Western District of Texas

Jason Pulliam – Nominee to the U.S. District Court for the Western District of Texas

The lack of diversity of Trump’s judicial nominees has already drawn criticism.  Trump has been especially slow about nominating African American judges, naming just six to date.  As such, the nomination of Jason Pulliam, who will be the first African American judge on the Western District of Texas, is particularly welcome.

Background

Jason Kenneth Pulliam was born in 1971 in Brooklyn.  After getting a B.A. and an M.A. from Brooklyn College, CUNY, Pulliam received a J.D. Texas Southern University Thurgood Marshall School of Law in 2000.  After his graduation, Pulliam spent three years as a Judge Advocate in the U.S. Marine Corps.[1]

After leaving the Marines, Pulliam spent the next six years as an associate in private practice, moving between The Carlson Law Firm, Ball & Weed P.C. and Ford & Murray PLLC.  In 2011, Pulliam became a Judge with the Bexar County Court of Law No. 5.[2]  In 2015, he was appointed by outgoing Gov. Rick Perry as a Justice on the Fourth Circuit Court of Appeals.  However, in 2016, Pulliam lost re-election to fellow Bexar County Court judge Irene Alarcon Rios.  He then joined the San Antonio office of Prichard Young LLP as a Counsel.

In 2018, Pulliam once again ran for the Fourth Circuit, but again lost the election to incumbent judge Patricia Alvarez, a Democrat.

History of the Seat

Pulliam has been nominated for a vacancy on the U.S. District Court for the Western District of Texas.  This seat opened on December 31, 2017, when Judge Sam Sparks took senior status.  While Pulliam was previously considered for vacancies filled by Judges Walter Counts and Fernando Rodriguez, he was ultimately recommended in mid-2018 for the Sparks vacancy, based out of Austin.[3]  However, while Pulliam was selected as a nominee by the White House in August 2018, he was not formally nominated until March 2019.

Legal Experience

Pulliam started his legal career as a Judge Advocate in the U.S. Marine Corps, where he served as a criminal defense and legal assistance attorney while serving on active duty.  During this period, Pulliam was trial defense counsel for James D. Mohammad, who was convicted for failing to follow an order to get inoculated based on his Muslim faith.[4]  Mohammad appealed, arguing that Pulliam was ineffective in his defense, but the Court of Criminal Appeals found that Pulliam had adequately researched the defenses Mohammad sought and had declined to bring them because they were specious.[5]

From 2004 to 2010, Pulliam worked in private practice, where he handled a variety of cases, including personal injury, civil litigation, and malpractice.  In this period, Pulliam notably defended RV Insurance Solutions LLC, a collection agency, against allegations that it had illegally misappropriated customer funds.[6]

Jurisprudence

Pulliam served as a county court judge from 2011 to 2014 and as an appellate judge from 2015 to 2016.  In the latter position, Pulliam sat as part of 3-judge panels to oversee appeals in the Fourth Circuit, which covered much of Southern Texas.  As an appellate judge, Pulliam notably dismissed a class action suit by a team of 1400 plaintiffs who alleged that payday lenders had improperly used criminal prosecution against their debtors.[7]  In his opinion, Pulliam found that the suits were foreclosed by arbitration clauses in the payday contracts.[8]  However, Judge Rebeca Martinez dissented from Pulliam’s conclusion.[9]

In another notable case, Pulliam held that Dino Villareal, a transgender man[10], could not bring suit for a paternity action for the adoptive children of his female partner.[11]  This holding also drew dissents, including one on the merits from Judge Martinez.[12]

Political Activity

As noted earlier, Pulliam ran as a Republican in Texas judicial elections, losing to Democratic candidates in 2016 and 2018.  In addition, Pulliam donated to Rep. Cathy McMorris Rodgers in 2016.[13]

Speeches and Writings

While a sitting judge and judicial candidate in 2016, Pulliam appeared on an interview with the Black Video Network, where he discussed his role as a judge and key issues.[14]  Among the topics he is asked to address, Pulliam discusses police brutality and Black Lives Matter noting:

“[Protestors] have an absolute right to protest under the First Amendment.  They have a right to seek redress for grievances, and I think we should encourage that as long as it doesn’t ever become violent.  Folks probably need to have a specific agenda and list of items that they seek redress for those grievances.  They may want to petition their city council or their state legislature, and then seek to change by being part of the process.”[15]

Later in the interview, Pulliam contrasted himself with Judge Rios, his opponent, by noting that he has criminal and civil experience, while Rios only has civil experience.[16]

Overall Assessment

Pulliam was the first African American Republican to be a Bexar County judge when he was appointed in 2011.  He then became the first African American on the Fourth Circuit and, would, if confirmed, become the first African American on the U.S. District Court for the Western District of Texas.

Setting aside his contribution to the diversity of the federal bench, Pulliam’s record is conservative but not overly political.  While Pulliam may draw criticism for his decisions in the CASH BIZ and Sandoval cases, such concerns are unlikely to derail his nomination.

[1] Sen. Comm. on the Judiciary, 115th Cong., Jason K. Pulliam: Questionnaire for Judicial Nominees 2.

[2] Id.

[3] See id. at 60-61.

[4] United States v. Mohammad, 2006 WL 1499986 (U.S. Navy-Marine Corps Ct. of Crim. App. May 31, 2006).

[5] See id. at *5.

[6] Motorhomebytel, Inc. v. RV Ins. Sols. LLC., Bexar Cnty. St. Dist. No. Cause 2007C105629.

[7] CASH BIZ, LP v. Henry, No. 04-15-00469-CV, 2016 WL 4013794 (Tex. App. – San Antonio, July 27, 2016, pet. filed).

[8] See id.

[9] Charles Kuffner, Appeals Court Blocks Litigation Against Payday Lenders, Off the Kuff, Aug. 7, 2016.

[10] Interestingly, while Mr. Villareal has obtained an Order Granting Change of Identity, and, while Pulliam’s original opinion refers to him as male, Pulliam’s SJC Questionnaire appears to misgender him.  See Pulliam, supra n. 1 at 26 (“The underlying matter involved two women who were in a relationship (Sandoval and another woman who identified as a man named Dino.”).

[11] In re Sandoval, No. 04-15-00244-CV, 2016 WL 353010 (Tex. App._San Antonio Jan. 27, 2016, orig. proceeding).

[12] Art Leonard, Texas Appeals Panel Denies Transgender Man Standing to Bring Paternity Action Concerning Children He Was Parenting, Art Leonard Observations, Jan. 30, 2016, https://www.artleonardobservations.com/texas-appeals-panel-denies-transgender-man-standing-to-bring-paternity-action-concerning-children-he-was-parenting/.  

[14] See Black Excellence – Jason Pulliam for Judge, https://www.youtube.com/watch?v=PJQY-FerUFM.  

[15] See id.

[16] Id.

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Alan Albright – Nominee for the U.S. District Court for the Western District of Texas

An attorney who first became a judge over 25 years ago (and left the bench approximately 20 years ago) would not seem like a likely judge from an Administration focused on youth as a key criteria of nomination.  However, Alan Albright became a judge at just 32 years of age and left the bench before he was forty.  As such, the seasoned litigator, now 58, is still young enough to serve on the bench for another thirty years.

Background

Alan D. Albright was born on November 24, 1959 in Hershey, PA.  After getting a B.A. from Trinity University in 1981, Albright received a J.D. from the University of Texas Law School in 1984.  After his graduation, Albright served as a law clerk to Judge James Nowlin on the U.S. District Court for the Western District of Texas.[1]

After his clerkship, Albright joined McGinnis, Lochridge & Kilgore LLP. as an associate.  Two years later, he joined the Austin office of Akin Gump Strauss Hauer & Feld as an associate.  In 1992, Albright, only 32, was tapped to be a U.S. Magistrate Judge for the U.S. District Court for the Western District of Texas.

