Matthew Solomson – 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 to just five that are filled.  There are multiple reasons behind the high number of vacancies, including the obstruction of five qualified nominees under President Obama.  Furthermore, the Trump Administration has been slow to nominate judges to the CFC.  Additionally, three of the nominees the Administration has put forward have withdrawn before confirmation.  In comparison, Matthew Solomson, the latest nominee, looks to have a brighter future.

Background

Matthew Hillel Solomson was born in Hartford, Connecticut in 1974.  Solomson graduated cum laude from Brandeis University in 1995 and received a joint JD/MBA from the University of Maryland Law School/School of Business in 2002.[1]

After graduating law school, Solomson clerked on the CFC for Judge Francis Allegra, and then joined the D.C. office of Arnold & Porter as a Government Contracts Associate, where he stayed until 2007 (barring a year at Skadden Arps doing patent work).  In 2007, Solomson joined the Commercial Litigation Branch of the Department of Justice.[2]

In 2011, Solomson joined Sidley Austin as Counsel and a year later moved to Booz Allen Hamilton as Associate General Counsel.  Since 2015, Solomson has served as Chief Legal Officer of Federal Governmental Solutions at Anthem, Inc., a health insurance company.[3]

History of the Seat

Solomson 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 Solomson was nominated for opened up on October 21, 2013, with the retirement of Judge Emily Hewitt.  On May 21, 2014, President Obama nominated Patricia McCarthy, a lawyer with the U.S. Department of Justice, to fill the vacancy.[4]  While McCarthy 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.[5]  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.[6]

In late 2016, Solomson submitted his resume to the Presidential Transition team, expressing his interest in an appointment to the CFC.[7]  Solomson interviewed with the White House in April 2017, and was selected for further vetting in April 2018.[8]  Solomson was officially nominated on March 5, 2019.

Legal Experience

Solomson’s specialty is government contracts law.  Throughout his career, Solomson has focused on procurements, regulatory compliance, and other areas involved in government contracts at Sidley Austin, Booz Allen, and Anthem.  Over his career, Solomson has tried four cases, including two as counsel of record.[9]

Among his more prominent cases, Solomson successfully argued before the Federal Circuit that a federal employee’s due process rights were violated when he was removed without having an opportunity to challenge ex parte communications against him.[10]

Political Activity

Solomson has a limited political history, having donated $1000 to then candidate Mitt Romney in 2012.[11]

Overall Assessment

Given Solomson’s focus on government contracts law, and his lack of a paper trail on controversial issues, he is unlikely to draw the same degree of controversy as other CFC nominees.  However, given the general lack of emphasis on CFC nominations under the Administration and the Senate, I wouldn’t expect a quick confirmation for Solomson.


[1] Sen. Comm. on the Judiciary, 115th Cong., Matthew Solomson: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] See id.

[4] Press Release, White House, Presidential Nominations Sent to the Senate (May 21, 2014) (on file at https://obamawhitehouse.archives.gov/the-press-office).

[5] 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.

[6] 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.

[7] Sen. Comm. on the Judiciary, 115th Cong., Ryan T. Solomson: Questionnaire for Judicial Nominees 29-30.

[8] See id.

[9] Id. at 17.

[10] Young v. Dep’t of Hous. and Urban Dev., 706 F.3d 1372 (Fed. Cir. 2013).

M. Miller Baker – Nominee for 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.  However, M. Miller Baker, a conservative attorney with a history of lawsuits on election law and voting law, may find himself an exception to that rule.

Background

Maurice Miller Baker was born in Houma, Louisiana, in 1962.  Baker did not graduate from college, although he attended Nicholls State University and Louisiana State University, and was accepted to Tulane University Law School in 1981 under an accelerated program.[1]  After graduating, Baker clerked for Judge John M. Duhe on the U.S. District Court for the Western District of Louisiana, and then for Judge Thomas Gee on the U.S. Court of Appeals for the Fifth Circuit.[2]

After his clerkships, Baker joined the Department of Justice, working in the Office of Legal Policy and the Civil Rights Division before leaving in 1989 to go into private practice.[3]  In 1991, Baker joined the staff of U.S. Sen. Orrin Hatch on the Senate Judiciary Committee.[4]

In 1993, Baker joined Carr Goodson Warner P.C. as an Associate and became a Partner in 1996.  In 2000, he moved laterally to McDermott Will & Emery LLP, where he serves as a Partner today.

