Maureen Ohlhausen – Nominee to the U.S. Court of Federal Claims

The Acting Chairwoman of the Federal Trade Commission (FTC),[1] Maureen Ohlhausen has worked in private FTC litigation, held a variety of posts at the FTC, and worked as a staff attorney and clerk in D.C.’s federal appeals court and the U.S. Court of Federal Claims.  She now is a nominee to that very court.

Background 

Ohlhausen graduated from the University of Virginia in 1984 with a B.A. in English, with distinction, and earned her J.D., with distinction, from the George Mason University School of Law in 1991.[2]  Upon graduating from law school, she clerked for the U.S. Court of Federal Claims, after which she clerked for Judge David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit from 1994-1997.  Following her clerkships, she began a 12-year stint at the FTC, where she started as an attorney in the Office of the General Counsel and ultimately became Director of the Office of Policy Planning.[3]  In 2009, she was policy counsel at the Business Software Alliance, a private firm specializing in the software industry private firms centering on software and technology, and from late 2009-2012, she practiced law at FTC practice group, Wilkinson Barker Knauer, LLP, where she was a partner.[4]  Ohlhausen has served as an FTC commissioner since 2012, and President Trump designated her as the FTC’s acting chairwoman in 2017.[5]

History of the seat

President Trump has nominated Ohlhausen to sit as a judge on the U.S. Court of Federal Claims, a court of special jurisdiction that hears monetary claims against the U.S. government.[6]  Judges on the court serve for 15-year terms and are eligible for reappointment.[7]  The seat Ohlhausen was nominated for opened up on January 8, 2016, with Judge Lawrence Block’s move to senior status.  While five Obama nominees to the CFC were approved by the Senate Judiciary Committee unanimously on February 26, 2015, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[8]  No nominee was ever put forward for the Block seat.[9]

Legal Career & Views

Ohlhausen is a Republican and an outspoken critic of government regulation.[10]  A believer in free markets, Ohlhausen has frequently used the term “‘regulatory humility’ to describe her philosophy on federal policymaking.”[11]  She has also advocated deregulation of and limited governmental intervention in the marketplace, a philosophy she put into practice in nominating fellow prominent deregulation advocate Thomas Pahl to the FTC’s Bureau of Consumer Protection last year.[12]

For example, she opposes broad occupational licensure requirements (i.e., the governmental requirement of a license to pursue a particular profession or vocation).[13]  Indeed, as her “first major initiative as Acting Chairman, [Ohlhausen] formed the Economic Liberty Task Force to help” prevent or roll back “unnecessary or overbroad occupational licensing and to partner with state leaders and other stakeholders.”[14]  See also infra, “Speeches and Writings” for an expanded discussion of Ohlhausen’s views on this issue.

More controversially, Ohlhausen is an outspoken opponent of net neutrality laws, and instead believes that its ends can be achieved via antitrust enforcement.[15]  Under the Federal Communications Commission’s (FCC) 2015 net neutrality regulations, Internet service providers’ (ISPs) were prohibited from blocking or throttling internet traffic, and from charging websites and online services for faster, more reliable services.[16]  In late 2017, shortly before the FCC’s repeal of net neutrality and during Ohlhausen’s tenure as FTC chairwoman, the FCC and FTC entered into a memorandum of understanding whereby ISPs may promise consumers that they will follow net neutrality guidelines.  If they break this promise, the FTC has jurisdiction to punish them for deceiving consumers.  The FTC’s jurisdiction thus depends on ISPs voluntarily making, and then breaking, net neutrality promises to consumers.[17]  Opining on the memorandum, Ohlhausen reiterated the FTC’s “committ[ment] to ensuring that Internet service providers live up to the promises they make to consumers.”[18]

Speeches and Writings

By virtue of her position as acting chairwoman, Ohlhausen has publicly taken a number of positions regarding market entry, market deregulation, and the effects of regulation in terms of fairness to consumers.  The following samples some of her more recent speeches and writings.

