Volume 70, Issue 4
Trade Violations Under the False Claims Act page 38
National Reach. Local Impact. All FBA memberships expired on September 30. If you haven’t yet renewed, your grace period ends soon. Your membership is instrumental in shaping the future of the Federal legal community. We need your help to unite the bench and bar to protect the rule of law through education, leadership, and nonpartisan advocacy. When you renew your membership, you’ll continue to be part of the largest community and knowledgebase of Federal practitioners and judges in the United States. Your membership makes a difference!
Renew your FBA membership today at www.fedbar.org/renew
Volume 70, Issue 4
EDITORIAL BOARD Editor in Chief James W. Satola jsatola@roadrunner.com Associate Editor Peter M. Mansfield peter.mansfield@usdoj.gov
Fall 2023: Leadership Issue
Managing Editor Heather Rigby (240) 404-6488 social@fedbar.org Columns Editors Anna Archer Nicole Case Judicial Profiles Editors Eugenia M. Carris Hope Forsyth Book Review Editor Elizabeth Kelley Articles Editors William John Baker Reid Jones Jon Jay Lieberman Reynold P. Masterton Marcus Reed Senior Proof Editor Benjamin R. Syroka Proof Editors Brandon Kyle Braslow Brian Scott Green Douglas Lang Nicholas R. Monlux Angela Reaney Stephen Riden Jeanne Ripley Jean Phillip Shami The Federal Lawyer (ISSN: 1080-675X) is published quarterly, four times per year by the Federal Bar Association, 4075 Wilson Blvd., 8th Floor, Arlington, VA, 22203, Tel. (571) 481-9126, Fax (571) 481-9090, Email: social@fedbar.org. Subscription Rates: $14 of each member’s dues is applied toward a subscription. Nonmember domestic subscriptions are $50 each per year; foreign subscriptions are $60 each per year. All subscription prices include postage. Single copies are $5. “Periodical postage paid at Arlington, VA., and at additional mailing offices.” “POSTMASTER, send address changes to: The Federal Lawyer, The Federal Bar Association, 4075 Wilson Blvd., 8th Floor, Arlington, VA 22203.” ©2022 Federal Bar Association. All rights reserved. PRINTED IN U.S.A. Editorial Policy: The views published in The Federal Lawyer do not necessarily imply approval by the FBA or any agency or firm with which the authors are associated. All copyrights held by the FBA unless otherwise noted by the author. The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute endorsement of such products or services by the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manuscripts, which, if accepted for publication, are subject to editing. Manuscripts must be original and should appeal to a diverse audience. Visit www.fedbar.org/ tflwritersguidelines for writers guidelines.
28 The Reactions of
International Criminal Justice to Russia’s Invasion of Ukraine By Francesca Braga
32 Twombly and
Affirmative Defenses: Where Things Stand
Also in This Issue
52 Annual Conference Recap
52 CBM Essay Contest Winner
By William M. Janssen
40 Trade Violations Under
the False Claims Act
By Olga Torres and Camille Edwards
Fall 2023 • THE FEDERAL LAWYER • 1
COLUMNS 3 Letter from the Editor Optimizing for the Future By James W. Satola
4 President's Message Take a Walk, Take a Friend By Jonathan Hafen
6 Beltway Bulletin A Deeper Bench
By Cissy Jackson and Dan Renberg
8 At Sidebar
Unplug or Burn Out By John Black
10 Bankruptcy Brief
A Bundle of Bankruptcy-Related Opinions from the 2022 Supreme Court Term By Hon. Elizabeth L. Gunn and Bomin Park
12 From the Foundation A Strategic Plan for a New Era By Ashley L. Belleau
14 Diversity & Inclusion
Empowerment: The Key Inclusion Ingredient By Noor-ul-ain S. Hasan and Nico Martinez
16 Commentary
The Flawed Cross-Over of Pre-Trial Programs and Immigration Proceedings By Ethan Kincaid
17 Commentary
The Experience of a Lifetime: One Student’s Perspective on Attending the FBA Leadership Sum By Curtis J. Tokach
18 Commentary
The Future of the Federal Criminal Justice System By Farah Famouri
20 Thought Sponsor
Federal Tax Reform is Coming Soon! By Joshua D. Odintz
22 Thought Sponsor
Recent Supreme Court False Claims Act Developments By Christopher C. Burris
PROFILES 24 Judge William Matthewman United States Magistrate By Lauren Johnson
BOOK REVIEWS
46 Shielded: How the Police Became Untouchable Reviewed by Joanna Schwartz
47 Civil Rights Queen: Constance Baker Motley and the Struggle for Equality Reviewed byTomiko Brown-Nagin
FBA MEMBER NEWS
50 Chapter Exchange 52 Conference Recap 63 Member Spotlight
4075 Wilson Blvd., 8th Floor Arlington, VA 22203 Ph: (571) 481-9100 • F: (571) 481-9090 fba@fedbar.org • www.fedbar.org BOARD OF DIRECTORS President – Jonathan O. Hafen jhafen@parrbrown.com President-Elect – Glen R. McMurry gmcmurry@taftlaw.com Treasurer – Hon. Karoline Mehalchick karoline_mehalchhick@pamd.uscourts.gov Hon. Alison S. Bachus bachusa@superiorcourt.maricopa.gov Joseph G. Feldstein del Valle jfeldstein@qaclaw.com Darrel J. Gardner Bonnie Greenberg bonnie_baltimore@yahoo.com Anna W. Howard anna.howard@uga.edu Joseph S. Leventhal joseph.leventhal@dinsmore.com Nancy Morriseau nancy.morisseau@nationalgrid.com Hon. Michelle M. Pettit michelle_pettit@casd.uscourts.gov Rachel V. Rose rvrose@rvrose.com EX OFFICIO Ashley Akers ashley.akers@usdoj.gov Maura Jean Black mblack@cck-law.com Matthew C. Moschella mcmoschella@sherin.com Oliver A. Ruiz oruiz@malloylaw.com NATIONAL STAFF Executive Director Stacy King sking@fedbar.org Deputy Director R. Yvonne Cockram ycockram@fedbar.org Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org Outreach and Foundation Manager Cathy Barrie cbarrie@fedbar..org Membership Coordinator Clarisse Diggs cdiggs@fedbar.org Membership Coordinator Tameka Jackson tjackson@fedbar.org Director of Sections and Divisions Mike McCarthy mmccarthy@fedbar.org Program Coordinator, Sections and Divisions Daniel Hamilton dhamilton@fedbar.org Senior Conference Manager Caitlin Rider crider@fedbar.org Program Coordinator, Conferences and Webinars Nikki Toledo ntoledo@fedbar.org Leadership Support and Board Specialist Shaniece Rigans srigans@fedbar.org Database and Technology Administrator Miles Woolever mwoolever@fedbar.org HR Administrator Stephanie Hagopian shagopian@fedbar.org Marketing Manager Sarah Perlman social@fedbar.org VICE PRESIDENTS FOR THE CIRCUITS First Circuit Scott P. Lopez Second Circuit Dina T. Miller Third Circuit Christian Haugsby
2 • THE FEDERAL LAWYER • Fall 2023
Fourth Circuit Kacy L. Hunt Fifth Circuit Mark L. Barbre Paul D. Barkhurst Sixth Circuit Jade K. Smarda Seventh Circuit Melissa Schoenbein Eighth Circuit David A. Goodwin Ninth Circuit Jody A. Corrales Chi Soo Kim Tenth Circuit Kristen R Angelos Kate Simpson Eleventh Circuit Lauren L. Millcarek Oliver A. Ruiz D.C. Circuit Patricia D. Ryan SECTION AND DIVISION CHAIRS Chair, Sections and Divisions Council Maura Jean Black Admiralty Law Section Michelle Otero Valdés Alternative Dispute Resolution Section Jo Colbert Stanley Antitrust and Trade Regulation Section MarisaRosen Dorough Banking Law Section Laura R. Biddle Bankruptcy Law Section Sally McDonald Henry Civil Rights Section Kyle J. Kaiser Corporate and Association Counsels Division Lawson E. Fite Criminal Law Section Madison Bader Environment, Energy & Natural Resources Section Vacant Federal Career Service Division Steven R. Miller Federal Litigation Section Andrea L. Marconi Government Contracts Section Vacant Health Law Section Angela Eastman Immigration Law Section Kelli Jo Duehning Indian Law Section Helen B. Padilla Intellectual Property Law Section Olivera Medenica International Law Section Judith L. Wood Judiciary Division Hon. Beth Bloom Labor and Employment Law Section LaurenElizabeth Fisher White Law Student Division Jenifer Tomchak LGBTQ+ Law Section Mario Choi Qui Tam Section MeganMocho Securities Law Section Vacant Senior Lawyers Division Albert Lionel Jacobs, Jr Social Security Law Section JerroldA. Sulcove State and Local Government Relations Section Vacant Tax Law Section Alan S. Williams Transportation & Transportation Security Law Section Sarah Bell Nural Veterans and Military Law Section Frank J. McGovern Younger Lawyers Division Ashley Akers
Letter from the Editor
Optimizing for the Future by James W. Satola
James W. Satola is the editor-in-chief of The Federal Lawyer. He is currently a law clerk to Senior United States District Judge Donald C. Nugent of the U.S. District Court for the Northern District of Ohio, after having earlier practiced with a worldwide law firm for close to 20 years. He is a past three-term FBA circuit vice president for the Sixth Circuit and a past president of the FBA Northern District of Ohio Chapter.
Let me start by introducing our Fall 2023 issue of The Federal Lawyer (TFL), which, as always, strives to bring our membership thought-provoking and informative new feature articles, judicial profiles, and commentary on important federal legal topics, as well as our regular columns, book reviews, and information from and about the FBA itself. This issue promises to do just that, with feature articles on international criminal justice, the False Claims Act, and federal litigation issues, mixed with commentary on immigration practice, a student’s perspective on our FBA Leadership Summit, and the future of the federal justice system itself. Often, our issues are centered on a particular “theme,” but this issue, which marks the transition from one “FBA year” to the next, offers our readership content on legal issues not necessarily contained within the themes of the past year’s issues. The Fall issue also includes a 2023 FBA Annual Convention recap, where we welcomed National President Jon Hafen, incoming Foundation President Ashley Belleau, new national officers, committee chairs, and Section and Division chairs, in addition to honoring many of the past year’s national award recipients. Let me follow by introducing myself: As a soonto-be 30-year member of the FBA, who has attended every annual and midyear meeting since 2000, as well as numerous Leadership Summits (including the very first one as an incoming Chapter president), I have had the honor of meeting many of our FBA members throughout the country. I look forward to meeting more. I also look forward to serving the FBA membership in my new role as incoming editor-in-chief of TFL, after serving on the editorial board since 2016—as proof editor, senior proof editor, judicial profiles editor, and most recently as associate editor, following the distinguished service provided by my predecessor Andrew Doyle. I am a former three-term circuit VP for the Sixth Circuit, and many years before that was president of the FBA’s Northern District of Ohio Chapter. TFL has always been one of my favorite things about the FBA, and taking on this role has been something I have aspired to since joining the FBA in 1994. Finally, I want to introduce something new coming to TFL in 2024. Beginning with the Winter 2024 issue, the magazine will be distributed in a digital-only for-
mat—this will be done using a new platform optimized for mobile reading, such that the magazine will be easily readable via phones, tablets, and computers, including now providing accessibility features for low-vision or blind readers. TFL will still retain the magazine look that it has always had, but it will also include new reader-friendly features allowing it to be easily read anywhere. I admit that I have always been a huge fan of the hard-copy paper format of TFL, both as a reader and occasional author, and looked forward to it arriving in my mailbox for the past 30 years, so it is great to know that with the new format, we’ll be keeping the look, while also taking advantage of new production technology. TFL will continue with the quarterly schedule introduced last year, with Winter, Spring, Summer, and Fall issues arriving throughout 2024. And, with the new format—not as bound by the page limitations of traditional print layout—these issues will also be able to incorporate the additional content. The Winter 2024 issue will have a focus on bankruptcy law, courts, and practitioners, along with a special feature section devoted to highlighting the past, present, and future of the Foundation of the FBA. We have a lot to look forward to this coming year.
Fall 2023 • THE FEDERAL LAWYER • 3
President’s Message
Take a Walk, Take a Friend By Jonathan Hafen
Jonathan Hafen handles a wide variety of litigation, including cases in the areas of securities and investment law, employment law, regulatory enforcement defense, disputes over the ownership and control of businesses, class actions, and legal malpractice defense. Mr. Hafen also serves as legal counsel to numerous small, midsize, and multinational companies, utilizing the significant resources available at his law firm, Parr Brown Gee & Loveless, to address the broad spectrum of legal challenges routinely confronting business leaders. He serves as the FBA National President.
More years ago than it seems, I was a young associate at my current law firm. One morning, a prominent and well-connected senior partner walked through my office door and sat down. His name was Rob Clark. Rob told me that there was a great national organization called the Federal Bar Association, that the FBA had an active chapter in Utah, and that the Utah Chapter board was meeting that day. He invited me to join him. That moment changed my life and my career. That day, I met some of Salt Lake’s most impressive lawyers, as well as a federal judge and a court clerk. Only a few years out of law school, judges generally, and federal judges in particular, were slightly terrifying to me. Fortunately, the judge on our board, Hon. Dale Kimball, was a member of my law firm before taking the bench and has been a long-time family friend. As the board discussed past and upcoming events, it was easy to see that becoming part of the FBA would give me an opportunity to learn how to become a better lawyer and to hear from and get to know Utah’s federal judges in a way no other organization offered. A few days later, I was invited to join the board as the newsletter editor, a position I happily held for several years. As newsletter editor, I met with a number of Utah’s federal judges to gather information for judicial profiles I was writing. I quickly learned that they weren’t terrifying after all; they were all very supportive of the FBA and its mission and happy to share their professional journeys and provide practice pointers on how to be more effective advocates in their courtrooms. I met still more federal judges and highly respected lawyers at FBA events like the Utah Chapter’s annual CLE conference and our awards banquet. Later, I even had the opportunity to lead the Utah Chapter. As Chapter president-elect, I attended what we now call our Leadership Summit in Washington, D.C. There, I learned that the FBA is one of the largest and most-respected national bar associations, and I made friends from around the country. While it was not my intention when these friendships blossomed, I now have a national network of fantastic lawyers to whom I send work and who refer work to me. When lawyers at my firm need counsel in other states, they often come to me first because of my FBA relationships.
4 • THE FEDERAL LAWYER • Fall 2023
My FBA friendships not only have enhanced my career they have enriched my life. Members of my FBA family are often those who share with me (and I with them) the joys and sorrows of life, as well as the triumphs and challenges that a career in the law brings to each of us. Following Rob’s good example, I frequently take a walk and take a friend to FBA events. I invite them to join the FBA and to get involved. One of the best of those walks was when I invited Jenifer Tomchak to come with me to an FBA Utah Chapter board meeting. She quickly became enthusiastic about the FBA, both locally and nationally, and has served as a Utah Chapter president, our national Younger Lawyers Division president, and currently serves as chair of our extremely important Law Student Division. She has made a huge positive difference for the FBA locally and nationally, as well as for me personally and professionally. A few years later, Jen took a walk and invited a new lawyer she knew, who happens to be my daughter Sarah, to get involved with the FBA’s Younger Lawyers Division. Through Jen’s invitation, Sarah now has a growing local and national FBA family. We discuss often how much we love the FBA—both its people and also its mission to support our federal judges and federal practitioners in a non-partisan manner. What we do together as the FBA matters. The FBA is its people. We often are the mouthpiece for the federal judiciary. Right now, we are lobbying Congress to create and fund additional judgeships and to create an independent Article I immigration court. Our current immigration judges are now operating under the executive branch, while Article I judges are part of the judicial branch. And perhaps nothing we have done in recent years has been as important as taking a leading role in advocating for increased judicial security. I was so happy when the Daniel Andrel Judicial Security and Privacy Act was passed. We were an important part of transforming that idea into law, which is named after the son of U.S. District Court Judge Esther Salas, who was killed by a disgruntled litigant. As FBA members, we have a national reach in our relationships and our influence. At the same time, often the FBA’s greatest positive impact on our careers
and lives is in our own legal communities. Call me biased, but I honestly believe that all federal judges, clerks, and practitioners should be part of the FBA. We offer great national and local CLE, fun social gatherings, interactions with federal judges and clerks, and leadership opportunities for everyone who wants one. During my year as your president, the FBA will be focusing on membership experience, retention, and growth. I hope that your FBA membership experience has been positive; that your life and your career are both better because of your FBA participation and service. I would love to hear about your experiences, positive, negative, or neutral, so that the FBA can continue to improve. You can reach me at president@fedbar.org. We also will be working to grow our membership nationally by 10% over the next From left to right: Rob Clark, Jon Hafen, Jenifer Tomchak, and Sarah Hafen at an FBA event. year in each of our Chapters, Sections, and Divisions, and to increase our membership with our Federal Bar Association. Those walks may be literally in the retention to 80%. That retention number is close to our historic halls of your workplace or through an email or phone call. Whatever average but higher than what we have seen post-COVID. the means, introducing others to the FBA can improve their careers As the FBA grows, our energy and our influence grow as well. and their lives, as well as yours. I love the FBA! My time in the FBA has been transformative. I Thank you for being part of the Federal Bar Association. I look hope you will join me this year in taking walks wherever you may be forward to a great year together! and on those walks inviting others to join you in becoming involved
Friend Us. Follow Us. Join Us. www.fedbar.org
Keep in Touch With the FBA Update your information online at www.fedbar.org or send your updated information to membership@fedbar.org. Fall 2023 • THE FEDERAL LAWYER • 5
Beltway Bulletin
A Deeper Bench By Cissy Jackson and Dan Renberg
Making the Case for the JUDGES Act As FBA members know from personal experience, many federal courts face overwhelming caseloads, which result in delayed resolutions, higher costs, and diminished access for litigants. For judges and court personnel, the workload can deter qualified candidates from seeking such positions and can lead to departures or early retirements, compounding the burden on the remaining judges and courthouse staff. One of the FBA’s policy priorities this Congress is the enactment of legislation that would alleviate these problems by adding federal district court judgeships.
How Many New Judgeships Do We Need? Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. before joining ArentFox Schiff. She also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. Jackson has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation. Dan Renberg, a former senior Senate staff member and presidential appointee, has helped numerous clients since joining ArentFox Schiff as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included as one of the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America.
Every two years, the Judicial Conference of the United States ( JC) conducts an in-depth assessment of federal court workloads. Where the data demonstrates the need, they send Congress recommendations for the creation of additional judgeships. Rather than simply counting the number of cases filed per judge, the JC counts weighted filings per judge1 to account for variations in the time and resources required for the disposition of different types of civil and criminal cases. According to the JC, a manageable district court caseload is 430 weighted filings per year. In fiscal year 2022, weighted filings far exceeded the threshold in many jurisdictions—exceeding 500 per judgeship in 17 courts, more than 600 per judgeship in eight, and over 700 per judgeship in three. Based on its findings, the JC’s 2023 report recommends adding seats, or converting or extending temporary judges to permanent status, in a total of 30 districts. As part of its judicial vacancy reporting, the JC also publishes a list of judicial emergency districts, which it defines as any vacancy where weighted filings are in excess of 600 per judgeship; any vacancy in existence more than 18 months where weighted filings are between 430 to 600 per judgeship; any vacancy where weighted filings exceed 800 per active judge; or any court with more than one authorized judgeship and only one active judge. Almost all the 18 current judicial emergency districts also happen to be districts where the JC has recommended adding judgeships.2 In its March report, the JC asks Congress to create two permanent judgeships in the courts of appeals, add 66 permanent district court judgeships, convert
6 • THE FEDERAL LAWYER • Fall 2023
seven temporary district court judgeships to permanent status, and extend two existing temporary district court judgeships for an additional five years. Although the JC’s biannual reports have repeatedly recommended the addition of new district court seats, Congress has not created a new district court judgeship since 2003 and has not enacted a comprehensive bill to add seats to the federal bench since 1990, despite a 30% increase in case filings since then.
Why Hasn't Congress Acted On the Judicial Conference’s Recommendations? The principal obstacles facing legislation to add judgeships fall into two categories: political and financial. Since nominating and confirming judges has become increasingly politicized, many members of Congress are unwilling to give a sitting president of a different political party the opportunity to select judges who will be viewed as ideologically aligned with that president. In the last Congress, however, the Judicial Understaffing Delays Getting Emergencies Solved ( JUDGES) Act offered a creative response to this problem. The act would create new district court judgeships in two equal batches in the future, when the occupant of the Oval Office is unknown. Specifically, roughly half the recommended district court seats would be added on or after Jan. 21, 2025, and the remainder would be added on or after Jan. 21, 2029. The act enjoyed bipartisan support in the last Congress, in large part because of this solution to the political problem. We have been in contact with staff for Senators Todd Young, R-Ind., and Chris Coons, D-Del., and Representative Darrell Issa, R-Calif., who cosponsored this legislation in the last Congress, and we expect them soon to reintroduce the JUDGES Act, updated with the March recommendations from the JC. Adding the new seats in two future fiscal cycles also helps with the financial problem by spreading out the financial impact and allowing planning for the additional funding, which would not be inconsiderable. The costs of adding seats to the federal bench include salaries and benefits, office space, and other resources for judges and associated court personnel. The federal budget process is fraught with competing demands every year; consequently, the task for JUDGES adcontinued on page 9
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At Sidebar
Unplug or Burn Out By John Black
John W. Black is a former federal prosecutor who focuses his practice on fraud and other white-collar matters, including cases involving whistleblowers. John is a partner at Black & Buffone PLLC.
The practice of law is, fundamentally, a service profession. And like any service profession, lawyers frequently feel the need to put the client’s needs ahead of their own. After all, if you aren’t going to be available to your client day and night, someone else will. The upshot of this is that lawyers hardly ever give themselves a chance to truly get away, to recharge their batteries, and come back well rested and ready to attack the case or controversy. This problem has been exacerbated, dramatically, through the widespread adoption of email and other means of technological communication, which keep lawyers in constant connection with clients, colleagues, and staff from anywhere in the world. Personally, I carry my digital leash with me at all times. I’m ashamed to admit that checking email is the first thing I do when I wake up, and it’s the last thing I do when I go to sleep. This is true seven days a week, and neither rain, nor snow, nor sleet, nor hail shall keep me from my appointed rounds—or at least from my iPhone. While this problem is surely not unique to lawyers, the nature of a legal practice, especially in an adversarial field like litigation, creates the perfect storm that keeps us trapped in the eye of a digital hurricane. Modern research, however, has shown that this is unsustainable and has meaningful repercussions for the health and well-being of attorneys. We, as lawyers, must find a way to unplug our minds and take a true digital holiday.
The Problem A notorious 1999 Vanderbilt Law Review article called attorneys “the most depressed people in America.”1 The article also ranked lawyers at or near the top of all professions for anxiety, mental illness, divorce, poor physical health, general unhappiness, and even suicide.2 The lawyers’ biggest complaints at that time were the long hours and inability to get away. In the 24 years since the article was published, these concerns have been amplified by the advent of technology making it nearly impossible for lawyers to ever be fully “not working.” A survey conducted just prior to the COVID-19 pandemic revealed that 64% of lawyers felt they suffered from anxiety and 31.2% suffered from depression.3 Another similar survey indicated that 52% of lawyers had experienced “burnout,” and 8 • THE FEDERAL LAWYER • Fall 2023
respondents cited an “inability to disconnect from work” (79%) and a “heavier workload” (78%) as the top two reasons for lawyer burnout.4 Chronic stress can affect health on many different levels, often contributing to anxiety and depression, problems with memory, poor digestion, and impaired sleep. Vacations are a proven method of breaking the stress cycle.5 Yet, despite the consensus that vacations are important to mental and physical health, many attorneys seem to regard them as unimportant, or something that can readily be perpetually delayed because some perceived work emergency has arisen. Many attorneys, even those who are self-employed or who work at small firms, often feel guilty about taking time off from work or feel that they will lose a competitive advantage for their clients if they do unplug. Consequently, lawyers, like many workers, simply fail to use vacation or to use it effectively if they do. The average American worker is entitled to 13 vacation days annually, but 34% don’t use a single vacation day during the year. Even among those who do take a vacation, 30% report an inability to relax due to worrying about their work.6 With the proliferation of mobile communication devices, many lawyers find it impossible to separate from their work environment even for a few days.
What to Do? The solution, perhaps, is simple, but that does not make it easy. A recent study revealed that 60% of workers reported a “substantial improvement” of health and well-being following a vacation including participation in winter sports activities like skiing.7 Notably, the study also revealed that “spending limited time on passive activities” and “avoiding negative incidents during vacation” explained a significant portion of the variance in results for those workers who did not improve their health and well-being during the vacation.8 In other words, if you fail to actually take a vacation, your mind and body will not get the positive effects that time away from work can bring. While not explicitly stated in the study, I believe this clearly supports the conclusion that workers must truly unplug from work and technology to attain the positive health and well-being outcomes from a vacation. In fact, even short vacations (four to five days) have been found
to significantly improve reported health and well-being for employees.9 Critically, however, working during vacation negatively influenced employees’ health and well-being after the vacation. To summarize: Don’t ruin your vacation by checking your email; go skiing instead. Similarly, experts have also suggested that you should only deal with work-related tasks when you are able to give them full attention.10 It is counterproductive to attempt to leverage technology to be in two places at once. It’s obvious that you should focus on work when you’re at work. But it’s equally important to focus on vacation when you’re on vacation. As scholar Ron Swanson famously said: “Never half-ass two things. Whole-ass one thing.” It’s a good lesson whether you work in the Parks Department or as an attorney. Recently, Orrick instituted a policy to credit up to 40 hours toward billable hour requirements to allow attorneys and staff “to truly unplug.” In a memo obtained by Above the Law, the firm explained: “We don’t want to lose you to burnout—especially when many members of our team are working exceptionally hard… A week without email, Zoom, or calls—the rest is up to you!”11 Notably, the policy, which was strongly encouraged but not required, demanded that the attorney designate a fill-in to cover for them or handle client issues if an emergency arose. It remains to be seen whether the firm continues this policy or whether it helps Orrick retain associates and staff better than other similar AmLaw 100 firms. Nonetheless, this is a meaningful acknowledgment that a real problem exists, and it offers a step in the right direction by an influential firm. Sheppard Mullin, another large firm, recently adopted a similar policy.
A Personal Story My wife and I recently celebrated our fifth anniversary. While out at our celebratory dinner (I checked my email while she was in the bathroom of course), we began reminiscing about our honeymoon. She recalled that when we were planning our trip, my only requirement was that it had to be out of the country. I was a trial attorney at the Department of Justice at the time, and for security reasons, I was not permitted to check my email when overseas. I knew that to be fully present for my honeymoon, I had to make it impossible for me to even check in with my office. If I gave work an inch, it would take a mile. So, we traveled to Japan, I left my work phone and laptop in Washington, and we had a fabulous time. I came back to work refreshed and reenergized. Now in private practice, the foreign travel loophole has been
closed for me, and every “vacation” I’ve taken since has been intruded upon by some supposed work emergency. Needless to say, my mind feels like its last real vacation was five years ago. As research reveals, this is unsustainable. We all need to find a way to fully unplug and let ourselves rest and recuperate before our relationships—both personal and professional—begin to suffer.
