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.
The Vetting Room 