 430 F.3d (D.C. Cir. 2005). The D.C. Circuit reversed a grant of summary judgment against the plaintiff on the discrimination claim and remanded for trial. See id.

From 2007 to 2017, Meriweather worked at the U.S. Attorney’s Office for the District of Columbia. At the office, Meriweather worked in the Civil Division at the U.S. Attorney’s Office, defending claims brought against the federal government. See, e.g., Boardley v. U.S. Dep’t of Interior, 615 F.3d 508 (D.C. Cir. 2010). Notably, Meriweather argued before the D.C. Circuit on a suit arising from the termination of a contract with Voice of America after a contractor appeared in a music video criticizing the U.S. involvement in Iraq. See Navab-Safavi v. Glassman, 637 F.3d 311 (D.C. Cir. 2011).

Judicial Experience

Meriweather has served as a U.S. Magistrate Judge for the District of Columbia since her appointment in 2017. As Magistrate Judge, Meriweather handled reports and recommendations for district court judges as well as discovery matters. See, e.g., In re DiGuilian, 314 F. Supp. 3d 1 (D.D.C. 2018). Notably, Meriweather ruled that the District of Columbia had failed to adequately preserve evidence in a suit regarding four individuals who committed suicide in a D.C. jail, finding the District responsible for spoliation of evidence. See Mannina v. Dist. o Columbia, 437 F. Supp. 3d 1 (D.D.C. 2020).

Political Activity

Meriweather has made political contributions only to California Attorney General Rob Bonta, who was a classmate of hers at Yale Law School.

Overall Assessment

Meriweather comes to the Court of Federal Claims with extensive experience with civil litigation, particularly that affecting the federal government. She should be able to hit the ground running once confirmed.

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Judge Ramona Manglona – Nominee to the U.S. District Court for the Northern Mariana Islands

The Commonwealth of the Northern Mariana Islands (“CNMI”), an unincorporated territory of the United States, is served by one federal Article IV court, which means that the judges who serve on the court don’t have lifetime tenure but are instead appointed for ten year terms. As such, the court is currently serving without a senate confirmed judge since Chief Judge Ramona Villagomez Manglona’s term expired on July 28, 2021. Two years later, President Biden has renominated Manglona to serve an additional ten year term.

Background

A native of the Mariana Islands, Manglona was born in Saipan on February 26, 1967. She subsequently attended the University of California at Berkeley, graduating with a B.A. in 1990 and then worked in her family’s real estate business before receiving a J.D. in 1996 from the University of New Mexico School of Law.

After graduation, Manglona clerked for the Superior Court for the Commonwealth of the Northern Mariana Islands before joining the CNMI Attorney General’s Office in the criminal division. In 2001, Manglona shifted to the Civil Division and in 2002 was named Deputy Attorney General and later that same year became Attorney General (the first female attorney general in CNMI history).

In 2003, Manglona was named to the Northern Mariana Islands Superior Court. She held that position until 2011 when President Obama named her to succeed Judge Alex Munson on the U.S. District Court for the Northern Mariana Islands. While Manglona’s term expired in 2021, she still serves on the court pursuant to a law permitting her to hold the post until a successor is confirmed.

History of the Seat

Manglona has been reappointed to replace herself on the U.S. District Court for the Northern Mariana Islands. If confirmed, Manglona would serve an additional ten year term on the bench.

Legal Experience

Manglona has spent her entire career prior to taking the bench at the CNMI Attorney General’s Office. She has held a variety of positions with the office: the Criminal Division; the Civil Division; Deputy Attorney General; and as Attorney General. During this time, Manglona tried seven jury trials: five criminal; and two civil.

Manglona’s most notable criminal case involved the first prosecution for “shaken baby syndrome” in the Commonwealth. See Commonwealth v. Manila, Crim. No. 00-0509 (N.M.I. Super. Ct. Oct. 21, 2001). Manglona led the prosecution of the defendant who was convicted after a jury trial and sentenced to sixty years in jail. Her most notable civil jury trial was in a Section 1983 lawsuit brought against three police officers on charges of police brutality, which ended in a jury verdict for the defendants on the pending counts. See Cabrera, et al. v. CNMI Dep’t of Public Safety, et al., Civ. No. 00-0022 (D.N.M.I. Dec. 18, 2001) (Hon. Alex R. Munson).