Endnotes Patrick J. Schiltz, On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vanderbilt Law Review 871 (1999), https://scholarship.law.vanderbilt.edu/ vlr/vol52/iss4/. 2 Id. 3 Erin Mihalik, “12 Ways for Lawyers to Unplug”, Martindale Avvo, Aug. 23, 2022, https://www.martindale-avvo.com/blog/howlawyers-unplug/. 4 Id. 5 Allan D. Joudrey & Jean E. Wallace, Leisure as a coping resource: a test of the job demand-control-support model. Human Relations. 2009;62:195-217. 6 Brandon Gaille, 23 Workaholic Statistics, BrandonGaille Small Bus. & Mktg. Advice (May 23, 2017), https://brandongaille.com/21significant-workaholic-statistics. 7 Jessica de Bloom et al., How does a vacation from work affect employee health and well-being?, 26 Psych. Health 1606 (2011). doi: 10.1080/08870446.2010.546860. Epub 2011 Jun 28. PMID: 21678165. 8 Id. 9 Jessica de Bloom et al., Effects of Short Vacations, Vacation Activities and Experiences on Employee Health and Well-Being, 28 Stress & Health 305 (2012). https://doi.org/10.1002/smi.1434. 10 Eric R. Wengert, Thoughts of work invaded my life-until I learned how to unplug, Science (Aug. 29, 2021), https://www.science.org/ content/article/thoughts-work-invaded-my-life-until-i-learned-howunplug. 11 Debra Cassens Weiss, Orrick hopes to battle burnout with ‘unplug time’ policy, ABA Journal, Mar. 22, 2021, https://www.abajournal. com/news/article/orrick-hopes-to-battle-burnout-with-unplugtime-policy. 1
Beltway Bulleting continued from page 6
vocates is to demonstrate that the costs of not adding judgeships are greater than the costs of adding them.
How Can You Help? Because the FBA’s mission is to advance the federal judicial system and promote effective legal practice before the federal courts and federal agencies, the FBA supports adding permanent and temporary federal judgeships, including bankruptcy judgeships, when rising caseloads in the federal courts threaten the prompt delivery of justice. The FBA’s advocacy on this issue includes efforts to educate Congress, members of the legal profession, and the public about how the overwhelming caseloads threaten the ability of the judiciary to function. As emphasized in previous articles, members of Congress respond best to concerns raised by their constituents.
Many are attorneys and are therefore particularly receptive to the FBA’s informed, nonpartisan views on matters that affect our legal system. Once the JUDGES Act is reintroduced, FBA members should contact their senators and representatives to encourage them to cosponsor this important legislation. Please watch the website and your email for news about reintroduction and for information about contacting your elected representatives.
Endnotes Weighted filings data for each district court are published in Federal Court Management Statistics. 2 Eastern and Western Louisiana are not recommended for new seats at this time, though the current vacancies there qualify as emergencies. 1
Fall 2023 • THE FEDERAL LAWYER • 9
Bankruptcy Brief
A Bundle of Bankruptcy-Related Opinions from the 2022 Supreme Court Term By Hon. Elizabeth L. Gunn and Bomin Park
After several years with very few bankruptcy and bankruptcy-adjacent opinions, the 2022 Supreme Court term included two appeals directly from bankruptcy courts and two others addressing issues that directly impact bankruptcy practice. In the Spring 2023 edition of The Federal Lawyer, Judge Craig Gargotta discussed the Court’s opinion in Barternwarfer v. Buckley.1 The remaining opinions and their importance to bankruptcy practice are briefly discussed herein. The two bankruptcy court appeals cases on their face appear to involve statutory interpretation questions that are very limited in scope, but nonetheless provide important clarifications into issues in which there was previously a circuit split. Hon. Elizabeth Gunn is a United States Bankruptcy Judge in the District of Columbia. Bomin Park (J.D. candidate, Washington College of Law 2025) is Judge Gunn’s Summer 2023 intern. Judge Gunn thanks Don Mago, her 2022-23 term clerk for his assistance with this article.
MOAC Mall Holdings LLC v. Transform Holdco LLC, 143 S. Ct. 927 (2023). After Bartenwarfer, the Supreme Court issued this next bankruptcy opinion in connection with the Chapter 11 case of Sears, Roebuck and Co. Addressing an esoteric issue found in the Bankruptcy Code, the Court unanimously held that § 363(m) of the code is not a jurisdictional provision because there is not a “clear statement” indicating its jurisdictional nature. Section 363 of the code allows a bankruptcy debtor to sell property of the estate, and subsection (m) states that the reversal or modification of a sale on appeal does not affect the validity of the sale to an entity found to have purchased in good faith. If § 363(m) were deemed jurisdictional, a purchaser or lessee could invoke it at any time to dismiss an appeal from the bankruptcy court’s order authorizing the sale or lease, provided that the order has not been stayed pending the appeal’s resolution. Instead, the Court held that § 363(m) does not address the authority or jurisdiction of courts but rather sets limits on the effects of an appeal on the validity of a sale or lease, and a purchaser or lessee cannot simply await the appeal’s outcome before invoking § 363(m). The decision resolved a circuit split on the issue, and by not creating a jurisdictional bar, it allows bankruptcy courts to consider defenses such as waiver and estoppel to a claim of protection under § 363(m).
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The opinion will likely reach into other areas of bankruptcy practice beyond sales (and the importance of obtaining a § 363(m) finding at sale approval), including debtor in possession financing or other financing orders (the language of § 364(e) mirrors that of §363(m)). Perhaps more telling is language from Justice Jackson recognizing a “loose” and “overinclusive” use of the term jurisdictional and return to the clear statement rule for a statutory provision to be treated as jurisdictional. Perhaps this opinion will be best noted for the fact that, once again, the Court declined to address the question of equitable mootness.
Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, 143 S. Ct. 1689 (2023). In this other appeal from a bankruptcy case, the Court addressed whether § 106(a) of the Bankruptcy Code unequivocally abrogates tribal sovereign immunity for Native American Tribes (as that term is defined in the opinion). Arising out of a personal Chapter 7 case in Massachusetts, the Supreme Court majority, written by Justice Jackson, ruled that Congress abrogated the sovereign immunity of Native American Tribes because § 106(a) applies to every “governmental unit” listed in § 101(27), without cherry-picking certain types of governments. Justice Thomas concurred with the judgment that tribal immunity does not extend to lawsuits arising from a tribe’s commercial activities conducted outside its territory, while Justice Gorsuch dissented from the Court’s decision, arguing that the Court’s interpretation of the code does not meet the required standard for abrogating tribal sovereign immunity. On its face, the opinion is similar to MOAC, a specific analysis of a limited section of the code, however, the potential impact is much broader. By the holding, the opinion makes clear that all provisions of the code—importantly, the automatic stay of § 362(a) and discharge provisions—apply to Native American Tribes. Prior to this decision, in some jurisdictions, lending institutions owned by Native American Tribes were held to not be subject to the code—meaning that
individuals who borrowed money from such institutions were (at times) unable to truly obtain a fresh start. Now, those same institutions are clearly subject to the terms of the code, and debtors who owe debts to them can feel confident in the impact of their bankruptcy on such debts. The non-bankruptcy court appeal cases touch upon two areas of law that frequently overlap with bankruptcy practice: tax sales and arbitration.
Tyler v. Hennepin County, Minnesota, 143 S. Ct. 1369 (2023). In this case, the Supreme Court ruled that a government violates the Takings Clause of the Fifth Amendment when it takes property, sells it to satisfy a tax debt, but nonetheless retains the surplus value. The decision, drawing upon historical precedents such as English law and the Magna Carta, makes it clear that a government cannot seize more property than necessary without providing just compensation. Specifically, while a government has the authority to collect taxes and take measures to enforce tax collection, it cannot extinguish a property owner’s interest in the surplus value of their home above a tax debt because they failed to pay property taxes. In other words, the opinion requires a government to return the surplus value to the owner after a tax sale. The issue of surplus value is one often seen in bankruptcy cases and may result in additional payments to creditors and/or protections for debtors who have value in their property but delinquent taxes.
Coinbase, Inc. v. Bielski, 143 S. Ct. 1915 (2023). In a 5-4 ruling, the Supreme Court held that a district court must stay its pretrial and trial proceedings while an interlocutory appeal of an order denying a motion to compel arbitration is pending. Justice Kavanaugh, writing for the majority, invoked § 16(a) of the U.S. Code, which authorizes interlocutory appeals from the denial of a motion
to compel arbitration. The majority further relied on Griggs v. Provident Consumer Discount Co., which established the principle that an appeal divests the district court of control over the aspects of the case involved in the appeal. Justice Kavanaugh reasoned that since the entire case in question was essentially involved in the appeal, it made sense for the district court to “stay its proceedings while the interlocutory appeal on arbitrability is ongoing.” The majority emphasized the need for consistency and stated that it makes no sense for the trial to proceed while the court of appeals decides whether there should be one. Justice Jackson dissented, arguing against the imposition of a mandatory stay. She asserted that § 16(a) does not mention a stay pending appeal and that Griggs only applies to a “narrow slice of the case,” explaining that the majority’s ruling could disrupt federal litigation if applied broadly, deviating from established precedent and Congressional intent. It is possible that Justice Jackson’s dissent may prove to come to fruition in bankruptcy cases. Unlike “regular” civil litigation, it is frequently very difficult to draw the line between what “aspects of a case” may be involved in an appeal of an order denying a motion to compel arbitration, particularly in a reorganization case. It remains to be seen how the decision will impact bankruptcy cases. After a busy 2022 term on bankruptcy and bankruptcy-adjacent issues, one can only speculate on whether we will see a similar number of cases considered during the 2023 term. For more bankruptcy law coverage, see the upcoming bankruptcy-themed issue of The Federal Lawyer Supp., a digital-only publication, coming in early January 2024.
Endnotes Judge Craig A. Gargotta, When Does Fraud Not Require Intent?, Fed. Law., Spring 2023, at 13–16.
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From the Foundation
A Strategic Plan for a New Era By Ashley L. Belleau
Ashley Belleau has been a member of the FBA since 1985. She is a past national president and served as ABA delegate from 2015 to 2021. Ashley is a shareholder with Lugenbuhl in New Orleans.
The Foundation is the charitable arm of the Federal Bar Association and provides the best way for federal practitioners to give back to the Federal legal community. It serves people in communities across the United States through its generous grants, scholarships, and programming. As the new president of your Foundation, I am extremely excited to present the Foundation’s threeyear strategic plan as adopted on Aug. 30, 2023, by the Foundation’s Board of Directors. The plan seeks to expand the Foundation’s reach to the federal legal community. To provide context on why the Foundation adopted this three-year strategic plan, Foundation leadership spoke with Federal Bar members during the spring 2023 Leadership Summit and the September 2022 Annual Meeting about the Foundation and its activities. We were astonished to find out that so many of our active FBA members—even leaders—had no idea that the Foundation existed or what it does. That was a problem we needed to address. After discussion, the Foundation Board started the process of building a strategic plan by engaging a consultant. Elizabeth Derrico is an experienced bar professional who helps law-related nonprofits build their capacity to serve their missions through deliberate and thoughtful inquiry. She helped us determine what our goals should be. Prior to the January 2023 strategic planning retreat, we surveyed the members of the Foundation—our prestigious Fellows—to gain insight into just how big our job was going to be. The results indicated that we have work to do to maximize our impact. So, under the able leadership of then-President Aaron Bulloff, the Board brainstormed with Ms. Derrico and created the framework for our plan. We reviewed assumptions and survey results, clarified our vision, and identified opportunities. The Board explored the “why” of the Foundation and assessed whether its mission areas align with the impact it aims to make. We identified four goals: 1. Raise the Visibility of the Foundation among the FBA membership generally; 2. Deepen the pride, prestige, and engagement of Foundation Fellows; 3. Engage in programming that deepens and broadens the Foundation’s impact; and
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4. Engage in best practices in governance and financial stewardship. Our strategic initiatives are areas of action including growing donations, broadening communications, updating our branding, and enhancing the prestige of our Fellows. Volunteer Fellows collaborated with Foundation Board members in working groups to determine measures of success, tactics for implementation, resource requirements, and priority setting for each goal of the strategic plan. We prioritized our impact and vision, designated brand champions like our Fellows, and provided adequate resources and oversight for programming committees. Going forward the Foundation will review and update our policies and governance documents, as necessary, to fulfill our mission. We have our work cut out for us but are confident that we can succeed with your help! Three new committees were established to support our strategic initiatives: Publicity, Development, and Fellows. As part of our goal to increase the engagement of our Fellows, we invited them to serve on these and our grant and scholarship committees. We were delighted with the response and placed more than 30 volunteers on six committees for FY24. One of our key measures of success is increased awareness of the Foundation. This will, in turn, help us achieve our metrics for each goal. These include: • I ncreased grant applications received from chapters. • Increased percentage of Fellows who participate in Foundation activities. • Expanded representation of FBA entities (Chapters, Sections, and Divisions) in grant applicants; and • Increased diversity of Board members (demographics, geography, leadership/experience). Now, you may have noticed that something looks different on this column and on the materials and drink tumblers distributed at the Annual Meeting and Convention in Memphis. As part of a new communications plan, the Foundation updated its logo to reflect our mission to support justice, jurisprudence, and federal law by protecting—cradling—the scales of
justice. It is a visual cornerstone of the future of the Foundation and the very first step in our facelift. The Foundation has a new palette of ideas to usher our organization into a new era. I challenge you get involved and help propel the Foundation into the new era. My subsequent columns will focus on these and future planned activities of the Foundation. But do not wait until then! Visit our website at www.fedbar.org/ foundation/ to learn more about how your Foundation serves people in communities across the United States through its generous grants, scholarships, and programming. Please follow the Foundation on its new social media platforms: Facebook1, Instagram2, LinkedIn3.
Links https://www.facebook.com/people/Foundation-of-the-FederalBar-Association/61551833563965/ 2 https://www.instagram.com/foundationofthefba/ 3 https://www.linkedin.com/company/foundation-of-the-fba/ 1
Contact the Federal Bar Association to claim your missing issue of The Federal Lawyer or order additional copies at (571) 481-9100 or social@fedbar.org. Fall 2023 • THE FEDERAL LAWYER • 13
Diversity & Inclusion
Empowerment: The Key Inclusion Ingredient By Noor-ul-ain S. Hasan and Nico Martinez
Noor-ul-ain (Noor) Hasan is an associate at Bartlit Beck. She attended UC Berkeley School of Law, where she was Eeditor-in-chief of the California Law Review. She was a clerk in the U.S. District Court for the Northern District of Illinois and the U.S. Court of Appeals for the D.C. Circuit. Nico Martinez is a partner at Bartlit Beck, where he has worked since 2016. Prior to joining the firm, Nico attended Stanford Law School and clerked for three judges in the SF Bay area. Nico lives in Chicago with his wife and three boys.
Legal employers—especially law firms—increasingly face pressure from clients, community partners, and the legal community at-large to diversify their ranks and foster inclusive work environments. Many law firms have made headway in structuring their diversity commitments by creating formal firmwide diversity committees; allocating funding for inclusive programming and external organization partnerships; hiring diversity, equity, and inclusion strategists; and creating affinity networks for lawyers from underrepresented backgrounds to create community with like-minded colleagues. Even so, championing inclusion requires creativity and dedication. Our personal stories illustrate the power of these efforts at Bartlit Beck. In recent years, the firm has enriched its commitment to diversity, equity, and inclusion by developing an inclusive talent pipeline and taking on equity-focused pro bono work. These inventive and creative DEI solution examples have had a personal and professional impact on our careers and may inspire you as you shape the future of DEI at your workplace.
Noor’s Story: Inclusive Talent Pipeline I am a litigation associate at Bartlit Beck, where I also served in the firm’s first class of Diversity Fellows. The firm awards Diversity Fellowships to third-year law students who have demonstrated a commitment to inclusion in the legal profession and have secured a federal judicial clerkship. Fellows receive a six-week paid summer fellowship, bar examination preparation reimbursement, and an additional stipend. The fellowship is part-time, which makes it possible for fellows to also study for the bar exam. Although selection as a fellow does not necessarily include future employment, I enthusiastically returned to the firm as an associate attorney after completing two federal judicial clerkships. I grew up in a low-income family in Skokie, Illinois, and relied on federal programs—like Pell Grants—as well as generous need-based undergraduate aid to make it financially feasible to attend college. Unlike in undergraduate programs, need-based aid is extremely
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limited in law school. And law school can be prohibitively expensive. Despite the financial hurdles, I was determined to become a first-generation lawyer, and I was especially interested in litigation. As I closed out my law school career, the fellowship made it possible for me to (1) experience what it would be like to work at a boutique, trial-focused law firm; (2) afford bar exam preparation materials and other expenses associated with studying, which allowed me to focus on the exam with financial peace of mind; and (3) pay off a substantial portion of my law school student loans. In November 2022, I returned to the firm as a full-time junior associate. By my third week at the firm, I shipped out to join a trial team in Delaware federal court, where I participated in meet-and-confers with opposing counsel, drafted witness examination outlines, and weighed in on key trial demonstratives. Three months later, I joined another trial team and took my first witness in a high-stakes commercial dispute. The firm’s dedication to allowing junior attorneys to have command over the entire case, as well as stand-up opportunities, is a direct reflection and consequence of the firm’s DEI initiatives, implementation of thoughtful staffing practices, and commitment to attorney development. The firm makes it possible for junior lawyers to make significant contributions to their teams and obtain meaningful experiences early on.
Nico’s Story: Equity-Focused Pro Bono Work I am a partner at Bartlit Beck, as well as an adjunct professor of law and co-director of the Federal Appellate Clinic at Northwestern University Pritzker School of Law. An important part of my practice is pro bono work. In Rose et al. v. Raffensperger, for example, my colleague, Wesley Morrissette, and I represent a group of Black voters challenging Georgia’s statewide method of electing members of its powerful Public Service Commission. The Commission determines how much millions of Georgians must pay in utility bills. Yet only one Black person has ever been elected to the Commission in its 144-year history. To change that shameful record of racial discrimination, we filed a lawsuit under § 2 of the Voting Rights Act.
In August 2022, we obtained a historic victory in the U.S. District Court for the Northern District of Georgia. Following a week-long trial, where I delivered the opening statement and cross-examined the State’s only expert, we persuaded a federal judge to permanently enjoin further use of the statewide method of election that had unlawfully diluted Black votes for so many decades. In the days thereafter, I led the effort in the U.S. Supreme Court to preserve that victory for the ensuing election cycle, a “rare” feat that attracted headlines nationwide. My team convinced the justices to issue a unanimous order vacating a stay imposed by the U.S. Court of Appeals for the Eleventh Circuit. The stay would have allowed the November 2022 elections for the Public Service Commission to proceed using the statewide method that the trial court had found unlawfully dilutes the votes of millions of Black citizens in Georgia. Our Supreme Court victory made sure that would not happen. Our team’s ability to deliver these historic results for our clients was made possible by the firm’s commitment to training its lawyers, putting them on track to have first-chair trial experience in impactful litigation, and staffing them on a small number of cases so that they
can deliver high-quality results. Especially important to our success was knowing that we had the full support of firm leadership, regardless of the result. Taking on cases like these makes me proud to be a lawyer.
Conclusion The key ingredient to achieving inclusion at work is empowerment. This firm not only provides developmental stretch assignments to make us better attorneys with enriching and satisfying careers, but also empowers us, as associates and partners, to become the next generation of lawyers that deliver the best results for our clients and for the communities we serve. Our collective impact is made possible by our firm’s commitment to creating and maintaining an inclusive talent pipeline, fostering an innovative work environment, and prioritizing attorney development in high stakes matters. As we reflect on our experiences thus far, we know that the future of inclusion at our firm—and beyond—rests on inclusive hiring, development, advancement, and retention of talent as well as alignment with our clients’ interests and goals.
Get Published in The Federal Lawyer The Federal Lawyer strives for diverse coverage of the federal legal profession, and your contribution is encouraged to maintain this diversity. Writer’s guidelines are available online at www.fedbar.org/ tflwritersguidelines. Contact social@fedbar.org or (240) 404-6488 with topic suggestions or questions.
Fall 2023 • THE FEDERAL LAWYER • 15
Commentary
The Flawed Cross-Over of Pre-Trial Programs and Immigration Proceedings By Ethan Kincaid
Ethan Kincaid is a rising 2L Law Student at Penn State Dickinson Law with aspirations to become a Civil Litigator. This past summer, Ethan worked for the Pennsylvania Immigration Resource Center (PIRC) which opened his eyes to immigration law and the many areas of improvement needed.
Immigration law is a beast of forms and laws that would take years to master if it did not change with each incoming president’s administration. However, there is a cross-over between immigration law and rehabilitation programs that attorneys must advise their clients on if the client is not a citizen of the United States. With the rise of Criminal Justice Reform, States have adopted programs such as Pre-Trial Intervention Programs, PTI, which offer individuals the opportunity to not have a conviction put on their record if they can complete a period of good behavior. PTI programs have benefits, but it highlights the flaw of how immigration law defines a conviction. Texas is one such state that has a PTI program available that District Attorneys can pursue where the individual is a first-time offender who has committed a crime that is not of a serious nature such as with a deadly weapon.1 The person submits to the personalized program requirements for a period up to two years which can include factors such as doing controlled substances tests and agreeing to supervision.2 By accepting PTI, the person waives their right to a speedy trial and accepts responsibility. Upon the completion of the program, the charge is dismissed and can be removed from the individual’s record.3 The problem with PTI programs when dealing with immigration law is that accepting the program can make the resident deportable. Under immigration law, a conviction is not the same as in the criminal definition because the person does not have to be found guilty. Immigration law’s conviction is written so that it encompasses more than those who have just been convicted under a traditional sense.4 A person is convicted and therefore potentially deportable if they have agreed to enough facts that there could be a finding of guilt and there is a punishment of some kind associated with it.5 When a legal resident agrees to PTI, their acceptance of responsibility with supervision meets the standard to be a conviction and begin deportation proceedings. There are countless examples of legal immigrants who are offered a lenient PTI program because of their good character and clean record but are then unknowingly at risk of deporta-
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tion.6 There are benefits to not being tough on crime for first-time offenders to promote rehabilitation, but the current structure of immigration law does not give that option to lawful permanent residents. There are two options to improve the system and help immigrants receive equal treatment. The first option is States could individually fix their PTI program so that the charged individual does not have to accept responsibility or admit to the facts to be considered a conviction. It is still uncertain whether the Federal Courts would still find these revised PTI programs sufficient to be a conviction. Courts have noted that efforts from States to circumvent immigration convictions are not accepted.7 The second and more reasonable option, Congress amends the definition of conviction so that deferred or withheld findings of guilt such as under a PTI program are not considered a conviction under immigration law. Criminal Justice Reform has brought multiple positive changes in the use of charging instruments to address systemic problems in the country. Those benefits, however, should not be reserved for only citizens and exclude lawful immigrants in the United States. The immigration system is complex enough, and this would protect good people from being uprooted over a simple mistake.
Endnotes Tex. Gov’t Code § 76.011. Id. 3 Id. 4 8 U.S.C.S. § 1101(48)(A). 5 Id. 6 Matter of Mohamed, 27 I. & N. Dec. 92 (B.I.A. September 5, 2017); Ex parte Aguilar, 2019 Tex. App. LEXIS 4501; In re MARROQUIN-Garcia, 23 I. & N. Dec. 705 (B.I.A. January 18, 2005). 7 Matter of Pickering, 23 I&N Dec. 621 (BIA 2003). 1 2
Commentary
The Experience of a Lifetime: One Student’s Perspective on Attending the FBA Leadership Summit By Curtis J. Tokach
Curtis J. Tokach is a student at the Widener University Commonwealth Law School in Harrisburg, Pennsylvania. His expected graduation date is May 2024. He can be contacted at cjtokach@ widener.edu.
My name is Curtis Tokach, and I am a second-year law student at Widener University Commonwealth Law School in Harrisburg, Pennsylvania. I decided to get involved with the Federal Bar Association after having an amazing experience as a judicial intern with Magistrate Judge Susan Schwab of the U.S. District Court for the Middle District of Pennsylvania. In pursuing a higher degree of involvement, I chose to run for president of my law school’s FBA student chapter and was subsequently elected by my peers. This March, I, along with two other classmates, were graciously presented with the opportunity to attend the FBA’s annual Leadership Summit in Washington D.C. by the Middle District of Pennsylvania Chapter of the FBA, at no charge. Recognizing how amazing this opportunity was, I excitedly accepted this offer and attended the Summit. Upon arrival at the event, I was greeted by so many welcoming FBA members. Taking myself and the other law-student attendees under his wing, Casey Coyle, the President of the MDPA Chapter, swiftly introduced me to several FBA members from all over the country. At first, I was intrigued at how amicable all of the members were. However, I determined that these members were not simply being cordial to one another; these people were truly friends. It was incredible to see these distinguished men and women recall experiences they had in the past and reconnect with one another. While I was at first amazed at how these members interacted with one another, I quickly learned why this was the case. Every single FBA member that I met throughout my time at the Summit was deeply welcoming and even excited to have me at the event. The people that I had the privilege of meeting were just as excited to learn about my background and experiences as I was to learn theirs. Along with Mr. Coyle, Jo Colbert Stanley, a Widener University Commonwealth Law School alumni now residing in Fort Lauderdale, Florida, and Michelle Otero-Valdes, an
Admiralty Law practitioner from Miami, Florida, were extremely kindhearted and involved in ensuring that my experience was as outstanding as possible. I truly felt like I was part of a nationwide family. While the networking experiences were remarkable, the speakers at the Summit were equally as impressive. I had the opportunity to learn about some of the FBA’s chief initiatives, including membership growth, continuing legal education, and most pertinent to myself, law student engagement. These speakers effectively explained strategies that their Chapters implemented to move toward achieving these national initiatives. I paid careful attention to these discussions so that I could implement these ideas in my student chapter. My personal favorite part of the Summit was the roundtable discussion session on Saturday morning, where members had the opportunity to discuss additional strategies for achieving goals in FBA Chapters. The other law-student attendees and I sat at the “Engaging Law Students” table for the duration of the discussion. Here, we had the opportunity to share some of the strategies that we have used to engage our classmates with other FBA members so that they could potentially use some of these strategies to engage law school students in their home Chapters. The members we spoke with were extremely interested in our experiences. We felt like the stars of the show! Finally, we had the privilege of listening to FBA National President-Elect Jonathan Hafen’s concluding speech. Mr. Hafen spoke about seven aspects of leadership which he believed to be crucial to success in leadership positions. His combination of comedy and wisdom made this discussion very compelling. My big takeaway from this talk was that people will never forget the way you make them feel, so being a kind and encouraging leader is paramount to success. Related to this takeaway, I will never forget the way that the FBA Leadership Summit attendees made me feel. The continued on page 19 Fall 2023 • THE FEDERAL LAWYER • 17
Commentary
The Future of the Federal Criminal Justice System By Farah Famouri
Farah Famouri is an attorney at the Minneapolis litigation boutique Greene Espel. She represents business and public clients in a wide range of complex disputes. She is a member of the Minnesota Chapter of the Federal Bar Association.