Ohlhausen authored a 2016 journal article, Administrative Litigation at the FTC: Effective Tool for Developing the Law or Rubber Stamp?[19]  The article is the most comprehensive empirical study of the FTC’s “Part 3 process,” an administrative process that empowers the FTC to challenge alleged unfair or deceptive trade practices through administrative litigation.  If the FTC invokes this process and the respondent challenges the charges against it, the case is tried before an Administrative Law Judge, and then the FTC reviews the judge’s decision de novo.  In the past ten years, the FTC has never rejected an action that it previously authorized.  By analyzing the disposition of cases that go through the Part 3 process and the factors at play in the FTC’s charging decisions and subsequent affirmance, the article challenges Part 3 critics’ contention that the FTC’s review of its own charging decision is essentially a rubber stamp, concluding that the Part 3 process plays a crucial role in developing the law.

In May of 2017, Ohlhausen delivered a speech at a seminar covering the first 100 days of the Trump administration.  She explained three of the Trump administration’s priorities pertaining to the FTC: unleash job creation, correct federal government overreach in a number of areas, and reform federal regulatory processes and reduce burdensome regulation.[20]  She praised these efforts as aligning with the FTC’s efforts “to expand and strengthen our competition advocacy work,” “ prevent meaningful consumer harm, not [] redesign the economy as we see fit,” and “eliminate unnecessary and burdensome regulatory requirements that hurt our economy.”[21]

In July of 2017, Ohlhausen was the keynote speaker at an event hosted by The Heritage Foundation, a conservative think tank, where the topic was the promotion of regulatory reform for occupational licensing requirements.  During the speech, Ohlhausen argued that unnecessary occupational licensure requirements are “barriers to entry” that “harm[] workers, consumers, and the economy as a whole.”[22]  Unnecessary licensing requirements, she explained, are those where there are not information asymmetries between professionals and consumers, in non-technical fields, and those where consumers can “easily observe service quality.”[23]  For example, “in certain health care occupations, consumers could face serious risks if treated by unqualified individuals, yet find it difficult (or impossible) to assess quality of care at the time of delivery. In such circumstances, a license requirement might help improve public health and safety.”[24]  In contrast, licensing requirements in fields where “consumer risks are low or entirely speculative” are inappropriate.  She used the example of cosmetology: “A bad haircut or makeup application is markedly obvious to a consumer and to all of her friends. Bad haircuts or makeup applications quickly have consequences for the cosmetologist. The consumer risk is low and fleeting, but the excessive licensure requirement is not – it creates a large burden on those seeking to enter the workforce and limits competition.”[25]  More broadly, she explained that “licensure disproportionally affects those seeking to move up the lower and middle rungs of the economic ladder,” as it requires people to expend time and money on meeting often state-specific licensing requirements.[26]

In a December 2017 speech at Georgetown University, Ohlhausen explained her view that large, growing companies, such as Amazon or Google, do not unduly threaten competition and are not on track to becoming monopolies prohibited by antitrust law.  Companies’ occupying a big portion of the market at one time, she explained, does not erode free and open markets, and instead the touchstone of antitrust enforcement is the actual likely harm to consumers in an open market system.[27]  Monopolies, she explained, are acceptable as long as they gain consumers by merit, rather than anticompetitive practices short-circuiting their competition.  Even practices such as a company’s artificially lowering its prices to eliminate competition, then raising prices once it did so, are permissible because so long as the possibility of marketplace “entry remains, possible predation [of competitors] makes no economic sense.”[28]  In her concluding remarks, she described herself as neither “a champion of today’s leading Internet firms nor their foe,” and her and the FTC’s policy positions as ones “that [leading internet firms] sometimes love and sometimes hate.”[29]

Of her January 2018 nomination to the U.S. Court of Federal Claims, Ohlhausen stated: “I am honored that the President has expressed his intent to nominate me to be a judge on the U.S. Court of Federal Claims, one of the oldest federal courts in our nation. In the meantime, I will continue to serve at the Federal Trade Commission until a time when I may be so fortunate as to be confirmed to the Court of Federal Claims by the United States Senate.”[30]

FTC Administrative Decisions

Commissioner Ohlhausen has participated in over 1,000 administrative FTC decisions, including merits determinations of alleged FTC violations and policy guidance issued by the commission.[31]  The following highlights positions that Ohlhausen has taken within this administrative process evincing her focus on and prioritization of free markets via deregulation:

In 2012, Ohlhausen dissented from the FTC’s decision to withdraw a 2003 policy statement that it would not pursue disgorgement (pursuit of monetary equitable relief) except in the clearest of cases of FTC violations.[32]  She criticized the commission’s proffered basis for rescinding the policy statement, that it “has chilled the pursuit of monetary remedies in the

years since [its] issuance,” as not based in empirical evidence to this effect.  She further criticized the commission’s stated view that, instead of the policy statement, the FTC “will rely instead upon existing law, which provides sufficient guidance on the use of monetary equitable remedies,” as a toothless statement that “ could be used to justify a decision to refrain from issuing any guidance whatsoever about how this agency will interpret and exercise its statutory authority on any issue.”[33]

Since that dissent, Ohlhausen has been vocal about her opposition to the decision to withdraw this policy statement in subsequent decisions, including those in which she concurred in the decision to pursue disgorgement.  In a 2015 decision, FTC v. Cephalon, Inc., the FTC found that Cephalon had engaged in anti-competitive conduct by paying four firms to refrain from selling generic versions of Cephalon’s patented drug for an extended period of time, thereby inhibiting competition and denying patients access to lower-cost versions of the drug.[34]  Ohlhausen agreed that disgorgement was appropriate, but because Cephalon’s conduct met the test laid out in the since-rescinded policy statement.  She noted in her concurrence, “the incentive to pursue monetary remedies more frequently, particularly in other cases without a clear violation, may cause the Commission to neglect its special mission to develop the antitrust laws through Part III litigation and other unique tools. That concern is only heightened now that we are counting disgorgement in the billions of dollars.”  She reiterated these concerns in her 2017 concurrence to In the Matter of Mallinckrodt ARD Inc., where the FTC found that a pharmaceutical company engaged in anticompetitive conduct by attempting to create a monopoly with respect to a particular drug.[35]  Ohlhausen expressed “concerns about [the] aspect of the remedy” for this conduct that required the company to pay over $100 million in disgorgement.  The case, Ohlhausen contended, should have been handled through the FTC’s administrative process rather than filed in federal court (a predicate for pursuing and obtaining the remedy of disgorgement).[36]

In 2013, the FTC filed a complaint against and conducted an investigation of Google, In the Matter of Google Inc., for its alleged anticompetitive practices relating to, inter alia, seeking to enjoin putative licensees of Google’s “standard essential patents” (patents required to comply with a technical standard, thereby encouraging adoption of a common platform among rival producers, which in turn fosters competition).  This, the FTC charged, violated Google’s duty to offer such patents on “fair, reasonable, and non-discriminatory terms.”[37]  The FTC and Google ultimately reached an agreement whereby Google agreed to not seek such injunctions, as well as remove restrictions on the use of its online search advertising platform that may have made it more difficult for advertisers to coordinate online advertising campaigns across multiple platforms.[38]  Ohlhausen criticized the portion of the decision related to these restrictions as not premised on a showing of actual harm to competitors in the form of increased costs or Google’s monopolization of the market, thus potentially discouraging innovation by needlessly punishing Google.[39]  “If our cases – particularly our standalone [unfair and anticompetitive practices] cases – are not anchored to competitive and ultimately consumer harm, then they are completely adrift. I am hopeful that the Commission will maintain its focus on competitive and consumer harm as it moves beyond this matter.”

Overall Assessment

Ohlhausen has a long, distinguished career in FTC-related private practice and the FTC itself.  While her economic knowledge and experience are unimpeachable, it is not clear that her expertise relates to the subject matter of lawsuits within the U.S. Court of Federal Claims’ jurisdiction — claims for money damages arising from the United States Constitution, federal statutes, executive regulations, or an express or implied in fact contract with the United States Government.[40]  However, the economy is not an esoteric subject and her knowledge base is not inapposite to the claims the court hears, she has served in an adjuratory capacity as an FTC commissioner, and she has substantial federal clerking experience, including on the Court of Federal Claims.  As such, Ohlhausen will likely be confirmed by the Senate.


[6] 28 U.S.C. §§171-72.

[8] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[9] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[16] https://arstechnica.com/tech-policy/2017/12/voluntary-net-neutrality-will-protect-consumers-after-repeal-fcc-claims/

[27] https://www.usatoday.com/story/tech/2017/09/12/internet-companies-too-big-ftc-chair-says-more-than-market-share-counts/656394001/

[28] https://www.usatoday.com/story/tech/2017/09/12/internet-companies-too-big-ftc-chair-says-more-than-market-share-counts/656394001/

[29] https://www.usatoday.com/story/tech/2017/09/12/internet-companies-too-big-ftc-chair-says-more-than-market-share-counts/656394001/

[31] Westlaw search conducted by author February 25, 2018.

