Other Courts

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.

104 CommentsLeave a comment

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.

8 CommentsLeave a comment

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

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

Background

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

History of the seat

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

Legal Career

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

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

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

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

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

Speeches and Writings

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

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

Overall Assessment

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

7 CommentsLeave a comment

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.

0 CommentsLeave a comment

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.

0 CommentsLeave a comment

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).

0 CommentsLeave a comment

Zachary Somers – 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.  The nomination of Zachary Somers, who is a Senate staffer, may move faster, however.

Background

Zachary Noah Somers received a B.A. cum laude from Georgetown University and received a J.D. from Georgetown University Law Center in 2004.  After graduating, Somers clerked for Judge Victor Wolski on the U.S. Court of Federal Claims.

After his clerkship, Somers joined the Washington D.C. Office of Marzulla Law, LLC, where he worked on takings and breach of contract claims.  He then became Counsel at the House Committee on the Judiciary, where he served for a decade.  

Chairman Lindsey Graham has hired Somers to be his Chief Investigative Counsel for the Senate Judiciary Committee, where Somers currently works. 

History of the Seat

Somers 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 Somers was nominated will open on October 23, 2020, with Judge Thomas Wheeler’s term coming to an end.

Legal Experience

Somers started his legal career clerking and then worked in litigation at Marzulla Law, LLC., a boutique law firm.  For example, while at the firm, Somers helped litigate a lawsuit involving a challenge to the federal government’s grant of federal trust to 6.9 acres of Indian land.[1]

For the last decade, Somers has been working on Capitol Hill, working as a Counsel for the House Committee for the Judiciary, and then for the Senate Committee on the Judiciary.  In the latter role, Somers led the Committee’s investigations of the Roger Stone arrest,[2] and of Secretary of State Hillary Clinton’s use of private email servers.[3]

Writings

In 2003 and 2004, Somers served as Editor in Chief for the Georgetown Journal of Law and Public Policy.  As Editor in Chief, Somers authored a preface to the Winter 2004 edition arguing that the journal should maintain itself as a forum for conservative thought and writings.[4] 

In another article in the same issue, Somers criticized the Supreme Court’s decision in Everson v. Bd. of Educ. that erected a wall of separation between church and state, arguing that such an interpretation violated the original understanding of the First Amendment.[5]  Instead, Somers argued for a return to the original understanding of the First Amendment, which limited the Establishment Clause to the federal government, and permitted state governments to involve themselves more closely in religious activities.[6]

Overall Assessment

Generally, senate staffers who are nominated for the bench are given a certain amount of deference, as they have worked closely with colleagues who need to approve their confirmation.  Somers should benefit from such deference.  While Somers is sure to attract opposition for his role in Senate investigations and for his writings, he will nonetheless likely be expedited through the process and be confirmed by the end of the year.

[1] Pres. of Los Olivos v. United States DOI, 635 F. Supp. 2d 1076 (C.D. Cal. 2008).

[2] See Press Release, Office of Sen. Lindsey Graham, Graham: FBI Needs to Brief Committee on Roger Stone Arrest, Jan. 30, 2019.

[3] See BFH, Strzok: Clinton, DOJ Struck Deal that Blocked FBI Access to Clinton Foundation Emails on Her Private Server, iOTWreport, Mar. 15, 2019.

[4] See Zachary N. Somers, PREFACE, 2 Geo. J. L. & Pub. Pol’y 1 (Winter 2004).

[5] Zachary N. Somers, The Mythical Wall of Separation: How the Supreme Court Has Amended the Constitution, 2 Geo. J. L. & Pub. Pol’y 265 (Winter 2004).

[6] See id. at 281-82.

3 CommentsLeave a comment

Thompson Dietz – 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, with three of the nominees withdrawing before confirmation.  The latest nominee is New Jersey lawyer Thompson Dietz.

Background

The 40-year-old Thompson Michael Dietz graduated from Clemson University in 2001 and received a J.D. from Tulane University Law School in 2005.[1] 

After graduating law school, Dietz worked as a Senior Contracts Representative at the aerospace and defense company General Dynamics.[2] In 2011, Dietz joined CohnReznick LLP as Associate Counsel, where he has worked ever since.  

History of the Seat

Dietz 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 Dietz was nominated for opened up on July 13, 2018, with the retirement of Judge Victor Wolski.

Legal Experience

Dietz’s specialty is government contracts law.  He started his career at the defense contracting company General Dynamics, where he worked on negotiating and managing government contracts.[3] 

Since 2011, Dietz has worked at CohnReznick LLP, an accounting, tax, and advisory firm, serving as lead counsel in the firm’s government and public sector group.[4]  Dietz also worked on data privacy issues with the law.[5]  Dietz’s career at the firm seems to have focused on regulatory and compliance issues, rather than litigation.