Jurisprudence

From 2003 to 2011, Manglona served on the Northern Mariana Islands Superior Court, a court of general jurisdiction that hears both civil and criminal cases. Manglona was also retained in a 2007 election to a full six year term. Through her tenure, Manglona presided over approximately 150 cases. Among her notable cases, Manglona presided over a request by Kazuyoshi Miura (a business whose case was dubbed the “O.J. Simpson case of Japan”) who was challenging an arrest warrant and extradition order to California for trial for the murder of his wife in Los Angeles. See In re Extradition Matter of Kazuyoshi Miura, Crim. No. 08-0030C (N.M.I. Super. Ct. Sept. 15 2008). Manglona denied Miura’s motion for a writ of habeas corpus and authorized his extradition to California.

As part of her role, Manglona also sat as Justice Pro Tem on the Guam Supreme Court and as a Judge Pro Tem on the Guam Superior Court.

Since 2011, Manglona has served as the Chief Judge of the U.S. District Court for the Northern Mariana Islands. Of her notable decisions in that court, Manglona held that a limitation issued by the Commonwealth limiting voting in certain elections to individuals of “Northern Marianas descent” constituted a race-based restriction in violation of the Fifteenth Amendment. See Davis v. Commonwealth Election Comm’n, 844 F.3d 1087 (9th Cir. 2016). This decision was affirmed by the Ninth Circuit. See id. In another notable decision, Manglona held that a challenge by environmental groups to the relocation of training ranges onto Guam was barred by the “political question” doctrine. See Tinian Women Ass’n v. United States Dep’t of Navy, 976 F.3d 832 (9th Cir. 2020). The Ninth Circuit affirmed the dismissal, but held that it should be for lack of standing, finding that the relocation was based on a treaty with Japan, which rendered the claims non-redressable. See id. at 834.

Overall Assessment

In 2011, Manglona was unanimously confirmed by the Senate to serve on the federal bench on the Northern Mariana Islands. Her record reflects little that should change that assessment. While judicial confirmation is significantly more partisan today than it was even a decade ago, a failure to confirm Manglona would not keep her off the bench as she could continue to serve until a successor was confirmed. As such, it is likely that, while Manglona will likely attract more opposition today than she did in 2011, she will likely be confirmed in due course.

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Joseph Laroski – Nominee to the U.S. Court of International Trade

Joseph Laroski has spent virtually his entire career in the field of international trade law, traversing both private practice and the federal government. He is now poised to join the Court of International Trade.

Background

Joseph A. Laroski received a B.S.F.S. from the Georgetown University Walsh School of Foreign Service in 1993, his J.D. from Fordham University School of Law in 1997 and an L.L.M. from the Georgetown University Law Center in 1998. After graduating, Laroski clerked for Judge Dominick DiCarlo on the U.S. Court of International Trade and then joined Skadden Arps as an Associate. In 2004, Laroski shifted to Wilkie Farr & Gallagher L.L.P. and again in 2006 to Vinson & Elkins. In 2008, Laroski joined the Office of the U.S. Trade Representative as Associate General Counsel.

In 2012, Laroski returned to private practice at King & Spalding. In 2016, Laroski spent a year as Attorney-Advisor to the U.S. International Trade Commission, before becoming Deputy Assistant Secretary for Policy and Negotiations and Director of Policy in the International Trade Administration at the Department of Commerce under Wilbur Ross. In 2021, Laroski returned to private practice at Schagrin Associates, where he currently works.

History of the Seat

Laroski has been nominated for a seat vacated by Judge Timothy Stanceu, an appointee of President George W. Bush, on April 5, 2021.

Legal Experience

Laroski started his legal career at the firm of Skadden Arps, where he worked with the International Trade Group working on antidumping and countervailing duty litigation. In 2004, he shifted to join the international trade practice group at Wilkie Farr, which shifted in 2006 to Vinson & Elkins.