On Feb. 21, 2023, the Federal Bar Association, the Minnesota State Bar Association, Minnesota Coalition of Bar Associations of Color, and the University of St. Thomas School of Law co-sponsored a full-day conference for the 2023 Diversity & Inclusion Conference, titled “A Look at the Future of the Federal Criminal Justice System: Enhancing Public Safety and Eliminating Racial Disparities.” The conference focused on principals of equity and community centered justice systems to educated and energize criminal justice stakeholders and organizations here in Minnesota. The programming consisted of the following: • W elcome remarks by Jerri C. Adams Belcher, co-chair of the Minnesota State Bar Association Diversity & Inclusion Council, and Rob Vischer, President of University of St. Thomas; • Panel 1: Discussion regarding racial disparities in federal sentencing decisions. Surya Saxena, Partner at Greene Espel, moderated the panel featuring Mark Osler, Professor at University of St. Thomas School of Law; Amy Fettig, Executive Director of the Sentencing Project; and Rachel E. Barkow, Professor at New York University School of Law and Member of the U.S. Sentencing Commission; • Panel 2: Discussion regarding criminal justice solutions being implemented by county prosecutors. Dr. Tanya Gladney, University of St. Thomas Associate Professor, moderated the panel featuring John Choi, Ramsey County Attorney; Erica MacDonald, former U.S. Attorney for the District of Minnesota and Minnesota District Court Judge; Dan Satterberg, Prosecuting Attorney of King County, Washington; and Sherry Boston, District Attorney of Dekalb County, Georgia; • Keynote Presentation: Fireside chat with Former United States Attorney General Eric Holder and Senior Vice President and Chief Diversity, Equity, and Inclusion Officer of Amerisource Bergen, Ann M. Anaya; • Panel 3: Discussion relating to community-based initiatives. Lola Velazquez-Aguilu, Chief Legal Counsel of Neuromodulation at Medtronic, mod-
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erated the panel featuring Sterling Knox, Recidivism Reduction Initiative Coordinator for Red Lake, Minnesota and Member of the Minnesota Juvenile Justice Advisory Council; Sasha Cotton, Senior Director for the National Network for Safe Communities at John Jay College of Criminal Justice; and Eddie Bocanegra, Senior Advisor for Community Violence Intervention in the Office of the assistant Attorney General for the U.S. Department of Justice Office of Justice Programs (DOJ OJP); • Panel 4: Discussion focused on the creation and use of pre-trial and post-conviction specialty courts to expand the options of the federal judge. Shannon Elkins, Assistant Federal Defender for the District of Minnesota, moderated the panel featuring Kito Bess, Chief U.S. Probation and Pretrial Service for the District of Minnesota; Ignace Sanon-Jules, Deputy Chief Pretrial Services Officer for the Eastern District of New York; and the Honorable Audrey G. Fleissig of the U.S. District Court for the Eastern District of Missouri; and • Closing remarks by Uzodima Franklin Aba-Onu, Senior Associate General Counsel at Optum, with video message by U.S. Senator Amy Klobuchar. The conference took a holistic look at the criminal justice system, first by examining key issues in federal sentencing decisions that prevent equitable outcomes for Black, Indigenous, and people of color. Fettig noted that the United States has engaged in sustained overincarceration for decades—more people and longer sentences, dispelling the notion through a review of case studies and data that longer sentences provide deterrence and public safety. Specifically, Osler explained that sustained overincarceration through statutes that though race-neutral, resulted in mass incarceration of people of color. Using the sentencing disparity in crack and powder cocaine as an example, Osler pointed out that although we understood that the 100:1 sentencing ratio in crack and powder cocaine was unfair, the law stayed that way for decades. Barkow provided statistics about how people of color
are overrepresented and disadvantaged at every point in the criminal process and closed the panel advising that the way forward is through investment in local communities by remembering to “keep the decisions with those who know the most.” After the first panel identified sentencing related problems within the system, the next panel provided county prosecutor led recommendations and solutions. The panelists expressed a theme of community involvement and trust and ensuring the right people are represented with their departments. For example, MacDonald emphasized the importance of being a leader and stated, “The most important thing a U.S. Attorney does is hire people.” Regarding the community in which they serve, Gladney emphasized that prosecutors should be “reform-minded leaders.” Satterberg noted that those involved in the criminal justice system and the communities impacted the most are the ones who trust the system the least and are the most skeptical of it. Satterberg highlighted his leadership to gain the trust of the community. Boston noted that for her, as a Black woman—a prosecutor whose identity is significant—it is especially important that she uses her voice as a prosecutor and to be “not just prosecutors, but community leaders.” Choi explained that he invited impacted communities to talk about alternatives to incarceration and policies which unveiled the previously behind-closed-door decision-making. In sum, the panelists noted that the goal is for “equity, not equality.” After the second panel, Ann Anaya hosted a fireside chat with Former United States Attorney General Eric Holder. Holder reminded us that diversity, equity, and inclusion is not a zero-sum game, and “an appropriate emphasis on DEI enhances opportunities for everyone.” Applying those approaches to the criminal justice system, Holder also echoed the importance of leadership, particularly for prosecutors because of their impact and discretion. He mentioned that during his time as U.S. Attorney General, he focused on data collection regarding the racial disparities in federal sentences. Holder also reflected on his time as a judge of the D.C. Superior Court, applying his discretion in sentencing, juxtaposed between his discretion as U.S. Attorney General. Holder also noted that these are systemic problems that mirror the problems of our society. While that may cause some to balk at the size of the problem, Holder pushes back— “It’s really a question of what we’re willing to do as a nation to get ourselves to the place that is consistent with our founding ideals. I think it’s possible. Not easy, but possible.” After the Keynote, the third panel discussed community-based initiatives. Cotton emphasized the importance of viewing violence
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through a public health lens to build better outcomes for disadvantaged communities. Knox detailed initiatives of recidivism reduction within tribes, including Red Lake, which are community-based and rooted in culture. Bocanegra described his work in community violence intervention through DOJ OJP and detailed grants that are awarded by the OJP that total more than $4 billion which fund programs including re-entry programs, juvenile justice programs, and research initiatives. Though working in different lanes, the panelists emphasized (1) is the importance of empathy and listening to those who are most impacted and (2) investing in communities and the individuals who do the most to prevent crime. Cotton quoted Aqeela Sherrills, “There is no public safety, without the public,” and she continued, “People with lived experience in impacted community are literally the experts of their own experience and if we don’t center them, we will miss the mark.” The final panel focused on the creation and use of pre-trial and post-conviction specialty courts to expand the options of the federal judge. The panelists compared their specialty courts in Minnesota, New York, and Missouri, discussing how pre-trial and post-conviction specialty courts provide options for federal judges that captures the issues that may plague an individual who goes through the criminal process, including substance abuse, mental health, and veterans’ courts. All the programs serviced high-risk individuals, likely to recidivate, who would benefit from the support provided by the programs. Judge Fleissig noted the benefit of these programs, stating “The reality is, we as judges are already involved in the process … We can foster a system of criminal justice that has these other options as a part of the system, too.” This conference was well attended and provided unique perspectives from a variety of stakeholders. As a group, the panelists called on us as stakeholders to be more critical about our criminal justice system, use data driven metrics, involve the community as a partner, and be open to new ideas. The success of the conference is illustrative of the legal community’s identification of a known problem and desire for practical, real-world solutions to that problem. By focusing on programs that are currently being implemented, attendees were able to hear solutions from around the country. Minnesotans have called for this conference to be repeated annually so that individuals from across the legal system and the public can increase their awareness, implement the recommendations made by panelists to create transparency and accountability, and to step closer to a more equitable system.
Commentary continued from page 17
welcoming feeling was a truly special feeling, and one that I hope to bring to the student membership at Widener University Commonwealth Law School. I cannot thank the MDPA Chapter enough for making this trip possible and strongly encourage the FBA to provide similar opportunities to law school students moving forward.
Fall 2023 • THE FEDERAL LAWYER • 19
Thought Sponsor
Federal Tax Reform is Coming Soon! By Joshua D. Odintz
Joshua D. Odintz is a tax attorney in Holland & Knight’s Washington, D.C., office. Mr. Odintz focuses on tax policy, tax controversy, and cross-border tax planning. He also advises clients on domestic and international tax controversy matters at all phases, from audit and administrative appeals through litigation.
It feels like yesterday that Congress passed the reconciliation bill known as the Tax Cuts and Jobs Act (TCJA). However, beginning Jan. 1, 2026, significant parts of the TCJA will have expired or will be less generous. For example, the top rate for individuals will increase from 37% to 39.8%, and the estate tax exemption will decrease from over $12 million (2023 exemption) and revert to the pre-TCJA level of $5 million, adjusted for inflation. The Alternative Minimum Tax (AMT) will apply to those with income under $1 million. There is also current and future pain on the corporate and international tax side of the TCJA ledger. This article will discuss why the Internal Revenue Code (the Code) is in a state of flux and preview key issues Congress will consider in addressing corporate and international tax.
How Did We Get Here? In 2017, Republicans controlled both houses of Congress and the White House. In the Senate, Republicans held a narrow margin (two seats). Under Senate rules, 60 or more of the 100 senators must agree to proceed to debate a bill or else the bill cannot move forward to a vote (filibuster). One way around the 60-vote threshold is budget reconciliation. Under budget reconciliation, Congress can set spending and/or revenue targets for legislative proposals. If the legislation meets that target and does not increase deficits outside of the 10-year budget window, then the bill is subject to a simple majority threshold in the Senate. While reconciliation permits the party in power to pass legislation with minimal or no input from the party in the wilderness, it comes at a significant cost in terms of timing and budget gimmicks to address the revenue targets within the budget window and spending after the 10-year budget window. In 2017, Congress set a reconciliation instruction that allowed for deficit spending of no more than $1.5 trillion within the budget window. Congress and the White House prioritized a lower corporate income tax rate and a pivot to a “territorial” system for taxing foreign active income. This required Congress to consider both permanent offsets that increased revenue (e.g., the base erosion and anti-abuse tax (BEAT)), as well as timing gimmicks that solved for the revenue targets 20 • THE FEDERAL LAWYER • Fall 2023
(e.g., moving from current expensing of research to amortization). Additionally, some provisions will become less favorable after 2025. The global intangible low-taxed income (GILTI) rate will increase from 13.125% to over 16%. Similarly, the foreign-derived intangible income (FDII) rate becomes less beneficial by increasing from 13.125% to over 16%. The BEAT increases from 10% to 12.5%. However, the corporate rate, reduced from 35% to 21%, does not change after 2025.
Developments at the Organisation for Economic Cooperation and Development (OECD)/G20 Inclusive Framework Before describing possible changes to the corporate and international tax systems, it is worth noting developments abroad that could impact domestic tax legislation. Beginning in 2012, the OECD began a 15-action item project to address base erosion and profit shifting (BEPS) by multinational enterprises (MNEs). The majority of items addressed mismatches in the international system (e.g., hybrids, transfer pricing). The one unresolved item was the taxation of the digital economy. The Obama administration took the position that the digital economy could not be ring-fenced, and therefore any changes should broadly apply to all businesses. The OECD/G20 Inclusive Framework on BEPS (the Inclusive Framework) continued to work on proposals to address the taxation of the digital economy. On Oct. 8, 2021, more than 139 countries that are part of the Inclusive Framework agreed to a Two-Pillar Solution to Address the Tax Challenges Arising from the Digitalisation of the Economy (the Two Pillars).1 Inclusive Framework members agreed under Pillar Two to a per-jurisdiction minimum effective tax rate of 15% based on modified financial statement income for MNEs with revenue in excess of €750 million. The Pillar Two Model Rules provide for a series of rules to calculate the effective tax rate and determine which countries can collect the top-up tax.2 The rules provide for three interlocking taxes, described in the order in which they can be applied. • Q ualified Domestic Minimum Top-Up Tax (QDMTT): The source country has the primary right
to top up the effective tax rate of the MNEs in its jurisdiction. • I ncome Inclusion Rule (IIR): Like a controlled foreign corporation regime, the IIR applies on a top-down basis. The Ultimate Parent Entity (UPE) jurisdiction is not subject to the IIR, which leads to… • Undertaxed Profits Rule (UTPR): Formerly known as the Undertaxed Payments Rule, the UTPR is applied to top-off jurisdictions not subject to the QDMTT or IIR. The UTPR is shared by participating jurisdictions based on a ratio of headcount and tangible property. For example, if a UPE jurisdiction does not apply a QDMTT, then other countries will split a share of the top-up tax for that undertaxed jurisdiction, likely by denying deductions. Other countries are currently implementing Pillar Two. The United States, however, does not have a system that matches Pillar Two. As part of the Inflation Reduction Act, the United States enacted a corporate alternative minimum tax on global income, based on modified consolidated financial statements. The modifications are different than those contained in Pillar Two, and all domestic tax credits count as taxes paid. GILTI uses a tax base, not consolidated financial statements, and is calculated on a global blended basis. The base is also different from the IIR as GILTI does not include passive income, which is taxed in the United States as subpart F income. In the short term, the OECD created a safe harbor to allocate GILTI taxes. If a taxpayer has sufficient base eroding payments (payments to foreign-related parties), the BEAT operates as an alternative minimum tax. The BEAT can deny both domestic tax credits and foreign tax credits—it operates as a zombie tax. It also does not care if the “base eroding payment” is made to a high-tax country, such as Japan. And the BEAT does not allow other countries to share in the tax revenue of a U.S. corporation or partnership. The BEAT does not resemble the UTPR, and the Inclusive Framework has not tried to address the interaction of the BEAT and Pillar Two.
Tax Reform in 2025
• Th e corporate income tax rate: Although the corporate rate does not change after 2025, it is an easy source of revenue. A 100-basis point increase will raise more than $100 billion over 10 years. • Pillar Two: Does the United States align with the OECD’s Pillar Two? Democrats moved in that direction in the Build Back Better Act by moving to a per country GILTI with modifications (e.g., eliminate expense allocation to the GILTI foreign tax credit (FTC) basket and a reduced FTC haircut). Republicans are publicly moving in the opposite direction by introducing legislation to increase taxes on foreign-parented MNEs from countries that adopt Pillar Two and apply the UTPR to U.S.- parented MNEs. The corporate AMT may also need changes to be a compliant QDMTT. • The BEAT: The BEAT has several design flaws, including the ability to triple tax certain streams of income. Does the United States fix the BEAT or jettison it in favor of a QDMTT and UTPR? • Subpart F: What is the role of subpart F in a GILTI world? Certain categories of passive income are really active. The TCJA did not attempt to rationalize the two systems. • Will any of the international provisions exist if the U.S. Supreme Court holds that subpart F and GILTI are unconstitutional in Moore v. United States?
Conclusion The national and global tax systems are in flux. It is up to Congress to provide certainty in 2025 and beyond.
Endnotes https://www.oecd.org/tax/beps/statement-on-a-two-pillarsolution-to-address-the-tax-challenges-arising-from-thedigitalisation-of-the-economy-october-2021.htm 2 https://www.oecd.org/tax/beps/tax-challenges-arising-from-thedigitalisation-of-the-economy-global-anti-base-erosion-model-rulespillar-two.htm 1
Elections have consequences. The 2024 presidential election will determine the shape of tax reform. If Republicans control Congress and the presidency, it is likely tax reform will result in a decrease in revenue over 10 years. If Democrats control Congress and the White House, tax reform will likely raise revenue from MNEs and high net worth individuals. Tax reform would also be a net revenue increase. In these two scenarios, Congress will use reconciliation to bypass a Senate filibuster, with additional timing gimmicks. The more interesting scenario is divided government. Divided government will force the parties to negotiate and find a path to ensure provisions do not expire or get worse. Although corporate and international tax is crucial, it is the individual tax provisions that will force the parties to the table. Whoever is in charge will need revenue-raising provisions to offset other spending in the Code. In 2017, some of these provisions were painful, such as the BEAT and a proposed global limitation on interest expense. The following corporate and international tax issues will be on the agenda in 2025: • E xtenders: Includes research expensing, current expensing of assets, limitation on interest expense, and Code § 954(c)(6) (CFC look through). Fall 2023 • THE FEDERAL LAWYER • 21
Thought Sponsor
Recent Supreme Court False Claims Act Developments By Christopher C. Burris
Chris Burris is a partner in King & Spalding’s Special Matters & Government Investigations practice who frequently defends corporations and individuals in a variety of criminal, regulatory, False Claims Act and other matters. He has particular experience with defending clients in False Claims Act/ qui tam matters.
In 2023, there have been significant developments in the application and interpretation of the federal False Claims Act (FCA). The most headline-grabbing developments occurred at the U.S. Supreme Court in United States ex rel. Schutte v. SuperValu Inc.1 and United States ex rel. Polansky.2 There, the Court handed down decisions regarding the FCA’s scienter requirement and the government’s authority to dismiss qui tam cases over the objection of the relator. While those rulings will have notable impacts on the application of the FCA, some of their most interesting potential ramifications come when they are analyzed in light of other parallel issues. Accordingly, this article will briefly discuss those cases themselves and then pivot to discuss some of the other important practical takeaways they raise.
United States ex rel. Schutte—Clarifying the FCA’s Scienter Requirement The Supreme Court’s Focus on Subjective Intent On June 1, the Court handed down a unanimous decision in SuperValu which clarified the FCA’s scienter requirement by addressing what is required to prove that a defendant acted “knowingly” when submitting a false claim. The specific question presented to the Court was “whether and when a defendant’s contemporaneous subjective understanding or beliefs about the lawfulness of its conduct are relevant to whether it ‘knowingly’ violated the [FCA].”3 Defendants in the case argued that their contemporaneous understanding of the regulations at issue was irrelevant. Rather, they argued the relevant test to determine “knowledge” was whether their course of conduct was consistent with an objectively reasonable reading of the regulations. The Court rejected this interpretation and found that the determinative factor was the defendants' subjective beliefs when evaluating whether they acted “knowingly”: The FCA’s scienter element refers to respondents’ knowledge and subjective beliefs—not to what an objectively reasonable person may have known or believed. And, even though the [rel-
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evant regulatory language] may be ambiguous on its face, such facial ambiguity alone is not sufficient to preclude a finding that respondents knew their claims were false.4 In terms of its most obvious impact, disposing of cases based on “knowledge” grounds at the motion to dismiss or motion for summary judgment stages will likely become more difficult, as subjective intent is arguably in the province of the jury in most instances.
Protecting Against the Threat of Inadvertent Privilege Waiver Because of the Court’s decision in SuperValu, defendants may feel pushed into arguing that they had a good faith belief that their interpretation of complex regulations was correct. When doing so, defendants should be wary of relators arguing that when a defendant affirmatively asserts a good faith belief that its conduct was lawful, it injects the issue of its knowledge of the law into the case and thereby waives the attorney-client privilege. When considering that possibility, defense counsel should bear in mind cases like United States ex. rel Saldivar v. Fresenius Medical Care Holdings, Inc.,5 an FCA case in which the court found that the defendant impliedly waived the attorney-client privilege by asserting its defense of good faith reliance upon a belief that its conduct was legal. In Fresenius, the court relied heavily on Cox v. Administrator U.S. Steel & Carnegie Pension Fund,6 a civil RICO case in which the Eleventh Circuit found that the defendant went beyond a mere denial of criminal intent to affirmatively assert good faith, thus injecting the issue of its knowledge of the law into the case and thereby waiving the attorney-client privilege. In looking to Cox, the court in Fresenius found that it would be prejudicial and unfair to allow Fresenius Medical Care Holdings (FMCH) to argue its good faith belief that its conduct was legal, but to deny the relator an opportunity to fully explore their belief. The court noted that FMCH could have instead merely denied fraudulent intent without affirmatively asserting that it believed its conduct was legal.
While Fresenius and other cases7 found waiver in such situations, other cases have drawn distinctions where such a good faith claim would not waive privilege. Those cases have focused on whether the good faith claim had a relationship to actual advice from counsel, i.e., was the defendant’s good faith grounded in legal advice or something else.8 When no such relationship exists, the client’s reliance upon the good faith claim should not impliedly waive the attorney-client privilege protection.9 Ultimately, however, to assert a good faith defense is to take a risk that the relator will argue a waiver of the attorney-client privilege – regardless of the fact that proving intent is a prima facie element on which the relator bears the burden of proof.
United States ex rel. Polansky—Ratifying the Government’s Dismissal Authority The Supreme Court’s Focus on the Government as the Real Party in Interest On June 16, the Court handed down an 8-1 decision in Polansky, which confirmed the government’s authority to dismiss FCA qui tam lawsuits over relator objections, even after a decision not to intervene had been made. In that case, the government had initially decided against intervening and the matter had been pushed forward by the relator. As the Court explained: The case then spent years in discovery ... As its discovery obligations mounted and weighty privilege issues emerged, the Government ... decided that the varied burdens of the suit outweighed its potential value. The Government therefore filed a motion ... to dismiss the action over Polansky’s objection.10 On appeal, the Court ratified the government’s authority to move to dismiss “over a relator’s objection so long as it intervened sometime in the litigation ... .”11 Additionally, the Court—having noted that the government was the “real party in interest” in any FCA action—cautioned that: A district court should think several times over before denying a motion to dismiss. If the Government offers a reasonable argument for why the burdens of continued litigation outweigh its benefits, the court should grant the motion.12
Polansky's Implications for Pursuing Discovery Agaisnt the Government The Court’s decision significantly ratified the importance of the role of the government in qui tam lawsuits and made clear such lawsuits exist for one purpose, to “vindicate the Government’s interests.”13 In determining what those interests are—at least from the perspective of the Department of Justice (DOJ)—it is worth reviewing the Jan. 10, 2018 “Granston Memo,”14 which enumerates seven reasons for which DOJ may seek dismissal.15 The government’s decision in Polansky appears to fall under the sixth reason, “Preserving Government Resources,” which advises considering dismissal when “the government’s expected costs are likely to exceed any expected gain” for various reasons, including “the need to monitor or participate in ongoing litigation, including responding to discovery requests.”16 But, defendants should note that while the burden of participating in discovery might justify the government’s decision to unilaterally dismiss a qui tam action, DOJ has cautioned against defendants thinking aggressive discovery could be a “silver bullet.” As Michael Granston
himself remarked in 2019, “Defendants should be on notice that pursuing undue or excessive discovery will not constitute a successful strategy for getting the government to exercise its dismissal authority.”17 While discovery should not be propounded on the government as a strategy to trigger execution of dismissal authority, defendants should not shy away from aggressively pursuing relevant information in discovery. FCA defendants should remember the point most recently noted by the Eleventh Circuit, that—regardless of Touhy and the common belief that the government is rarely held to the same discovery strictures as private parties—the government ultimately “is not exempt from the rules of discovery” and “does not have the power to decide which discovery rules it will abide by and which it will ignore.”18 That is a point which should hold doubly true in FCA qui tam actions which serve only one purpose—to “vindicate the Government’s interests.”
Endnotes United States ex rel. Schutte v. SuperValu Inc., 143 S. Ct. 1391 (2023). United States, ex rel. Polansky v. Exec. Health Res., Inc., 599 U.S. 419 (2023). 3 Petition for a Writ of Certiorari at 3, United States ex rel. Schutte v. SuperValu Inc., 143 S. Ct. 1391 (2023). 4 SuperValu Inc. 143 S. Ct. at 1399. 5 United States v. Fresenius Med. Care Holdings, Inc., No. 1:10-CV1614-AT, 2014 WL 11517840 (N.D. Ga. Feb. 21, 2014). 6 17 F.3d 1386, 1419 (11th Cir. 1994). 7 See, e.g., United States v. Davita, Inc., 2014 WL 11516329 (N.D. Ga. May 15, 2014); Maar v. Beall’s, Inc., 237 F.Supp.3d 1336 (S.D. Fla. 2017). 8 See Henry v. Quicken Loans, Inc., 263 F.R.D. 458 (E.D. Mich. 2008) (finding the defendants had waived their attorney-client privilege because the defendants asserted the advice of counsel as the basis for their good faith claims transforming a defense of good faith into a good faith reliance on counsel defense); Banco Do Brasil, S.A. v. 275 Washington Street Corp., 2011 WL 3208027 (D. Mass. July 27, 2011) (finding no waiver of attorney-client privilege where the party did not claim reliance on counsel’s advice as a defense to the underlying claim); SmithKline Beecham Corp v. Apotex Corp., 2005 WL 2436662 (E.D. Pa. Sept. 28, 2005) (finding Plaintiff ’s denial of Defendant’s bad faith allegations and its companion assertion of good faith conduct does not constitute an affirmative act which support an at issue waiver where the defense does not explicitly rely on the advice of counsel). 9 Williams v. Sprint/United Mgmt. Co.,464 F. Supp. 2d 1100 (D. Kan. 2006); Warner-Lambert Co. v. Teva Pharmaceuticals USA, 289 F. Supp. 2d 515 (D.N.J. 2003). 10 Polansky, 599 U.S. at 428. 11 Id. at 424. 12 Id. at 437-38. 13 Id. at 438. 14 Michael Granston, Factors for Evaluating Dismissal Pursuant to 31 U.S.C. 3730(c)(2)(A) ( Jan. 10, 2018). 15 Id. at 3-8. 16 Id. at 6. 17 Michael Granston, Remarks at Federal Bar Association False Claims Act Conference (Feb. 28 – Mar. 1, 2019). 18 Consumer Financial Protection Bureau v. Brown, 69 F. 4th 1321, 1323, 1331 (11th Cir. 2023). 1 2
Fall 2023 • THE FEDERAL LAWYER • 23
Judicial Profile
Judge William Matthewman United States Magistrate By Lauren Johnson
U
Lauren Johnson is a partner at Rabin Kammerer Johnson in West Palm Beach, FL, handling business litigation and whistleblower matters. She previously served as law clerk to Judge Matthewman and to Florida Supreme Court Justice Jorge Labarga.
nited States Magistrate Judge William Matthewman Judicial Profile You would be hard-pressed to find someone more committed to justice than United States Magistrate Judge William Matthewman. Throughout his career, Judge Matthewman has become intimately familiar with the justice system and its principles from three different perspectives: first as a police officer, then as an attorney, and currently as a judge. This wealth of experience has allowed Judge Matthewman to come up with a remarkably simple explanation: “If everyone does their part in a case, the end result is justice.” In other words, if the parties’ counsel acts zealously, effectively and fairly, if the jury is properly selected and fair, and if the judge is fair and even-handed, then justice will prevail. Judge Matthewman was born and raised in the Miami, Florida area. Because the law had always interested him, Judge Matthewman started his career as a police officer on patrol for the Miami Police Department and was quickly promoted to sergeant. He worked on the SWAT team handling special incidents and in the K-9 unit, where his K-9 partner “Fuzz” went home with him every day and lived up to the phrase “a man’s best friend.” During his time as a police officer and his frequent appearances in court as a witness, Judge Matthewman’s devotion to the criminal justice system grew, and he felt like he could be doing more for it. He saw first-hand that it had imperfections and problems, especially in dealing with minorities and the poor. And so he began attending law school at the University of Florida’s Levin College of Law. After serving as a Research Editor for the University of Florida Law Review, Judge Matthewman graduated from UF Law with honors. He started his legal career as a young associate at a prestigious international law firm, learning quickly—to his surprise—that a young, novice lawyer could make a higher salary than a police sergeant. He started practicing in a number of different areas, handling civil and criminal cases. In fact, early in his career, Judge Matthewman wrote a law review article entitled “Title VII and Genetic Testing: Can Your Genes Screen You Out of a Job,” which was published in the Howard Law Journal, evidencing
24 • THE FEDERAL LAWYER • Fall 2023
his interest in employment law and discrimination law.1 But criminal cases stood out to him most, so he started to narrow his focus. From that point, Judge Matthewman quickly gained invaluable experience trying many criminal cases in federal and state courts, and he became a Florida board-certified criminal trial attorney. He enjoyed having a wide range of cases—from representing civilians and police officers charged with various state and federal crimes, to representing accused murderers facing the death penalty. While a defense attorney, Judge Matthewman was one of the few attorneys in the country who was qualified as a “learned counsel” in federal death penalty cases. In fact, Judge Matthewman was a lead attorney on the first “modern” federal death penalty cases tried in Florida and Puerto Rico. He proudly recalls one federal death penalty case that he tried in the District of Puerto Rico, where he obtained a complete acquittal on all charges against his client, a rare accomplishment in federal capital trials. This work, however, also raised concerns with Judge Matthewman about the problems of race in the application of the death penalty, which inspired him to write an article discussing this disparity that was published in The Washington Post.2 Among the vast array of trials he participated in,
Judge Matthewman said he probably takes the most pride in the final case he tried as an attorney, which ended just a few days before he was appointed to the federal bench in 2012. In that case, Judge Matthewman successfully defended Adam Kaufman—an Aventura, Florida real estate broker, who was accused of murdering his wife Eleonora “Lina” Kaufman. The case and trial were the subject of heavy media coverage, including by Court TV, Dateline, 48 Hours, and Tamron Hall. The lengthy jury trial in Miami-Dade County Circuit Court was carried live on In-Session Court TV. This case was referred to colloquially by many as “the spray tan murder case,” because prior to trial, a defense forensic medical examiner expert testified in a bond hearing that Lina may have died from an allergic reaction to her first full body spray tan. After further investigation, however, the defense team discovered that Lina had actually died as a result of an undiagnosed heart condition, myocarditis, which evidence they presented at trial through forensic and expert testimony. The jury found Adam Kaufman not guilty, but the moment Judge Matthewman is most proud of was when the jury foreman—in an interview after conclusion of the trial—stated that the jury not only found Adam Kaufman “not guilty,” but they also found him to be innocent. After a certain amount of time practicing law, when Judge Matthewman considered his future, he felt that becoming a judge was a natural transition. Judge Matthewman believed that serving in a judicial role would bring all his previous experiences with the justice system together. He did not want to be an adversary anymore; he wanted to be a neutral and fair decision maker. Thus, in July 2012, he accepted his appointment to the federal bench. In his current role as a United States Magistrate Judge, he enjoys working on cases with cutting-edge issues, but he also notes that any matter with good lawyers on each side makes for an interesting and challenging case. He emphasizes the importance of cooperation and professionalism between opposing counsel in the discovery process, lamenting the tendency of lawyers to get bogged down in discovery gamesmanship and fishing expeditions instead of addressing the core issues. In Judge Matthewman’s view, the best lawyers are not the loudest in the room, but rather the ones who are polite, professional, and zealous. Judge Matthewman is considered by many to be an expert in the area of e-discovery and electronically stored information (a.k.a. ESI). He believes the 2015 amendments to the Federal Rules of Civil Procedure are especially instructive on how discovery in federal court is shifting “towards a new paradigm.”3 His 2019 law review article on that topic has garnered significant attention and been cited multiple times for its e-discovery principles, and he is often asked to speak to legal groups, bar associations, and law schools on these subjects. Consistent with the 2015 Rule amendments, Judge Matthewman requires each side in every case to “size and shape their discovery requests to the requisites of a case.”4 He
believes that “scorched earth” discovery tactics have no place in modern civil litigation. In fact, in his standing discovery order that Judge Matthewman issues in every case, he directs the parties and their counsel to read Chief Justice Roberts’ 2015 Year-End Report on the Federal Judiciary, which he directly quotes: "I cannot believe that many members of the bar went to law school because of a burning desire to spend their professional life wearing down opponents with creatively burdensome discovery requests or evading legitimate requests through dilatory tactics."5 Judge Matthewman’s experience with fishing expeditions, however, is not all bad—at least when it reaches beyond the confines of the courtroom, as he enjoys an active lifestyle that includes fishing, hiking, and kayaking. In fact, he spends most of his free time outside and can often be found picking up trash and plastic left on the beach near where he lives. Judge Matthewman also loves to run and has completed numerous marathons, half-marathons, and other races over the years, although he acknowledges getting slower as he gets older. He has four children, has been happily married for over 36 years to his spouse, Diane Matthewman, and takes joy in spending time with his growing family. Through each part of his career, Judge Matthewman has learned how the justice system looks from different perspectives—as a police officer, as a witness in court, as an attorney, and as a judge—which has helped him develop a holistic view for which he is eternally grateful. To this day, on his birthday or Father’s Day or other days of moment, he often receives text messages, emails, and phone calls from former clients and former law clerks
Top: Judge Matthewman hiking with his wife, Diane, in California earlier this year. Above: Matthewman during his time in the K-9 unit of the Miami Police Department.
