CFC

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.

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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). 

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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.

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Judge David Tapp – Nominee to the U.S. Court of Federal Claims

Judge David Tapp is a longstanding state judge in Kentucky.  He has now been tapped, not for a seat on the federal bench in Kentucky (which has no vacancies currently) but, rather, to a vacancy on the U.S. Court of Federal Claims (CFC), a specialized court based in Washington D.C.

Background

A native Kentuckyian, David Austin Tapp was born in Lexington in 1962.  Tapp received a B.A. from Morehead State University in 1983 and then joined the Rowan County Sheriff’s Office as a Deputy Sheriff.[1]  After stints as a loss prevention officer and as a social worker, Tapp received an M.A. from Chaminade University of Honolulu and a J.D. from the University of Louisville Brandeis School of Law.[2]

After law school, Tapp became a state prosecutor in Somerset, Kentucky.[3]  Two years later, he started his own law practice, working in criminal defense.  He held that position until he was elected to the state bench in 2004 (he was appointed to the Circuit Court by Governor Ernie Fletcher in 2005.)[4] 

History of the Seat

Tapp 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 Tapp was nominated for opened up on October 21, 2013, with the with the retirement of Judge Lynn Bush.  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.[5]  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.[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 vacancies on the Court, leaving six of the sixteen judgeships vacant.[7]

The Trump Administration nominated Stephen Schwartz on June 7, 2017 to fill this vacancy. However, Schwartz’s nomination ran into trouble due to concerns about his youth and lack of experience.[8]

For his part, in June 2018, Tapp was contacted by Senate Majority Leader Mitch McConnell to gauge his interest in an appointment to the CFC.  Tapp was nominated on March 5, 2019.

Jurisprudence

Tapp has been a circuit court judge in Kentucky since 2005, a trial court with some appellate jurisdiction over the lower level Kentucky District Court.  In his fourteen years on the bench, Tapp has overseen almost 20,000 cases, including approximately 225 jury trials.[9]

Among his most important rulings, in 2008, Tapp issued a restraining order barring the release of prisoners under a new Kentucky law allowing for such early release.[10]  The restraining order was prompted by a petition filed by prosecutor Eddy Montgomery, and was criticized by defense attorneys as being motivated by “a lack of political courage to do the right thing.”[11]  The criticism by local defense attorney Robert Norfleet sparked a bar complaint against him, and a subsequent motion by Norfleet to have Tapp recuse himself from all of his cases, noting that Tapp had frequently noted his “hatred” of Norfleet.[12]  Tapp’s injunction was ultimately partially reversed by the Kentucky Supreme Court after being affirmed by the Kentucky Court of Appeals.[13]

Political Activity

In 2018, Tapp ran for a seat on the Kentucky Supreme Court, but ultimately only took 25% of the vote, coming in third behind Kentucky Court of Appeals Judge Debra Hembree Lambert (who ultimately won the election) and fellow circuit judge Dan Ballou.

Overall Assessment

Given Tapp’s long history on the bench, he seems to meet the base level of qualifications needed for a federal appointment.  However, what is unusual is the court that Tapp has been nominated to.  It does not seem that Tapp has practiced extensively before the CFC or that his docket in Kentucky covers the subject matter that the CFC reviews.  As such, senators may question the specific court that Tapp has been tapped for, even if his legal credentials are beyond dispute.

[1]  Sen. Comm. on the Judiciary, 115th Cong., David A. Tapp: Questionnaire for Judicial Nominees 2.

[2] Id. at 1.

[3] Id.

[4] See id.

[5] Press Release, White House, Presidential Nominations Sent to the Senate (May 14, 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.

[9] See Tapp, supra n. 1 at 45.

[10] Heather Pyles, Defense Attorneys Decry Tapp Ruling: Norfleet, Stanziano Respond to Decision to Block Release of Prisoners or Parolees, Commonwealth Journal, Aug. 21, 2008.

[11] See id. (quoting Robert Norfleet).

[12] See Heather Pyles, Attorney, Local Judges at War, Commonwealth Journal, Sept. 20, 2008.

[13] Commonwealth v. Thompson, 300 S.W.3d 152 (Ky. 2010).

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