In 2006, Baker was one of five people recommended by Virginia Senators to serve on the U.S. District Court for the Eastern District of Virginia (fellow Trump nominee Rossie Alston was another name on the list).[5]  The Bush Administration selected U.S. Magistrate Judge Liam O’Grady instead.

History of the Seat

Baker has been nominated for a seat vacated by Judge Donald Pogue, an appointee of President Bill Clinton, on July 1, 2014.  President Obama nominated Jeanne Davidson to fill the vacancy on July 30, 2015, but Davidson was never processed by the Republican-controlled Senate.  While Davidson was supported by a unanimous Senate Judiciary Committee vote, she never received a final confirmation on the Senate floor.

In April 2017, Baker was contacted by the White House to discuss a judicial appointment.[6]  Baker interviewed with the Department of Justice in September 2017 and was nominated on June 18, 2018.

Political Activity

Baker has a long political history, including his run as a Republican against Virginia State Senator George Barker in 2011.[7]  In the campaign, Baker highlighted his Federalist Society membership and ran as a “proven conservative,” running on lowering taxes and improving teacher pay.[8]  Ultimately, Baker lost, getting 47% of the vote.[9]

Other than his own run, Baker has volunteered and provided legal services to several Republican campaigns, including those of Ken Cuccinelli, Mark Obenshain, George Allen, David Vitter, Orrin Hatch, John Ashcroft, and James Gilmore.[10]  In his youth, Baker was a Democrat, having volunteered for the Carter-Mondale campaign in 1980 and serving as a member of the Young Democrats of Louisiana.[11]

Legal Experience

Baker has had a fairly distinguished legal career, including arguing three cases before the U.S. Supreme Court.  In his first case before the Court, Baker successfully won a unanimous decision that Louisiana’s open primary law violated federal statutes by allowing members of Congress to be chosen up to a month before the uniform election day.[12]  In the second, Beck once again won unanimously, with the Supreme Court finding that his client, a bankruptcy trustee, did not breach his fiduciary duty to his clients.[13]  In the third, Baker represented Arthur Andersen LLP in arguing that the company could seek to stay a federal lawsuit against it pending arbitration proceedings even where it was not a signatory to the arbitration agreement.[14]  The Supreme Court agreed in a 6-3 opinion.[15]

In addition to his Supreme Court work, Baker has been particularly active in suits regarding voting regulations.  For example, Baker represented Concerned Women of America, a conservative group, in seeking to distribute campaign materials without registering as a political committee.[16]  Baker also led an unsuccessful challenge to Oregon’s vote by mail process,[17] and to Texas laws permitting early voting.[18]

Overall Assessment

While nominations to the Court of International Trade are usually non-controversial, Baker’s is likely to draw opposition.  Specifically, Baker is likely to be challenged regarding the voting lawsuits he has brought, and specifically the contention that early voting and that vote by mail violates federal law.  Given the ubiquity of early voting (to a much greater degree than existed at the time of the suit), most reasonable observers would agree that the practice is both legal and constitutional.  As such, senators will most likely probe Baker’s views on the subject.

At the same time, Baker is being nominated to a specialized court.  While he may have the opportunity to “sit by designation”, on the Court of International Trade, Baker’s views on voting are unlikely to play much role.  As such, Democrats may choose to save their fire and focus their attention on nominees likely to cause more damage.

Note: A previous version of this article incorrectly stated that judges on the Court of International Trade do not have lifetime tenure. They do.


[1] Sen. Comm. on the Judiciary, 115th Cong., M. Miller Baker: Questionnaire for Judicial Nominees 1.

[2] See id. at 3.

[3] Id. at 2.

[4] Id.

[5] Alan Cooper, U.S. Senators John W. Warner and George Allen Name Alexandria Federal Nominees, Virginia Lawyers Weekly, May 8, 2006.

[6] See id. at 48-49.

[7] Christy Goodman, Voters to See Redrawn Election Districts, Wash. Post, May 12, 2011.

[8] State Senate District 39, Wash. Post, Aug. 18, 2011.

[9] See Baker, supra n. 1 at 21-22.

[10] Id. at 22.

[11] Id.

[12] Foster v. Love, 522 U.S. 67 (1997).

[13] Beck v. PACE Int’l Union, 551 U.S. 96 (2006).

[14] Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009).

[15] See id.