Albright left the bench in 1999 to join the Austin office of Thompson & Knight LLP.  Two years later, he left Thompson to join Gray Cary (now DLA Piper) as a Partner.  In 2005, he moved to the Austin office of Fish & Richardson as a Partner.  In 2009, he joined the Austin office of Bracewell & Giuliani (now Bracewell) as a Partner.  In 2014, he left Bracewell to become a Partner at Sutherland Asbill & Brennan.  In 2015, he returned to Bracewell as a Partner, and works there to this day.

History of the Seat

Albright has been nominated for a vacancy on the U.S. District Court for the Western District of Texas.  This seat opened on September 14, 2016, when Judge Walter Scott Smith Jr. retired amidst allegations of sexual misconduct.[2]  In February 2017, Albright applied for a federal judgeship with an Evaluation Committee set up by Texas Republican Sens. John Cornyn and Ted Cruz.[3]  He interviewed with the Committee in March 2017 and then with Cornyn and Cruz in April.  Albright interviewed with the White House and Department of Justice on July 18, 2017.[4]  He was nominated on January 24, 2018.

Legal Experience

Albright’s work in private practice can be divided into two periods sandwiched around his seven years on the bench.  The first period was from 1986, when Albright finished his clerkship, to 1992, when he became a federal judge.  During his period, Albright primarily worked in insurance litigation, starting at the Austin firm McGinnis, Lochridge & Kilgore LLP and then working for the Biglaw firm Akin Gump.

The second period was from 1999, when Albright left the bench, to the present.  In this period, the primary focus of Albright’s career has been on patent litigation, at the firms Thompson & Knight, Gray Cary, Fish & Richardson, and Bracewell & Giuliani (now Bracewell).  Notably, Albright represented Overstock.com in defending against a patent infringement action, representing the website through a jury trial (the jury found for the defendants).[5]

While Albright focused primarily on patent litigation , he occasionally handled other cases.  Notably, Albright represented the Williamson County government in defending against a suit brought by Robert Lloyd, a conservative Republican who claimed that the County had improperly taken his political affiliation and his opposition to abortion and same-sex marriage into account in rejecting him for a Constable appointment.[6]

Jurisprudence

Albright served as a U.S. Magistrate Judge on the U.S. District Court for the Western District of Texas from 1992 to 1999.  In this capacity, Albright presided over the pretrial aspects of approximately 1000 misdemeanor and civil cases and approximately 500 civil cases.[7]  He also presided over around 15-20 civil cases by consent.[8]   Among the more prominent cases Albright handled, he overturned a $275,000 jury verdict for a San Marcos plaintiff shot by a police officer on qualified immunity and official immunity grounds (his decision was affirmed on appeal).[9]  In another notable case, Albright found for the parents of a daughter who suffered permanent injuries during birth due to the negligence of the doctor delivering the baby.[10]

In his seven years on the bench, Albright was reversed by the Fifth Circuit in four cases.  In three of the reversals, the Fifth Circuit reversed plaintiff-friendly rulings by Albright.[11]  In the fourth case, the Fifth Circuit reversed the grant of summary judgment to the defendant in a Lanham Act case.[12]

Political Activity

Albright has been a frequent donor to Republican candidates.  Cornyn was a particular beneficiary, having received approximately $5000 from Albright.[13]  Albright also donated almost $5000 to Rudy Giuliani’s 2008 Presidential campaign.[14]

Additionally, Albright volunteered on the campaigns of several Texas politicians, including Republican Governor Bill Clements, and Democrats Bob Krueger and Henry Cisneros.[15]

Overall Assessment

Compared to other nominees from Texas who have incited more pushback, Albright is relatively uncontroversial.  His long-time tenure as a patent litigator has allowed Albright to steer clear of controversial cases while maintaining the intellectual vigor needed for the bench.  Additionally, supporters will argue Albright’s representation of Williamson County in defending against a discrimination suit brought by a conservative employee reflects an apolitical approach to the law.