Fall 2023 • THE FEDERAL LAWYER • 25
Judicial Profile Writers Wanted
One of Judge Matthewman’s many fishing expeditions.
The Federal Lawyer is looking to recruit current law clerks, former law clerks, and other attorneys who would be interested in writing a judicial profile of a federal judicial officer in your jurisdiction. A judicial profile is approximately 1,500-2,000 words and is usually accompanied by a formal portrait and, when possible, personal photographs of the judge. Judicial profiles do not follow a standard formula, but each profile usually addresses personal topics such as the judge’s reasons for becoming a lawyer, his/her commitment to justice, how he/she has mentored lawyers and law clerks, etc. If you are interested in writing a judicial profile, we would like to hear from you. Please send an email to social@fedbar.org.
26 • THE FEDERAL LAWYER • Fall 2023
wishing him well; a true testament to the dedication and heart that Judge Matthewman puts into his work. When asked to give any advice or insight he has for newer lawyers, Judge Matthewman stresses the importance of one’s reputation, in many respects, because your reputation will follow you throughout your career. Reputation for punctuality, believing that early is on time and that on time is late. Reputation for honesty, being forthright with the Court and opposing counsel. Reputation for being prepared, noting that lawyers should know their case and the issues inside and out. And reputation for professional appearance, as he considers the way a lawyer presents themselves and treats all involved in a courtroom (regardless of their title) to be of the utmost importance. Throughout his life, people have often remarked on Judge Matthewman’s resemblance to former President John F. Kennedy—who happens to be one of Judge Matthewman’s heroes—which is why it seemed apropos to end on this quote of President Kennedy: “Life is never easy. There is work to be done and obligations to be met—obligations to truth, to justice, and to liberty.” Judge Matthewman lives by these words every day through his continued service to advancing the legal profession and his lifetime commitment to justice.
Endnotes William D. Matthewman, Title VII and Genetic Testing: Can Your Genes Screen You Out of a Job, 27 Howard L.J. 1185 (1984). 2 William D. Matthewman, The Racial Disparity on Federal Death Row, The Washington Post (March 15, 1996), 1
https://www.washingtonpost.com/archive/ opinions/1996/03/15/the-racial-disparityon-federal-death-row/9fdedf6b-1fac-415dbec4-79542beb2399/. 3 See William D. Matthewman, Towards a New Paradigm for E-Discovery in Civil Litigation: A Judicial Perspective, 71 Fla. L. Rev. 1261 (2019), https://scholarship.law. ufl.edu/flr/vol71/iss5/4. 4 See John G. Roberts, 2015 Year–End Report on the Federal Judiciary, (2015), https:// www.supremecourt.gov/publicinfo/yearend/2015year-endreport.pdf [hereinafter 2015 Report]. See also Order Setting Discovery Procedure, https://www.flsd. uscourts.gov/sites/flsd/files/2022-Sample OrderSettingDiscoveryProcedure.pdf (last visited August 15, 2023). 5 See id. at 2 (quoting 2015 Report at 11).
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28 • THE FEDERAL LAWYER • Fall 2023
The Reactions of International Criminal Justice to Russia’s Invasion of Ukraine FRANCESCA BRAGA
O
n Feb. 24, 2022, the Russian Federation (Russia) launched a full-scale invasion of Ukraine. The invasion is ongoing and is having devastating effects at various levels. It has upended global food and energy security and sparked a catastrophic humanitarian crisis for the Ukrainian people. Since the beginning of the invasion, millions of refugees from Ukraine have crossed borders into neighboring countries, and millions more have been forced to flee within the country for security and safety reasons.1 This is considered the largest refugee crisis since World War II.2 The Atrocities of War Russian forces conducted indiscriminate attacks, using explosive weapons with wide-area effects which resulted in thousands of civilian casualties. There is evidence of unlawful deprivation of liberty, torture and ill-treatment, sexual and gender-based violence (in some cases making children watch loved ones being raped and detaining others alongside dead bodies), unlawful killings, destruction of infrastructure (schools, hospital, and energy infrastructure), and deportation of hundreds of thousands of Ukrainian civilians to Russia, including children who have been forcibly separated from their families.
There are many atrocious episodes, but what happened in Bucha—a suburb of Kyiv almost unknown to most before 2022—is undoubtedly one of the most horrific since the beginning of the invasion of Ukraine. In April 2022, news reports showed the world the cruelty: Dozens of dead civilians lined a street in Bucha, some with their hands bound, some with gunshot wounds to the head.3 Evidence showed that the killings were part of a deliberate and systematic effort to ruthlessly secure a route to the capital, Kyiv.4 Russia’s response to all allegations of abuses was a predictable denial. In the first instance, ensuring justice for serious violations is the responsibility of the state whose nationals are implicated in the violations. However, international criminal justice groups may proceed with different options. For example, these listed alleged crimes may be prosecuted by the International Criminal Court (ICC) as war crimes and crimes against humanity, but not as a crime of aggression.
How to Prosecute War Crimes and Crimes Against Humanity The Independent International Commission of Inquiry on Ukraine On March 4, 2022, the United Nations Human Rights Council (UNHRC), according to resolution 49/1,5 established the Independent International Commission of Inquiry on Ukraine (Commission of Inquiry). Such Commissions of Inquiry are essential when other enforcement mechanisms are blocked and can provide avenues for accountability in national, regional, and international courts.6 In this specific case, it aims to investigate all alleged violations and abuses of human rights, violations of international humanitarian law Fall 2023 • THE FEDERAL LAWYER • 29
and related crimes that may have been committed in the context of aggression by the Russian Federation against Ukraine. On Sep. 23, 2022, based on its investigations into events in the regions of Kyiv, Chernihiv, Kharkiv, and Sumy, the Commission of Inquiry concluded that war crimes had been committed in Ukraine.7 The war crimes include attacks on civilians and energy-related infrastructure, willful killings, unlawful confinement, torture, rape and other sexual violence, as well as unlawful transfers and deportations of children.8 On Sep. 23, 2023, during a presentation to the UNHCR in Geneva, the Commission reported that it had documented explosive weapons attacks on residential buildings, a functional medical facility, a railway station, a restaurant, shops and commercial warehouses.9 On April 4, 2023, the UNHRC renewed the mandate of the Commission for one year,10 so it would continue its investigations, making recommendations regarding criminal accountability and other dimensions of accountability.
The Role of the International Criminal Court Ukraine is not a State Party to the Rome Statute of the ICC, but the ICC has jurisdiction over alleged crimes under the Rome Statute occurring in its territory on the basis of Ukraine’s declarations pursuant to Article 12(3) of the Statute.11 The first declaration12 lodged by the Government of Ukraine accepted ICC jurisdiction with respect to alleged crimes committed on Ukrainian territory from Nov. 21, 2013 to Feb. 22, 2014. The second declaration13 extended this period on an open-ended basis to encompass ongoing alleged crimes committed throughout the territory of Ukraine from Feb. 20, 2014 onwards. On March 2, 2022, based on referrals14 received from 39 ICC States Parties,15 the Prosecutor, Mr. Karim Khan KC, announced the opening of an investigation. In accordance with the overall jurisdictional parameters conferred through the State referrals, and without prejudice to the focus of the investigation, the scope of the situation encompasses any past and present allegations of war crimes, crimes against humanity or genocide committed on any part of the territory of Ukraine by any person from Nov. 21, 2013 onwards. On March 17, 2023, Pre-Trial Chamber (PTC) II issued warrants of arrest for Russian President Vladimir Putin and the children’s rights commissioner in his office, Maria Lvova-Belova.16 PTC II found reasonable grounds to believe that both were responsible for the unlawful deportation and transfer of Ukrainian children from occupied areas of Ukraine to the Russian Federation.17 The ICC has no jurisdiction over the crime of aggression, that is a crime committed by the highest political and military leadership. The crime of aggression is a core crime under the Rome Statute, which criminalizes violations of one of the pillars of the UN Charter, the prohibition of the use of force. Article 15 bis (5) of the Rome Statute requires that the aggressor state also needs to be a party to the Rome Statute (or a UN Security Council referral, which is unlikely due to Russia’s veto powers in the body) for the ICC to exercise its jurisdiction.18 In this case, Russia does not accept the jurisdiction of the ICC, and therefore the ICC cannot exercise this competency in the context of Russia’s war against Ukraine. To close this gap, in November 2022, the European Commission presented different options to Member States19 to make sure that Russian individuals are held accountable for the atrocities committed in Ukraine, including through the establishment of a dedicated tribunal backed by the UN and the international community, to effectively prosecute the crime of aggression.20 30 • THE FEDERAL LAWYER • Fall 2023
How to Prosecute the Crime of Aggression There are two different options. The first regards the fact that in February 2023, the European Union Agency for Criminal Justice Cooperation (Eurojust)21 supported the creation of the new International Centre for the Prosecution of the Crime of Aggression against Ukraine (ICPA), and in July 2023, ICPA started its operations in the Hague.22 The ICPA set up with the Commission’s support, is composed of selected national prosecutors that are already participating in the Joint Investigation Team,23 to which the Centre is linked in its operations. The participating experts will be able to work together daily, exchange evidence quickly, and agree on a common strategy. Eurojust will provide operational, legal, financial, and logistical support, including for preserving, storing, and analyzing evidence. This work is essential to prepare for future trials, be it before national or international courts, including a possible tribunal for the crime of aggression or the ICC for crimes within its jurisdiction. The second option considers the creation of an ad hoc tribunal. Nearly 40 legal and political luminaries have signed a Combined Statement and Declaration calling on the international community to create a Special Tribunal for the Punishment of the Crime of Aggression Against Ukraine.24 The initiative is motivated by the impossibility, mentioned above, for the ICC to judge any Russian responsibility for the crime of aggression. In this sense, the promoters believe that setting up a separate ad hoc court could be a valid alternative to close the impunity gap. However suggestive, the idea immediately raises many perplexities and attracts criticism. Some concerns are practical: • Th e time needed to set it up. Nobody has any idea when the invasion of Ukraine will end, and most experts believe that Russia will eventually prevail, at least militarily.25 • The problem of collecting evidence. Nearly all of the suspects and evidence would be in Russia, because, unlike other international crimes, the crime of aggression focuses on decisions that are taken and plans that are made behind closed doors, not actions on the battlefield.26 Russia would obviously refuse to cooperate with a Special Tribunal after the conflict ends, and the one avenue that would exist for enforcing its cooperation, the Security Council, would be of no use thanks to Russia’s permanent veto.27 • Double standards and legitimacy. Particularly, from the perspective of those states (and they are not few) that, since the Nuremburg Trials, have been victims of the crime of aggression by more powerful states and have not had the privilege of seeing an aggression recognized as such in the appropriate forum, nor have they seen any form of condemnation of the criminal acts suffered.28 • Two international tribunals for the same conflict. If the ad hoc Tribunal is set up, the ICC would investigate crimes against humanity and war crimes in Ukraine while the Tribunal would deal with the crime of aggression arising from the same conflict, which could just as well have been dealt with by the ICC.29 While the creation of such a Tribunal may be theoretically an important gesture, it would make limited practical sense.30 The artificial fragmentation of the determination of responsibility of essentially the same persons would lead to a competition between the two courts in terms of the sequencing of trials. It would also be inefficient and likely increase the overall length of the proceedings significantly.31
• Th e cost. The (substantial) budget that would be required for the establishment of this Tribunal could be better used to strengthen already existing mechanisms, primarily the investigations initiated by the ICC.
A Way Forward There can be no impunity for these crimes. All those responsible must be held accountable. It is important that investigative activities are carried out involving various national, European, and international actors. There must be multilateral collaboration and cooperation to achieve the same goal, namely the punishment of possible crimes committed to the detriment of Ukraine and the Ukrainian population. Successful prosecutions of crimes against humanity, war crimes, and a crime of aggression in Ukraine may make it harder for States to ignore appeals for accountability the next time a powerful actor— such as Russia—overrides international rules. Francesca Braga is an international human rights lawyer and researcher specializing in international criminal and human rights law. Her current research focuses on the meaning of “inhumanity” in international law. She currently works for the Ministry of Labour and Social Policies in Italy. She holds a law degree and two LLMs in international law (United Nations 2016, Fordham University School of Law 2018).
Endnotes UNHCR, Ukraine Refugee Situation, https://data2.unhcr.org/en/ situations/ukraine 2 UNHCR, Ukraine-Fastest Growing Refugee Crisis in Europe Since WWII, 6 June 2022, https://www.unhcr.org/hk/en/73141-ukrainefastest-growing-refugee-crisis-in-europe-since-wwii.html 3 N.Y. Times, Malachy Browne, David Botti and Haley Willis, Satellite images show bodies lay in Bucha for weeks, despite Russian claims, https://www.nytimes.com/2022/04/04/world/europe/buchaukraine-bodies.html 4 N.Y. Times, Yousur Al-Hlou, Masha Froliak, Dmitriy Khavin, Christoph Koettl, Haley Willis, Alexander Cardia, Natalie Reneau and Malachy Browne, Caught on Camera, Traced by Phone: The Russian Military Unit That Killed Dozens in Bucha, 22 December 2022, https://www.nytimes.com/2022/12/22/video/russia-ukrainebucha-massacre-takeaways.html 5 Human Rights Council, Resolution adopted by the Human Rights Council on 4 March 2022, A/HRC/RES/49/1, https://documentsdds-ny.un.org/doc/UNDOC/GEN/G22/277/44/PDF/G2227744. pdf?OpenElement 6 Prif Blog, Farnaz Dezfouli Asl und Max Lesch, From Facts to Norm Violations and Accountability? The Independent International Commission of Inquiry on Ukraine, 11 April 2023, https://blog.prif. org/2023/04/11/from-facts-to-norm-violations-and-accountabilitythe-independent-international-commission-of-inquiry-on-ukraine/ 7 UN Human Rights, Office of the High Commissioner, UN Commission concludes that war crimes have been committed in Ukraine, express concern about suffering of civilians, 23 September 2022, https://www. ohchr.org/en/press-releases/2022/10/un-commission-concludeswar-crimes-have-been-committed-ukraine-expresses; see also, United Nations Human Rights Office of the High Commissioner, 1
A/77/553, Independent International Commission of Inquiry on Ukraine – Note by the Secretary General, 18 October 2022, https:// documents-dds-ny.un.org/doc/UNDOC/GEN/N22/637/72/PDF/ N2263772.pdf?OpenElement 8 Id. 9 UNHRC, Oral Update of the Independent International Commission od Inquiry on Ukraine, 25 September 2023, https://www. ohchr.org/sites/default/files/documents/hrbodies/hrcouncil/ coiukraine/20230923-Oral-Update-IICIU-EN.pdf 10 UNHRC, Resolution adopted by the Human Rights Council on 4 April 2023, A/HRC/RES/52/32, https://documents-dds-ny.un.org/doc/ UNDOC/GEN/G23/075/24/PDF/G2307524.pdf?OpenElement 11 ICC, The States Parties to the Rome Statute, https://asp.icc-cpi.int/ states-parties#R 12 ICC, First Declaration, Embassy of Ukraine, 9 April 2014, https:// www.icc-cpi.int/sites/default/files/itemsDocuments/997/ declarationRecognitionJuristiction09-04-2014.pdf 13 ICC, Second Declaration, Minister for Foreign Affairs of Ukraine, 8 September 2015, https://www.icc-cpi.int/sites/default/ files/iccdocs/other/Ukraine_Art_12-3_declaration_08092015. pdf#search=ukraine 14 Article 13(a) and 14(1) of the Rome Statute of the International Criminal Court, Referral letter submitted in coordination with 38 States Parties, 2 March 2022, https://www.icc-cpi.int/sites/default/ files/2022-04/Article-14-letter.pdf; see also, Referral submitted by the Republic of Lithuania, 1 March 2022, https://www.icc-cpi.int/sites/ default/files/2022-04/1041.pdf 15 On 11 March 2022, additional two States, Japan and North Macedonia have referred the Situation in Ukraine to the Office of the Prosecutor. 16 ICC, Situation in Ukraine: ICC judges issue arrest warrants against Vladimir Vladimirovich Putin and Maria Alekseyevna Lvova-Belova, 17 March 2023, https://www.icc-cpi.int/news/situation-ukraine-iccjudges-issue-arrest-warrants-against-vladimir-vladimirovich-putinand 17 HRW, Ukraine: International Justice Response. Q&A Highlights Need for Coordinated Efforts to Address Grave Abuses, 5 May 2023, https:// www.hrw.org/news/2023/03/29/ukraine-international-justiceresponse; see also, Articles 8(2)(a)(vii) and 8(2)(b)(viii) of the Rome Statute 18 On 2 March 2023, the General Assembly overwhelmingly adopted resolution demanding Russian Federation immediately ended illegal use of force in Ukraine, UNGA/12407; see also, Verfassungsblog on Matters Constitutional, Andreas Schüller, What can(‘t) international criminal justice deliver for Ukraine?, 24 February 2023, https:// verfassungsblog.de/justice-ukraine/ 19 European Commission, Ukraine: Commission presents options to make sure that Russia pays for its crimes, 30 November 2022, https:// ec.europa.eu/commission/presscorner/detail/en/ip_22_7311; see also, European Commission, Statement by President von der Leyen on the establishment of the International Centre for the Prosecution of Crimes of Aggression against Ukraine, 4 March 2023, https://ec.europa.eu/commission/presscorner/detail/en/ statement_23_1363 20 Id. 21 Eurojust, https://www.eurojust.europa.eu/ continued on page 45 Fall 2023 • THE FEDERAL LAWYER • 31
32 • THE FEDERAL LAWYER • Fall 2023
Twombly and Affirmative Defenses: Where Things Stand WILLIAM M. JANSSEN
M
ore than 15 years have passed since a 7-2 U.S. Supreme Court retired the “beyonddoubt”/”no-set-of-facts” standard for testing the adequacy of a pleaded federal civil claim.1 That retirement in Bell Atlantic Corp. v. Twombly had been necessary, the Court explained, because otherwise a claim for relief comprised of nothing more than “a wholly conclusory statement” could survive.2 In its place, the Court adopted the mercurial “plausibility” standard— obligating claimants to plead “enough” facts to lift “a right to relief above the speculative level” to “a reasonable expectation” that embarking into the costly phase of discovery would not be in vain.3 To be “plausible,” the Twombly Court taught, the pleaded allegations of a claim must be factual, not conclusory, and suggestive not neutral; in other words, the pleading must offer something more than allegations “merely consistent with” a tenable claim for relief.4
The reception to Twombly was so fractious that the Court took the unusual step, just two years later in Ashcroft v. Iqbal,5 of clarifying and reinforcing its Twombly holding. No, the Court ruled, “plausibility” was not just a pleading obligation reserved for antitrust cases; it applies to all federal civil claims.6 No, “plausibility” is not a standard that can be relaxed if the trial judge commits to meticulously manage the sprawl of discovery; if a federal complaint is deficiently pleaded, it “is not entitled to discovery, cabined or otherwise.”7 And no, a federal claimant’s right to plead most allegations “generally” does not excuse the “plausibility” obligation; incanting “the bare elements of [a] cause of action” and appending a “general allegation” label does not suffice.8 But one more clarification was (and still is) missing: The Supreme Court has never ruled (at least not expressly) whether “plausibility” governs the pleading of claims only, or also applies to answers as well. In the decade and a half of silence since Twombly, only one federal court of appeals has tackled that question. Just one.9
The Second Circuit Was the First, and Remains the Only That one appellate opinion was handed down in March 2019 by the Second Circuit U.S. Court of Appeals.10 The appeal had come following a federal bench trial in Connecticut on a complex contract dispute. The appeals panel first noted the robust trial-level debate then raging over whether the “plausibility” pleading standard applies to affirmative defenses, observing that the question had divided “the many district courts and commentators that have considered it.”11 Two paragraphs later, the panel cast its lot with those who had found that “plausibility” ought to apply in this setting, but with a caveat: The context and nature of affirmative defenses must shape “the degree of rigor appropriate for testing” them.12 Responding parties, explained the court, often enjoy much less time to frame their affirmative defenses than plaintiffs have to craft their claims for relief and, depending on the asserted defenses, perhaps less access to the facts needed to do so.13 And so, for the trial courts within the Second Circuit, “plausibility” would henceforth govern whether affirmative defenses are adequately pleaded. Fall 2023 • THE FEDERAL LAWYER • 33
Applying its newly minted, context-shaped “plausibility” test, the appeals panel affirmed the trial judge’s decision to strike two of six affirmative defenses. A defense that damages were the result of plaintiff ’s own negligence was correctly struck, ruled the panel, because it failed to specify what conduct of the plaintiff was being indicted; and a failure-to-join-a-required-party defense was properly struck for failing to identify the purportedly missing parties and why they were required.14 The appeals panel, however, never explained why “plausibility” was the right test. What about the arguments favoring “plausibility” as a pleading standard for answers persuaded the panel? Why were the opposing arguments less convincing? The panel did not share its reasoning. Nonetheless, these three paragraphs of test-adoption and two paragraphs of test-application are the entirety of the federal appellate wisdom on this important threshold question of federal pleading (at least as of the date of this article).
Why Such Quiet Among the Other Appeals Courts The answer may lie with the mechanics and practicalities of civil litigation. In responding to claims, pleaders are authorized under the Federal Rules of Civil Procedure to: (1) admit, deny, or state lack of information/knowledge to each allegation asserted against them; (2) state each of their defenses “in short and plain terms”; (3) state their affirmative defenses; and (4) raise counterclaims and/or crossclaims.15 The first and last of these tasks have not seen much Twombly contentiousness—few seem to be inviting courts to default a responding party for neglecting to adorn “Admitted.” or “Denied.” with “plausibility” facts, nor is there much of a rush to dispute that counterclaims and crossclaims are “claims for relief ” to which “plausibility” applies. So, the principal area here for Twombly disagreement seems to be the pleading of defenses, and specifically affirmative defenses. Fights over the pleaded adequacy of an affirmative defense are ordinarily contested using a Rule 12(f ) motion to strike that defense as “insufficient.”16 The logistics of rulings on such motions helps explain the appellate quiet. If the district court refuses to strike the contested defense, the litigants move past the pleading stage and into discovery; the moment of contest (at least at the trial court level) has passed. If the district court grants the motion and strikes the defense, it will usually (though not always) be without prejudice and/or coupled with an express leave to re-plead;17 one would then expect the defeated pleader out of self-interest to adjust the answer to meet the court’s critiques. In either event, whether the motion to strike is refused or granted, the resulting order will almost always be non-final and interlocutory,18 since it would be unusual for such orders to themselves “end[] the litigation on the merits and leave[] nothing for the court to do but execute the judgment.”19 Consequently, absent an unlikely20 Rule 54(b) partial-judgment determination or an unlikely21 § 1292(b) interlocutory-appeal certification, the disgruntled litigant will have to await entry of the lawsuit’s case-ending final judgment in order to appeal the unfavorable Rule 12(f ) ruling.22 Ultimately, the lawsuit will probably resolve either by a ruling on a different, later merits motion or by settlement; less than 1% of all federal civil lawsuits now reach trial.23 By then, the early pitched battle over the pleaded adequacy of some affirmative defense is likely to be eclipsed by other, more pressing merits issues, or mooted entirely by the negotiated resolution of the lawsuit. And, if a motion to strike ruling ever does reach an appeals court’s notice, it will be reviewed under 34 • THE FEDERAL LAWYER • Fall 2023
the forgiving abuse-of-discretion standard24 (which may cause an appeals court to side-step the “plausibility” question entirely given the peculiar circumstances of the trial court ruling).25 The bottom-line—and very practical reality—is that few opportunities will exist to allow appellate review of the question of whether Twombly “plausibility” applies to pleading affirmative defenses. This is why the district judges have been left so long adrift on this important—potentially case-dispositive—question of federal pleadings law.