[16] Rajiv Chandrasekharan, Conservatives Sue Va. and Democrats; Groups Seek Protection For Election Material, Wash. Post, Oct. 10, 1995.

[17] See Voting Integrity Project et al. v. Bomer, 61 F. Supp. 2d 600 (S.D. Tex. 1999).

[18] Voting Integrity Project et al. v. Keisling, 1999 U.S. Dist. LEXIS 22727 (D. Ore. Mar. 22, 1999).

Timothy Reif – Nominee to the U.S. Court of International Trade

Nominations to the U.S. Court of International Trade, which hears cases involving international trade and customs laws, have generally not drawn the level of rancor that other judicial nominations have.  The last Obama judicial nominees confirmed by a Republican Senate in 2016, for example, were two selections for the Court of International Trade.  Timothy Reif, tapped by President Trump to fill a longstanding vacancy on the court, looks likely to maintain that tradition.

Background

Timothy Mark Reif was born in New York City on April 12, 1959.  Reif attended Princeton University and Columbia Law School.[1]  He was also a Fulbright Scholar, spending a year in Egypt.

After graduating law school, Reif joined Milbank Tweed Hadley & McCloy LLP as an Associate.[2]  In 1987, Reif joined the U.S. Trade Commission as an Attorney Advisor, and, in 1989, moved to the Office of the U.S. Trade Representative.[3]

In 1993, Reif joined the House Committee on Ways and Means as Trade Counsel.  He left in 1995 after Republicans took control of Congress to join Dewey Ballantine LLP as Special International Trade Counsel.[4]  In 1998, he returned to the Committee to serve as Chief International Trade Counsel, where he stayed until 2009.

In 2009, Reif joined the Office of the U.S. Trade Representative as General Counsel.[5]  In 2017, he became Senior Advisor to the Trade Representative, where he serves today.

History of the Seat

Reif has been nominated for a seat vacated by Judge Richard Eaton, an appointee of President Bill Clinton, on August 22, 2014.  President Obama nominated Elizabeth J. Drake, a D.C. based attorney, to fill the vacancy on July 30, 2015, but Drake was never processed by the Republican-controlled Senate.  While Drake was supported by a unanimous Senate Judiciary Committee vote, she never received a final confirmation on the Senate floor.

In the Fall of 2017, U.S. Trade Representative Robert Lighthizer recommended Reif for an appointment to the U.S. Court of International Trade.[6]  Reif interviewed with the White House in December 2017 and was nominated on June 18, 2018.

Political Activity

Reif has been a lifelong Democrat, volunteering for Ted Kennedy’s Presidential campaign in 1980, and volunteering for the Presidential campaigns of John Kerry and Barack Obama.[7]  Reif also donated to the campaign of Hillary Clinton in 2016.[8]

Legal Experience

Throughout his career, Reif has taken on many different positions, working with the U.S. Trade Representative, in Congress, and in private practice.

U.S. Trade Representative

Between 1989 and 1993, and, since 2009, Reif has worked for the U.S. Trade Representative, negotiating trade agreements and representing the United States in international tribunals.  Notably, Reif is one of the few Obama Administration officials to continue to serve to this day in the Trump Administration.

As general counsel to the U.S. Trade Representative, Reif challenged European Union subsidies offered to Airbus, arguing that they were intended to undercut competition from Boeing.[9]  Reif also defended U.S. Country of Origin labeling and Dolphin-Safe Tuna labeling against challenges from Canada and Mexico respectively.[10]

Committee on Ways and Means

From 1993 to 1994, and then from 1998 to 2009, Reif worked for the House Committee on Ways and Means, advising members on trade issues.  Reif’s tenure coincided with both Democratic and Republican majorities on the Committee, during the latter of which, Reif served as lead Democratic trade counsel.  During this time, Reif helped work on a bill normalizing trade relations with Vietnam.[11]

Private Practice

From 1995 to 1998, Reif worked as Special International Trade Counsel at Dewey Ballantine.  In that position, Reif represented clients working with the U.S. Trade Representative and the U.S. Department of Agriculture.  During that time, Reif was also involved in a fierce dispute over two paintings by Austrian painter Egon Schiele.[12]  The paintings were once owned by his ancestor Fritz Grunbaum and were seized by the Nazis after Grunbaum was sent to a concentration camp.[13]  Reif sought a claim to heirship of the paintings, under display in the Leopold Foundation in Vienna.[14]

Overall Assessment

As noted above, nominations to the Court of International Trade are usually non-controversial.  Reif’s is likely to particularly so, given his Democratic pedigree and his broad experience with issues of international trade.  As such, Reif is likely to secure a near unanimous confirmation to this unique tribunal.