Furthermore, Albright’s record on the bench is relatively non-ideological.  While Albright did overturn a jury verdict for a plaintiff against the cop who shot him, his ruling for the victims of medical negligence in a bench trial suggests that he is not biased against plaintiffs.  Furthermore, most of his reversals from the Fifth Circuit have been from plaintiff-friendly rulings.

Overall, these factors, combined with his age and experience, suggest that Albright will be considered a consensus nominee.

[1] Sen. Comm. on the Judiciary, 115th Cong., Alan D. Albright: Questionnaire for Judicial Nominees 46.

[2] Tommy Witherspoon, Probe of Federal Judge Ends With His Retirement, Waco Tribune, Sept. 29, 2016, http://www.wacotrib.com/news/courts_and_trials/probe-of-federal-judge-ends-with-his-retirement/article_232c914f-578a-5e3d-813e-0f963cd75be3.html.

[3] See Albright, supra n. 1 at 44.

[4] See id.

[5] Alcatel-Lucent USA v. Amazon.com, Inc., 6:09-cv-00422-LED (E.D. Tex. Nov. 2, 2011), aff’d, 505 F. App’x 957 (Fed. Cir. 2013).

[6] Lloyd v. Birkman, No. 1:13-cv-00505 (W.D. Tex.).

[7] See Albright, supra n. 1 at 13-14.

[8] Id.

[9] Tamez v. City of San Marcos, No. 93-CV-666 (W.D. Tex. July 8, 1996), aff’d, 118 F.3d 1085 (5th Cir 1997), cert. denied, 522 U.S. 115 (1998).

[10] Jackson v. United States, No. 1:96-cv-00491-ADA (W.D. Tex. Aug. 20, 1998).

[11] See Castillo v. City of Round Rock, Tex., No. A-96-CV-863 (W.D. Tex. Feb. 2, 1998), rev’d, 177 F.3d 977 (5th Cir. 1999), cert. denied, 528 U.S. 1019 (1999) (reversing denial of summary judgment to defendants, noting that claims were barred by qualified immunity); Travis v. Bd. of Regents of the Univ. of Tex. Sys., No. A-94-CV-712 (W.D. Tex.), rev’d, 122 F.3d 259 (5th Cir. 1997), cert. denied, 522 U.S. 1148 (1992) (reversing verdict for plaintiff on sex discrimination and retaliation claims); Texas v. Thompson, No. A-93-CA-343 (W.D. Tex. Dec. 12, 1994), appeal dismissed in part and rev’d in part, 70 F.3d 390 (5th Cir. 1995) (per curiam) (reversing denial of summary judgment to one defendant). 

[12] Soc’y of Fin. Exam’rs v. Nat’l Ass’n of Certified Fraud Exam’rs, Inc., No. A-92-CA-792/ A-92-CV-937 (W.D. Tex. Dec. 8, 1993), vacated, 41 F.3d 223 (5th Cir. 1995), cert. denied, 515 U.S. 1103 (1995).

[14] See id.

[15] See Albright, supra n. 1 at 29-30.

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Judge Walter David Counts III – Nominee for the U.S. District Court for the Western District of Texas

Generally, Presidents select judicial nominees from the political party that they belong to: Republicans select Republican judges; Democrats select Democrats.  Where Presidents make cross-party appointments, they are typically in deference to home-state senators of the opposite party, or as part of a package deal to confirm judges of their own party.  One of the exceptions to this rule was the appointment of Judge Robert Junell, a Democratic state legislator in Texas, who was appointed to the U.S. District Court for the Western District of Texas by President George W. Bush.  Interestingly, President Trump’s nominee to fill the vacancy left by Junell could also qualify: U.S. Magistrate Judge David Counts.

Background

Walter David Counts III was born in Knox City, TX in 1961, the son of Walter David Counts Jr.  Counts attended Texas Tech University in Lubbock, graduating in 1983.  In the summer of 1983, Counts worked as a Congressional Intern for former Democratic Rep. Jack Hightower.