[33] FTC v. Cephalon, Inc., Separate Statement of Commissioners Maureen K. Ohlhausen & Joshua D. Wright, at 3 (May 28, 2015), https://www ftc.gov/public-statements/2015/05/separate-statement-commissioners-maureen-kohlhausen-joshua-d-wright.

[35] In the Matter of Mallinckrodt ARD Inc., Concurring Statement of Maureen K. Ohlhausen, 2017 WL 395523 (Jan. 18, 2017).

[36] In the Matter of Mallinckrodt ARD Inc., Concurring Statement of Maureen K. Ohlhausen, 2017 WL 395523 (Jan. 18, 2017).

[40]  28 U.S.C. § 1491.

Prof. Ryan T. Holte – Nominee to the U.S. Court of Federal Claims

Traditionally, nominees to the U.S. Court of Federal Claims (CFC) don’t attract much controversy.  Due to the CFC’s limited jurisdiction and 15-year terms for their judges, both senators and interest groups generally ignore the court, and focus their attention on lifetime appointments.  However, due in part of their relative youth, President Trump’s CFC nominees have drawn a significant level of both attention and opposition.  The first nominee, Damien Schiff, drew criticism from Democrats and Republican Sen. John Kennedy for his inflammatory writings, while the second, Steven Schwartz, has drawn opposition for his extreme youth and lack of experience with the CFC’s caseload.  Trump’s third nominee to the CFC, Prof. Ryan Holte, who is the same age as Schwartz, could also face similar opposition.

Background

Ryan Thomas Holte was born in Napa, California in 1983.  After taking classes from Rio Solado Community College, Holte attended California Maritime Academy, graduating magna cum laude with a B.S. in 2005.  After graduation, Holte attended the University of California Davis School of Law, while also serving as a co-owner of a Diesel Depot in Pinole, California.[1]  As a second year law student, Holte was interviewed and profiled among a list of Washington D.C. interns active in networking at happy hours.[2]

After graduating law school, Holte clerked on the CFC for Judge Loren A. Smith, and then on the the U.S. Court of Appeals for the Eleventh Circuit with Judge Stanley Birch.  After his clerkships, Holte joined the Atlanta office of Jones Day.  In 2012, Holte moved to the Atlanta office of the U.S. Federal Trade Commission.

In 2013, Holte joined Southern Illinois University School of Law as an Assistant Professor of Law and Director of Clerkships and Special Placements.  In 2016, Holte’s name was proposed by Birch to serve on the Georgia Court of Appeals.  However, Holte was not appointed.[3]

In 2017, Holte was hired by the University of Akron as the David L. Brennan Associate Professor of Law and Director of the Center for Intellectual Property Law and Technology.[4]  He currently serves in that capacity.

History of the Seat

Holte 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 Holte was nominated for opened up on October 21, 2013, with the completion of Judge Nancy B. Firestone’s term.  On April 10, 2014, Firestone was renominated for a second 15-year term by President Obama.[5]  While Firestone and four other nominees to the CFC were approved by the Senate Judiciary Committee unanimously on February 26, 2015, the nominations were blocked by Sen. Tom Cotton (R-AR), who argued that the CFC did not need any more judges.[6]  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 more vacancies on the Court, leaving six of the sixteen judgeships vacant by the end of the 114th Congress.[7]

In late 2016, Holte submitted his resume to the Presidential Transition team, expressing his interest in an appointment to the CFC.[8]  Holte interviewed with the White House in February 2017, and then with Congressmen John Shimkus and Mike Bost in April 2017.[9]  Holte was officially nominated on September 29, 2017.