How the District Judges Are Managing Since 2007, when Twombly was decided, there have been hundreds upon hundreds of federal district court cases discussing the applicability of Twombly “plausibility” to affirmative defenses.26 It is no overstatement, then, to characterize the pleaded adequacy of answers as a matter of great importance to practitioners: They are certainly committing enormous resources to litigate it. The arguments for and against importing Twombly to responsive pleadings are well known. They ordinarily cluster around several points. Those courts who favor applying “plausibility” to affirmative defenses often decry the perceived unfairness of holding response-pleading to a different standard than claim-pleading27 (a bit of what’s-good-for-the-goose-should-be-good-for-the-gander logic).28 Plaintiffs, courts have reasoned, ought to be entitled to the same fair-notice of defenses as defendants are of claims.29 Courts have also written that defendants should be asserting only tenable defenses; idly pleading affirmative defenses with a kitchen-sink / laundry-list strategy should be improper.30 And just as defendants should not be subject to the burdens of discovery on a non-“plausible” claim, so too should plaintiffs not be burdened by discovery on a non-“plausible” affirmative defense.31 Responsive pleaders who are uncertain whether a particular defense is viable can always hold off, comforted with the knowledge that they can ask for later leave to amend.32 Conversely, those courts who decline to apply “plausibility” to affirmative defenses reject as facile that claim-pleading and response-pleading must be treated alike. They home in on the textual difference between a claim-pleader’s obligation under the Federal Rules of Civil Procedure (to supply “a short and plain statement of the claim showing an entitlement to relief”) and the obligation imposed by the Rules on responsive pleaders (to merely “affirmatively state any avoidance or affirmative defense”).33 More particularly, those courts rely on the U.S. Supreme Court’s explanation for adopting the “plausibility” standard in the first place, anchored as it was in the “showing” language that appears in the claim-pleading rule, but is absent from the defense-pleading rule.34 Many courts have also discussed just how different these two pleading settings are. Plaintiffs enjoy, at least theoretically, the entirety of their statute of limitations to investigate, research, and craft their claims, whereas defendants typically have just 21 or 60 days to respond to those claims.35 Defendants’ duty is to counterplead to a claim (and thus they must be given enough detail to do so), whereas plaintiffs have no such counterpleading duty (or right) to respond to affirmative defenses—indeed, under the Rules, affirmative defenses are deemed denied with no further action expected of the plaintiff.36 Plaintiffs control the who-what-when-where-how of the litigation, whereas defendants’ task is principally reactive to plaintiffs’ framing, and also potentially constrained by a lack of access to key factual details.37 Opening the door to claimant discovery without threshold “plausi-
bility” troubled the Supreme Court (due to the perceived risk that the specter of debilitating discovery would prompt settlements on non-merits grounds), whereas the incremental burden of discovery of affirmative defenses, once discovery is already opened, is thought to pose less concerning a risk.38 Courts have also acknowledged responsive pleaders’ haunting worry that any unasserted defenses may be deemed lost forever through waiver, and while post-pleading amendments are granted liberally, they are not granted absolutely.39 These various arguments for and against “plausible” affirmative defense testing were quite well established by the time of the Second Circuit’s March 2019 opinion—only adding to the mystery of why the appeals panel steered clear of discussing the competing positions. Empirical assessments of the divide among the nation’s federal district courts meaningfully favor the “no's"; well more than half of trial court rulings confronting the question have chosen not to apply “plausibility” in testing affirmative defenses.40 The leading federal civil practice treatise agrees this majority approach is the “better view”.41
The Post Second Circuit’s Impact In the more than four years since it was decided, the Second Circuit’s ruling has been cited and applied by scores of district courts within that circuit. That comes as no surprise, of course; those district judges are bound to follow their binding circuit precedent.42 But the rest of the nation? Have other district judges outside that circuit been persuaded to follow the Second Circuit’s lead with contextualized “plausibility” as the test for affirmative defenses? As of the date of this article, 22 district court decisions from outside the Second Circuit have cited that circuit panel’s opinion while ruling on a motion to strike affirmative defenses. The results roughly parallel the existing divide: 11 decisions did not follow the Second Circuit’s approach, five decisions did agree to test for “plausibility”, and six reserved on the question or otherwise avoided a definitive answer. (Intriguingly, the decisions even disagree on which view constitutes the majority approach nationally.43) Unpacking this count is informative. Among the 11 decisions that chose not to follow the Second Circuit’s approach, one rejected the approach summarily, without much explanation.44 Four courts felt compelled to reject the approach, either by deference to their own earlier rulings on the issue or by inferences from local circuit precedent.45 Most—six courts—substantively discussed the merits of the competing arguments in the debate, and then rejected the Second Circuit’s conclusion by siding with the view that “plausibility” was not appropriate for testing affirmative defenses.46 Among the five decisions that cited the Second Circuit’s approach favorably or otherwise tested for “plausibility,” the rulings also varied in tone and scope. Two courts adopted that approach summarily, without much elaboration on why the test was appropriate.47 One court felt bound by apply “plausibility” due, in part, to local preTwombly circuit precedent; that decision struck several affirmative defenses with prejudice while granting leave to amend others.48 One court weighed the competing arguments for and against “plausibility” (none of which were found to be “without merit”), but then believing—inaccurately—that “the vast majority” of local and national courts adopted “plausibility” for affirmative defenses, followed that lead, striking 31 affirmative defenses as “nothing more than” legal conclusions (and without an express leave to re-plead).49 The final court found that “bare bones conclusory” affirmative defenses were
vulnerable under “plausibility,” but elected not to strike them given the context of the litigation; in ruling, the court lamented that the motion to strike “served only to delay this litigation” and “added unnecessary briefing.”50 Among the six courts that considered, but did not definitively resolve, the question, two found no need because their analysis would have led to the same result whether or not “plausibility” governed the pleading of affirmative defenses.51 Another court noted, but then avoided, the debate due to the manner in which the motion to strike had been briefed.52 Two courts discussed the debate, but then ruled without squarely adopting either view.53 The final court’s opinion exhaustively discussed the debate, how motions to strike on Twombly grounds have proven needless and wasteful, and why simpler, less litigious, and far more economical alternatives are to be preferred; yet, honoring local pre-Twombly circuit precedent that disapproved of conclusory defenses, that judge reluctantly and without prejudice struck the contested affirmative defenses.54 The summary above groups these post-Second Circuit rulings broadly into those requiring “plausibility,” those not requiring “plausibility,” and those reserving on the question. Often, these groupings are predictive of how a court is likely to rule—a conclusory, boilerplate affirmative defense more likely survives with a no-“plausibility” court55 and more likely fails with a “plausibility”-required court.56 But not always. In truth, the reality is a good bit more volatile. Consider a few illustrations. Is failed-to-mitigate-damages a sufficiently pleaded affirmative defense? Two courts—which had rejected the obligation to “plausibly” plead defenses—ruled that this was not an adequate defense, holding that its conclusory nature failed to impart adequate notice to the plaintiff.57 Ironically, another court—one which had adopted the “plausibility” test for defenses—allowed the defense to survive a motion to strike, reasoning that discovery had only just “barely begun.”58 That same “plausibility”-adopting court excused a conclusory outside-the-scope-of-employment defense (because the defendant did not yet know whom plaintiff was blaming for the offending behavior), but refused to excuse a conclusory limitation defense (because the defendant failed to explain why it could not offer factually enhancing details).59 As these cases demonstrate, “unpredictable” and “volatile” are fair descriptions of the current state of the law here.
The Practitioners’ Dilemma For the practitioner,60 things could hardly be more unsettling at the moment. Clues, but no definitive mandate from the U.S. Supreme Court. A brief foray by just one appeals court, but without robust foundational guidance. And a torrent of trial court opinions that disagree not just circuit-by-circuit and district-by-district, but intra-district as well—judge-by-judge.61 More distressingly still, what qualifies as sufficient or insufficient seems to vary at times even among those judges who come to the same conclusion on whether affirmative defenses must be alleged “plausibly.” All in all, it is difficult to find “just, speedy, and inexpensive” in the current state of things.62 Nonetheless, there are steps that practitioners can take to improve their chances of surviving this uncertainty when pleading affirmative defenses. First, thorough, judge-specific local research must be the starting point for every case. That is no mundane advice; judges are striking defenses. Because there is no controlling appellate-level law outside the Second Circuit and because individual judges within the same Fall 2023 • THE FEDERAL LAWYER • 35
federal judicial district have taken contrary positions, pre-filing research must be targeted to understanding what the case’s presiding judge has written on “plausibility” and affirmative defenses. What is learned in that research should, obviously, guide the manner of framing affirmative defenses. This truly should be every federal practitioner’s first step in drafting an answer. But be forewarned: Even exhaustive judge-specific research offers no sure safe harbor. As noted above, judges have occasionally applied their chosen pleading standard in unexpected ways and have even changed their minds from their own prior rulings and adopted a contrary testing standard.63 A judge with no prior written record on the matter is especially unnerving; a new standard could be considered, adopted, and applied for the very first time to strike your defenses.64 Second, steer well clear of the kitchen-sink/laundry-list model of affirmative defense pleading. Many practitioners keep a master file where they store every conceivable affirmative defense they’ve ever used, considered, or encountered in practice. Nothing wrong there. Such files provide a handy checklist when preparing an answer. Here’s the problem: Mindful of the waiver risk of unasserted affirmative defenses, and worried about how dependent later amendments are on a court’s exercise of discretion, it is tempting for practitioners to take that checklist and just drop it, in its entirety, into every answer.65 Practitioners must resist that. Your comprehensive file of every affirmative defense known to humankind must always be responsibly adapted to the circumstances of each case. Rote inclusion of the “kitchen-sink” is not just wasteful, it is unethical. The “plausibility” debate over affirmative defenses has drawn renewed focus by the courts to this practice. Even courts that have rejected “plausibility” affirmative defenses have admonished that the Federal Rules do not tolerate pleading a defense that lacks “a good-faith factual or legal basis”—notwithstanding the fear of waiver: “reflexively asserting every conceivable defense divorced from the actual facts alleged or from facts that might reasonably have evidentiary support after an opportunity for investigation or discovery does not comply with Rule 11.”66 In crafting an answer’s affirmative defenses, practitioners are wise to imagine themselves having to recount in open court why each of their affirmative defenses has a proper legal and factual basis for inclusion.67 Third, sometimes practitioners may feel that they have no choice but to plead a certain affirmative defense in a general, non-factual way. In a court that has embraced “plausible” affirmative-defense pleading, this presents an uncomfortable thicket. But there also seems to be some maneuvering room here. Practitioners must be prepared to explain, for such defenses, why allegations in the complaint or the defensive facts asserted in the answer make those defenses legally tenable in the lawsuit and why a more specific factual framing is impossible at the present. Courts that have adopted pleading “plausibility” for affirmative defenses have shown some receptiveness to this candid-explanation approach,68 and the Second Circuit panel’s context-driven “plausibility” discussion can be cited as helpful support.69
The Fix Of course, what would be a more welcome solution is a definitive, national fix to this practitioner-uncertainty that continues to consume time and money at a frenetic rate. For years, Rule 12(f ) motions to strike were a rarely used tool in the federal pleader’s arsenal. By the courts, they were “viewed with 36 • THE FEDERAL LAWYER • Fall 2023
disfavor,”70 considered a “drastic” and “extreme” remedy,71 roundly discounted as time-wasters72 and distractions,73 and infrequently granted.74 Indeed, so unwelcome were such motions that courts had written that they should be granted only when the pleading had “no possible relation to the controversy”75 or would cause prejudice if it remained.76 In the unusual case when they were granted, motions to strike were generally ordered without prejudice, prompting one judge to describe the whole process as “a pointless exercise for the litigants and the court.”77 The advent of Twombly “plausibility” has breathed new life into Rule 12(f ). Given the scant practical value motions to strike add to federal civil litigation, this development is a disappointing one, in terms of cost and delay. But what makes it alarming is how variable the standard has now become; a pleading duty that ought to be nationally uniform can now vary chambers-to-chambers down the same federal courthouse hallway. Nothing good comes from this. Whether accomplished by rulemaking or a certiorari grant, this wasteful national divide needs to end. The experience of more than 15 years of experimentation among the federal trial courts verifies that the better answer is to test affirmative defenses for simple notice, not for supportive facts. A claimant who is going to confront, for example, a failure-to-mitigate defense, a statute-of-limitations defense, or an unclean-hands defense should be told just that; nothing more should be required. Some courts already follow this austere approach.78 Once on notice of a defense, the claimant can decide what next to do. A simple interrogatory and production request would obligate the pleader to explain both all known supporting facts and the evidentiary foundation for them. (Any evasion or other discovery behavior would trigger a preclusion order and potential sanctions.79) If a defense hinges on an anticipated presentation from the claimant, those facts can be ferreted out from all parties and the merits of the defense brought to a head with an ensuing motion for summary judgment. Courts on both sides of the “plausibility” divide have urged counsel to consider just such a procedure.80 Why is this the sounder approach? First, as one court crisply wrote, “all too often, motions to strike don’t speed things up—they slow things down.”81 The hamster wheel of filed-answer, filed-motion, filed-response, court-consideration, court-ruling (and, if granted, filed-amended-answer) consumes money, time, and opportunity. These motion-to-strike battles may be tactical, but often very little of persisting value comes from them. Moreover, if responding parties, chastened by the “plausibility” test, routinely self-restrain but then also routinely file contested motions to amend during or after discovery to supplement their lean original affirmative defenses, the cure introduces new delays and costs, and much closer to the trial date.82 Second, in view of the costs and lack of value, it seems unlikely that any claimant would be prejudiced by having to forego the motion-to-strike cycle and move straight to one-interrogatory/one-production request discovery with a potential summary judgment motion to follow83 (and Rule 11 as the governor against factually and legally untenable pleading). If anything, encouraging this path is likely to prove both cost-effective and more reliably valuable. Third, responding parties lack what claiming parties generally enjoy: time. In assessing whether a particular defense could be implicated by the claim’s pleaded facts, the window for investigation is brief. Thus, the level of specificity reasonably expected from a party
quickly responding to another’s set of facts militates against requiring fact-laden affirmative defenses.84 Fourth, this all is consistent with the pleadings-thin model adopted by the Federal Rules of Civil Procedure. There is cause to demand more precision from claim-pleaders since not only do they, often, have the luxury of more time, but because their work commands a pleaded response.85 But there is no duty to counter-plead to affirmative defenses; once a claim is answered, the pleadings stage usually closes.86 This is why Rule 12(e) motions for a more definitive statement are only permitted against a pleading to which a response is required.87 Fifth, the Rules’ pleading-thin model envisions a transition into discovery for mining the parties’ respective factual details. Here, the existing Rule text is instructional by installing a distinction in pleader obligations: claim-pleaders must make a “showing” that their claims are “entitled to relief,” while response-pleaders need only “affirmatively state” their affirmative defenses.88 The difference in syntax is incontestable and was relied upon by the U.S. Supreme Court in Twombly as the basis for adopting the “plausibility” standard for claims. Extending “plausibility” to affirmative defenses is thus not faithful to the Rule being construed.89 Sixth, claim-pleaders and defense-pleaders are not equally situated when it comes to that next discovery stage. The Supreme Court expressed concern about allowing a litigation to continue into discovery in the absence of “plausibility”; but whether an affirmative defense is tolerated or not will not affect whether the discovery door will have been opened.90 Courts convincingly predict that the added burden of a one-interrogatory/one-production request tandem to an already opened discovery stage is marginal.91 Seventh, many affirmative defenses are filed anticipatorily, based on inferences fairly drawn from the claim’s pleaded facts. As the case develops through discovery and the claim’s facts are better evidentiarily understood, many of those defenses simply fall away and are never pressed further.92 Spending money litigating the pleaded adequacy of such disappearing defenses is, then, particularly wasteful. *** What is expected of a federal pleader should not vary circuit to circuit, district to district, courthouse to courthouse, judge to judge. Now it does, with affirmative defenses. This turns “just, speedy, and inexpensive” on its head. This national disuniformity is unpredictable, costly, and a trap for practitioners. It should be resolved, and soon. William M. Janssen is a professor of law at the Charleston School of Law in Charleston, S.C., and author of several texts on federal civil practice, including the Federal Civil Rules Handbook (Thomson Reuters 30th ed. 2023, revised and updated annually).
Endnotes Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007) (concluding that “this famous observation” from Conley v. Gibson “has earned its retirement” and “is best forgotten”) (retiring earlier statement from Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “the accepted rule” for “appraising the sufficiency of the complaint” is “that a complaint should not be dismissed for failure to state a claim unless it appears
1
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief ”). 2 Twombly, 550 U.S. at 561. 3 Id. at 556 & 559-60. 4 Id. at 557 & n.5. 5 556 U.S. 662 (2009). 6 Id. at 684. 7 Id. at 684-86. 8 Id. at 686-87. 9 Several courts of appeals have brushed past the question, without resolving it. See Weatherly v. Ford Motor Co., 994 F.3d 940, 943 (8th Cir. 2021) (“unclear” whether parties or court “questioned whether Twombly or Iqbal supply the standard governing the sufficiency of an allegation relating to an affirmative defense”); Bakery & Confectionary Union & Indus. Int’l Pension Fund v. Just Born II, Inc., 888 F.3d 696, 700 n.5 (4th Cir. 2018) (“need not address it in this case”); Depositors Ins. Co. v. Estate of Ryan, 637 Fed. Appx. 864, 868-69 (6th Cir. 2016) (“unnecessary for us to resolve this issue”); Herrera v. Churchill McGee LLC, 680 F.3d 539, 547 n.6 (6th Cir. 2012) (“no occasion to address, and express no view regarding, the impact of ” Twombly and Iqbal “on affirmative defenses”). 10 GEOMC Co., Ltd. v. Calmare Therapeutics Inc., 918 F.3d 92, 97-98 (2nd Cir. 2019). 11 Id. 12 Id. at 98. 13 Id. 14 Id. at 99. 15 See Fed. R. Civ. P. 7(a), 8(b), 8(c), & 13. 16 See Fed. R. Civ. P. 12(f ). 17 See, e.g., Cisco Sys., Inc. v. Beccela’s Etc., LLC, 403 F. Supp. 3d 813, 823 (N.D. Cal. 2019) (absent prejudice to opponent, when defenses are stricken “leave to amend should be freely given”).
See Shultz v. Mfrs. & Traders Tr. Co., 103 F.2d 771, 771 (2d Cir. 1939). 19 See Catlin v. United States, 324 U.S. 229, 233 (1945); 28 U.S.C. § 1291. 18
See Kinsale Ins. Co. v. JDBC Holdings, Inc., 31 F.4th 870, 876 (4th Cir. 2022) (Rule 54(b) determinations are “the exception rather than the norm”, not “granted routinely”) (citation omitted). 21 See Camacho v. Puerto Rico Ports Auth., 369 F.3d 570, 573 (1st Cir. 2004) (“meant to be used sparingly”, are “hen’s-teeth rare”). 22 See Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994) (“general rule” allows parties “a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated”). 23 See Administrative Office of U.S. Courts, Table C-4, Statistical Tables for Federal Judiciary ( June 30, 2022), available at https://www.uscourts.gov/statistics/table/c-4/ statistical-tables-federal-judiciary/2022/06/30 (0.7% of filed federal civil cases reach trial). 24 See United States v. Renda, 709 F.3d 472, 479 (5th Cir. 2013); Hatchett v. U.S., 330 F.3d 875, 887 (6th Cir. 2003). 25 See, e.g., Herrera v. Churchill McGee, LLC, 680 F.3d 539, 547 (6th Cir. 2012) (“no occasion to address” Twombly issue because appeals court finds no unfair prejudice). 26 A Westlaw terms-and-connectors search conducted in June 2023 returned nearly 3,200 federal district court opinions discussing affirmative defenses alongside Twombly, Iqbal, Twiqbal, or 20
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plausibility. Not all of these opinions, of course, were confronting the question for the first time. But the volume is testament to just how often the pleading adequacy of answers is being encountered at the trial court level. 27 See, e.g., United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 866 (E.D. Wis. 2019). 28 See, e.g., Godson v. Eltman, Eltman & Cooper, P.C., 285 F.R.D. 255, 258 (W.D.N.Y. 2012). 29 See, e.g., Nippon Sigmax Co., Ltd. v. Kranos Corp., Inc., 2021 WL 2634823, at *4 (C.D. Cal. 2021). 30 See, e.g., Dace v. Chicago Public Schs. 2022 WL 1861671, at *2 (N.D. Ill. 2020); Patten Air, LLC v. Howard, 2018 WL 9837821, at *1 (W.D. Okla. 2018). 31 See, e.g., Nippon Sigmax Co., Ltd. v. Kranos Corp., Inc., 2021 WL 2634823, at *4 (C.D. Cal. 2021). 32 See, e.g., id. 33 Compare Fed. R. Civ. P. 8(a)(2) (emphasis added) (“showing an entitlement to relief ”) with Fed. R. Civ. P. 8(c) (emphasis added) (“affirmatively state”). 34 See, e.g., RBG Plastic, LLC v. Webstaurant Store, 2020 WL 7027601, at 4(N.D. Ill. Nov. 30, 2020) (noting that language distinction “is crucial”). See also Iqbal, 556 U.S. at 679 (“where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ Fed. Rule Civ. Proc. 8(a)(2).”); Twombly, 550 U.S. at 555 n.3 (“While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant ‘set out in detail the facts upon which he bases his claim,’ Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.”) (citation omitted). 35 See, e.g., Tuggle v. Mamaroneck Capital, LLC, 2019 WL 3782818, at *2 (M.D. Ga. 2019). 36 See, e.g., United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 865 (E.D. Wis. 2019). See generally Fed. R. Civ. P. 8(b)(6) (“considered denied”); Fed. R. Civ. P. 7(a)(7) (plaintiffs can counterplead to affirmative defenses only if ordered to do so by the court). 37 See, e.g., United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 865-66 (E.D. Wis. 2019). 38 See, e.g., id. 39 See, e.g., Aylin & Ramtin, LLC v. Barnhardt, 2022 WL 658786, at *3 (N.D. Ill. 2022). 40 See Brian Soucek & Remington B. Lamons, Heightened Pleading Standard for Defendants: A Case Study of Court-Counting Precedent, 70 Ala. L. Rev. 875, 891 (2019) (in first ten years post-Twombly, courts refused to apply “plausibility” to affirmative defenses in 62% of decided cases, finding that “[a]lthough a majority of cases initially did apply Twombly and Iqbal to defendants, the majority position flipped in August 2011; the proportion of cases which refuse to apply heightened pleading standards to defendants has been steadily increasing ever since.”); William M. Janssen, The Odd State of Twiqbal Plausibility in Pleading Affirmative Defenses, 70 Wash. & Lee L. Rev. 1573, (2013) (finding 65.4% of cases rejecting “plausibility” through early autumn 2013). 41 See 5 Charles A. Wright, Arthur R. Miller, & A. Benjamin Spencer, Federal Practice and Procedure § 1274 (2021). Cf. 2 James W. Moore et al., Moore’s Federal Practice § 12.37 (2022) (commenting that if Twombly/Iqbal applies to affirmative 38 • THE FEDERAL LAWYER • Fall 2023
defenses, Second Circuit’s “context” approach “makes sense”).
See Hoeffner v. D’Amato, 605 F. Supp. 3d 467, 481 (E.D.N.Y. 2022).
42
Compare Nippon Sigmax Co., Ltd. v. Kranos Corp., Inc., 2021 WL 2634823, at *4 (C.D. Cal. 2021) (“ ‘vast majority of courts’ … have extended Twombly’s heightened pleading standard to affirmative defenses”) (citation omitted); with Asphaltos Trade, S.A. v. Bituven Puerto Rico, LLC, 2021 WL 965645, at *2 (D. P.R. 2021) (“most courts decline to require defendants to meet the Twombly/Iqbal pleading standard when setting out an affirmative defense”); and RBG Plastic, LLC v. Webstaurant Store, 2020 WL 7027601, at *4 (N.D. Ill. Nov. 30, 2020) (“[T]here is no national consensus that affirmative defenses are held to the same pleading standard as claims. If anything, it is the opposite, with more Circuits refraining from applying Twombly/Iqbal to affirmative defenses.”). 44 See Whetstone Indus., Inc. v. Yowie Group, Ltd., 2019 WL 5102817, at *1 (M.D. Fla. 2019). 45 See Spencer v. Carlson, 2022 WL 902854, at *1 n.3 (E.D. Cal. 2022); Maker’s Mark Distillery, Inc. v. Spalding Group, Inc., 2020 WL 1430610, at *2-*3 (W.D. Ky. 2020); Hanley v. Wyndham Vacation Ownership, Inc., 2019 WL 5255266, at *2-*3 (E.D. Tenn. 2019); Doe No. 1 By and Through Doe No. 2 v. Bojangles’ Restaurants, Inc., 2019 WL 2251546, at *2-*3 (E.D. Tenn. 2019). 46 See Curbio, Inc. v. Miler, 2023 WL 2505534, at *3-*4 (E.D. Pa. 2023); Greenberger v. Bober, Markey, Fedorovich & Co., 343 F.R.D. 375, 377-78 (N.D. Ohio 2023); Aylin & Ramtin, LLC v. Barnhardt, 2022 WL 658786, at *1-*4 (N.D. Ill. 2022); Asphaltos Trade, S.A. v. Bituven Puerto Rico, LLC, 2021 WL 965645, at *2-*3 (D. P.R. 2021); RBG Plastic, LLC v. Webstaurant Store, 2020 WL 7027601, at *4 (N.D. Ill. 2020); Tuggle v. Mamaroneck Capital, LLC, 2019 WL 3782818, at *1 (M.D. Ga. 2019). 47 See Chavez v. Villaneuva, 2023 WL 2324286, at *1 n.2 (C.D. Cal. 2023); Goldsmith v. Lee Enters., Inc., 2019 WL 5188951, at *4-*5 (E.D. Mo. 2019). 48 See Dace v. Chicago Public Schs. 2022 WL 1861671, at *4 & n.5 (N.D. Ill. 2020). 49 See Nippon Sigmax Co., Ltd. v. Kranos Corp., Inc., 2021 WL 2634823, at *4 (C.D. Cal. 2021). The court’s belief here that “plausibility” represents the majority national approach for testing affirmative defenses does not match empirical findings. See supra note 41 and accompanying text. 50 See Red Label Music Publ’g, Inc. v. Chila Prods., 388 F. Supp. 3d 975, 982-83 (N.D. Ill. 2019). 51 See Borden v. Aramark Uniform & Career Apparel, Inc., 2022 WL 3415873, at *1-*2 (W.D. Mo. 2020); Cox v. Callaway Cty., 2020 WL 1548065, at *1-*2 (W.D. Mo. 2020). 52 See U.S. Securities & Exchange Comm’n v. LBRY, Inc., 2022 WL 356772, at *2 (D. N.H. 2022). 53 See Denson v. Rambosk, 2023 WL 34206, at *1-*2 (M.D. Fla. 2023); Red Carpet Studios v. Midwest Trading Group, Inc., 2020 WL 10456849, at *1-*3 (S.D. Ohio 2020). 54 See, e.g., United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 865 (E.D. Wis. 2019). 55 See Doe No. 1 By and Through Doe No. 2 v. Bojangles’ Restaurants, Inc., 2019 WL 2251546, at *2-*3 (E.D. Tenn. 2019). 56 See Nippon Sigmax Co., Ltd. v. Kranos Corp., Inc., 2021 WL 2634823, at *4 (C.D. Cal. 2021). 57 See Spencer v. Carlson, 2022 WL 902854, at *4 (E.D. Cal. 2022);
43
RBG Plastic, LLC v. Webstaurant Store, 2020 WL 7027601, at *5 (N.D. Ill. 2020). 58 See Dace v. Chicago Public Schs. 2022 WL 1861671, at *7 (N.D. Ill. 2020). 59 See id. 60 “Practitioner” is the right term here; any party placed in a defending position on a claim for relief may assert affirmative defenses. Thus, plaintiffs on a counterclaim will find themselves in the same predicament. 61 Compare Red Label Music Publ’g, Inc. v. Chila Prods., 388 F. Supp. 3d 975 (N.D. Ill. 2019) (“plausibility” applies), with RBG Plastic, LLC v. Webstaurant Store, 2020 WL 7027601 (N.D. Ill. 2020) (“plausibility” does not apply). 62 Cf. Fed. R. Civ. P. 1. 63 See, e.g., Denson v. Rambosk, 2023 WL 34206, at *2 (M.D. Fla. 2023) (acknowledging that “brief review of some of the undersigned’s orders show use of several inconsistent standards”). 64 See Nippon Sigmax Co., Ltd. v. Kranos Corp., Inc., 2021 WL 2634823, at *5 (C.D. Cal. 2021) (striking 31 affirmative defenses, after noting that “[s]ince extending the Twombly/Iqbal standard is the majority position, [defendant] should have been on notice he needed to plead plausible affirmative defenses in his answer”). 65 See Aylin & Ramtin, LLC v. Barnhardt, 2022 WL 658786, at *3 (N.D. Ill. 2022) (describing “real world” litigation realities, where defenses are “something closer to an off-the-shelf, cut-and-paste list than a bespoke, tailor-made recitation” because being “overinclusive” addresses the “fear of waiver”). 66 See Greenberger v. Bober, Markey, Fedorovich & Co., 343 F.R.D. 375, 378 (N.D. Ohio 2023). See also Doe No. 1 By and Through Doe No. 2 v. Bojangles’ Restaurants, Inc., 2019 WL 2251546, at *3 (E.D. Tenn. 2019) (cautioning that Rule 11 provides recourse if any defense lacked good faith basis for assertion). 67 See Greenberger v. Bober, Markey, Fedorovich & Co., 343 F.R.D. 375, 378 (N.D. Ohio 2023) (“Defendants shall be prepared to explain to the Court the good-faith basis for each defense asserted and the reasonable inquiry undertaken”). 68 See, e.g., Dace v. Chicago Public Schs. 2022 WL 1861671, at *5 (N.D. Ill. 2020) (refusing to strike affirmative defenses where defendants contend they lack facts to more precisely plead outside-scope defense). 69 See GEOMC Co., Ltd. v. Calmare Therapeutics Inc., 918 F.3d 92, 9899 (2nd Cir. 2019) (“relaxed application of the plausibility standard” to affirmative defense may be warranted by context, including defendants’ possible lack of access to supporting facts). 70 See Hemlock Semiconductor Ops., LLC v. SolarWorld Indus. Sachsen GmbH, 867 F.3d 692, 697 (6th Cir. 2017).