[1] Sen. Comm. on the Judiciary, 115th Cong., Timothy M. Reif: Questionnaire for Judicial Nominees 1.

[2] See id. at 2.

[3] Id. at 1.

[4] Id. at 2.

[5] See id. 

[6] See id. at 55-56.

[7] See Reif, supra n. 1 at 41.

[9] Nicola Clark, Trade Group Rules Broadly for Boeing; Airbus Got Subsidies for all Planes, But Not All Were Illegal, WTO Says, Int’l Herald Tribune, July 1, 2010.  

[10] Tim Carman, Tuna, Meat Labels Face International Challenges, Wash. Post, Jan. 11, 2012.

[11] David J. Lynch, Vietnam Trade Bill Grinds to a Halt; Bush Will Show Up For Visit Overseas Empty-Handed as Vote Delayed Until December, USA Today, Nov. 15, 2006.

[12] Judith B. Dobrzynski, More Paintings by Schiele Face Ownership Questions, N.Y. Times, Jan. 15, 1998.

[13] See id.

[14] Judith B. Dobrzynski, German Court Revokes Ruling on Ownership of a Schiele Painting, N.Y. Times, Apr. 16, 1998.

Richard Hertling – Nominee to the U.S. Court of Federal Claims

So far, the Trump Administration has largely chosen relatively young attorneys to name to the U.S. Court of Federal Claims (CFC), a specialized court focusing on claims against the U.S. government.  This hasn’t worked out too well for the Administration, which has been forced to withdraw two nominees due to bipartisan opposition, and has seen two more stuck.  As such, their latest nominee, Richard Hertling, can be seen as a bit of a retooling.  While Hertling possesses the requisite level of experience for the position, his long tenure in Washington may nonetheless open him up to attacks.

Background

Richard Alan Hertling was born in New York City on January 25, 1960.  Hertling graduated magna cum laude from Brown University in 1982 and from the University of Chicago Law School in 1985.[1]  After graduation, Hertling clerked for Judge Henry Politz for the U.S. Court of Appeals for the Fifth Circuit.[2]

After his clerkship, Hertling joined the Federal Programs Branch of the Department of Justice.  In 1990, he joined the House Judiciary Committee as Minority Counsel for the Subcommittee on the Constitution.[3]  Three years later, he became Minority Chief Counsel and Staff Director for the Subcommittee on Technology and the Law.  After Republicans took control of the House in 1994, Hertling became Chief Counsel and Staff Director for the Subcommittee on Terrorism, Technology, & Government Information.[4]

In 1997, Hertling moved over to the Senate to work for the Committee on Governmental Affairs as Chief Counsel.  Two years later, newly elected Republican Senator Peter Fitzgerald hired Hertling to serve as his Chief of Staff.[5]  He held this position until 2002, when he became Minority Staff Director on the Committee on Governmental Affairs.

In 2003, after a brief stint working for Sen. Lamar Alexander (R-TN), Hertling became Deputy Assistant Attorney General at the Office of Legal Policy.[6]  He became the Principal Deputy in 2005.

In 2007, Hertling moved to the Office of Legislative Affairs at DOJ, before leaving to join Friends of Fred Thompson, who was running for President.  In 2008, after Thompson’s loss, Hertling joined the House Judiciary Committee, where he stayed for the next five years.

Since 2013, Hertling has served as Of Counsel at Covington & Burling.

History of the Seat

Hertling 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 Hertling was nominated for opened up on August 6, 2013, with the with the retirement of Judge George 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.[7]  Somers 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.[8]  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 in the 114th Congress, leaving six of the sixteen judgeships vacant.[9]

The Trump Administration nominated Damien Schiff, a Senior Attorney at the Pacific Legal Foundation, on May 8, 2017, to fill this vacancy.[10]  However, Schiff quickly drew fire for his controversial blog posts, including one where he referred to Supreme Court Justice Anthony Kennedy as a “judicial prostitute.”[11]  While Schiff’s nomination narrowly passed through the Senate Judiciary Committee, bipartisan opposition meant that the nomination lacked the votes to be confirmed.  As such, Schiff decided to withdraw after his nomination was sent back to the Administration at the end of 2017.[12]

For his part, Hertling reached out to the White House to express interest in a CFC nomination in February 2017.[13]  The White House reached out to confirm his interest in January 2018 (shortly after Schiff had withdrawn).  Hertling was nominated on May 7, 2018.