Legal Experience

Holte’s specialty is intellectual property law.  From 2010 to 2012, Holte handled intellectual property cases at Jones Day, a large law firm with many alumni in the Trump Administration, including White House Counsel Don McGahn.  In one notable case, Holte handled motions practice on behalf of Schutz Container Systems in a patent and trademark infringement action.[10]  As an associate, Holte also argued as court-appointed appellate counsel before the Sixth Circuit on behalf on a prisoner seeking habeas relief.[11]

At the Federal Trade Commission, Holte focused on consumer protection cases, working to counter a variety of fraudulent schemes, including unfair debt collection practices, do-not-call registry violations, and time share sales fraud.[12]  For example, Holte served as lead trial counsel for the government in fighting deceptive telemarketing practices and fee practices by Resort Property Depot.[13]

In his Senate Judiciary Questionnaire, Holte has indicated that, while he has handled motions practice in many matters, he has never tried a case in court.[14]  Additionally, Holte has not practiced in the Court of Federal Claims.  Rather, his appearances in court are limited to one district court hearing involving a Temporary Restraining Order, and oral argument in his habeas appeal.[15]

Political Activity

Holte is active in the Republican National Lawyers’ Association, having volunteered as Election Day operations lawyer support in the 2012, 2014, and 2016 elections.[16]  Holte has also volunteered for many Republican candidates including Trump, Mitt Romney, Illinois Governor Bruce Rauner, Georgia Governor Nathan Deal, and Georgia Supreme Court Justice David Nahmias.[17]

Academia and Scholarship

Since leaving the Federal Trade Commission, Holte has worked in academia.  In 2013, Holte joined the faculty of Southern Illinois University School of Law.  In addition to serving as the Director of Clerkships and Special Placements, Holte taught Property Law, Patent Law, and Intellectual Property Law.[18]  After moving to the University of Akron School of Law in 2017, Holte taught Property Law in the Fall 2017 semester.[19]

Additionally, Holte has written several law review articles on issues in property and I.P. law.  As a law clerk at the CFC, Holte authored an article endorsing changes to Georgia’s long-arm statutes limiting jurisdiction over out of state sellers on auction sites such as eBay.[20]  Later, at Southern Illinois University, Holte wrote in support of patent assertion entities (PAEs), patent holders who do not practice the patents they own, which are often derided as “patent trolls.”[21]  Holte defends PAEs, using the example of the PAE, MercExchange, to argue that PAEs help individual inventors successfully defend their patents, and thus, that they help further innovation.[22]  Holte has also written pieces analyzing the Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC.,[23] and discussing patent submission deadlines.[24]

Overall Assessment

Given Holte’s focus on intellectual property law, and his lack of a paper trail on controversial issues, one could argue that his nomination would likely be uncontroversial.  However, after the withdrawals of Brett Talley and Matthew Petersen, the youth and perceived lack of experience of some Trump nominees has drawn media attention and criticism from senators of both parties.  As such, the environment is rough for a nominee who is only 34 years old and, by his own admission, has never tried a case.

To be fair, while Holte is very young, and like Schwartz, has not practiced before the CFC, he has clerked on the court.  Furthermore, while Holte hasn’t tried a case, he has served as trial counsel in pretrial matters in the Resort Property Depot case, and has appeared in court at both the trial and appellate levels.

Ultimately, whether Holte is confirmed or not depends on whether he is tied by critics to other “unqualified” nominees such as Talley and Petersen.  Holte should take comfort from one positive sign: while twenty six Trump judicial nominees (including Schiff and Schwartz) were sent back to the White House due to lack of consent, Holte was held over, suggesting that, at least so far, his nomination hasn’t attracted much opposition.


[1] Sen. Comm. on the Judiciary, 115th Cong., Ryan T. Holte: Questionnaire for Judicial Nominees 3.

[2] Philip Rucker, At Workday’s End, Interns Turn On the Schmooze, Wash. Post, Aug. 14, 2006.

[3] See id. at 17.

[4] Press Release, University of Akron, Center for Intellectual Property Law and Technology has new Director (Aug. 23, 2017).

[5] Press Release, White House, Presidential Nominations Sent to the Senate (April 10, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[6] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[7] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[8] Sen. Comm. on the Judiciary, 115th Cong., Ryan T. Holte: Questionnaire for Judicial Nominees 34.

[9] See id.

[10] Schutz Container Systems, Inc. v. Mauser Corp. and Nat’l Container, LLC., 1-09-cv-03609 (N.D. Ga.).

[11] Nali v. Phillips, 681 F.3d 837 (6th Cir. 2012).

[12] Sen. Comm. on the Judiciary, 115th Cong., Ryan T. Holte: Questionnaire for Judicial Nominees 20.

[13] FTC v. Resort Prop. Depot, 8:2013-cv-01328 (M.D. Fla.) (Holte left the FTC before the case concluded).

[14] Sen. Comm. on the Judiciary, 115th Cong., Ryan T. Holte: Questionnaire for Judicial Nominees 21.