In 2008, Laroski joined the Office of the U.S. Trade Representative, representing the U.S. government in trade dispute resolutions against other nations. In this role, Laroski was lead counsel in an international arbitration involving a dispute between the United States and the European Union regarding disparities between U.S. laws and a World Trade Organization Anti-Dumping Agreement. He also served as lead counsel for the United States in a suit involving Chinese steel tariffs.

Between 2012 and 2016, Laroski worked in both litigation and policy at King and Spalding. In this role, Laroski represented aerospace manufacturer Embraer and advised the Government of Brazil with regard to a dispute brought by the United States against the European Union for Airbus subsidies they provided.

In 2017, Laroski joined the U.S. Department of Commerce as Director of Policy to the Undersecretary of Commerce for International Trade. In that role, he advised Commerce Department officials on trade policy, being promoted to Deputy Assistant Secretary for Policy and Negotiations in 2020. In that role, Laroski also participated in the administrative litigation over the countervailing duty over softwood lumber (also participated in by fellow nominee Lisa Wang).

Since 2021, Laroski has worked at Schagrin Associates, returning to his work on antidumping and countervailing duty litigation. Notably, in this role, Laroski represented Daiking America Inc., a chemical products manufacturer, who intervened in a trade suit brought by Indian chemical producer Gujarat Fluorochemicals Ltd. See Guajarat Fluorochemicals Ltd. v. United States, 578 F. Supp. 3d 1346 (Ct. Int’l Trade 2022), available at https://scholar.google.com/scholar_case?case=512358947348396049&q=%22Joseph+A.+Laroski%22+OR+%22Joseph+Laroski%22&hl=en&as_sdt=6,47&as_rr=1.

Political Activity

Laroski’s sole contribution of record is to Matt Doherty, a Democrat who served on the Borough Council and as Mayor of Belmar, New Jersey.

Overall Assessment

Laroski has a strangely parallel life trajectory to his co-nominee, with the two both overlapping and intersecting at the Office of the Trade Representative and the Department of Commerce, as well as sharing expertise over anti-dumping and countervailing duty litigation. This experience will serve Laroski well on the bench and he is likely to see a smooth confirmation.

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Lisa Wang – Nominee to the U.S. Court of International Trade

Less than two years ago, Lisa Wang was unanimously confirmed by the U.S. Senate for a position in the U.S. Department of Commerce. Wang is now up for a seat on the U.S. Court of International Trade.

Background

Lisa Wang received a B.S. from Cornell University in 2002 and her J.D. from the Georgetown University Law Center in 2006. After graduating, Wang joined Dewey and LeBoeuf as an Associate. In 2009, under the Obama Administration, Wang became the Senior Import Administration Officer for the U.S. Embassy in Beijing. In 2012, she shifted to the Office of the U.S. Trade Representative as Assistant General Counsel.

In 2014, Wang joined the Office of the Chief Counsel for Trade Enforcement and Compliance in the Commerce Department and in 2016, became a Partner at Picard, Kentz & Rowe LLP. In 2021, Wang was unanimously confirmed by the U.S. Senate to be Assistant Secretary of Commerce for Enforcement and Compliance. She currently holds that role.

History of the Seat

Wang has been nominated for a seat vacated by Judge Leo Gordon, an appointee of President George W. Bush, on March 22, 2019. Late in the Trump Administration, he nominated Joseph L. Barloon to fill this seat. However, the Senate did not act on Barloon’s nomination and the seat remained vacant.

Legal Experience

Wang started her legal career at the firm of Dewey & LeBoeuf, where she litigated before the U.S. Court of International Trade and the Federal Circuit as well as handling administrative litigation before the U.S. Department of Commerce.

After a subsequent stint in Beijing, Wang worked for the Office of the U.S. Trade Representative, where she litigated against the People’s Republic of China in trade disputes before the U.S. Court of International Trade. China Manufacturers Alliance, LLC, et al v. United States, 1:15-cv-00124-TCS (Ct. Int’l Trade 2015). In 2014, Wang moved to the Department of Commerce, where she again handled matters before the U.S. Court of International Trade and the Federal Circuit, as well as providing enforcement guidance in duty laws.