See Stanbury L. Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000) (“extreme”); E.E.O.C. v. FPM Grp., Ltd., 657 F. Supp. 2d 957, 966 (E.D. Tenn. 2009) (“drastic”).
71
See Greenberger v. Bober, Markey, Fedorovich & Co., 343 F.R.D. 375, 378 (N.D. Ohio 2023) (“waste a party’s money and the court’s time”); Whetstone Indus., Inc. v. Yowie Group, Ltd., 2019 WL 5102817, at *1 (M.D. Fla. 2019). 73 See Goldsmith v. Lee Enters., Inc., 2019 WL 5188951, at *1 (E.D. Mo. 2019). 74 See Operating Eng’rs. Loc. 324 Health Care Plan v. G & W Const. Co., 783 F.3d 1045, 1050 (6th Cir. 2015); Stanbury L. 72
See Brown & Williamson Tobacco Corp. v. United States, 201 F.2d 819, 822 (6th Cir. 1953). 76 See Greenberger v. Bober, Markey, Fedorovich & Co., 343 F.R.D. 375, 376 (N.D. Ohio 2023); Curbio, Inc. v. Miller, 2023 WL 2505534, at *2 (E.D. Pa. 2023). 77 See Dace v. Chicago Public Schs. 2022 WL 1861671, at *2 (N.D. Ill. 2020). 78 See Montgomery v. Wyeth, 580 F.3d 455, 467 (6th Cir. 2009) (statute of repose defense adequately pleaded with: “Plaintiff ’s causes of action are barred in whole or in part by the applicable statutes of limitations and repose.”). 79 See Fed. R. Civ. P. 37(c). 80 See, e.g., Dace v. Chicago Public Schs. 2022 WL 1861671, at *2 (N.D. Ill. 2020) (encouraging counsel “to carefully consider whether they can more efficiently obtain the factual basis for a defense through discovery and then, if necessary, seek summary judgment”). Accord Aylin & Ramtin, LLC v. Barnhardt, 2022 WL 658786, at *3-*4 (N.D. Ill. 2022); United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 861 (E.D. Wis. 2019). 81 See Aylin & Ramtin, LLC v. Barnhardt, 2022 WL 658786, at *1 (N.D. Ill. 2022). 82 See United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 866 (E.D. Wis. 2019). 83 See Hanley v. Wyndham Vacation Ownership, Inc., 2019 WL 5255266, at *3 (E.D. Tenn. 2019) (finding challenge “more properly resolved after the completion of discovery through a dispositive motion”). 84 See id. at *3 (“When it comes to answers, the expectation for speed is inconsistent with the expectation for specificity.”). 85 See Fed. R. Civ. P. 8(b)(6) (failure to deny is deemed admission). 86 See United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 865 (E.D. Wis. 2019). This is true most of the time. Cf. Fed. R. Civ. P. 7(a)(7) (permitting replies to answers only by court order). 87 See Fed. R. Civ. P. 12(e). See also United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 865 (E.D. Wis. 2019). 88 Compare Fed. R. Civ. P. 8(a)(2) with 8(c)(1). 89 See Curbio, Inc. v. Miller, 2023 WL 2505534, at *4 (E.D. Pa. 2023) (providing knowledge that a defense exists, not how it is implicated by the case’s facts, is purpose of Rule 8(c)). 90 See F.T.C. v. Hope Now Modifications, LLC, 2011 WL 883202, at *3 (D.N.J. 2011) (noting that defendants “are in an entirely different posture regarding discovery” because asserting affirmative defenses “is not ‘unlock[ing] the doors of discovery’ in the same way that a plaintiff does by bringing a complaint in the first place”) (citation omitted). 91 See United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 866-67 (E.D. Wis. 2019) (“The cost of drafting such interrogatories will almost certainly be less than the cost of drafting and briefing a motion to strike an insufficient defense.”). 92 See RBG Plastic, LLC v. Webstaurant Store, 2020 WL 7027601, at *5 n.2 (N.D. Ill. 2020); United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 867 (E.D. Wis. 2019). 75
Firm v. I.R.S., 221 F.3d 1059, 1063 (8th Cir. 2000).
Fall 2023 • THE FEDERAL LAWYER • 39
40 • THE FEDERAL LAWYER • Fall 2023
Trade Violations Under the False Claims Act OLGA TORRES AND CAMILLE EDWARDS
O
n February 7, the U.S. Department of Justice (DOJ) announced that settlements and judgements under the False Claims Act (FCA) exceeded $2 billion for the 2022 fiscal year. The 2022 fiscal year also had the secondhighest number of settlements and judgments for any given year in the history of the act.1
This news reflects the increasingly firm stance the U.S. government has taken on cases involving fraud against the government. Notably, President Biden’s most recent State of the Union Address was heavy with themes of holding businesses accountable for fraudulent or exploitive behavior.2 In addition, the DOJ has signaled multiple times since the beginning of March that the department will increase focus on corporate compliance and enforcement actions that combat corporate fraud. For example, on March 2, Deputy Attorney General Lisa Monaco, delivered remarks at the American Bar Association’s National Institute on White Collar Crime where she announced department updates related to combatting corporate crimes. The updates included the addition of 25 new prosecutors to the DOJ’s National Security Division “who will investigate and prosecute sanctions evasion, export control violations and similar economic crimes.” Deputy Attorney General Monaco also stated in her speech that “increasingly, corporate criminal investigations carry profound national security implications.”3 That same day, the Department of Commerce, the Department of Treasury, and the DOJ issued a Joint Compliance Note on Russia-related sanctions and export controls. The Joint Compliance Note detailed how bad actors have attempted to evade these trade controls and stated that the three departments
“will continue to use all tools at [their] disposal to prevent bad actors from circumventing the comprehensive export controls put in place to deter Russian aggression.”4 One potential tool that could be used by the DOJ is the False Claims Act, that can serve as a vehicle for the enforcement of U.S. trade regulations. The FCA statute prohibits individuals and/or entities from fraudulently receiving payments from the government or wrongly withholding payments to the government. As stated by Deputy Attorney General Brian Boynton in the DOJ’s February 7 announcement mentioned above, “the False Claims Act remains one of the most important tools for ensuring public funds are spent properly and advance public interest.” Generally, the FCA is most well-known for its application in cases where a party has fraudulently claimed money from the U.S. government. For example, the DOJ’s February announcement discussed FCA cases involving companies that wrongfully billed federal health care programs for medically unnecessary services, banks that improperly disbursed COVID-19-related assistance funds, and a company that sold defective bullet proof vest material to the government. In each of these cases, the FCA was used to recover government funds that were distributed to these parties. However, the FCA also enables the government to recover payments that it should have received but did not due to the fraudulent actions of a third party. The provision of the FCA that allows this recovery is called the “reverse false claim” provision.5 Recent FCA cases indicate an upward trend in the application of the FCA, and more specifically, the reverse false claim provision, to cases involving U.S. trade law and national security. For example, it has become increasingly common to see the FCA applied in cases involving violations of customs regulations. In addition, there has also been an uptick in recent years of FCA cases involving violations of U.S. export control laws and economic sanctions. Fall 2023 • THE FEDERAL LAWYER • 41
Against this backdrop of FCA application to trade cases and government-wide policy trends toward fighting corporate bad actors and safeguarding national security, we can expect increasingly robust use of the FCA to impose liability on businesses and individuals that falsely claim government funds or fraudulently withhold payments to the government. This article will first provide an overview of the FCA, its relevant provisions, and how FCA cases are initiated. It will then discuss how the FCA applies in cases involving Customs violations as well as how the FCA applies in cases involving export controls or economic sanctions. In addition, the article also touches on the implications of increased FCA application to trade violation cases and reviews penalties that may be assessed under the act.
False Claims Act Basics The FCA is codified in Title 31 of the U.S. Code, §§ 3729-3733. It was originally enacted in 1863 to combat defense contractor fraud that took place during the Civil War. Since then, the FCA has been amended multiple times. In the trade context, one of the more significant amendments to the FCA came under the 2009 Fraud Enforcement & Recovery Act (FERA). First, we must note that the FCA is most well-known for its use in cases where a party has fraudulently claimed money from the U.S. government. However, the act also applies in cases where a party has knowingly avoided payment to the government. The latter application, aptly called the “reverse false claim,” is often used in trade-related cases where a party becomes liable under the FCA because they have fraudulently avoided paying customs duties, or other trade-related fees, to the U.S. government. Thus, instead of improperly receiving government funds, a party that is liable under the reverse false claims provision is one that fails to properly pay required fees to the government. While the reverse false claims provision has been a part of the FCA since 1986, the 2009 FERA amendments altered and expanded the reach of the provision.
FERA Amendments & The Reverse False Claim Prior to the FERA, a party was only liable under the FCA if it submitted a false record or statement to the government in avoidance of an obligation to make a payment to the government. The FERA amendments took away the requirement that there be a false record or statement to the government as a prerequisite to liability. The FCA was also expanded to hold liable parties that “knowingly and improperly avoid or decrease an obligation to pay or transmit money or property to the government….” In addition, the term “obligation” was defined to include an “established duty, whether or not fixed, arising… from statute or regulation.”6 Importantly, the Senate Report accompanying the FERA also expressly states that the term “obligation” includes the payment of customs duties.7 Thus, the FERA amendments made it easier to hold parties engaged in customs violations liable under the FCA. Importers and exporters now face an increased risk of liability under the FCA, especially those that self-blind against potential trade violations or lack proper internal compliance systems and trained personnel. The sections below will provide examples of FCA claims against parties that violated U.S. trade laws. While each case involves varying facts, they all illustrate how important it is for parties engaged in international trade, as well as the brokers, agents, attorneys, and other individuals involved in facilitating the trade, to be aware of potential compliance risks and maintain robust compliance programs. 42 • THE FEDERAL LAWYER • Fall 2023
How FCA Cases Are Initiated Before turning to FCA application in specific trade-related cases, it is helpful to understand how FCA cases are initiated. Importantly, the FCA’s qui tam (a Latin phrase referring to a person who sues on behalf of the King or the government) provisions allow private parties that know of fraudulent behavior to initiate lawsuits under the FCA on behalf of the United States. FCA actions initiated by private parties are initially filed under seal. The government then has 60 days to investigate the claims and then choose whether to proceed with the action or decline to intervene. If the government declines to intervene, the private party, referred to as the “relator,” may continue the action on their own. Importantly, a relator may be able to receive a share of the recovery in an FCA case even where the government declines to intervene. Thus, relators have an incentive to report FCA violations when they witness them. Not surprisingly, the number of lawsuits initiated by individuals has “grown significantly since 1986,” with the DOJ reporting an average of more than 12 new cases each week that are initiated by private parties.8 Relators typically have direct knowledge of FCA violations, understand the policies or actions that led up to an FCA violation, and know what actors within the company facilitated the violations or knew of the wrongful actions. Accordingly, relators provide significant value to the government because they can provide unique knowledge and insight related to an FCA violation and can be a driving force for FCA enforcement. In fact, Senator Chuck Grassley, a long-time champion of the FCA, has stated that without “whistleblowers, the False Claims Act would simply not work.”9
FCA Cases Involving Customs Violations Although the FCA can apply in multiple types of trade-related cases, in the trade context, the FCA is most often used in cases involving violations of the customs regulations. Thus, we will first turn to these specific FCA trade cases. While customs violations in FCA cases generally stem from the underpayment of duties, the facts underlying those underpayments can vary from case to case. Recent cases provide illustrative examples of two of the most common types of customs violations in FCA cases: (1) the submission of false documentation to Customs and Border Protection (CBP) that undervalues imported goods, and (2) the misclassification goods under the Harmonized Tariff Schedule (HTS) to avoid the proper payment of duties.
Submission of False Documentation To pay less in duties, individuals or companies will in some cases submit false invoices that do not reflect the true value of the items imported. Under customs law, the amount in duties owed to the government upon the importation of certain goods will typically be a percentage of the value of the relevant goods. Thus, invoices that falsely undervalue goods will result in an improper decrease in the amount of duties owed to the government. As an example, on Dec. 19, 2022, the DOJ announced that it had settled claims brought under the FCA against Noble Brand Holdings (Noble), a Chinese manufacturer that knowingly underpaid customs duties by running a double invoicing scheme. Under this scheme, Noble would generate two sets of parallel invoices. The invoices with correct pricing for its products would be sent to the U.S. company purchasing the products, while false invoices with improperly reduced pricing were sent to customs brokers for valuation purposes.
As a result, Noble paid an improperly reduced amount in duties to the government based on the incorrect prices it included on the false invoices.10 Additionally, a settlement of an FCA action brought against Luchiano Visconti announced by the DOJ on Aug. 11, 2022, also involves the submission of false documentation to the government. Luchiano Visconti, a New York-based menswear company and its manager admitted to knowingly providing incorrect reports to CBP that undervalued apparel items the company imported into the United States. In some instances, the company and its manager would change the invoices to reflect improper valuations before submitting them to a customs broker. In other instances, the parties did not themselves falsify the invoices but did have reason to know that the invoices submitted by their foreign manufacturers to CBP included incorrect values for the goods. Ultimately, the parties in this case owed over $1.8 million in unpaid customs duties because of their schemes to avoid the payment.11
Misclassification of Goods Misclassifying goods under the HTS is another method companies use to improperly avoid payment of Customs duties. The DOJ announced on January 30 that it had settled an FCA lawsuit brought against International Vitamins Corporation (IVC) for incorrectly classifying imported goods to avoid paying full customs duty amounts. IVC reported improper HTS classifications for imported items for more than four years, even failing to correct the misclassifications after hiring a consultant who confirmed with IVC that the classifications were incorrect. The DOJ stated that IVC’s actions resulted in the underpayment of “millions of dollars of duties owed to CBP.”12 More recently, the DOJ announced a settlement agreement it reached with a footwear company on February 7. Similar to IVC, the footwear company admitted to providing its customs brokers with documentation that incorrectly classified the items under the HTS so it could underpay customs duties. A U.S. attorney involved in the case stated that his office “is committed to combatting customs fraud by holding companies accountable when they misclassify goods and evade paying their legally required duties.”13 In addition to false documentation declaring incorrect values and incorrect HTS classifications, FCA customs cases over the past several years have shown that companies are also willing to use other schemes to avoid paying duties, including the failure to properly include costs for customs assists (e.g., parts or components, tooling, or molds used in the production of the merchandise) or transportation in the price declared to CBP,14 the false representation of a country of origin,15 and the fraudulent classification of goods as samples.16
Settlements in Customs Violation FCA Cases A review of 2022 settlement agreements reflects robust penalties imposed on companies found liable for customs violations under the FCA. In fact, in FCA cases, a multiplier is typically added to the amount the responsible party owes in unpaid duties.17 Multipliers vary case by case, but recent settlement agreements show that parties in FCA customs violations settlements can expect the unpaid duties to be multiplied by at least two. For example, Noble Brand Holdings was required to pay a settlement amount of $500,000, roughly two and a half times the restitution owed to the government. International Vitamins Corporation
paid $22,856,055 in the settlement of its FCA case, which was also more than double the amount it owed in restitution. Individuals and companies should take these cases as a warning that schemes to avoid payment of customs duties can have dire consequences. For companies aware of potential customs or other trade violations, they should carefully consider consulting with an international trade attorney and the potential benefits of submitting voluntary disclosures to the government.18
FCA Application in Other Trade-Related Cases As discussed above, FCA trade-related cases most often concern violations of customs regulations related to the importation of goods. But the FCA can also be applicable in cases involving violations of U.S. export laws, such as the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and violations of U.S. economic such as those in place against Russia or Iran. The following cases provide recent examples of how the FCA has been used to prosecute non-Customs-related trade violations. For example, the U.S. Attorney’s Office for the Northern District of Texas announced on February 27 that it had settled claims under the FCA with 3D Systems Corporation (3D Systems) for violations of the export control laws, including the EAR and the ITAR. According to the press release, 3D Systems was either directly or indirectly involved in manufacturing contracts issued by the Department of Defense and the National Aeronautics and Space Administration. 3D Systems exported certain items and intellectual property covered in the contracts to the People’s Republic of China in contravention of U.S. export laws.19 In 2019 the DOJ entered into a global settlement with Unitrans International Inc. (Unitrans) and Anham FZCO (Anham) to settle FCA violations. Anham and Unitrans were government contractors that falsely certified their compliance with U.S. economic sanctions to the government in order to be awarded wartime contracts. During the duration of the contracts, the companies transshipped items through Iran in violation of U.S. sanctions to fulfill the government contracts. As such, the companies were liable under the FCA for the payments they fraudulently received on the contracts from the U.S. government.20 Similarly, the Second Circuit case U.S. ex rel. Brutus Trading LLC v. Standard Chartered Bank et al., offers another example of how violations of U.S. sanctions may give rise to liability under the FCA. In that case, Standard Chartered Bank, a London-based multinational bank, faced FCA claims for violations of U.S. sanctions against Iran. Standard Chartered Bank allegedly failed to pay billions of dollars in penalties to the U.S. government for its unlawful facilitation of transactions for Iranian businesses and individuals made through U.S. financial institutions. Although this case was recently dismissed, the facts demonstrate how the FCA may pose a liability risk for companies engaged in actions that violate U.S. economic sanctions.21 As these cases show, the FCA is likely to be used as a tool to enforce import and export laws if the circumstances involve a fraudulent claim of money or failure to pay money to the U.S. government. While the FCA has a long history of combatting fraud against the government, recent statements and policy shifts made by federal officials suggest that the spotlight on corporate compliance is now brighter than ever and that we will continue to see frequent use of the FCA as an enforcement mechanism. For those in the trade world, it is important to keep in mind that the FCA has broad applicability Fall 2023 • THE FEDERAL LAWYER • 43
and its use by the DOJ to prosecute trade violations is becoming increasingly more common. As such, it is important for importers and exporters to ensure that they have a sufficient understanding of U.S. trade regulations and have internal compliance measures in place. Olga Torres is the founder and managing member of Torres Trade Law PLLC and its affiliate advisory firm, Torres Trade Advisory, LLC. Ms. Torres received her J.D. from Southern Methodist University Dedman School of Law and is licensed to practice law in Washington, D.C., Texas, Pennsylvania, and the U.S. Court of International Trade. She regularly guides clients through a broad range of complex strategic and regulatory trade controls and national security matters and uses her expertise to advise the U.S. Department of State on defense trade matters as part of her appointment to the Defense Trade Advisory Group and serve as an expert witness in international arbitration. Camille Edwards is an associate attorney at Torres Trade Law PLLC, an international trade and national security law firm based in Dallas, Texas. Ms. Edwards received her J.D. from the University of Oklahoma College of Law and is licensed to practice law in the State of Texas. She assists clients with export control matters, including the navigation of end-use checks and lists of parties of concern administered by the Bureau of Industry and Security, as well as voluntary disclosure practices, Customs and Border Protection rulings, and § 301 tariffs administered by the U.S. Trade Representative.
Endnotes Press Release, Dep’t Justice, False Claims Act Settlements and Judgments Exceed $2 Billion in Fiscal Year 2022 (Feb. 7, 2023), https://www.justice.gov/opa/pr/false-claims-act-settlements-andjudgments-exceed-2-billion-fiscal-year-2022. 2 “Remarks of President Joe Biden- State of the Union Address,” Whitehouse.gov [Briefing Room] (Feb. 7, 2023), https://www. whitehouse.gov/briefing-room/speeches-remarks/2023/02/07/ remarks-of-president-joe-biden-state-of-the-union-address-asprepared-for-delivery/. 3 Lisa Monaco, Deputy Attorney Gen., Dep’t Justice, Remarks at ABA National Institute on White Collar Crime (Mar., 2, 2023), https:// www.justice.gov/opa/speech/deputy-attorney-general-lisa-monacodelivers-remarks-american-bar-association-national. 4 Press Release, Dep’t Justice, Departments of Justice, Commerce, and Treasury Issue Joint Compliance note on Russia-Related Sanctions Evasion and Export Controls (Mar. 2, 2023), https://www. justice.gov/opa/pr/departments-justice-commerce-and-treasuryissue-joint-compliance-note-russia-related. 5 31 U.S.C. § 3729(a)(1)(G). 6 Fraud Enforcement and Recovery Act of 2009, Pub. L. No. 111-21, 123 Stat. 1616, 1620-23 (2009). 7 S. Rep. No. 111-10, at 14, (2009). 8 Press Release (Feb. 7, 2023), supra note 1. 9 Senator Chuck Grassley, Keynote Address at the Federal Bar Association Annual Qui Tam Conference (Feb. 16, 2023). 10 Press Release, Dep’t Justice, Chinese Manufacturer and U.S. Companies Admit Scheme to Evade U.S. Customs Duties (Dec. 19, 2022), https://www.justice.gov/usao-nj/pr/chinese-manufacturer1
44 • THE FEDERAL LAWYER • Fall 2023
and-us-companies-admit-scheme-evade-us-customs-duties. Press Release, Dep’t Justice, U.S. Attorney Announces $3.64 Million Settlement of Civil Fraud Lawsuit Against Menswear Company (Aug. 11, 2023), https://www.justice.gov/usao-sdny/pr/ us-attorney-announces-364-million-settlement-civil-fraud-lawsuitagainst-menswear. 12 Press Release, Dep’t Justice, U.S. Attorney Announces $22.8 Million Settlement of Civil Fraud Lawsuit Against Vitamin Importer ( Jan., 30, 2023) https://www.justice.gov/usao-sdny/pr/us-attorneyannounces-228-million-settlement-civil-fraud-lawsuit-againstvitamin. 13 Press Release, Dep’t Justice, U.S. Attorney Announces $1 Million Settlement of Civil Fraud Lawsuit Against Trading Company (Feb. 7, 2023), https://www.justice.gov/usao-sdny/pr/us-attorneyannounces-1-million-settlement-civil-fraud-lawsuit-against-tradingcompany. 14 Press Release, Dep’t Justice, Middlesex County Company Admits Undervaluing Merchandise to Avoid Paying U.S. Customs Duties (Aug. 11, 2022), https://www.justice.gov/usao-nj/pr/middlesexcounty-company-admits-undervaluing-merchandise-avoid-payingus-customs-duties. 15 Press Release, Dep’t Justice, Company Admits to Three Different Evasion Schemes, Must Pay $796,000 and Implement Compliance Measures ( Jun. 27, 2018), https://www.justice.gov/usao-sdny/ pr/manhattan-us-attorney-settles-civil-fraud-lawsuit-against-finejewelry-designer-evading. 16 Press Release, Dep’t Justice, CEO of Clothing Company Sentenced to Prison for Million-Dollar Customs Fraud (Dec. 22, 2020), https:// www.justice.gov/usao-sdny/pr/ceo-clothing-company-sentencedprison-million-dollar-customs-fraud. 17 The False Claims Act: A Primer, Justice.gov, https://www.justice. gov/sites/default/files/civil/legacy/2011/04/22/C-FRAUDS_FCA_ Primer.pdf (last visited Mar. 28, 2023). 18 See Torres Trade Law, Voluntary Self-Disclosure Handbook (last updated Nov. 17, 2022), https://www.torrestradelaw.com/ staticpage_images/downloadable_files/273VSD%20Handbook%20 2022%20Updates%204873-0029-5998%20v.4_1.pdf. 19 Press Release, Dep’t Justice, 3D Printing Company to Pay Up to $4.54 Million to Settle False Claims Act Allegations (Feb. 27, 2023), https://www.justice.gov/usao-ndtx/pr/3d-printing-company-pay454-million-settle-false-claims-act-allegations-export. 20 Press Release, Dep’t Justice, Defense Contractor Agrees to Pay $45 Million to Resolve Criminal Obstruction Charges and Civil False Claims Act Allegations (Dec. 4, 2019), https://www.justice.gov/ opa/pr/defense-contractor-agrees-pay-45-million-resolve-criminalobstruction-charges-and-civil-false. 21 United States ex rel. Brutus Trading LLC v. Standard Chartered Bank, 18 Civ. 11117 (PAE) (S.D.N.Y. Oct. 13, 2021) (denying relator’s motion for indicative ruling that the court would vacate a prior dismissal based on disclosures made in post-dismissal news report), aff ’d by summary order No. 20-2578 (2d. Cir. Aug. 21, 2023) (declining to address the merits of relator’s reverse-false-claims arguments). 11
The Reactions of International Criminal Justice continued from page 31
European Commission, Ukraine: International Centre for the prosecution of Russia’s crime of aggression against Ukraine starts operations today, 3 July 2023, https://reliefweb.int/ attachments/79e3eb9f-2ac5-464e-b2c1-6357393c9410/Ukraine__ International_Centre_for_the_prosecution_of_Russia_s_crime_of_ aggression_against_Ukraine_starts_operations_today.pdf. 23 The aim of the JIT is to facilitate investigations and prosecutions in the States concerned, as well as those which could be taken forward to the ICC, oint investigation team into alleged crimes committed in Ukraine, Eurojust, https://www.eurojust.europa.eu/ jointinvestigation-team-alleged-crimes-committed-ukraine. 24 Statement, Calling for the creation of a special tribunal for the punishment of the crime of aggression against Ukraine, https:// gordonandsarahbrown.com/wp-content/uploads/2022/03/ Combined-Statement-and-Declaration.pdf. 25 Kevin Jon Heller, Creating a Special Tribunal for Aggression 22
Against Ukraine is a Bad Idea, OpinioJuris (Mar. 7, 2022), http:// opiniojuris.org/2022/03/07/creating-a-special-tribunalforaggression-against-ukraine-is-a-bad-idea/. 26 Id. 27 Id. 28 Chantal Meloni, La Corte penale internazionale spicca uno storico mandato di arresto epr Vladimir Putin mentre si continua a discutere di un tribunale speciale per l’aggressione in Ucraina, Questione Giustizia, (Mar. 23, 23), https://www.questionegiustizia.it/ articolo/tribunalespeciale-ucraina. 29 Sergey Vasiliev, Aggression against Ukraine: Avenues for Accountability for Core Crimes, EJIL: Talk!, Mar. 3 March 2022), https://www.ejiltalk.org/aggression-against-ukraine-avenues-foraccountability-for-corecrimes/. 30 Id. 31 Id.
