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).

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.

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.

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.

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). 

Grace Obermann – Nominee to the U.S. Court of Federal Claims

The U.S. Court of Federal Claims (CFC) is seeing rapid turnover currently, largely the result of stalled nominations during the Obama Administration and unforced errors by the Trump Administration.  However, Grace Obermann, who is an administrative judge, should sail onto the CFC bench.

Background

Obermann was born Grace Stewart Karaffa in Rahway, NJ in 1961.  She received a B.A. from Rutgers University in 1984, and her J.D. from the George Washington University Law School in 1989.[1]  After graduation, Obermann joined Fish & Neave’s New York City Office.[2]

In 1990, Obermann completed a clerkship for Judge Raymond Clevenger on the U.S. Court of Appeals for the Federal Circuit and then joined the Department of Justice Commercial Litigation Branch, rising to become Assistant Director of the Intellectual Property Section.[3]  In 2012, she moved to the McLean, VA office of Davidson Berquist Jackson & Gowdey LLP, where she was of counsel.[4] 

In 2012, Obermann returned to D.C. to be an administrative patent judge with the U.S. Patent and Trademark Office.[5]  She currently holds that position.

History of the Seat

Obermann 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 Obermann was nominated for opened up on July 13, 2018, with the move to senior status of Judge Susan Braden.

In June 2019, Obermann’s name was forwarded by a former high school classmate to be considered for appointment to the CFC. Obermann interviewed with the White House in early July, and was nominated on October 3, 2019.[6] 

Legal Experience

Obermann’s career has largely focused on intellectual property law, approaching this from both the federal government and private practice sides.  In her career, Obermann has tried approximately 20 cases.  Among her more prominent cases, Obermann defended a patent infringement case filed by Exxon alleging that the United States had infringed its patents for synthesizing alternative fuels.[7]  After a grant of summary judgment in their favor and an appeal, Obermann’s client, the United States, ultimately settled the case for $2583, significantly less than the $400,000,000 value in open court.[8]

Judicial Experience

Since 2012, Obermann has served as an Administrative Patent Judge with the U.S. Patent & Trademark Office (PTO).  In this role, Obermann conducts administrative patent trials and resolves disputes and challenges.  Since 2017, Obermann has also sat on the Patent Trial and Appeal Board, which serves as an appellate review court for trial decisions.  In her tenure, Obermann has overseen over 300 trial proceedings.[9]

Overall Assessment

Obermann’s extensive experience with administrative law and particularly with issues of intellectual property should serve her well on this highly specialized court.  Unlike some other CFC nominees, Obermann likely will have few issues regarding experience and will be confirmed with bipartisan support.


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

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See id.

[6] See Obermann, supra n. 1 at 47-48.

[7] Exxon Research & Eng’g Co. v. United States, 265 F.3d 1371 (Fed. Cir. 2001).

[8] See Obermann, supra n. 1 at 35.

[9] See id. at 12.

Stephen Vaden – Nominee to the U.S. Court of International Trade

The U.S. Court of International Trade is a specialized court that hears cases involving international trade and customs laws, but whose judges, nonetheless, sit for lifetime appointments.  While nominees to the court generally attract less opposition due to the court’s specialized nature, there are always exceptions.  Stephen Vaden, who has already had one tough confirmation through the Senate, will likely face questions for his youth, lack of experience, and rocky tenure in his current position.

Background

A native Tennessean, Stephen Alexander Vaden was born in Memphis in 1982.  Vaden grew up in Union City, Tennessee, where his father ran a family farm.[1]  Vaden attended Vanderbilt University and then attended Yale Law School, graduating in 2008.[2]  After graduating, Vaden clerked for Judge Julia Smith Gibbons on the U.S. Court of Appeals for the Sixth Circuit, and then for Judge Samuel Mays on the U.S. District Court for the Western District of Tennessee.[3]

After his clerkships, Vaden joined the Washington D.C. office of Patton Boggs as an Associate.[4]  In 2014, Vaden moved to Jones Day in Washington D.C. as an Associate.[5]

In 2017, Vaden was nominated to be General Counsel for the U.S. Department of Agriculture, and serving as acting General Counsel during his nomination.[6]  However, his nomination was criticized by Democrats for his work defending voter restrictions in Ohio and North Carolina.[7]  After passing out of Committee, Vaden’s nomination sat on the floor for months before being confirmed on a 53-46 vote.[8]  He currently serves in that capacity.

History of the Seat

Vaden has been nominated for a seat vacated by Judge Delissa Ridgeway, an appointee of President Bill Clinton, on January 31, 2019.  