In 2016, Wang returned to private practice to work at Pickard, Kentz and Rowe LLP, where she advised various commercial industries on navigating trade issues, including the softwood lumber, shrimping, and stainless-steel keg manufacturing industries. Notably, Wang served as chief counsel for the United States Lumber Coalition in administration litigation before the U.S. Department of Commerce. See Certain Softwood Lumber Imports from Canada: Countervailing Duty and Antidumping Duty Proceedings, C-122-858 and A-122-857 (Dep’t Comm. 2016-2021).

In her current role at the Department of Commerce, Wang doesn’t litigate but instead works on antidumping and countervailing duty laws, and their interaction with the U.S. ‘s trade agreements.

Overall Assessment

Wang has spent virtually her entire career developing expertise in the field of International Law. Her background makes her a strong fit for the specialized docket of the Court of International Trade, and she will likely see a smooth confirmation.

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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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Armando Bonilla – Nominee to the U.S. Court of Federal Claims

Despite having six appointees confirmed to the court in 2020 alone, the U.S. Court of Federal Claims (CFC) has been battling a long-term vacancy crisis, with four seats on the court vacant. In an effort to fill them, President Biden has renominated a stalled nominee from the Obama Administration: Armando Bonilla.

Background

Born in 1967 in New York City, Armando Omar Bonilla received his B.A. from West Virginia University in 1989 and his J.D. from Seton Hall University School of Law in 1992. After graduation, Bonilla clerked for Judge Garrett Brown for the U.S. District Court for the District of New Jersey.

After his clerkship, Bonilla joined the Civil Division of the U.S. Department of Justice as a trial attorney. In 2001, he moved to the Criminal Division, starting in the Asset Forfeiture and Money Laundering Section and moving to the Public Integrity Section. In 2010, Bonilla joined the Deputy Attorney General’s Office.

Since 2018, Bonilla has served as Vice President of Ethics and Investigations at Capital One.

History of the Seat

Bonilla 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 Bonilla is nominated for opened up on October 22, 2013, with the retirement of Judge Edward Damich. On May 21, 2014, Bonilla was nominated for this seat by President Obama. Bonilla and four other nominees to the Court were approved by the Senate Judiciary Committee unanimously. However, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges. Despite rebuttals from federal claims attorneys and Chief Judge Patricia Campbell-Smith, Cotton maintained his blockade, and the Obama Administration was unable to fill any vacancies on the Court, leaving six of the sixteen judgeships vacant.

On June 24, 2019, the Trump Administration nominated Daniel Zachary Epstein, a Special Assistant to the President, to fill this seat. However, Epstein’s nomination stalled in the Senate and he was never confirmed.

Bonilla was subsequently renominated to fill this vacancy on July 13, 2021.

Legal Experience

Bonilla has spent virtually his entire legal career working in the Department of Justice, where he worked on civil, criminal, and appellate litigation.

Notably, on the civil side, Bonilla represented the United States in defending against a lawsuit by the architects hired to design the Museum of the American Indian, alleging that the contract was wrongfully terminated. See GBQC Architects v. United States, No. 98-399C (Fed. Cl.) (Judge Miller). Bonilla also defended the Department of Veterans Affairs decision not to permit the display of a large Confederate flag at a national cemetery against a First Amendment challenge. See Griffin v. Secretary of Veterans’ Affairs, 288 F.3d 1309 (Fed. Cir.).

Among the criminal cases he handled, Bonilla prosecuted Katherine Stump, a New Orleans Sewarage and Water board member for conspiracy and wire fraud for accepting cash and gifts in exchange for promoting the interests of a Houston sewage company. See Pam Easton, New Orleans Water Board Chair, Contractor Sentenced to Prison for Wire Fraud, Conspiracy, A.P. State & Local Wire, Sept. 29, 2003.

Overall Assessment

The fact that Bonilla’s last appointment to the Court of Federal Claims stalled speaks more to the Senate’s intransigence on judicial nominees late in the Obama Administration than it does to Bonilla. With a Senate majority more willing to consider CFC nominees, Bonilla should be confirmed before the end of the year.