Fall 2023 • THE FEDERAL LAWYER • 45
Book Reviews
Shielded: How the Police Became Untouchable By Joanna Schwartz Published February 2023; Viking Hardcover, 336 pages, $30.00 Reviewed by: Elizabeth Kelley
Following the murder of George Floyd, the nation has focused on measures that might prevent such tragedies in the future. But what about those situations that never make the news? Furthermore, what about those potential plaintiffs who cannot find attorneys to represent them in civil rights cases? What about those cases that are filed, only to be dismissed via summary judgement or settle? Shielded: How the Police Became Untouchable, by Joanna Schwartz, tackles these and other questions. Schwartz is a professor of law at UCLA. She began her career as an attorney at the New York civil rights firm Embry Celli. Like many young lawyers, she wanted to work for social change. Thus, she was baffled during depositions when members of law enforcement did not remember if they had been sued, or how many times, or why. If lawsuits are intended to deter bad behavior, how was this possible? This 46 • THE FEDERAL LAWYER • Fall 2023
question became her scholarly concern, and Shielded is the result. The book is an exploration of why police became “untouchable.” Schwartz describes a series of procedural hurdles that make accountability difficult, if not impossible. In many instances, the initial obstacle is finding a qualified civil rights lawyer. Potential plaintiffs who live in or near major metropolitan areas have options, but there is a serious shortage of civil rights attorneys in rural areas, and in parts of the South, Midwest, and Southwest. Part of the reason there are so few civil rights attorneys is that these actions are difficult to win. It begins with filing the complaint. According to the U.S. Supreme Court’s decisions in the cases of Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic v. Twombly, 550 U.S. 544 (2007), complaints must be more than simply an assertion that an injury occurred. However, this is a catch-22. An attorney may very well not be able to argue facts until they have access to discovery—access that may not come if the case is dismissed on a Rule 12(b)(6) motion to dismiss. Schwartz cites Seventh Circuit Judge David Hamilton who noted that Brown v. Board of Education would have been dismissed if the Iqbal/ Twombly standard had been in effect in 1954. Beyond this, trial court judges have wide discretion over decisions concerning summary judgement. And if the case does withstand summary judgement, the judge establishes the trial schedule in addition to deciding which experts can testify and ruling on discovery disputes. Such decisions are difficult to appeal. Additionally, caselaw places a huge burden on civil rights plaintiffs and their lawyers. The Supreme Court case of Graham v. Connor, 490 U.S. 386 (1989), ruled that an objective-reasonableness standard should apply when deciding whether law enforcement used excessive force. The Court cautioned that “the ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Another hurdle is the doctrine of quali-
fied immunity—an issue which the mainstream media has begun to examine. This judicially created legal doctrine protects law enforcement from individual liability unless the officer violated a clearly established constitutional right. As a practical matter, this has meant that a plaintiff couldn’t prevail unless there a been a previous decision in favor of a plaintiff in a matter with nearly identical facts. Yet another hurdle is the Monell doctrine. In Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), the Supreme Court held that § 1983 claims against municipal entities must be based on implementation of a policy or custom. Subsequent courts have interpreted this to mean “deliberate indifference” on the part of municipal actors. If an attorney is brave enough to mount a civil rights case, and can surmount all these barriers, there is still the very real issue of cost. These cases are expensive. Potential plaintiffs are seldom in the position to fund them. They require not just time but fees for experts, costs associated with discovery, and the like. If a case is settled, attorney fees are typically paid out of the settlement amount and aren’t separately awarded. Shielded is more than a chronicle of obstacles faced by plaintiffs and their lawyers. Rather, Schwartz shows the impact of these obstacles on the human beings who were the victims of misconduct—victims who are further victimized by the inability to obtain compensation, let alone justice. The book concludes with a chapter titled “A Better Way.” Here, Schwartz lists several changes that might increase the goals of compensation and deterrence, such as overruling qualified immunity, making governments and law enforcement financially responsible for the misconduct of its officers, and requiring law enforcement to be more attentive to the lawsuits brought against them. She cites legislation passed in Colorado shortly after George Floyd’s death as the “gold standard.” This, however, is a bright spot. Schwartz testifies throughout the country in support of similar bills but continually confronts “unfounded fears.”
Media attention on police misconduct cuts both ways. Continual coverage can anesthetize or provoke change. If the latter, then Shielded is a valuable guide for policymakers. Elizabeth Kelley is a criminal defense lawyer with a nationwide practice focused on representing people with mental disabilities. She is the editor of several books published by the American Bar Association.
Civil Rights Queen: Constance Baker Motley and the Struggle for Equality By Tomiko Brown-Nagin Published January 2022; Pantheon Hardcover, 512 pages, $30.00
Reviewed by: Christie McGuinness
Webster’s Dictionary defines “trailblazer” as “one that blazes a trail to guide others,” and there is no better word to describe Constance Baker Motley. The list of “firsts” for Motley is extensive: the first African American woman to argue a case before the Supreme Court of the United States, first African American woman to serve as a district court judge, and the first woman to serve as Manhattan Borough President. Author Tomiko BrownNagin, in a meticulous yet remarkably human way, details the life and accomplishments of civil rights icon Constance Baker Motley. Throughout the book, Brown-Nagin takes her
readers through the life of Motley, from her birth through her death in 2005. Brown-Nagin combines primary sources, such as Motley’s own speeches, and secondary sources, like interviews with family members and former law clerks, to immerse readers in Motley’s remarkable life. Born in 1921 in New Haven, Connecticut, to immigrant parents from the Caribbean island-nation Nevis, Motley lived through some of the most transformative decades in American history. Coming of age at the height of the Great Depression, Motley was immersed in the struggle for workers’ rights at a young age and in particular, the struggle that her community faced in obtaining jobs. Being extremely community oriented, Motley became involved in various youth organizations around New Haven and quickly ascended to leadership positions in those organizations. Through a bit of serendipity, while Motley was giving a speech on the issues related to workers’ rights, her intellect caught the attention of a wealthy benefactor, who ultimately funded Motley’s education—something her family was unable to do. Just prior to the outbreak of World War II, Motely attended the historically black college, Fisk University. Brown-Nagin describes Motley’s first real experience with Jim Crow laws in the south when she was asked to leave the train car she was traveling in and move to a segregated train when she crossed into Cincinnati. Ultimately, Motley transferred to New York University, where she earned her degree. Following NYU, Motely graduated from the prestigious Columbia Law School. As was all too common with women of that generation, let alone women of color, the law firms of New York City were closed off to Motley. Following the advice of a colleague, during her second year at Columbia University, Motley applied for a position with the Legal Defense Fund, headed by Thurgood Marshall. Brown-Nagin describes Motley’s interview with Marshall, where he asked her to stand on a book ladder so that he could assess her figure. The author provides complexity to the narrative surrounding Marshall, a civil rights icon in his own right, and humanizes Motley’s experience as a woman living in the man’s world of the 1940s. Ultimately, Marshall offered her the position, and the rest is history. At the beginning of her professional career, she meets Joel Motley, Jr., a real estate
and insurance broker, and the two ultimately marry. Joel was a progressive man for the era, and fully supported Motley’s career. The two ultimately welcomed their son, Joel Jr., into the world at the same time the Legal Defense Fund was briefing Brown v. Board of Education at the Supreme Court. Motley’s internal struggle with the feeling that she was not truly balancing all the roles she held in her life, and with the intersectionality of the discrimination she faced, at this time is described well. Brown-Nagin details Motley’s trailblazing work with the Legal Defense Fund. Taking on racial segregation in the south, Motley fought racial discrimination at Ole Miss and the University of Georgia, among others, which were determined to stay segregated. She also walks the reader through the courage that it took for Motley to litigate cases in the south and describes the overt racism that she faced. Motley and her colleagues could not find lodging or places to eat and experienced tragic incidences of racial violence. While fighting to desegregate Ole Miss, Motley witnessed the murder of Medgar Evers, a frequent host of Legal Defense Fund lawyers in Mississippi. Motley also faced blatant disrespect while litigating, with one federal judge refusing to recognize her as lawyer. While these are only a few of the remarkable accomplishments and hurdles that Motley had to overcome during her lifetime, Brown-Nagin shows the reader that with her unshakable sense of self and unwavering support system, Motley soared to the heights of the legal profession. Attorney-readers may be reminded of why they wanted to become lawyers in the first place: to leave the world a better place. Motley’s life is a reminder that the law is a powerful tool to bend the arc of society towards justice. She spoke truth to power and used the law to enact meaningful, real change in this world. Brown-Nagin’s dedication provides the reader with a holistic view of Motley’s life because, even as her star continued to rise, she constantly fought against systemic racism, sexism, and feelings of never being enough. Motley is humanized in such an effective way that readers finish the book connecting with the subject and thinking that they, too, can make a difference in this world. Christie McGuinness is a litigation associate in Saul Ewing LLP’s New York office. Her practice focuses on white collar criminal defense. She is the president-elect of the SDNY Chapter and the Second Circuit Delegate to the Younger Lawyers Division.
Fall 2023 • THE FEDERAL LAWYER • 47
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President Blythe Lollar (Nelson Mullins Riley & Scarborough), Vice-President Alison McMinn (Forman Watkins Krutz Tardy), Judge Reeves, Secretary Jennifer Case (AUSA), and SOLACE Representative Carlos Tanner (Tanner Law Firm).
MISSISSIPPI CHAPTER U.S. District Court Judge Carlton Reeves spoke to the Mississippi Chapter at a luncheon meeting at the Capital Club in Jackson before an enthusiastic audience. Judge Reeves described his work on the bench, offered practice tips to the members, and responded to questions. Judge Reeves has had a series of high-profile cases in his court this past year. Additionally, the two U.S. Magistrate Judges from the Northern District of Mississippi spoke at the regular luncheon meeting of the Mississippi Chapter at the Capital Club in Jackson. Judge David Sanders and Judge Roy Percy spoke about the process of evaluating warrant applications in criminal cases while providing entertaining hypotheticals to the members and then solicited their feedback. 50 • THE FEDERAL LAWYER • Fall 2023
President Blythe Lollar (Nelson Mullins Riley & Scarborough), Secretary Jennifer Case (AUSA), Judge Sanders, Judge Percy, Law Student Division Liaison McKenna Stone Cloud (Baker Donelson), and Executive Director Dean Emeritus Jim Rosenblatt (Mississippi College School of Law).
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ome of Blues, Soul, and Rock’n’Roll—Memphis lived up to its motto at the FBA Annual Meeting & Convention, held September 21–23 at the Iconic Peabody Hotel. But no matter your preference in music—or barbeque— Memphis, aka Bluff City, and the FBA Memphis Mid-South Chapter offered loads of options that appealed to everyone’s taste. The convention boasted the many good things expected from a Federal Bar Association Annual Meeting and Convention—CLEs, awards, business meetings, and local social activities to showcase the city. And a meeting in Memphis would not be complete without a visit (or two) from The King of Rock‘n’Roll himself, Elvis Presley. FBA attendees kicked up their blue suede shoes at the host Chapter’s party at the Memphis Rock‘n’Soul Museum on Friday evening. The blues were as plentiful as the food as the attendees were regaled by the sounds of a local blues duo peppered with sets by Elvis. And no self-respecting southern event could commence without a Second Line escort by the Mighty Souls Brass Band leading the attendees to the festivities! Speaking of keeping things in line, at Thursday’s Opening Reception, incoming FBA National President Jonathan Hafen had a crash course in getting his ducks in a row when he was deemed Honorary Duck Master for the Peabody Hotel’s most notable residents—guiding the famous Peabody Ducks to their rooftop palace at the end of their day shift! Just hours later, Mr. Hafen was sworn in, and he will have ample opportunity to capitalize on his directional skills as president. The event ended with Saturday’s Celebratory Closing Reception, 52 • THE FEDERAL LAWYER • Fall 2023
feting all the FBA offered in Memphis, and saluting Stacy King’s 25 years of service to the FBA. We again thank the Memphis Mid-South Chapter for guiding the FBA in exploring the rich history of Memphis. They showcased another unique and unforgettable experience for the FBA. Our thanks to the planning committee:
Convention Planning Committee and Memphis Mid-South Chapter Board Taurus Bailey Kyle Cummins Mary C. Hamm Stacie Hammond M. Kimberly Hodges Deb Ireland
Laura S. Martin Jonathan E. Nelson Shea B. Oliver Tyrone J. Paylor Emma J. Redden Carrie Ann Rohrscheib
Ben J. Scott J. Austin Stokes Sarah E. Stuart Nathan D. Tilley Andre C. Wharton Colleen Hitch Wilson
Judicial Representatives Hon. Annie Christoff, United States District Court, Western District of Tennessee Hon. Jon A. York, United States District Court, Western District of Tennessee Federal Court Liaison Wendy Oliver, Clerk of Court, United States District Court, Western District of Tennessee
Fall 2023 • THE FEDERAL LAWYER • 53
54 • THE FEDERAL LAWYER • Fall 2023
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MEET YOUR BOARD Jonathan O. Hafen National President
Jonathan Hafen is widely regarded as one of Utah’s top lawyers. As a trial lawyer, Mr. Hafen handles a wide variety of litigation, including cases in the areas of securities and investment law, employment law, regulatory enforcement defense, disputes over the ownership and control of businesses, class actions, and legal malpractice defense. Mr. Hafen also serves as legal counsel to numerous small, midsize and multinational companies, utilizing the significant resources available at his law firm, Parr Brown Gee & Loveless, to address the broad spectrum of legal challenges routinely confronting business leaders. Most recently, he has devoted a significant portion of his time serving as the court-appointed Receiver in a $200 million precious metals ponzi scheme. Following a nomination, research and blue-ribbon review process, Mr. Hafen was named one of the “Top 10” Lawyers in the Mountain States (Utah, Nevada, Idaho, Montana, and Wyoming) by Super Lawyers Magazine. Mr. Hafen also has been repeatedly recognized as a top commercial litigator by Best Lawyers in America, Chambers USA – America’s Leading Business Lawyers, Benchmark Litigation, and by Utah Business magazine as one of Utah’s Legal Elite. Best Lawyers named Mr. Hafen “Lawyer of the Year” in Employment Law for Individuals. Prior to joining his current firm, Mr. Hafen graduated summa cum laude from BYU in 1988, magna cum laude from BYU Law School in 1991, clerked for Monroe McKay, Chief Judge of the U.S. Tenth Circuit Court of Appeals, and worked at one of the 56 • THE FEDERAL LAWYER • Fall 2023
nation’s most prestigious law firms, Sidley & Austin (Chicago). Mr. Hafen is heavily involved in work for charitable organizations. He has served for many years as Board Chair of Tuacahn Center for the Arts. Tuacahn typically hosts over 300,000 patrons each year and has a positive economic impact on Washington County, Utah of over $100 million. He supports numerous professional organizations, and has held leadership positions with the Federal Bar Association, the Utah State Bar, the BYU Alumni Association, the BYU Law School Alumni Association, and the J. Reuben Clark Law Society. Mr. Hafen supports his legal community through a wide variety of service, including serving for a number of years as Chair of the Utah Supreme Court Advisory Committee on the Rules of Civil Procedure, as Chair of the Utah State Bar CLE Advisory Committee, and as an organizer of dozens of CLE conferences and presentations. In recognizing his mentoring of many other lawyers, the Utah State Bar awarded Mr. Hafen the inaugural Charlotte Miller Mentoring Award. He recently completed a term serving as the FBA’s General Counsel (pro bono). Mr. Hafen is also active in Utah’s business community, having served for many years on the Salt Lake Chamber’s Board of Governors, where he is currently the co-chair of the Chamber’s Public Policy Committee. He also serves on the Board of Utah’s Women’s Leadership Institute and on the Board of the Utah Center for Legal Inclusion. Mr. Hafen has published and lectured widely on a variety of topics, including trial skills, investment fraud, antitrust law, professionalism and civility, legal ethics, employment law, securities law compliance, and litigation strategy.
Glen R. McMurry National President-Elect
Glen McMurry is a partner at Taft Stettinius & Hollister LLP in its Dayton, Ohio office. He is a member of the firm’s litigation practice group. He has over 15 years of experience serving diverse corporations and individuals across the country in resolving a wide variety of issues, including complex business disputes and compliance with local, state, and federal laws. Glen also focuses his practice on employment issues, construction claims, insurance claims/defense, and mergers and acquisitions. Glen has been an active participant in the FBA for over a decade. Glen served as the Dayton, Ohio Chapter President for three years (2010-2012). Since then, he has served in many capacities, including Chairing the Younger Lawyer Division in 2016, serving on Government Relations Committee, the Editorial Board, serving as one of the Sixth Circuit Vice-Presidents, and serving on the National Board of Directors for multiple terms. Most recently, Glen was elected to serve as the National President-Elect of the FBA and will become the National President of our organization in September of 2024. Glen resides in Tipp City, Ohio with his wife, Angela, and their three children.
Hon. Karoline Mehalchick National Treasurer
The Honorable Karoline Mehalchick is Chief Magistrate Judge of the United States District Court for the Middle District of Pennsylvania. She was appointed to the bench on July 15, 2013, and sits in Scranton, Pennsylvania. Prior to entering on duty with the court, she was in private practice, where she represented a broad range of clients in both state and federal trial and appellate courts, including the United States Supreme Court. She is a graduate of the Schreyer Honors College of the Pennsylvania State University (B.S. Geosciences), and the Tulane University School of Law. After graduating from law school, she served as a law clerk to the Honorable Trish Corbett, Judge of the Court of Common Pleas of Lackawanna County. Judge Mehalchick was also an adjunct professor at Marywood University from 2003 until 2012. Judge Mehalchick presides over the Scranton location of the Court-Assisted Re-Entry Program (CARE Court) and sits on the Court’s Prisoner Litigation Settlement Program Committee, a program which she helped establish in early 2015. Judge Mehalchick has been active in the FBA for over 10 years. She is a past president of the Middle District of Pennsylvania Chapter, previously serving as its secretary, vice president, and president-elect. Judge Mehalchick served as an FBA Third Circuit Vice President for five years. She also served as a member of the Sections and Divisions Council. Currently, she serves Board of Directors Liaison to the Diversity and Inclusion Committee, and as a judicial profiles editor for The Federal Lawyer. Judge Mehalchick also participates in weekly Scholar Exchanges through the National Constitution Center, leading middle and high school students in discussions about constitutional issues and civil discourse. Within the court, Judge Mehalchick sits on the Judicial Conference Codes of Conduct Committee, and is a member of the Workplace Conduct Committee of the Third Circuit Court of Appeals. She previously served on the Magistrate Judges Advisory Group of the Administrative Office of the United States Courts. Within the Middle
District of Pennsylvania, she chairs the Prisoner Litigation Settlement Program and is a member of the Magistrate Judge and Pro Se Law Clerk Committee. Judge Mehalchick is active in the Pennsylvania Bar Association’s Commission on Women in the Profession and is a past president of the Younger Lawyers Division of the Lackawanna Bar Association. Outside of the legal community, Judge Mehalchick is Vice President of Production for the Ballet Theatre of Scranton.
Hon. Allison S. Bachus Director
Hon. Alison S. Bachus has served FBA in a variety of capacities, including on the National Board of Directors. She has served on the National Constitution, Bylaws, Rules and Resolution Committee; Government Relations Committee; Budget and Finance Committee; Community Service and Outreach Committee; Membership Committee; Nominations and Elections Committee; Chapter Activity Awards Committee; and the Special Committee on Women in the Law. She currently sits on the FBA’s Judiciary Division Board. In 2018, she chaired the Nominations and Elections Task Force, which examined the Association’s elections procedures. She then served on the National Governance Task Force in 2019. From 2012 to 2017, she served as Vice President for the Ninth Circuit. Judge Bachus was Chair of the CVPs for FY2017. Prior to her election as a CVP, she served as president of the Phoenix Chapter, where she was a member of the board from 2007 to 2020. At the section level, she has been a member of the Federal Litigation Section and has served on its board. She has spoken at various national FBA conferences, including Leadership Summit and the Women in the Law Conference. She was honored with the President’s Award in 2022. Judge Bachus is proud to be a Life Fellow of the FBA Foundation. Judge Bachus currently serves as a United States Magistrate Judge in Phoenix, Arizona. She previously served on the Arizona state bench from 2015 to 2023. Prior to her appointment to the Arizona state bench, Judge
Bachus served as an assistant U.S. attorney for many years and as in-house counsel for the Federal Bureau of Prisons in Arizona. She received various awards during her career as a federal litigator, including Cooperative Law Enforcement and Victims’ Rights awards. Before joining the U.S. attorney’s office, she served as a law clerk for then-Chief U.S. District Judge Stephen M. McNamee. Judge Bachus currently serves on the board of the Law College Association of the University of Arizona’s Rogers College of Law, and she was a faculty member of Arizona’s Bar Leadership Institute, working on bench/ bar relations between the federal and state bars, for many years. She is a member of the Arizona Women Lawyers Association, the Federal Magistrate Judges Association, and the National Association of Women Judges. Prior to joining the bench, she served as a lawyer-representative for the Ninth Circuit Judicial Conference and on the Arizona State Bar’s Committee on Minorities and Women in the Law. Outside of legal organizations, Judge Bachus has volunteered with the Girl Scouts of Arizona and St. Mary’s Food Bank.
Joseph G. Feldstein del Valle Director
Joseph G. Feldstein (“Joe”) is the esteemed co-founder of Feldstein & Soto-Acabá LLC and a distinguished attorney with over 10 years of experience in varied legal practice. Joe’s dedication extends beyond his immediate professional domain, as he has been an active chapter and national FBA member for the past 13 years. During his tenure with the FBA, Joe has held esteemed positions, including director, secretary, vice president, and president of the Puerto Rico FBA Chapter. Additionally, he served as the 1st Circuit Representative for the Younger Lawyers Division and actively contributed, and still contributes, as a member of various national committees. From starting in the chambers of the Honorable Gustavo A. Gelpí, former Federal District Judge and past FBA National President, now serving as a Federal Circuit Judge, to pivotal roles in Puerto Rico’s governFall 2023 • THE FEDERAL LAWYER • 57
ment agencies, Joe’s vast experience spans employment law, federal litigation, and civil rights. He served as General Counsel for the Puerto Rico Office of Management and Budget. He supervised the Legal Department of the Federal Bureau of Prisons in Puerto Rico, championing fair legal representation in the criminal justice system. His government service further extends as Deputy Director of the Puerto Rico Tourism Company and Deputy Solicitor General for the Commonwealth of Puerto Rico, representing the Commonwealth in numerous judicial capacities. A fervent advocate for juvenile justice, Joe ensures regulatory compliance within correctional systems and educates future legal minds as a professor in correctional law and federal criminal, civil, and appellate procedures. At Feldstein & Soto-Acabá LLC, his unique expertise translates into tailored services for incarcerated individuals and invaluable consultations for criminal defense attorneys. Joe also offers strategic solutions to corporate clientele across diverse sectors by blending his intricate knowledge of government relations with business litigation. A trusted attorney and invaluable business ally, Joseph G. Feldstein stands as a beacon of justice, service, and excellence in Puerto Rico’s legal and business realms.
Darrel J. Gardner Director
Mr. Gardner was born in the Territory of Alaska shortly before statehood. He received his bachelor’s degree from Santa Clara University, and his J.D. from the University of California, Hastings College of the Law, in San Francisco. In early 2020, he became the first Criminal Justice Act Supervising Attorney for the Eastern District of Washington. He now resides in Spokane. For approximately three decades before that, he was a criminal defense lawyer in Anchorage, Alaska. He has worked in private practice, including his own law office, as well as serving as a state and federal criminal defense lawyer, most recently as a Federal Public Defender from 2012-2020. In 2009, he helped to found the Alaska Association of Criminal Defense Lawyers, and he has served as president of that 58 • THE FEDERAL LAWYER • Fall 2023
organization. He was a three-year member of the Ninth Circuit Judicial Conference Executive Committee and, in 2017-2018, he was Chair of the Ninth Circuit Lawyer Representatives Coordinating Committee. Mr. Gardner was a six-year member of the Board of Governors of the Alaska Bar Association, and he served as president of the Alaska Bar in 2017-2018. He served as president of the Alaska Chapter of the Federal Bar Association in 2012-2014. He served as Ninth Circuit Vice President of the FBA from 2017-2023, and as Chair of the Circuit Vice Presidents for FY22. In 2021, he received the FBA’s Outstanding Leader Award. He was a member of the FBA’s Membership Committee, and he served on the FBA’s National Elections Committee in 2017-2018. Mr. Gardner is a Life Fellow of both the American Bar Foundation and the Federal Bar Foundation.
Bonnie Greenberg Director
Bonnie Greenberg is one of the top lawyers in Maryland and an internationally recognized legal skills trainer. She was honored by the Maryland Daily Record as one of Maryland’s Top 100 Women for 2015 and selected for a Leadership in Law Award in 2009. In 2022, she was one of the first attorneys selected as a Certified Instructor by the Department of Justice’s (DOJ) Office of Legal Education, Faculty Development Institute. Ms. Greenberg spent over 37 years as a prosecutor for the DOJ before retiring from full-time work in 2023. She now focuses on teaching, both in the U.S. and abroad. Specifically, Ms. Greenberg is an adjunct professor for Georgetown Law, teaching Trial Advocacy and Applied Evidence, and completed a corruption program for Uzbekistani prosecutors in Spring 2023. Ms. Greenberg’s last position with DOJ was as an Attorney Advisor for the Criminal Division’s Office of Overseas Prosecutorial Development, Assistance and Training Section (“OPDAT”) from 2020-2023. As a trial attorney and an OPDAT Attorney Advisor, she instructed students all over the world. During the time she was at OPDAT she was on detail from the U.S. Attorney’s Office for the District of Maryland where she had been
an Assistant United States Attorney since 1991. While in the United States Attorney’s Office Ms. Greenberg prosecuted a variety of criminal cases and served as the Robbery Task Force and Project Safe Childhood Coordinator. From 1987 to the present, Ms. Greenberg has served as adjunct faculty for the DOJ’s Office of Legal Education, teaching Trial Advocacy, Evidence, Child Exploitation, and other subjects to federal prosecutors. Ms. Greenberg is a long-time member and supporter of the FBA. She was the Maryland Chapter President in 2004 and the Chapter Delegate from 2014-2022. She served on the annual convention and the audit committees. Most recently, Ms. Greenberg served as the chair of the Professional Development Task Force, and successfully got the task force to be a committee. She continues to serve as the chair of the Professional Development Committee. Ms. Greenberg graduated from Temple University School of Law (now Temple University Beasley School of Law) and received her B.S., magna cum laude, from West Chester State College (now University). Following graduation, the DOJ selected Ms. Greenberg for an Honors Attorney position. She worked in the Antitrust Division and the Criminal Division before joining the United States Attorney’s Office for the District of Maryland.
Anna W. Howard Director
Anna White Howard, who joined the University of Georgia School of Law in 2019, teaches legal writing courses, serves as the school’s judicial liaison, and volunteers with the Appellate Litigation Clinic. In the clinic, Howard supervises students as they represent indigent clients before the U.S. Courts of Appeals, Supreme Court of Georgia, Board of Immigration Appeals, and U.S. Supreme Court. Previously, Howard was an associate with Butler Wooten & Peak, where she litigated False Claims Act qui tam, product liability and catastrophic personal injury cases. She also served as a career law clerk for Judge Leigh Martin May and a term law clerk for Judge Richard W. Story, both of the U.S.