In April 2019, Vaden was contacted by the White House to discuss a judicial appointment.[9]  Vaden interviewed with the Department of Justice and was nominated on October 2, 2019.  

Political Activity

Vaden is a Republican with a long history of contributions to the Tennessee Republican Party.[10]  In addition, Vaden has also given to other Republicans, including his sponsor Rep. David Kustoff.[11] 

Additionally, while in law school, Vaden was President of the Yale Law Republicans, where he opposed the military’s Don’t Ask Don’t Tell policies.[12]

Legal Experience

Before he started at the Department of Agriculture, Vaden worked at the firms of Patton Boggs and Jones Day, where he handled litigation.  During his tenure there, Vaden argued the case of Lilliputian Sys. Inc. v. Pipeline Hazardous Materials Safety Admin. Before the D.C. Circuit, in which he persuaded the Court to overturn federal regulations on carrying fuel cell cartridges on passenger flights.[13]  He also represented amicus parties in defending voter restrictions passed by North Carolina and Ohio.[14] 

Since 2017, Vaden has served as General Counsel to the Department of Agriculture.  Vaden’s nomination to the position came under criticism from sources who argued that Vaden was reassigning career appointees and Democrats to jobs in other parts of the country.[15]  He was also criticized for being “intransigent” and hurting morale among Department attorneys.[16] 

Vaden was also implicated in the widely criticized decision by USDA to relocate the Economic Research Service and the National Institute of Food Agriculture to Kansas City.[17]  The decision was criticized for being politically motivated and for forcing workers to quit.[18]  The move was also lambasted by the Department’s Inspector General, who argued that it violated laws requiring congressional approval before spending money to relocate offices.[19]  In response, Vaden justified the decision in a memo, stating:

“USDA is not required to abide by unconstitutional laws.”[20]

Overall Assessment

While nominations to the Court of International Trade are usually non-controversial, Vaden is likely to draw opposition.  Specifically, Vaden is likely to draw questions regarding his tenure at the Department of Agriculture, his contention that the Department can ignore laws it deems to be unconstitutional, as well as his participation in lawsuits defending voter restrictions.  He is also likely to face questions about his youth and his lack of experience litigating issues of International Trade or appearing in court.  Vaden has not practiced before the Court of International Trade at all, and, by his own account, has only argued in court once in his entire career.  As such, at a time when Trump nominees are drawing criticism for their lack of experience, Vaden will likely face the same scrutiny.


[1] Press Release, Office of Sen. Lamar Alexander, Tennessean Stephen Vaden Has The “Hands-On Experience’ To Be Agriculture Department General Counsel (Nov. 9, 2017).

[2] Sen. Comm. on the Judiciary, 116th Cong., Stephen Vaden: Questionnaire for Judicial Nominees 1.

[3] See id. at 2.

[4] Id. at 2.

[5] Id.

[6] See Alexander, supra n. 1.

[7] Lead Lawyer for Agriculture Comes Under Democratic Fire, Congressional Quarterly News, Nov. 9, 2017.

[8] Tennessee Attorney Confirmed as USDA’s General Counsel, A.P. State & Local, Nov. 28, 2018.

[9] See id. at 25.

[10] See Vaden, supra n. 1 at 10.

[12] Thomas Kaplan, Yale Law, Newly Defeated, Allows Military Recruiters, N.Y. Times, Oct. 1, 2007.

[13] 741 F.3d 1309 (D.C. Cir. 2014).

[14] See Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016); N. Carolina State Conference of NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016).

[15] Morning Agriculture, Vaden Advances, So Does Related Controversy, Politico, Dec. 12, 2017, https://www.politico.com/newsletters/morning-agriculture/2017/12/12/vaden-advances-so-does-related-controversy-047706.  

[16] Vaden Causes Concern Within USDA, The Frontrunner, Dec. 5, 2017.

[17] Gregory Wallace, USDA May Have Violated Law in Controversial Office Relocation Decision, Inspector General Says, CNN, Aug. 6, 2019.

[18] See id.

[19] See id.

[20] Id. (quoting Stephen Vaden).

Daniel Epstein – Nominee to the U.S. Court of Federal Claims

Dan Epstein, Special Assistant to President Trump, and a former anti-regulatory litigator, is the latest nominee to the Court of Federal Claims (“CFFC”).