After college, Counts attended St. Mary’s University School of Law, graduating in 1986.  Upon graduating, Counts joined the Austin firm Martin, Cox, Greenberg & Jones as an Associate Attorney.  After a year there, Counts joined the Travis County District Attorney’s Office as an Assistant District Attorney.  In 1990, Counts left to set up a solo practice in Austin, only to return to the District Attorney’s Office in 1991.

In 1995, Counts joined the U.S. Attorney’s Office for the Western District of Texas.  In 1999, Counts became Deputy Chief of Major Crimes in the Criminal Division.  In 2009, Counts was appointed by the Chief Judge of the U.S. District Court of the Western District of Texas to be a magistrate judge for the court.  He currently serves in that position.

On March 15, 2016, Counts was nominated by President Obama to serve as a U.S. District Court judge.  With the support of Republican Senators John Cornyn and Ted Cruz, Counts received a Senate Judiciary Committee hearing on September 7, 2016.  However, despite the friendly hearing, Counts was never voted out of Committee and his nomination ended upon the conclusion of the Obama presidency.

History of the Seat

Counts has been nominated for a vacancy on the U.S. District Court for the Western District of Texas.  This seat opened on February 13, 2015, when Judge Robert Junell moved to senior status.[1]  After extensive negotiations between President Obama and Senators Cornyn and Cruz, a package of five nominees to the Texas federal bench were announced on March 15, 2016.[2]  The package included Counts’ nomination to the vacancy left by Junell.  While the package of judges received a joint hearing on September 7, 2016, they were never voted on by the Senate Judiciary Committee.

In January 2017, Counts applied for the vacancy again to the Federal Judicial Evaluation Committee set up by Cornyn and Cruz.  After interviews with the Committee and the White House Counsel’s Office, Counts was nominated for the vacancy on September 11, 2017.

Legal Experience

There have been only two short periods of time in which Counts has not been either a prosecutor or a judge.  First, after graduating from law school, Counts worked at Martin, Cox, Greenberg and Jones, a civil law firm based in Austin.  In this position, which he only held for a year, Counts represented public health companies and nursing homes in regulatory proceedings.  Second, from 1990-91, Counts maintained a solo practice, practicing criminal defense.  Other than these two short periods, Counts spent his entire legal career before joining the bench in one of two positions: as a state prosecutor in Travis County; and as a federal prosecutor in the U.S. Attorney’s Office for the Western District of Texas.

Travis County District Attorney

Counts worked in the Travis County District Attorney’s Office from 1987-1990 and 1991-1995.  As a state prosecutor there, Counts worked primarily in violent felony cases, including sexual assault and murder.  Counts notably prosecuted a convicted serial rapist who had assaulted and murdered young women after being released on parole.[3]  Counts was able to successfully prosecute Mr. McDuff and obtain the death penalty, even while having to navigate the evidentiary obstacles of not having the victim’s body.[4]

Notably, Counts also prosecuted Joel Rene Valdez on a rape charge.[5]  Valdez presented an unusual defense: that the victim’s insistence that he wear a condom implied her consent.[6]  Despite heavy media attention, Counts was able to obtain a conviction and a 40-year sentence against Valdez.[7]

U.S. Attorney

In 1995, Counts became a federal prosecutor in the U.S. Attorney’s Office for the Western District of Texas.  In this role, Counts prosecuted a variety of cases, including narcotics, firearms, immigration, white collar crime, and public corruption.  Among the more notable matters he handled, Counts successfully prosecuted Frio County Treasurer for setting up schemes to steal funds from county and federal programs.[8]  Counts also prosecuted two San Antonio City Council members for taking kickbacks from attorneys in exchange for city contracts.[9]

Jurisprudence

Counts has served as a U.S. Magistrate Judge since 2009.  In this capacity, Counts handles pretrial, grand jury, and discovery matters in criminal cases in the Midland/Odessa and Pecos Divisions of the Western District of Texas.  Counts also handles civil trials with the consent of both parties.