District Court for the Northern District of Georgia. Outside of her position as a Director, Anna also currently serves as President of the Atlanta FBA chapter. Anna previously served as national YLD Chair, amongst others, and for many years chaired a number of YLD Committees. She also formerly served as the Atlanta Chapter’s YLD Chair.
Joseph S. Leventhal Director
Joe Leventhal is the office managing partner of Dinsmore & Shohl’s San Diego office. As a litigator, Joe represents clients across all industries in varying legal disputes. He has led jury trial teams in both state and federal court and multiple arbitrations ranging from the protection of the First Amendment to class actions, intellectual property infringement to employment claims, and other complex business matters. Joe obtained his law degree with honors from the Georgetown University Law Center while working on Capitol Hill as a legislative aide handling issues such as health care and education. After law school, he served as an attorney in the White House as deputy assistant to the vice president. As part of the vice president’s senior staff, Joe was then the youngest deputy assistant to the vice president at the age of 25. Joe Leventhal’s experience and involvement with the FBA is significant. Joe served as president of the San Diego Chapter in 2015. Under his leadership, the chapter achieved the following: increased membership by 29 percent, fundraising by 1,429 percent, and social media engagement by over 134 percent; launched a new email marketing platform and two first-ever community service events; held a record-breaking 22 CLE events, including the chapter’s first-ever Women in the Law Conference (approximately 150 attendees); first annual all-day CLE session on competence, ethics, and elimination of bias; and first-ever law student moot court competition; created a government relations liaison and held its first-ever government relations event with Judiciary Committee member Rep. Darrell Issa. The chapter ended the year with a record-high bank account balance, enabling
it to continue to innovate and increase its relevancy to members. Joe currently serves as the Vice President of the San Diego Federal Bar Foundation. At the request of the Chief Judge, Joe chaired the Southern District of California’s 50th Anniversary Committee, which included several events throughout 2016. He previously co-chaired the Ninth Circuit Lawyer Representatives for the Southern District of California and chaired the Southern District of California’s Magistrate Judge Merit Selection Panel six times. Joe also serves on the Board of Directors of Just The Beginning – a Pipeline Organization. Outside of his volunteer work in the legal community, Joe serves on the San Diego Regional Chamber of Commerce’s public policy committee, the board of directors of St. Vincent de Paul’s Village, the San Diego Steering Committee for Just the Beginning, and as a member of the Rancho Bernardo Rotary. He previously served as a commissioner on the City of San Diego Ethics Commission and as a member of the board of directors of Kids Included Together, a non-profit focused on training childcare providers how to include children with disabilities instead of simply accommodating such children.
Nancy Morisseau Director
Nancy works as an in-house counsel for an international utilities and gas company. Nancy is a Labor & Employment attorney with 20 years of experience as a litigator. She clerked for the Honorable George B. Daniels of the Southern District of New York, and was associated with a number of Wall Street law firms and government agencies. She is a former president of the Federal Bar Association, Southern District of New York chapter and a former founding board member of the Haitian American Lawyers Association of New York, Inc. She is a magna cum laude graduate of Syracuse University where she obtained a Bachelor of Arts in Public Relations & African American Studies. She has a Master’s of Science from the London School of Economics & Political Science where she did her graduate thesis on Haitian market women. At Cornell Law School, where she obtained her J.D., she was
an Article Editor on the Cornell Law Review.
Hon. Michelle M. Pettit Director
Michelle M. Pettit is a Magistrate Judge in the Southern District of California. Previously, she was an Assistant U.S. Attorney where she worked in the Criminal Division for over 15 years, prosecuting a wide range of cases such as drug trafficking, immigration offenses, human smuggling, child exploitation, sexual assaults, cybercrimes, domestic and international terrorism, and homicide. From 2019 through 2022, she was the Deputy Chief of Intake, coordinating the initial processing of all new reactive cases and training new prosecutors in one of the nation’s busiest border districts. Judge Pettit, who received a Bachelor of Science with distinction from the United States Naval Academy, began her career in 1994 as a Surface Warfare Officer in the Navy. She held multiple leadership positions in the Engineering, Combat Systems, and Operational Departments and completed two Persian Gulf Deployments on Navy Destroyers. She was selected for the Law Education Program in 1998 and received a Juris Doctorate Degree from Vanderbilt University Law School in 2001, where she was inducted into the Order of the Coif and served as a Managing Editor of the Vanderbilt Law Review. Subsequently, she entered the Judge Advocate General ( JAG) Corps and served six additional years on active duty, advising Navy officials on personnel and military justice matters and serving as the senior supervising prosecutor for the entire Southwest Region. In 2007, she transferred to the Navy Reserves when she joined the Department of Justice. As a Navy Reservist, she has been assigned as a Trial Counsel, an Appellate Defense Counsel, a Naval Justice School Instructor, an Executive Officer, a Preliminary Hearing Officer, an Appellate Judge on the Navy-Marine Corps Court of Criminal Appeals, the Chief Reserve Trial Judge and Commanding Officer of the Navy Reserve Trial Judiciary, and the Commanding Officer of the legal office in Japan. In 2022, she was recalled to active duty to serve as the Circuit Military Fall 2023 • THE FEDERAL LAWYER • 59
Judge for the Southwest Circuit. Judge Pettit has diligently served the San Diego Chapter of the FBA in a variety of capacities, including as the President in 2019, and she currently serves as a Director on the FBA’s Board of Directors. In addition to her FBA service, she has been a member of the Ninth Circuit Conference Executive Committee and a Lawyer Representative for the Southern District of California. She is currently the President of the Enright Inn of Court, and she is an active member of the San Diego County Bar Association, the Lawyers Club of San Diego, the National Association of Women Judges, and the Association of Business Trial Lawyers.
Rachel V. Rose Director
Rachel V. Rose, JD, MBA advises and represents clients on healthcare, cybersecurity, securities, and qui tam compliance, transactional, litigation, and government enforcement matters. Ms. Rose is also an Affiliated Member with the Baylor College of Medicine’s Center for Medical Ethics and Health Policy, where she teaches bioethics. She is often quoted as an expert. Ms. Rose is licensed in Texas and is a Fellow of the Federal Bar Association. Currently, she serves as a Director on the FBA’s National Board, is a Member of and the Immediate Past Chair of the Federal Bar Association’s Government Relations Com-
mittee, an Advisory Board member of the Federal Bar Association’s Qui Tam Section, the co-editor of the American Health Lawyers Association’s Enterprise Risk Management Handbook for Healthcare Entities (2nd Edition), as well as a co-author of the ABA’s books The ABCs of ACOs and What Are International HIPAA Considerations? She is extensively published and presents on a variety of matters related to her practice. She has been named consecutively to the Texas Bar College, the National Women Trial Lawyers Association’s Top 25, Houstonia Magazine’s Top Lawyers (healthcare), the National Trial Lawyers Association’s Top 100 and The Nation’s Top One Percent. Ms. Rose was awarded 1st Healthcare Compliance’s 2019 and 2022 Top Presenter Award. In 2023, she was selected for SuperLawyers (healthcare).
FBA Judicial Profile Index
A Valuable Benefit of Your Membership
1st Circuit
Access the index today at www.fedbar.org/JPI
This index contains profiles as they were published in The Federal Lawyer magazine. The index is organized by circuit and district, which can be accessed via the tabs at right. If you would like to search for a specific judge, it is recommended that you use the search function above and type in the judge’s last name. This index will be updated with both new profiles and historical profiles on a regular basis. If the judge you are looking for does not appear, this either means that they have not yet been added to the index or have not been profiled. The Federal Lawyer encourages submissions of judicial profiles; contact Managing Editor Sarah Perlman at sperlman@fedbar.org for more information.
This digital publication contains profiles as they were published in The Federal Lawyer. Organized by circuit and district, the index currently contains profiles published from January 2001 to the current issue and is expanded often.
60 • THE FEDERAL LAWYER • Fall 2023
HON. CONSTANCE BAKER MOTLEY ESSAY COMPETITION
T
he Federal Bar Association’s Honorable Constance Baker Motley Diversity, Equity, and Inclusion Young Professional Essay Competition is created to celebrate the life of the Hon. Constance Baker Motley (1921–2005) and promote her legacy by encouraging law students and younger federal practitioners to promote, achieve, and sustain diversity, equity, and inclusion in the legal profession. The competition is named after Judge Baker Motley, the first African American woman appointed to the federal judiciary and the first woman judge in the Southern District of New York. She was a key leader of the African American civil rights movement, a lawyer, judge, state senator, and borough president of Manhattan, New York City. This year’s competition winner is Benjamin Syroka. He is a career law clerk to the Honorable Jack Zouhary in the U.S. District Court for the Northern District of Ohio. Ben is a member of the FBA Editorial Board, FBA National Federal Judicial Law Clerk Committee, and Northern District of Ohio Advisory Group. Ben is an active writer, focused on various inequities in our legal system and society at large. He has published articles on prisoner rights, recidivism, speedy-trial rights, unfair labor practices, consumer protection, and pro se representation in federal court. In his spare time, Ben teaches advanced legal writing at the University of Toledo College of Law, serves as volunteer counsel for the Reentry Realities anti-recidivism program, and referees NCAA Men’s College Basketball. Ben graduated from Toledo Law in 2019, where he served as editor-in-chief of the Toledo Law Review.
Zooming Toward a More Diverse Judiciary: Virtual Interviews in Federal Clerkship Hiring By Benjamin R. Syroka
Imagine this scenario. You’ve got a friend—a bright, hard-working, first-generation law student from a modest background. She lands an interview for a coveted federal judicial clerkship on the opposite coast. The catch? Expenses—airfare, hotels, meals— mean either an empty wallet or a maxed-out credit card. This dilemma is common. The traditional interview process, with its financial burdens, has long functioned as gatekeeper, filtering out talent based on resources rather than ability. As a former applicant, and a current clerk, I have witnessed students (often first-generation law students) struggle to navigate this process. The weight of this prohibitive cost barrier falls disproportionately on diverse applicants.1 However, the resulting lack of clerks with diverse lived experiences, cultural and familial backgrounds, and socioeconomic statuses affects the judiciary in the long run—as clerks eventually move on to prestigious government jobs and the federal bench.2 So how do we fix it? Well, let’s consider a second scenario. A similar friend receives a similar interview opportunity thousands of miles away. This time, however, there’s no cost—no flights, no hotel rooms, no exorbitant bills. How? Her interview was on Zoom; she never left her living room. The expansion of Zoom in the federal judiciary may be one of the few unexpected silver linings of the COVID-19 pandemic. Zoom interviews, which many judges continue to use post-pandemic, can profoundly impact diversity, equity, and inclusion in
the judiciary. By eliminating costs, judges can make interviews accessible to a broader pool of applicants.3 Judges now have the ability to speak with candidates from diverse socio-economic, racial, and geographical backgrounds— individuals from all walks of life, and all corners of the country. Apart from accessibility, Zoom also has the potential to create a more equitable process. Previously, candidates with more resources could afford several interviews, increasing their chances of securing a clerkship. Now, the many judges utilizing Zoom have provided an equality of opportunity. All candidates have an equal shot at success (at least with the “Zoom judges”), regardless of finances. As the judiciary emerges from the shadow of the pandemic, swimming upstream against trial backlogs and heavy caseloads, it’s important to keep an eye on the future. COVID-19 undeniably caused significant disruption, but it also brought about progressive changes that deserve reflection and consideration. Let’s capitalize on lessons learned! Utilizing virtual technology should be the new normal—we must continue leveraging this technology to create a more accessible hiring process. Why? The virtual shift is a life-changer for candidates like my friend, who secured a clerkship without looming financial strain. And the benefits to the judiciary may be even greater. The diversity resulting from a more equitable process not only enriches the judiciary’s discourse and decision making,4 it strengthens its representative nature and, in turn, its legitimacy.5 By Fall 2023 • THE FEDERAL LAWYER • 61
“Zooming” toward a diverse judiciary that’s truly representative of the public it serves, we can foster greater public trust and confidence6 in our country’s third branch.
Endnotes The majority of federal clerkships are awarded to graduates from a handful of prestigious law schools; approximately 80% of these incoming clerks are white. See Karen Sloan, These law schools sent the most grads to federal clerkships, Reuters (May 1, 2023, 11:18 AM), https://www.reuters.com/legal/government/these-law-schoolssent-most-grads-federal-clerkships-2023-05-01/. 2 This is not to say that federal judges are not seeking diverse candidates—several judges indicate they want diverse clerks, but struggle to hire them. Jeremy Fogel, Mary Hoopes, & Goodwin Liu, Law Clerk Selection and Diversity: Insights from Fifty Sitting Judges of the Courts of Appeals 36–44 (forthcoming 2023). 3 See Racial/Ethnic Representation of Class of 2019 Judicial Clerks, Nat’l Ass’n For L. Placement (Feb. 2021), https://www. nalp.org/0221research (noting that “white graduates were overrepresented across all clerkship types [in 2019], but especially at the federal level where white graduates obtained over 79% of all federal clerkships, despite making up only 67% of the class overall”). 4 “The Importance of diversity is not in demographics alone or the legitimacy that may flow from those numbers. Rather, the purpose is to ensure that the judiciary benefits from a range of perspectives that more accurately reflect those who are affected 1
62 • THE FEDERAL LAWYER • Fall 2023
by the law.” Deeva Shah & Greg Washington, Beyond Symbolism: Accepting the Substantive Value of Diversity in Law Clerk Hiring, 97 Notre Dame L. Rev. Reflection 317, 319 (2022). 5 And this is not something that will simply “just happen.” As Judge Jeremy Fogel recently stated: “To the extent both applicants and judges believe that greater diversity among law clerks is a desirable goal, that goal will be realized only through intentional efforts.” Hannah Albarazi, 50 Judges Open Up About Law Clerk Selection And Diversity, Law360 (Dec. 2, 2022, 4:57 PM), https://www. law360.com/articles/1554459/50-judges-open-up-about-law-clerkselection-and-diversity. 6 Anyone paying attention recognizes that the judiciary currently faces a significant public-perception problem—many citizens have little confidence in the courts. See David F. Levi et al., Losing Faith: Why Public Trust in the Judiciary Matters, Judicature, Vol. 106, No. 2, 70 (Summer 2022) https://judicature.duke.edu/articles/ losing-faith-why-public-trust-in-the-judiciary-matters/ (noting that the Supreme Court’s public confidence “rating hit a historic low [in 2022], with just 25 percent of Americans reporting ‘quite a lot’ or ‘a great deal’ of confidence in the Court, down from 36 percent in 2021”); see also Public confidence in the U.S. Supreme Court is at its lowest since 1973, Associated Press-NORC Ctr. for Pub. Affairs Rsch. (May 17, 2023), https://apnorc.org/projects/publicconfidence-in-the-u-s-supreme-court-is-at-its-lowest-since-1973/ (summarizing polling data that reveals public confidence in the Supreme Court has reached “an all-time low”).
Member Spotlight *Denotes Sustaining Member
David Aaron* Richard Agresta Patrick Alexander Alayon* Jacqueline Arango* Rachal Cassagne Sonya Chechik Carly Chocron* Aaron Clark Anthony Contrada Caroline Crispin Tricia Fitzgerald Trevor Fulton Gee Kristen Goodman Trinity Jordan Gaven Kammer Katia Kehyeyan Alexander Kerr Tyler Koreski Max Liu Keri Martin Jacob Massee Alicia McDowell Kijana Mitchell Patrick Morley Samuel Noblin Michael O’Donnell* Whitney Passmore Kathryn Polonsky Preston Langdon Pugh* Laura A Raheb* Carl Retzloff Sommer Sandler Suzanne Segal* Dowling Stough Megan Swenson Aimee Vidaurri* Laura Wilk Elizabeth A Winkowski* Emily Zapotocny
Amelia Chiappetta Michele Cattano* Demitrios Kalomiris* Celine Lawrence Mary C. Loewenguth Hannah Stubbs
Northern Virginia
Rhode Island
Richmond
Southern District of New York
South Carolina
1ST CIRCUIT
Nicole DiTomo
Keith Brown Jr DeKoree Freeman Karleen Green Katilyn M Hollowell* Hon. Kina Kimble Jasmine Ward
New Jersey
Dallas
Hon. Raymond L. Acosta Puerto Rico
Ileana Cristina Cardona Gabriel Garcia Joanne V. Gonzales Varon* Paola Guzman-Alejandro Beverlyn Hernandez Eyck O. Lugo Maria de los Ángeles Lugo Colom Alicia P. Pérez-Caballero* Ángel Pérez Sánchez Verónica M. Torres-Torres*
Massachusetts
Richard L Campbell Eric Quetglas Jordan Jonathan Molleur* Catherine Rutley Catherine Scott* Edward Whitesell
2ND CIRCUIT
Eastern District of New York Rachel Catherine Baio Alexander Becker Jessyca Cabral
Leslie Lloyd Ocean
Matthew Dudley Cooper Laurel Grass* Hon. John Peter Mastando III Latif Pelinku Smith Piyanan*
Western District of New York Brittany Lawrence
3RD CIRCUIT Delaware
Justin R Alberto Jody C Barillare Kate R Buck William LaRosa Tiffany G Lydon Denise S. Kraft Dana K. Severance
Eastern District of Pennsylvania Carla Agbiro Linton* John Mazzeo* James McFadden
Middle District of Pennsylvania Pierre Avalos Jesse Rockoff
4TH CIRCUIT
Eastern District of North Carolina Kasey Koballa*
Hampton Roads Elizabeth M Yusi*
Maryland
Monica Basche Justin Conroy Amanda Costley Joseph Frydman* Kathryn Furtado Peter M Nothstein Jennifer E Smith Daniel A Stein Derek Van De Walle
Middle District of North Carolina Donny Stewart
Scott Amankwatia* Hon. Dierdra Howard Barouk Nicole Ng Howard Rhett Ross Nicholas D SanFilippo*
Sylvia Taylor* Gerald Waltman III
San Antonio
Stacy Elizabeth Thompson*
Elizabeth Berenguer Richard L Ellison Macey Fields Danielle Grote Daniel Moss Angelene Ponce Stacy R Sharp Courtney Snyder Gwen Tiption
Western District of North Carolina
Southern District of Texas
Connor Bleakley Meghan Gosline
Brittany Alexander Stephen Lacy Cash Mark Kutny* Thomas Gray Walker
Western District of Virginia Joshua D Goad Andrew Park Donald Pender Mandi M. Smith Jamie Wood Sean C Workowski
5TH CIRCUIT Austin
Arthur Gollwitzer
Baton Rouge
Rory Allison James Ellis Hon. Jeremy D Kernodle Komal Panjwani
El Paso
Sara Eizabeth Priddy*
Mississippi
David H. Fulcher
New Orleans
Angela Bautista* Roy A. Burtchaell III* Brianna Daniel-Harkins Denise Fredricks Patrick Garrity Palvin Singh Jhita Mithun Kamath* Christy L. McMannen* Christopher Meeks Glenn Mintzer* Frannie Montegut Lillian V. Pascone Thomas “Tom” Plunkett Theresa S Sutherland
Kay Starks Dannenmaier Aisha J. Dennis* Capt Seth Christian Gagliardi Renata A Gowie Jon Muschenheim Christian Vieira Jason E. Williams* Rachel Willroth
6TH CIRCUIT
Cincinnati-Northern Kentucky, John W. Peck Stephanie Collins* Spencer Shields Cowan* Lauren Hart Sophia R Holley Julie Popham* Gregory M. Utter Alex E Wallin
Columbus
Northern District of Ohio Matthew Aumann Maya Lugasy Michael Cantu* Grant Mackay* Jessica MacKeigan Michael O’Shea Sai Pandrangi Segev Phillips* Joshua Villers Stanton Williams*
Western District of Michigan Amber L. Kipfmiller
7TH CIRCUIT
Central District of Illinois
Katrina Danielle Quillen*
Chicago
David Adler Isabella Aguilar* Camila LeMaster Esquivel Kathleen Hennessy Sanjay Karnik Raoul Mowatt Robert Kaiser Neiman* James Peterson* William Reynolds Daniel D. Rubinstein* Allison Sulouff Ellerese Topacio Matthew Woodruff Amy Ziegler
Kelsey Kornblut Lilly Richter
Indianapolis
Dayton
Northern District of Indiana
Ashley Caldwell Arabella Loera Lindsey Posey Pamela Spratt
Eastern District of Michigan Zoe Bowers Leah DeVries
Bingxin (Emily) Lu Tiffany L. Rogers
Southern District of Illinois Angela Reaney
8TH CIRCUIT Iowa
Kentucky
Shannon R Fauver* R. Tyler Hurst Shaina Ojala
Memphis/Mid-South Bryan Blades Brennae Brooks* Michael E Gabel Christopher Marsh Wendy R. Oliver Emma Redden
Nashville
Colleen Scheele
Jason Nabors Melissa Stewart
Cameron Annis Hon. Robert Pratt
Minnesota
Larina A. Alton* Jeffrey R Ansel Matthew Cavanaugh Victor Cedemp Christian Victor Hokans Gene Hummel Tadd Johnson* Jessica Knox William Mattessich Ryan Peterson Michael Pfau Hannah Scheidecker Paul M. Shapiro Randi J. Winter
Fall 2023 • THE FEDERAL LAWYER • 63
Nebraska
Sven Peterson
Sarah Van Buiten Lauren Wegener
St. Louis
Oregon
Angela Belle Kennedy Sara G. Neill* Michelle F. Schwerin*
9TH CIRCUIT Alaska
Jessie Alloway Joseph Busa Rosalind Cuneo Benjamin Keener Mandee Mlcek
Hawaii
Andrew Barna Aravind Byju Benjamin Creps* Nicholas Ernst Michael Soon Fah Michael Emil Johnson Stacy Ma* Steven Manso Andrew Scott Michaels* Zachary Shikada Kenton Werk*
Idaho
Katherine C. Ball*
Los Angeles
Patricia Donahue Dustin Essex Alexander Farrell* Mackenzie Holmes James Rolfe Lillico Rebecka A Monez William Orr Harshit Rathore Waseem Salahi Christen A Sproule
Montana
Randall Caudle Shannon Clarke
Nevada
Andy Wong
Northern District of California Concord Cheung Lisa Cisneros Kaytlynne Deardorf Patrick Hein John Keker* Matthew Melamed* Safina Motiwala Hon. P. Casey Pitts Gurpreet Sandhu Elisabeth Wistar Wilson
Orange County
Caitlin Campbell MacKayla Class Daniel Ginsberg Yue Han* Catherine Lee Santos Lloyd Christopher Harold McGrath Brady O’Bryan Matthew Pham Lauryn Pruitt
Elizabeth H White
Phoenix
Kamille Dean* Elizabeth Fine Catherine Macan* Mia McNew Caitlin White*
Sacramento
Cecilia Aguilera Veronica Alegria
San Diego
Hon. Ruben Brooks Myounghee Choung Evangeline Dech Matthew J Faust Matthew Fox Marco Janoski Arwa Zakir Kakavand Jason Kandah* William Lennard Ting Liu Margaret Adema Maloy LeBrian Mays Capt Eric William Meissner Martin G. Molina* Hannah Ohara* Mario Peia Morgan Suder* Hon. Sherry Thompson Taylor Jo Tyrell Caroline Van Wagoner
Washington State Hon. Mary Jo Heston
William D. Browning Tucson Corrinna Molnar Lily Sklar Kaz Walls
10TH CIRCUIT Colorado
Debbie Hengeveld*
Kansas and Western District of Missouri Megan McGinnis Sara Skelton Taylor Spillers
Northern/Eastern Oklahoma Bob Blakemore* Barron Derryberry Rachel Geizura Sunshine Graham Kaitlin Pogue Hon. D. Edward Snow Carter Strahan Adam Weintraub*
Oklahoma City
Abby Dinsmore Allford* Rachel Cotten Kate Dodoo Caleb Evans Joshua L. Farmer
64 • THE FEDERAL LAWYER • Fall 2023
Matthew K Felty Abigail Hilburn Emily Hurt Jasmine Johnson Kory Kile Morgan Lawson* Kaylee Maxon Lindsay Martin Mayes Benjamin Rose Joshua Clayton Stockton Moaaz Waheed
Utah
Lindsay Allan Devin Anderson* Cole Arnold Anya Biskupiak Jordan C. Bledsoe Alexis Burke Michael Gadd Taylor Hill Laura Kyte Ernest Lee Colton Lyons Sam Meziani* Amanda Moody Aliza Murad Kade Olsen
Wyoming
Hon. Nancy D. Freudenthal
11TH CIRCUIT Atlanta
Lina Machado Bejarano Lisa Churvis* Jenn Coalson Jeff Daniel Evan Clayton Dunn Tracey L Hackett Anthony Jones Elena LaRoss Joseph Prescott Caitlyn Scott Ian Smith Emily Snow William Stone* Andrew J Tuck
Broward County
Charles (Chuck) Eiss* Salvatore Fazio* Zachary Dean Ludens
North Alabama
Joseph Cannizzo Jr.
Orlando
Marisa Rosen Dorough Augustus Invictus* Adam Nate Sonja Sahlsten* Joshua Winograd Amanda Elise Wright*
Palm Beach
Alissa Loewenstein Matthew S. Sarelson*
South Florida
John Black Alexander Charles Cohen* Dominique Copeland Ralph C Ferrara* Jeffrey M. Forman Darren Goldman*
Annasofia Roig Elina Magaly Santana Kassandra Taylor* Wade Williams*
Southern District of Georgia Reese Addison Andrew Conn Joe Cronk Rebecca Harris* Wade Wilkes Herring* Lester B B Johnson III Reginald Martin Skye Musson William Phillips Andre Pretorius David Purvis Sauve Sonkey Joseph J Steffen Jr Amelia Stevens James Stevens
Southwest Florida Lauren Rose*
Tampa Bay
Sheylla Aceves* John A Anthony* Thomas Banks David Hayes Mike Hyatt Lorien Johnson* Benjamin Lima Nicole Deese Newlon Jared J Perez* Samantha Regala Jonathan Roberts* Daniel Silver Kenneth G. Turkel Emily VanOosting
D.C. CIRCUIT
District of Columbia Adam Acosta* Jennifer E Adams* Nakia Arrington* Robie A Beatty Nadine J Bennett* Max Bonici Rafael Hernandez Kaitlyn E Klass McKenzie L. McAdams* Sean O’Connell Hon. Peter J. Panuthos Marcus Reed D Dewitt Staggs Sr* Nigel Walton Benjamin Weiner Conrad Wight
Federal Bar Association Calendar of Events Visit Fedbar.org for more information.
F E B R UA RY
F E B R UA RY 2 2 - 2 3 , 2 0 2 4
Qui Tam Conference – Washington, D.C.
MARCH
DAT E P E N D I N G
Tax Law Conference – Washington, D.C. MARCH 21-23, 2024
Leadership Summit – Arlington, VA
APRIL
APRIL 4-5, 2024
Indian Law Conference – Albuquerque, NM
M AY
DAT E P E N D I N G
Immigration Law Conference – Salt Lake City, UT M AY 3 0 - 3 1 , 2 0 2 4
Insurance Tax Seminar – Washington, D.C.
Y T I C S A
n S o i t N KA Conven
E d T n a A g R n i t B e e E
M L l E a C A Annu
B F 4 202
Join us in the Heart of America. Conveniently located between both coasts, we invite you to enjoy the Midwest KC charm. From our vibrant arts scene to finger-licking BBQ, our city is calling your name. Experience it all with the nation’s premier bar association for Federal Judges and attorneys. Save the date and watch www.fedbar.org for updates!
September
5–7