Background

David Zachary Epstein was born in Houston in 1983.  Epstein received a B.A. from Kenyon College in 2005 and a J.D. from Emory University School of Law in 2008.[1]  After law school, Epstein joined the Charles Koch Foundation as a legal reform associate.[2]  He then joined the House Committee on Oversight & Government Reform in 2009, working under Rep. Darrell Issa (R-CA).[3]

In 2011, Epstein founded the Cause of Action, Institute, a nonprofit focusing on promoting conservative economic and regulatory positions.[4]  In 2016, he joined the Trump transition team as an Attorney.  After the Trump Administration came into office, he joined the White House as Associate Counsel, getting promoted to Senior Associate Counsel and Special Assistant to the President in 2018.[5] 

History of the Seat

Epstein 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 Epstein was nominated for opened up on October 22, 2013, with the with the retirement of Judge Edward Damich.  On May 21, 2014, Armando Bonilla, an Associate Deputy Attorney General was nominated for the vacancy by President Obama.[6]  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.[7]  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.[8]

In May 2017, Epstein was contacted by the White House to gauge his interest in an appointment to the CFC.  Epstein was nominated on June 24, 2019.

Legal Activity

Epstein’s primary litigation experience has been in his role at Cause of Action, in which he litigated cases, generally against administrative regulations or challenging administrative dispositions.  Epstein notably handled a number of cases seeking to use the Freedom of Information Act (FOIA) to test the boundaries of disclosure.  For example, in one case, Epstein successfully obtained a ruling that taxpayer confidentiality principles could not shield public disclosure of unauthorized inspections or disclosures by government officials.[9]

Among other matters, Epstein represented businesses challenging Federal Trade Commission (“FTC”) enforcement actions,[10] the provision of subsidies to vehicle companies,[11] and the authority of the Consumer Product Safety Commission (“CPSC”) to hold the CEO of Buckyballs personally liable for injuries caused by the magnets he produced.[12] 

Writings

Epstein has frequently written on the law, generally outlining an anti-regulatory perspective.[13]  However, he has also been critical of perceived cases of lack of transparency or corruption in government.  For example, in a 2014 article, Epstein criticizes the use of “fiscal sponsorship” among environmental nonprofits, suggesting that the common practice “not only allows donors to hide from the public, but to hide from the IRS as well…”[14]  Similarly, in a 2015 article, Epstein criticizes the Department of Energy for giving green energy subsidies to Tesla and Fisker while not granting them to other companies he represents.[15]  He concludes by arguing, not that the playing field for subsidies be level, but rather that such subsidy programs should be eliminated entirely as “the capacity for corruption is immense – and inevitable.”[16]

Political Activity

As noted above, Epstein was a part of the Trump transition team in 2016.  In addition, he also was a volunteer for the Trump campaign as well as one for the Romney campaign in 2012.[17]

Overall Assessment

Like many of Trump’s nominees to the CFC, Epstein is very young (only 36).  Additionally, Epstein does not seem to have litigated significantly within the CFC.  However, Epstein’s focus on government accountability and transparency are relevant to a court handling claims against the federal government.  In weighing Epstein’s nomination, senators may question him to ensure that he would follow the law and facts in evaluating claims rather than focus on policy considerations relating to government transparency.


[1]  Sen. Comm. on the Judiciary, 115th Cong., David Z. Epstein: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id.

[5] See id.

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

[7] 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.

[8] 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.

[9] See Cause of Action v. Treasury Inspector Gen. for Tax Admin., 70 F. Supp. 3d 45 (D.D.C. 2014).

[10] In the Matter of LabMD, Inc., No. 9357 (Nov. 13, 2015).

[11] See XP Vehicles, Inc. v. Dep’t of Energy, 118 F. Supp. 3d 38 (D.D.C. 2015).

[12] Zucker v. CPSC, No. 13-3355 (D. Md. 2013).

[13] See, e.g., Dan Epstein, Hounded Out of Business By Regulators, Wall St. Journal, Nov. 19, 2015, https://www.wsj.com/articles/hounded-out-of-business-by-regulators-1447978301.  

[14] Dan Epstein, The Dark Money Complex, Roll Call, Aug. 13, 2014, https://www.rollcall.com/news/the_dark_money_complex_commentary-235693-1.html.  

[15] Dan Epstein, A Case Study in Pay-to-Play Cronyism, The Hill, Aug. 4, 2015, https://thehill.com/blogs/congress-blog/the-administration/250109-a-case-study-in-pay-to-play-cronyism.  

[16] Id.

[17] See Epstein, supra n.1 at 32-33.