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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.

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Maria Teresa Cenzon – Nominee to the U.S. District Court of Guam.

The District Court of Guam is a territorial court whose judges serve ten year terms.  Judge Frances Tydingco-Gatewood, the sole judge on the court, had her term expire in August 2016.  However, no nomination was put forward by the Trump Administration under November 30, 2020, with Judge Maria Teresa Cenzon’s nomination likely coming too late to be considered before the Biden Presidency.

Background

The daughter of Edward and Nita Cenzon from Pampanga Province, Cenzon was born in Guam.[1]  Cenzon was a 1987 graduate of the Academy of Our Lady of Guam, after which she received a B.A. from Marquette University in 1992, and a J.D. from Loyola University Chicago School of Law in 1996.  After graduating, Cenzon returned to Guam to start working at Barcinas & Terlaje, P.C.  A year later, Cenzon became a Partner at Mair, Mair, Spade & Thompson, P.C.  

In 2008, Cenzon moved to the firm of Cabot Mantanona, LLP, and then to Carlsmith Ball, LLP in 2009.  In 2010, Cenzon became Director of Policy, Planning and Community Relations for the Unified Judiciary of Guam.

In 2011, Governor Eddie Baza Calvo appointed his Chief Counsel James L. Canto II to the Superior Court of Guam, and chose Cenzon to replace him.  In 2012, Calvo named Cenzon to the Superior Court as well, where she has served since.

History of the Seat

The District Court of Guam has a single judgeship authorized.  Judge Frances Tydingco-Gatewood, who was appointed by President Bush, saw her appointment expire in 2016.  The Obama Administration did not make another appointment and Tydingco-Gatewood held the seat in the interim.  

After taking office, the Trump Administration did not make a nomination to fill this seat until Cenzon was nominated on November 30, 2020, four weeks after the 2020 Presidential election.

Legal Experience

Prior to her appointment to the bench, Cenzon worked as General Counsel to Republican Governor Eddie Balza Calvo.  In this role, Cenzon helped defend the Governor against a class action suit alleging that the Guam Government was illegally failing to pay taxpayers tax refunds.[2] 

Before joining the Governor’s office, Cenzon spent a dozen years litigating in private practice.  Among her notable cases during this time, Cenzon practiced before the Guam Supreme Court, defending the appointment of a visiting judge in a case where all the judges on the Superior Court were recused.[3]

Judicial Career

Cenzon has served on the Superior Court of Guam since 2012, where she has heard criminal, civil, and administrative cases.  At the time of her appointment, Cenzon was the first Filipino-American on the judiciary of Guam.[4] 

Overall Assessment

With her appointment having expired four years ago, Tydingco-Gatewood continues to serve on the Guam District Court due to the White House and the Senate’s failure to appoint a judge.  Unfortunately, she will have to wait longer as Cenzon’s nomination likely comes too late to be considered before President Biden’s inauguration.  While Cenzon has already made Guamanian history, her best hopes for appointment to the federal bench rest on a renomination by the Biden Administration.

[1] ABS-CBN News, Guam Gets First Fil-Am Judge, Dec. 28, 2012, ABS-CN News, https://news.abs-cbn.com/global-filipino/12/28/12/guam-gets-first-fil-am-judge.

[2] See Paeste v. Gov’t of Guam, 2012 U.S. Dist. LEXIS 100837 (D. Guam May 2, 2012).

[3] Lujan v. Lujan, 2000 Guam 21 (1999).

[4] See ABS-CBN News, supra n. 1.

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Joseph Barloon – Nominee to the U.S. Court of International Trade

As noted previously, nominations to the U.S. Court of International Trade, which hears cases involving international trade and customs laws, generally do not draw the level of rancor that other judicial nominations do.  Joseph Barloon, who currently serves as General Counsel for the U.S. Trade Representative, is more than qualified for a seat on the Court, but may be stuck due to the timing of his nomination.