Legal Experience

Throughout his career, Hertling has built an extraordinary level of legal and policy experience, having spent almost twenty years on Capitol Hill working on Judiciary issues, as well as litigating with the Department of Justice and lobbying for DOJ and with Covington & Burling.  We’ve noted some highlights.

Department of Justice

Hertling had an initial stint at DOJ from 1986 to 1990, where he handled the government’s civil enforcement trials.  During that stint, he was involved in the defense of the Reagan Administration’s policies of random drug testing of government weather forecasters.[14]

During his second stint, Hertling served as the liaison between DOJ and Congress on a number of investigations led by Democrats in 2007.  For example, as Acting Assistant Attorney General for Legislative Affairs, Hertling was responsible for coordinating responses to Congressional oversight involving the Dismissal of U.S. Attorneys scandal.[15]  The scandal arose after the Bush DOJ dismissed several U.S. Attorneys in the middle of their terms and Democrats argued that the dismissals were made for “political reasons.”[16]  During his tenure, Hertling was forced to retract inaccurate testimony previously provided to Congress about the appointment of Tim Griffin to be U.S. Attorney for the Eastern District of Arkansas.[17]

Lobbyist

Since 2013, Hertling has worked as a lobbyist at Covington & Burling, focusing largely on representing interests before the House and Senate Judiciary Committees.[18]  Among the highlights of his lobbying, Hertling successfully advocated for the passage of the Defend Trade Secrets Act, which was signed by President Obama in 2016.[19]  The bill created a cause of action in federal court for the theft of trade secrets.  Additionally, Hertling has lobbied on behalf of a variety of organizations, business entities, and nonprofits, including Anheuser-Busch, Inc., Bacardi North America, Inc., Merck & Co., Inc., Microsoft Corp., and Samsung Electronics Co. Ltd.[20]

Political Activity

As noted above, Hertling served as Director of Special Projects and Legal Policy for the Fred Thompson for President campaign in 2007 and 2008.[21]  Other than this, Hertling has also been a prolific donor to Republican campaigns, having given over $14000 in contributions.[22]  Among the recipients of Hertling’s generosity are Sens. Ben Sasse, Marco Rubio, and Mitt Romney, as well as Rep. Barbara Comstock and Virginia gubernatorial candidate Ed Gillespie.[23]

Overall Assessment

So far, every single nominee put forward by the Trump Administration for the CFC has proven controversial.  While Hertling’s qualifications and experience is unquestionable, he may not escape this trend.  Specifically, Hertling is likely to be questioned on his time at the Department of Justice, and his role (if any) in providing inaccurate information to Congress during the investigation of the Dismissal of U.S. Attorneys scandal.

For his part, Hertling can argue that he is qualified to serve on the CFC, and that he deserves credit for correcting any inaccuracies in Congressional testimony during his DOJ tenure.

Ultimately, Hertling’s background and level of experience makes him almost overqualified for the CFC, especially compared to previous nominees like Schiff.  It is an open question as to whether Congress will disagree.


[1]  Sen. Comm. on the Judiciary, 115th Cong., Richard A. Hertling: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] See id.

[5] Id.

[6] Id.

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

[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.

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

[11] Zoe Tillman, The Judicial Nominee Who Called Justice Kennedy A “Judicial Prostitute” Pulled Out of Contention, Buzzfeed, May 7, 2018, https://www.buzzfeednews.com/article/zoetillman/judicial-prostitute-nominee-pulled-out.  

[12] Id.

[13] See Hertling, supra n. 1 at 35.

[14] AP, Court Bars Drug Tests for U.S. Meteorologists, N.Y. Times, Aug. 17, 1988.

[15] See Robert Gehrke, Sampson to Accept Blame for “Ugly, Undignified Spectacle”, Salt Lake Tribune, Mar. 28, 2007.  

[16] Id.

[17] See id.

[18] See Hertling, supra n. 1 at 31-32.

[19] Pub.L. 114-153, codified at 18 U.S.C. § 1836 et seq.

[20] See Hertling, supra n. 1 at 32.

[21] Id. at 15.

[23] See id.

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).