Eleni Roumel – Nominee to the U.S. Court of Federal Claims

As noted before, the U.S. Court of Federal Claims (CFC) is facing a vacancy crisis.  One of the factors exacerbating the situation is the Trump Administration’s slow pace in nominations and their predilection for naming young attorneys with little background in the court’s specialized docket.  The nomination of Eleni Roumel follows that pattern.

Background

Eleni Maria Roumel was born in Washington D.C. in 1974.  She received a B.A. from Wake Forest University in 1996, and a joint J.D. and M.B.A. from Tulane in 2000.[1]  After graduation, Roumel joined Skadden Arps’ New York City Office.[2]

After two years at Skadden, Roumel completed a two-year clerkship for Judge William Pauley on the U.S. District Court for the Southern District of New York, and then joined the New York office of Wilmer Hale.  In 2006, she moved to the Charleston, SC office of Nelson Mullins Riley & Scarborough LLP, where she was a Partner.[3] 

In 2012, Roumel returned to D.C. to be Assistant General Counsel to the U.S. House of Representatives, then under Republican control.[4]  In 2018, she left to join Vice President Mike Pence’s Office as Deputy Counsel.[5]

History of the Seat

Roumel 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 Roumel was nominated for opened up on July 14, 2018, with the conclusion of the term of Judge Mary Ellen Coster Williams.

In November 2018, Roumel interviewed with the White House regarding a vacancy on the CFC.  She was preliminarily selected as a nominee in January 2019 and nominated on June 24, 2019.[6] 

Legal Experience

For the past year, Roumel has served as Deputy Counsel to Pence, providing legal advice to his office.  However, she has prior experience working for the U.S. House of Representatives and in private practice.

U.S. House of Representatives

From 2012 to 2018, Roumel was Assistant General Counsel in the U.S. House of Representatives.  In this role, Roumel was notably involved in the House’s lawsuit to prevent the Obama Administration from making payments to insurance companies under the Affordable Care Act.[7]  The case eventually ended in a settlement after a ruling in favor of the House’s position.[8]  She also represented Rep. Eric Cantor in seeking to block subpoenas in a terrorism financing case involving the Bank of China and the Israeli government.[9]

Private Practice

From 2004 to 2012, Roumel worked in private practice in New York City and Charleston, primarily working in intellectual property and commercial litigation.  For example, Roumel represented a candle manufacturer in a breach of contract action against grocery store chains Supervalu and New Albertson’s Inc.[10]  However, she also handled some pro bono cases during this time.  For example, she represented a state prisoner who had been seriously injured in a beating by a prison guard.[11]

Overall Assessment

In reviewing another CFC nominee, Richard Hertling, we said the following:

“Ultimately, the more interesting fact about Roumel is the fact that he was nominated for the CFC rather than the U.S. District Court for the District of Columbia.  Given his intense legislative experience, the latter would seem like a better perch for such a legislative expert.”

The same analysis applies to Roumel, whose expertise does not, at immediate glance, suggest appointment to a court primarily known for handling government contract issues and vaccine injury claims.  Nonetheless, her experience and lawyerly ability is reflected through the high level positions she has enjoyed, and, while she is unlikely to attract much Democratic support, she will likely be confirmed in due course.


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

[2] Id. at 2.

[3] Id.

[4] See id.

[5] See Statement of Speaker Paul Ryan, Apr. 5, 2018.

[6] See Roumel, supra n. 1 at 29-30.

[7] See Jonathan Turley, Federal Court to Hear Historic Challenge Over Separation of Powers, Res Ipsa Loquitor, May 27, 2015.

[8] See Mary Ellen McIntire, House, Administration Settle Lawsuit Over Health Law Payments, RollCall, May 16, 2018, https://www.rollcall.com/news/politics/house-administration-settle-lawsuit-health-law-payments.  

[9] Yonah Jeremy Bob, Eric Cantor Fights Subpoena While Ex-Israeli Agent Pushes to Testify in Bank of China Terror Financing Case, Oct. 2, 2014.

[10] MVP Group Int’l, LLC v. Supervalu, Inc., 2:09-cv-2636 (D.S.C.).

[11] See Orange v. Fielding, 06-cv-2601 (D.S.C.).

Judge Robert Molloy – Nominee to the U.S. District Court of the Virgin Islands

The District Court of the Virgin Islands is a territorial court whose judges serve ten year terms.  Judge Curtis Gomez had his term expire in 2015, but is still sitting on the court due to the failure by Congress and the President to name a successor.  The nomination of Judge Robert Molloy offers the best chance in years for this court to gain a new judge.