Overall Assessment

Dietz does not have a paper trail of controversial issues, and his government contracts practice is well within the wheelhouse of the Court of Federal Claims.  While he may face questions for having a career focusing on regulatory compliance rather than litigation, Dietz should be able to avoid major issues in confirmation.

[1] Charles Toutant, Trump Nominates New Jersey In-House Lawyer at CohnReznick to Federal Claims Court, Law.com, June 15, 2020, https://www.law.com/njlawjournal/2020/06/15/trump-nominates-new-jersey-in-house-lawyer-at-cohnreznick-to-federal-claims-court/.

[2] Id.

[3] See id.

[4]  See id.

[5] Id.

2 CommentsLeave a comment

Kathryn Davis – Nominee to the U.S. Court of Federal Claims

Kathryn Davis may only be 42, but her time with the Federal Programs Branch has involved her in some very significant cases.  

Background

Born Kathryn Celia Mason in Miami in 1978, Davis received a B.S. from Boston University and a J.D. from Temple University Beasley School of Law.[1]  After graduation, Davis joined McKissock & Hoffman P.C. in Philadelphia as an associate.[2]

After two years at McKissock and a year at Burns White LLC, Davis moved to Washington D.C. to become a trial attorney with the Federal Programs Branch of the Civil Division of the U.S. Department of Justice.  Since 2014, Davis serves as a Senior Counsel in that Branch.[3] 

Additionally, Davis has been a Professor at the George Washington University School of Law since 2018, where she teaches Legal Research and Writing.[4]

History of the Seat

Davis 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 Davis was nominated for opened up on July 13, 2018, with the conclusion of the term of Judge Charles Lettow.

In February 2018, Davis was contacted by the White House regarding a vacancy on the CFC.  While she was interviewed in February 2018, she wasn’t selected as a nominee at the time.[5]  In June 2019, Davis was contacted again by the White House, and, this time, her nomination moved forward.  Davis was ultimately nominated on February 4, 2020.

Legal Experience

As an attorney with the Federal Programs Branch, Davis litigates cases across the country that challenge the Administration’s policies and initiatives.  To this end, Davis has litigated some very contentious political issues, defending both Obama and Trump Administration policies.

Detention in Guantanamo Bay

Across the Bush, Obama, and Trump Administrations, Davis handled a number of challenges to detention brought by detainees held in the Guantanamo Bay Detention Facility.[6] Notably, Davis defended the government’s policy of force-feeding Guantanamo Bay detainees who were on hunger strikes to protest government policies.[7]  Judge Rosemary Collyer sided with Davis’ position and denied an injunction to block the Government policy.[8]

Policy Defense

In addition to her work on Guanatanamo detention cases, Davis has litigated a number of contentious challenges to Administration policies.  For example, Davis defended the Administration’s decision to rescind the Deferred Action for Childhood Arrivals (DACA) program.[9]  She also defended the Administration’s building of border fencing and barriers against a court challenge brought by the U.S. House of Representatives.[10]

Writings

As a law student, Davis authored a law review article discussing the Supreme Court’s decision in Sattazahn v. Pennsylvania.[11]  The article was critical of the 5-4 opinion, which held that the State of Pennsylvania was not barred from seeking the death penalty for a defendant when a previous jury had deadlocked and was unable to decide whether to impose the death penalty.[12]  Specifically, Davis argued that the court “failed to safeguard the interests of a defendant who receives a life sentence, as mandated by state law, after a jury deadlocks on the life or death question in a capital sentencing proceeding.”[13]

Additionally, Davis noted the “unique, final nature of the death penalty” which “increases the need for double jeopardy protection” for defendants.[14]  Davis notes:

“Disregarding the Double Jeopardy Clause in capital sentencing does not mean just a wrongful conviction; it could mean the wrongful imposition of death.”[15]

Instead, Davis advocates that the Supreme Court hold that the Double Jeopardy Clause bars a state from seeking the death penalty in a subsequent trial where the initial sentencing jury failed to impose the death penalty.[16]

Overall Assessment

Trump’s CFC nominees in particular have drawn criticism for their youth and inexperience.  Davis, in contrast, may be young, but also has substantial experience with complex litigation.  While Davis may draw some criticism for her role in defending the Trump Administration’s initiatives, it must be noted that she is a career attorney who also played a role in defending the Obama Administration’s priorities as well.

[1]  Sen. Comm. on the Judiciary, 116th Cong., Kathryn Davis: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] See id. at 22.

[5] See Davis, supra n. 1 at 24.