[15] Id.

[16] Id. at 18.

[17] Id.

[18] Id. at 30-31.

[19] Id. at 31.

[20] Ryan T. Holte, What is Really Fair: Internet Sales and the Georgia Long-Arm Statute, 10 Minn. J. L. & Tech. 567, 587 (Spring 2009).

[21] Ryan T. Holte, Trolls or Great Inventors: Case Studies of Patent Assertion Entities, 59 St. Louis L.J. 1 (Fall 2014).

[22] Id. at 41-42.

[23] Ryan T. Holte and Christopher B. Seaman, Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit’s Application of eBay, 92 Wash. L. Rev. 145 (March 2017); Ryan T. Holte, The Misinterpretation of eBay v. MercExchange and Why: An Analysis of the Case History, Precedent, and Parties, 18 Chap. L. Rev. 677 (Summer 2015).

[24] Ryan T. Holte, Patent Submission Policies, 50 Akron L. Rev. 637 (2016).

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

Two months ago, I wrote on Damien Schiff, a nominee for the Court of Federal Claims (CFC).  Specifically, I called out Schiff’s youth, noting that he was only 38, and had spent less than thirteen years in practice.  Steven S. Schwartz, Trump’s second nominee for the CFC, has even less experience, having been out of law school for less than ten years.  

Background

Stephen S. Schwartz received a B.A. with Distinction from Yale University in 2005, and immediately proceeded to the University of Chicago Law School, graduating with a J.D. in 2008.[1]  After graduating, Schwartz clerked for conservative Judge Jerry Edwin Smith on the U.S. Court of Appeals for the Fifth Circuit.

After his clerkship, Schwartz joined the Washington D.C. Office of Kirkland and Ellis as a litigation associate.  After five years there, Schwartz was hired as Counsel at Cause of Action, a public interest law firm focused on FOIA and administrative law suits against the federal government.  

In November 2016, Schwartz left Cause of Action to become a partner at Schaerr Duncan LLP., a D.C> Boutique Litigation firm, that, among other matters, represented Sen. Ted Cruz in the challenge to his eligibility to run for president.  

History of the Seat

Schwartz 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 are appointed for 15-year terms.  The seat Schiff was nominated for opened up on October 21, 2013, with Judge Lynn Bush’s move to senior status.  On April 10, 2014, Thomas Halkowski, a Principal in the Delaware office of Fish & Richardson, P.C. was nominated for the vacancy by President Obama.[2]  Halkowski 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.[3]  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.[4]

Legal Experience

From 2009 to 2015, Schwartz served as a litigation associate at Kirkland & Ellis.  In this capacity, Schwartz represented large companies in trials and appeals in federal court.  For example, Schwartz was part of the legal team for UBS Securities LLC in a case involving alleged violations of the Georgia Racketeering Influenced and Corrupt Organizations Act.[5]  Schwartz also joined noted advocate Christopher Landau in an unsuccessful appeal of a jury award against Avis Budget Group Inc.[6]

In 2015, Schwartz moved to Cause of Action, challenging agency determinations that he considered abuses of discretion. During the transition, Schwartz was part of the legal team challenging FDA interpretations of exclusivity rights on behalf of pharmaceutical companies.[7]  He also represented a franchise charged with wage and hour violations by the Department of Labor.[8]

Overall Assessment

Like Damien Schiff before him, Schwartz comes from a background of legal resistance to agency determinations.  However, unlike Schiff, Schwartz does not have a long record of inflammatory blog posts.  As such, it is unlikely that Schwartz’s nomination will attract the same intensity of opposition that Schiff has.  If opposition gathers, it will be based on his youth and inexperience, rather than his political opinions.


[2] Press Release, White House, Presidential Nominations Sent to the Senate (May 14, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[3] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[4] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[5] See Raser Tech. Inc. v. Morgan Stanley & Co. LLC., 2012 U.S. Dist. LEXIS 189209 (N.D. Ga. Oct. 30, 2012).

[6] Alaska Rent-A-Car, Inc. v. Avis Budget Group, Inc., 709 F.3d 872 (9th Cir. 2013).

[7] Mylan Pharmaceuticals, Inc. v. United States Food & Drug Admin., 23 F. Supp. 3d 631 (N.D.W.V. 2014), rev’d, 594 Fed. Appx. 791 (4th Cir. 2014).  