Background

Robert Anthony Molloy was born in Christiansted, St. Croix in 1975.  Molloy received his B.S. from Hampton University in 1997, his J.D. from American University Washington College of Law in 2003 and his MBA from American University Kogod School of Business in 2004.[1]  After graduating, Molloy clerked on the Circuit Court of Arlington County and for Judge Raymond Finch on the U.S. District Court of the Virgin Islands.[2]

After his clerkships, Molloy worked as an Assistant Attorney General in the Office of Collective Bargaining with the Virgin Islands Government.[3]  In 2013, he was appointed by Gov. John de Jongh Jr. to the Superior Court of the Virgin Islands, where he currently serves.[4]

History of the Seat

The District Court of the Virgin Islands has two judgeships authorized.  Judge Jose Gomez, who was appointed by President Bush, saw his appointment expire in 2015.[5]  The Obama Administration declined to reappoint Gomez, but also refused to make another appointment, presumably due to unwillingness to expend energy on a pick likely to be blocked by the Republican Senate.[6]

In June 2018, Molloy was contacted by Anthony Ciolli, the President of the Virgin Islands Bar Association, to gauge his interest in the judgeship.[7]  After Molloy confirmed his interest, his nomination was sent to the White House by Congresswoman Stacey Plaskett, a Democrat.[8]  Molloy was nominated on May 29, 2019.

Political Activity

As a prosecutor in 2008, Molloy donated in support of the campaign of President Obama, giving $658.[9] 

Legal Experience

Molloy has spent his pre-bench legal career handling labor and employment matters for the Territorial Government as an Assistant Attorney General.  During his career, Molloy has tried 83 cases to verdict in bench trials but has not handled any jury trials.[10]  Notably, Molloy was part of the defense team that successfully argued that a Virgin Islands statute instituting an eight percent salary reduction on many territorial employees did not violate the Constitution.[11]

Jurisprudence

Molloy has served on the Superior Court of the Virgin Islands since 2013, where he has heard criminal, civil, and administrative cases.[12]  Molloy has also sat by designation with the Supreme Court of the Virgin Islands 10 times and has also sat with the Appellate Division of the District Court of the Virgin Islands.[13]  According to Molloy, he has presided over nineteen cases that proceeded to verdict or judgment, including thirteen jury trials.[14]

Among the most notable cases he handled, Molloy oversaw the first prosecution in the Virgin Islands for a prison guard having sexual relations with an inmate.[15]  In the case, Molloy upheld the statute criminalizing such conduct and held that it was not unconstitutionally vague.[16]  In another case, Molloy denied a motion to dismiss a class action based on a fungus infestation of plaintiffs’ property, holding that such an action was not preempted by federal law.[17]

Overall Assessment

Molloy has accomplished much in his relatively short legal career.  Despite not even being 45, Molloy has already served the better part of a decade on the territorial bench and is poised for elevation to the federal bench.  Given his political contributors and his backers, Molloy is likely a Democrat.  Nevertheless, the political cost to the Administration for nominating a Democrat is the least when it comes to a territorial court.  As such, Molloy’s expected confirmation should allow Gomez, who has now served four years past the end of his term, a chance to take a break and step down.


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

[2] Id. at 1-2.

[3] See id. at 2.

[4] Id.

[5] Bernetia Atkins, Undercurrents: At District Court, They Also Serve Who Wait – For Replacement, The St. Thomas Source, Feb. 29, 2016, https://stthomassource.com/content/2016/02/29/undercurrents-at-district-court-they-also-serve-who-wait-for-replacement/.  

[6] See id.

[7] See Molloy, supra n. 1 at 52-53.

[8] Press Release, Congresswoman Stacey Plaskett’s Statement Regarding The Appointment Of Judge Robert Molloy To The United States District Court Of The Virgin Islands (May 29, 2019) (on file at https://plaskett.house.gov/news/documentsingle.aspx?DocumentID=3517).  

[10] See Molloy, supra n. 1 at 40-41.

[11] United Steelworkers, et al. v. Gov’t of the Virgin Islands, 66 V.I. 631 (2012), rev’d, 842 F.3d 201 (3d Cir. 2015).

[12] See Molloy, supra n. 1 at 9-10.

[13] See id. at 10.

[14] Id.

[15] People of the Virgin Islands v. Whyte, Super. Ct. Crim. No. SX-13-CR-026, 62 V.I. 95 (Super Ct. 2015).

[16] See id. 

[17] Alleyne, et al.v. Diageo USVI, Inc., et al., 63 V.I. 384 (Super Ct. 2015).