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.

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