Background

Born in 1967, Joseph L. Barloon received a B.A. from Harvard University in 1989, an M.A. from the University of Pennsylvania in 1991, and his J.D. from the Georgetown University Law Center in 1996.  After graduating, Barloon clerked for Judge Douglas Ginsburg on the U.S. Court of Appeals for the D.C. Circuit and then joined the Washington D.C. office of Skadden Arps as an Associate.[1]  He was later elevated to be a Partner at the firm.

In 2019, Barloon replaced Stephen P. Vaughn as General Counsel to U.S. Trade Representative Robert Lighthizer.  He currently serves in that role.

History of the Seat

Barloon has been nominated for a seat vacated by Judge Leo Gordon, an appointee of President George W. Bush, on March 22, 2019.  

Legal Experience

Barloon has spent the vast majority of his legal career at the firm of Skadden Arps, where he worked primarily on civil and commercial litigation.  In the mid-2000s, Barloon was on the legal team for accounting firm KPMG as it faced government investigation and potential indictment for its work on tax shelters.[2]  Notes that Barloon took at meetings with prosecutors were later made public in the process of criminally trying several KPMG officials.[3]

Since 2019, Barloon has served as General Counsel to U.S. Trade Representative Robert Lighthizer.  In this role, Barloon has provided legal advice and guidance to Lighthizer and the Acting Deputy Trade Representative.  Notably, Barloon oversaw the Trump Administration’s proposal of tariffs against China on a wide variety of goods.[4]

Statements and Writings

As an associate and a partner at Skadden, Barloon has both written and spoken on the law, including making frequent statements to the media in commentary on legal developments.  For example, Barloon frequently cowrote articles on banking law with fellow Skadden attorneys Anand Raman and Matthew Michael.[5] 

Lending and Disparate Impact

Barloon has frequently commented on the use of “disparate impact” when evaluating fair lending practices.  Disparate impact allows plaintiffs to prove discrimination by showing the impact of banking policies and procedures, instead of presenting evidence of intent, which is frequently unavailable.  While most of his comments on the subject have been descriptive,[6] Barloon has expressed reservations about the use of disparate impact in fair lending lawsuits in his capacity as an attorney for lenders.[7]

CFPB

Barloon has also spoken frequently, in his capacity as a bank lawyer, on the Consumer Financial Protection Bureau (CFPB) and its actions.  For example, Barloon commented on lawsuits challenging the recess appointment of CFPB head Richard Cordray.[8]  He also spoke favorably regarding the CFPB’s approach in regulating payday lenders, finding the regulations to be “data-driven.”[9] 

Overall Assessment

With decades of experience with commercial litigation and international trade, Barloon is qualified for an appointment to the Court of International Trade.  However, now that we have less than two months left in the Trump Administration (and less than three weeks in the current Congress), it is unlikely (albeit not impossible) that the Senate will be able to process Barloon’s nomination in time.

[2] Lynnley Browning, Documents Show KPMG Secretly Met Prosecutors, N.Y. Times, July 6, 2007.

[3] See id.

[4] See Patrick Shanley, Nintendo, Sony, Microsoft Urge Trump to Withdraw China Tariffs in Joint Letter, Hollywoodreporter.com, June 26, 2019.

[5] See, e.g., Anand S. Raman, Joseph L. Barloon, and Matthew D. Michael, Cutting the Risks Built Into Third-Party Lending Relationships, ABA Banking Journal, Pg. 65, Vol. 95, No. 7 (July 2003).

[6] See, e.g., Kevin Wack, Supreme Court Case Could Be Big Help to Banks in Fair-Lending Fight, American Banker, Nov. 14, 2011 (quoting Joseph Barloon).

[7] See Kevin Wack, Banks Hit Legal Setback in Fair Lending Fight, National Mortgage News, Feb. 27, 2012.

[8] Kevin Wack, CFPB Suit Faces Long Odds, But May Still Have Impact, American Banker, July 25, 2012.

[9] See Victoria Finkle, Payday Loan Crackdown Could Have Big Upside for Banks, American Banker, June 29, 2012.