[6] See, e.g., Al Madhwani v. Obama, No. 04-cv-1194 (D.D.C.) (Hogan, J.); Al-Qahtani v. Bush, No. 05-cv-1971 (D.D.C.) (Collyer, J.); Esmail v. Obama, No. 05-cv-1254 (D.D.C.) (Kennedy, J.); Mingazov v. Obama, No. 05-cv-2479 (D.D.C.) (Kennedy, J.) (Hogan, J.).

[7] Rabbani v. Obama, 76 F. Supp. 3d 21 (D.D.C. 2014).

[8] See id. at 22.

[9] See NAACP v. Trump, 139 S.Ct. 2779 (2019).

[10] See U.S. House of Representatives v. Mnuchin, 379 F. Supp. 3d 8 (D.D.C. 2019).

[11] Kathryn C. Mason, Life Or Limb: The Supreme Court’s Apathy Toward Capital Offenders Sentenced to Life Imprisonment By Operation of Law, 14 Temp. Pol. & Civ. Rts. L. Rev. 307 (Fall 2004).

[12] See Sattazahn v. Pennsylvania, 537 U.S. 101 (2003).

[13] See Mason, supra n. 11 at 320.

[14] See id.

[15] Id.

[16] See id. at 321.

0 CommentsLeave a comment

Edward Meyers – Nominee to the U.S. Court of Federal Claims

Commercial litigator Edward Meyers is one of President Trump’s nominees to the U.S. Court of Federal Claims, a court undergoing a significant amount of turnover in the last few years.

Background

Edward Hulvey Meyers was born in Washington D.C. in 1972.  Meyers received a B.A. from Vanderbilt University in 1995 and a J.D. from Catholic University Columbus School of Law in 2005, after spending the intervening years as an engineer.[1]  After law school, Meyers clerked for Judge Loren Smith on the U.S. Court of Federal Claims before joining the D.C. office of Kirkland & Ellis as an associate.[2]  In 2012, Meyers joined Stein Mitchell Beato & Missner LLP as a Partner, where he currently practices.

History of the Seat

Meyers 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 Meyers was nominated for opened up on January 8, 2016, with Judge Lawrence Block’s move to senior status.  On January 23, 2018, President Trump nominated Federal Trade Commission member Maureen Ohlhausen to fill the vacancy.  While Ohhlausen’s nomination passed through the Senate Judiciary Committee on a party line vote, she did not receive a vote before the end of the 115th Congress.  In December 2018, Ohlhausen withdrew her nomination.[3]

In March 2019, Meyers was contacted by the White House to gauge his interest in an appointment to the CFC.[4]  Meyers was nominated in October 2019.

Legal Activity

Meyers has spent his career at the firms of Kirkland & Ellis and Stein Mitchell Beato & Missner LLP.  At both firms, Meyers worked primarily in commercial litigation, generally representing corporations and other commercial entities in contract, securities, and other similar claims.  Over the course of his career, Meyers tried one jury trial and two bench trials.[5]  Notably, Meyers served as an attorney for a class of plaintiffs who filed suit against CVS Pharmacy, Inc. alleging the misrepresentation of generic drug pricing when submitting claims to insurance providers.[6]

In a more politically sensitive matter, Meyers represented Wisconsin entities targeted in “John Doe” investigations.[7]  The investigations targeted conservative entities who were alleged to have coordinated with Gov. Scott Walker in violation of state law.[8]  The investigations were eventually ended by the conservative majority of the Wisconsin Supreme Court, who held that state law did not regulate issue advocacy.[9] 

Overall Assessment

In comparison to many of Trump’s other nominees to the CFC, Meyers has extensive experience with the issues that come before the specialized court.  As such, while Meyers may face questions regarding his representation in the John Doe cases, he is unlikely to face much opposition en route to confirmation.

[1]  Sen. Comm. on the Judiciary, 116th Cong., Edward Meyers: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Ryan Lovelace, FTC’s Ohlhausen to Join Baker Botts, Bypassing Judicial Nomination, Nat’l Law Journal, Dec. 6, 2018, https://www.law.com/nationallawjournal/2018/12/06/ftcs-ohlhausen-to-join-baker-botts-bypassing-judicial-nomination/.  

[4] See Meyers, supra n. 1 at 33.

[5] See id. at 11.

[6] Corcoran v. CVS Health Corp., No. 17-16996, — Fed. Appx. — (9th Cir. June 12, 2019).

[7] See Dee J. Hall, Targets Seek Stay of Investigation into Walker’s Recall Campaign, Other Groups; Three Unidentified Parties Want a Judge to Suspend the John Doe Inquiry, Wisc. State Journal, Nov. 20, 2013.

[8] See id.

[9] Wisconsin ex rel. Two Unnamed Petitioners v. Peterson, 363 Wis.2d 1 (2015). 

1 CommentLeave a comment