Issuu

Volume 67, Issue 1

Volume 67, Issue 1 Volume 64, Issue 3

The Magazine of the

Volume 63, Issue

Volume 63, Issue 4

EDITORIAL BOARD

The Magazine of the

Editor in Chief Andrew Doyle doyle_andrew@msn.com Immediate Past Editor in Chief Rachel Hughey rhughey@merchantgould.com

The Magaz

ine of the Fed

eral Bar Ass

ociation

Volume 62,

PILLARS OF SO VEREIGNTY IN THE ERA OF THE #DAPL

Issue Ten

INDIAN LAW ON AND OFF THE RESERVATION

tion Federal Bar Associa

Issue 3 Volume 66,

January/February 2020: The Centennial Issue

Associate Editor James W. Satola jsatola@roadrunner.com Managing Editor Lynne G. Agoston (240) 404-6488 TFL@FBA.org

Federal Bar Associ ation

ciation ral Bar Asso e of the Fede The Magazin

December 20

Washington

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Preparing for Rule 26(f) Co Your When ESI Is nference Involved And Isn’t

Judicial Pro

files Hon. Peter C. Economu s page 23 Hon. Rona ld S.W. Lew page 27

TFL_August2016.

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Book Review Editor Caroline Johnson Levine Judicial Profile Editors Heaven Chee Hon. Noelle C. Collins Hon. Karoline Mehalchick

ESI Always Invo

Hon. Rona ld L. Ellis page 30

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page 44

Hon. John R. Tunheim page 34

7/29/16 3:16 PM

The Trade of the Marks

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Senior Proof Editor Donna Phillips Currault Proof Editors Sarika J. Angulo Ira Cohen Mary Hope Forsyth Peter M. Mansfield Soledad M. Valenciano

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.

The Magazine

of the Federal

pril 8-9,

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The Year of the Woman… President By Leia Leitner

44 The Federal Lawyer:

Then and Now

L ITARITY Y G I D CU AC SE PRIV &

Bar Associati on

2010

Back, Lo oking Fo on Up 48 Movin’ rward ImmIgratIon Law 52 The History of the

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Still a Legal “Cinderella”?

why the Immigration Cour

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Also in This Issue

73 Federal Bar

Association Calendar of Events

January/February 2020 • THE FEDERAL LAWYER • 1

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Columns Editor Arturo Bauermeister

The Federal Lawyer (ISSN: 1080-675X) is published bimonthly six times per year by the Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA, 22201 Tel, (571) 481-9126, Fax (571) 481-9090, Email: tfl@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, 1220 N. Fillmore St., Ste. 444, Arlington, VA 22201.” © Copyright 2020 Federal Bar Association. All rights reserved. PRINTED IN U.S.A.

page 62

Articles Editors Joanna Fox Sheila Hollis Christopher Lucca Bruce McKenna Anne Perry Dalmacio Posadas Elizabeth Turnbull Susan Yorke

Federal Bar Association COLUMNS 3 President’s Message 100 Years

By Christian K. Adams

4 Washington Watch

When Federal Judges Are Impeached By Bruce Moyer

5 At Sidebar

Sailing With and Against the Wind: A Century of the FBA’s Commitment to Its Mission By Caroline Johnson Levine

7 Focus on Indian Law

Indian Givers: Illegal State Taxation of Native American Veterans By Peter Scott Vicaire

PROFILES 19 Hon. Jerry A. Brown

Judge, U.S. Bankruptcy Court for the Eastern District of Louisiana By Erin Arnold and Joseph P. Briggett

23 Hon. Timothy D. DeGiusti Chief Judge, U.S. District Court for the Western District of Oklahoma By James E. Warner III and Brandi M. Haskins

26 Hon. Fernando J. Gaitan Jr. Senior Judge, U.S. District Court for the Western District of Missouri By Grace Colato and Ben Stueve

BOOK REVIEWS

9 Diversity & Inclusion

58 Why Free Will Is Real

By Lisa M. Kpor, Katherine Earle Yanes, and Tara Norgard

59 Without Precedent: Chief Justice John Marshall and His Times

Diversity & Inclusion: An Imperative for the FBA

11 Younger Lawyers Perspective Thurgood Marshall Memorial Moot Court to Celebrate 25th Anniversary By Amy Boyle

13 Tax Law

Bitcoin, the IRS, and the Love That Was Lost By Michael March

Reviewed by Christopher C. Faille

Reviewed by Louis Fisher

FBA MEMBER NEWS 64 Chapter Exchange 66 Sections & Divisions 68 Member Spotlight

16 International Files

Recent Developments in Safe Third Country Agreements Feasibility and Approach: US-Guatemala, US-Canada, and EU By Beth Persky and Federica Dell’Orto Hadar