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Stephen Kubiatowski – Nominee to the U.S. Court of Federal Claims

The U.S. Court of Federal Claims (CFC) is currently severely hampered by vacancies.  The CFC is intended to have sixteen judgeships but is down six vacancies with two more scheduled to open in the coming months.  There are multiple reasons behind the high number of vacancies, primary among which are the obstruction of nominees under President Obama.  Furthermore, the Trump Administration has been slow to nominate judges to the CFC, and the Senate has moved comparatively slowly on their nominations. With less than three months left in his current term, the President has caught up, putting forward a nominee for the final vacancy: Stephen Kubiatowski.

Background

Stephen Andrew Kubiatowski received his B.A. from Dartmouth College in 1988 and his J.D. from Columbia University School of Law in 1991.[1]  After graduation, Kubiatowski clerked for Judge Michael Kanne for the U.S. Court of Appeals for the Seventh Circuit.[2]

After his clerkship, Kubiatowski joined Mayer Brown as an Associate.  In 1995, he joined the Independent Counsel’s office for the Whitewater Investigation.[3]  Two years later, he became a federal prosecutor with the U.S. Attorney’s Office for the Central District of Illinois.  In 2001, he moved to the U.S. Attorney’s Office for the Northern District of Illinois.[4] 

In 2015, Kubiatowski became a Partner with Faegre Baker Daniels LLP.  He left a year later to be SVP and Deputy General Counsel with Kindred Healthcare, where he currently works.

History of the Seat

Kubiatowski 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 Kubiatowski was nominated for will open up when Judge Margaret Sweeney’s term expires on October 24, 2020.

Legal Experience

While Kubiatowski started his career in private practice, he has spent the bulk of his career working for the federal government, primarily as a prosecutor.  For example, in that role, Kubiatowski worked as part of a task force targeting health care scams.[5]

In other prosecutions, Kubiatowski prosecuted Richard Collins for defrauding investors of nearly $11 million, a prosecution in which Judge Suzanne Conlon rejected Kubiatowski’s request for a seven year sentence, instead imposing a ten year prison term.[6]  Kubiatowski also prosecuted an Oak Brook couple for making furnishing out of illegally imported animal products,[7] and Tomasz Soltys for assaulting a passenger and flight staff for refusing to let him leave an in-flight aircraft to smoke.[8]

Kubiatowski has also been the defendant in a long-running lawsuit filed by Julio Villars, who was detained as a material witness in a drug trial based on Kubiatowski’s affidavit.[9]  After numerous defective complaints, Judge Robert Dow permitted two counts against Kubiatowski to proceed for failure to comply with requirements for biweekly reports to the court during detention.[10]  The suit ended in 2019 with a grant of summary judgment in Kubiatowski’s favor.[11]

Overall Assessment

Given Kubiatowski’s long experience with litigation in government, he is likely to be deemed qualified for an appointment to the Court of Federal Claims.  If any issues arise, they may be related to his work in the Whitewater investigation or with the suit brought against him, but such issues will be unlikely to derail his confirmation (assuming that the Senate can find the floor time).

[1]  Linkedin, Profile of Stephen Kubiatowski, https://www.linkedin.com/in/stephen-kubiatowski-b5b06467/ (last visited Sept. 13, 2020).

[2] Id. 

[3] Id.

[4] See id.

[5] Tony Cappasso, Task Force Targets Health Care Scams, Copley News Service, Dec. 28, 1997.

[6] See Shamus Toomey, 10-Year Prison Term for Fraud: Judge Shows No Mercy For Owner of Scheme, Chicago Daily Herald, July 15, 2003.

[7] Rob Olmstead, Decor Made from Wildlife Leads to Arrest, Chicago Daily Herald, Jan. 11, 2006.

[8] Rob Olmstead, Mid-Flight Nicotine Craving Leads to Assault Charge, Chicago Daily Herald, Aug. 29, 2006.

[9] See Villars v. Kubiatowski, 128 F. Supp. 3d 1039 (N.D. Ill. 2015).

[10] See id., Case No. 12-cv-4856 (N.D. Ill. Sept. 26, 2017).

[11] See id., Case No. 12-cv-4856 (N.D. Ill. Mar. 12, 2019).

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