[8] Rhea Lana, Inc. & Rhea Lana’s Franchise Systems Inc. v. Dep’t of Labor, 824 F.3d 1023 (D.C. Cir. 2016).

Damien M. Schiff – Nominee to the U.S. Court of Federal Claims

Among the ten nominees that Trump jointly named on May 8, Damien Schiff stands out for his relative youth.  Schiff is only thirteen years out of law school, and has spent virtually his entire legal career in one position: working for the libertarian Pacific Legal Foundation.  Even though Schiff has not been named to a lifetime appointment, his youth, in addition to his political background, and some inflammatory writings, may create resistance to his nomination.

Background

Damien Michael Hennessy Schiff was born in San Jose, California in 1979.  After getting a B.A. from Georgetown University and a J.D. from the University of San Diego Law School, Schiff clerked for Judge Victor Wolski on the U.S. Court of Federal Claims.  

After his clerkship, Schiff joined the Pacific Legal Foundation as a staff attorney.  Other than a brief stint as counsel at Alston & Bird LLP., he has worked at the Pacific Legal Foundation ever since, becoming a Senior Staff Attorney in 2011, a Principal Attorney in 2012, and a Senior Attorney in 2017.  

In February 2017, Schiff reached out to the White House Counsel’s Office, indicating his interest in an appointment to the Court of Federal Claims.  After follow-up interviews with the Counsel’s Office and the Department of Justice, Schiff was nominated on May 8, 2017.[1]

History of the Seat

Schiff 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 are appointed for 15-year terms.  The seat Schiff was nominated for opened up in August 2013, with the retirement of Judge George W. Miller.  On May 14, 2014, Jeri Kaylene Somers, a judge on the Civilian Board of Contract Appeals was nominated for the vacancy by President Obama.[2]  In February 2015, Somers and four other nominees to the Court were approved by the GOP-led 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.[3]  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 at the inauguration of the Trump Administration.[4]   Schiff is the first nominee Trump has put forward for the CFC.

Legal Experience

From 2005 to 2017, Schiff served as an attorney for the Pacific Legal Foundation, a public interest law firm that litigates cases involving public interest takings, property rights, and environmental regulation.  Schiff focused most of his career on the latter, litigating and advocating against environmental regulations.

Schiff was the counsel of record in Sackett v. EPA, a case clarifying whether compliance orders issued by the EPA were subject to judicial review under the Administrative Procedure Act.[5]  The Sacketts, an Idaho couple, were issued a compliance order under the Clean Water Act by the EPA, for filling in wetlands to build a home.  The Sacketts sought to challenge the jurisdictional basis of the compliance order, but were ruled against by the trial court and the Ninth Circuit.  The Supreme Court, in an opinion by Justice Scalia, unanimously reversed, holding that the Sacketts had the right to challenge the compliance orders.[6]

Schiff has represented both governmental and business plaintiffs in challenging state and federal environmental regulations.  Schiff unsuccessfully argued to overturn a veto by the Bush EPA of a proposed flood control project that would lead to the discharge of pollutants.[7]   Schiff also unsuccessfully challenged the EPA’s designation of critical habitat for 18 vernal pool species.[8]  He also unsuccessfully challenged California’s designation of two salmon species as endangered.[9]

While the bulk of Schiff’s legal experience has been focused on environmental law, he also successfully challenged a local campaign finance initiative that banned non-local corporations from spending money in county elections.[10]

Speeches and Writings

From 2007-2009, Schiff maintained a personal blog titled Omnia Omnibus.  In this forum, Schiff discussed his views on public policy, politics, and the law, generally from a religious lens.  For example, in one post, Schiff suggests that, for Catholic voters, a candidate’s view on abortion should generally trump other social and moral issues.[11]  In another, Schiff describes the nomination of the Catholic (but pro-choice) Tom Daschle to be Secretary for Health and Human Services as a “poke in the eye to the [Catholic] bishops.”[12] 

The blog also lays out many strongly religious political views.  In one post, Schiff defends the right of Catholic universities to ban pro-choice speakers and viewpoints from campus.[13]  In another, Schiff argues that public schools should not teach students that homosexual families are the “moral equivalent of heterosexual families.”[14]  In this post, Schiff goes on to state that he would have objected to the teaching of an anti-racism curriculum in 1950s Arkansas.[15]  He goes onto advocate allowing parents to stop paying taxes to public schools, noting: “Why should folks have to pay for somebody else’s education, or for facilities that they themselves do not use?”[16]