Among his more notable trials, Counts presided over the jury trial of two oilfield workers who sought unpaid overtime wages under the Fair Labor Standards Att (FLSA).[10]  After a jury verdict for the plaintiffs, Counts awarded them liquidated damages and attorney’s fees, denying the employer’s motions for a new trial.[11]  On the criminal front, Counts presided over the guilty pleas of four prominent Midland and Odessa citizens who were charged with mortgage fraud, bank fraud, and money laundering.[12]

In his eight years on the bench, Counts has written hundreds of Reports and Recommendations for federal district judges.  Of these, four have been partially rejected by the district judge.[13]  Of these, the most notable is Counts’ opinion in Sherwood v. United States.[14]  The case involved a habeas petition brought by a prisoner who argued that his right to self-representation during his trial was impeded.[15]  While Counts recommended that the plaintiff receive relief for his petition, the district court rejected this recommendation of relief.[16]

Political Activity

Counts has no political donation history, although his father, W. David Counts Jr., served as in the Texas state legislature as a Democrat between 1988 and 2002.

Overall Assessment

Generally speaking, nominees put forward by presidents of the opposite party (or presidents of both parties) fare well in the confirmation process.  The same process is likely to hold up for Counts.  Republicans are unlikely to object to Counts as he is the product of a recommendation process set up by Cornyn and Cruz, two conservative senators.  Democrats are unlikely to object to Counts given his previous nomination by President Obama, his ties to a prominent Democratic officeholder, and his relatively moderate record.

If confirmed, one can expect Counts to have a similar record to that of the judge he replaces.  Like Judge Robert Junell, Counts will likely be a center-right voice on the federal bench in Midland.

[1] John Council, U.S. District Judge Rob Junell Hits Career Peak, Texas Lawyer, Feb. 12, 2015, http://www.texaslawyer.com/id=1202717806165/US-District-Judge-Rob-Junell-Hits-Career-Peak?slreturn=20170918151134.

[2] Press Release, White House, President Obama Nominates Six to Serve on the United States District Courts (March 15, 2016) (on file at https://obamawhitehouse.archives.gov).  

[3] See State v. McDuff, No. 93-5281 (147th Dist. Ct., Travis Cnty., Tex. 1995).

[4] See id.

[5] See State v. Valdez, No. 92-5263 (147th Dist. Ct., Travis Cnty, Tex. 1995).

[6] Special to the N.Y. Times, Man is Convicted of Rape in Case Involving Condom, N.Y. Times, May 14, 1993.

[7] Sue Anne Presley, Rapist Asked to Use Condom Gets 40 Years; Terror ‘Indiscribable’, Victim Tells Court, Wash. Post, May 15, 1993.

[8] See United States v. Cantu, No. 5:07-CR-00662 (W.D. Tex. May 7, 2009).

[9] See United States v. Martin, No. 5:02-CR-00527 (W.D. Tex. Apr. 6, 2005).

[10] See Carley v. Crest Pumping Tech., No. 7:15-CV-00161, 2016 WL 8856917 (W.D. Tex. Jan 10, 2017).

[11] See id.

[12] United States v. Hilliard, No. 7-14-CR-00001 (W.D. Tex. Jan. 13, 2015).

[13] Lindig Construction & Trucking, Inc. v. Bonelli, No. 7:15-CV-00116 (W.D. Tex. April 6, 2016), adopted in part by 2016 WL 8677200 (W.D. Tex. Aug. 19, 2016); Nestor v. Penske Truck Leasing Co., L.P., No. 4:14-CV-00036, 2015 WL 4603313 (W.D. Tex. July 7, 2015), adopted in part by 2015 WL 4601255 (W.D. Tex. July 29, 2015); United States v. Venegas, No. 7:13-CR-00061 (W.D. Tex. Dec. 2 2013), aff’d, 594 F. App’x. 822 (5th Cir. 2014); Sherwood v. United States, No. 4:04-CR-00191 (W.D. Tex. Apr. 5, 2012).

[14] Sherwood v. United States, No. 4:04-CR-00191 (W.D. Tex. Apr. 5, 2012).

[15] Id.

[16] Id.

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