One of Schiff’s blog posts has already drawn significant attention in the media.  In a blog post from June 29, 2007, Schiff describes Supreme Court Justice Anthony Kennedy as a “judicial prostitute.”[17]  While the language was used in criticism of Kennedy’s swing-vote status, its intemperate wording has already drawn criticism from liberal groups.[18]

Overall Assessment

If Schiff had been named to a lifetime appointment, rather than to the CFC, his writings and background would have guaranteed an explosive confirmation fight.  In fact, given the blue slip rules, it is unlikely Schiff would have been approved to a seat on the federal bench in California (where he resides).  Given the CFC’s limited jurisdiction, it is possible that Senate Democrats may choose to save their powder, and focus on fighting Article III appointments.  

That being said, Schiff’s confirmation to the CFC could nonetheless open up a lifetime appointment.  Judge Alex Kozinski of the Ninth Circuit and former Judge Randall Rader of the Federal Circuit both served as CFC judges before their appellate appointments.  At 38, Schiff is young enough to be elevated in a few years to an appellate court, and potentially even further.  

As such, it is incumbent on the Senate Judiciary Committee to carefully probe Schiff’s writings, and ensure that his strongly held political views would not affect his rulings as a judge.  It also falls upon Schiff to clarify some of the more aggressive opinions he has taken, particularly his reference to Justice Kennedy as a “judicial prostitute.”  After all, every litigant, regardless of whether they are before the Supreme Court, or the CFC, deserves an impartial and qualified judge.


[1] Press Release, White House, President Donald J. Trump Announced Judicial Candidate Nominations (May 8, 2017) (on file at www.whitehouse.gov/the-press-office).

[2] Press Release, White House, Presidential Nominations Sent to the Senate (May 14, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[3] Jordain Carney, Cotton Blocks Senate From Approving Federal Claims Judges, The Hill, July 14, 2015, http://thehill.com/blogs/ballot-box/247934-cotton-blocks-senate-from-approving-federal-claims-judges.

[4] Daniel Wilson, Claims Court a Quiet Victim of Senate Nomination Deadlock, Law360, July 18, 2016, https://www.law360.com/articles/817931/claims-court-a-quiet-victim-of-senate-nomination-deadlock.

[5] Sackett v. EPA, 132 S. Ct. 1367 (2012).

[6] Id.

[7] Bd. of Miss. Levee Comm’rs. v. EPA, 674 F.3d 409 (5th Cir. 2012).

[8] Home Builders Ass’n of N. Cal. v. U.S. Fish & Wildlife Serv., 616 F.3d 983 (9th Cir. 2010).

[9] Cal. Forestry Ass’n v. Cal. Fish & Game Comm’n, 68 Cal. Rptr. 3d 391 (2007).

[10] Mercer, Fraser Co. v. County of Humboldt et al., No. C 08-4098, 2008 WL 4344523 (N.D. Cal. Sept. 22, 2008).

[11] Damien Schiff, Chaput on Obama, Omnia Omnibus, Oct. 20, 2008, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-Attachments-Final-1511.pdf.

[12] Damien Schiff, Daschle at HHS?, Omnia Omnibus, Nov. 19, 2008, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-Attachments-Final-1503.pdf.

[13] Damien Schiff, Unknown Title, Omnia Omnibus, Unknown Date, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-1487-1488.pdf.

[14] Damien Schiff, Teaching “Gayness” in Public Schools, Omnia Omnibus, May 17, 2009, http://www.afj.org/wp-content/uploads/2017/05/Schiff-SJQ-1487-1488.pdf.

[15] Id. (“…not that I approve of racism, but that, as a prudential matter, the best way to get people to drop their racist views would not be to force the teaching of their children.”) (emphasis in original).

[16] Id.

[17] Seung Min Kim, Trump Nominee Called Kennedy Judicial Prostitute, Politico, May 26, 2017, http://www.politico.com/story/2017/05/26/trump-judicial-nominee-justice-kennedy-slight-damien-schiff-238874.

[18] Id. (Quoting Nan Aron) (“Mr. Schiff clearly lacks the judicial temperament necessary to be a judge…”).