2 • THE FEDERAL LAWYER • January/February 2020

1220 N. Fillmore St., Ste. 444 Arlington, VA 22201 Ph: (571) 481-9100 • F: (571) 481-9090 fba@fedbar.org • www.fedbar.org BOARD OF DIRECTORS President • Christian K. Adams cadams@adamskrekllp.com President-Elect • W. West Allen wwa@h2law.com Treasurer • Anh Le Kremer anh.kremer@cdirad.com Hon. Alison S. Bachus bachusa@superiorcourt.maricopa.gov Jeanette M. Bazis jbazis@greeneespel.com Joey Bowers john.j.bowers@usdoj.gov Andrew K. Clark aclark@hirschlerlaw.com Joseph S. Leventhal joseph.leventhal@dinsmore.com Kevin A. Maxim kmaxim@maximlawfirm.com Hon. Karoline Mehalchick karoline_mehalchick@pamd.uscourts.gov Kelly Titus Scalise ktscalise@liskow.com John R. Thomas jt@hhm.law Jessica R. Toplin jessica.toplin@usdoj.gov Hon. Mimi E. Tsankov (personal capacity) mimi.tsankov@gmail.com Christie C. Varnado cvarnado@seibelsfirm.com Ex Officio Members Hon. Barry W. Ashe barry_ashe@laed.uscourts.gov Adine S. Momoh adine.momoh@stinson.com Matthew C. Moschella mcmoschella@sherin.com Maria Z. Vathis maria.vathis@bclplaw.com Michael S. Vitale mvitale@bakerlaw.com NATIONAL STAFF Executive Director Stacy King sking@fedbar.org Sections and Divisions Coordinator Alea Al-Aghbari aalaghbari@fedbar.org Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org Outreach and Foundation Manager Cathy Barrie cbarrie@fedbar.org Leadership Administrator Holly Delidle hdelidle@fedbar.org Editorial and Production Specialist Lynne G. Agoston TFL@FBA.org Chapters and Circuits Coordinator Anthony Jones ajones@fedbar.org Manager of Sections & Divisions Laura Mulhern lmulhern@fedbar.org Conference Manager Caitlin Rider crider@fedbar.org Sr. Director of Professional Development Melissa Schettler mschettler@fedbar.org Membership Specialist Miles Woolever mwoolever@fedbar.org Conference Coordinator Ariel White awhite@fedbar.org VICE PRESIDENTS FOR THE CIRCUITS First Circuit Scott P. Lopez Oreste R. Ramos Second Circuit Ernest T. Bartol Olivera Medenica Third Circuit Christian T. Haugsby Frank J. McGovern

Fourth Circuit Kacy L. Hunt Hannah Rogers Metcalfe Fifth Circuit Hon. Barry W. Ashe Paul D. Barkhurst Sixth Circuit Glen R. McMurry Donna J. Mikel Seventh Circuit Melissa N. Schoenbein Kevin G. Desharnais Eighth Circuit David A. Goodwin Adine S. Momoh Ninth Circuit Laura A. Conover Darrel J. Gardner Tenth Circuit Kristen R. Angelos Hon. Suzanne Mitchell Eleventh Circuit Oliver Alan Ruiz Michael S. Vitale D.C. Circuit Patricia D. Ryan Elizabeth A. Pugh SECTION AND DIVISION CHAIRS Chair, Sections and Divisions Council Matthew Moshcella Admiralty Law Scott Bluestein Alternative Dispute Resolution Alexander Zimmer Antitrust and Trade Regulations TBD Banking Law Meghan Musselman Bankruptcy Law Christopher Sullivan Civil Rights Law Stephen Haedicke Corporate and Association Counsel David Greene Criminal Law Darrel J. Gardner Environment, Energy & Natural Resources Kevin G. Desharnais Federal Career Service Mark Vincent Federal Litigation Susan D. Pitchford Government Contracts Jerry A. Miles Health Law Kathleen McDermott Immigration Law Mark Shmueli Indian Law Ann E. Tweedy Intellectual Property Law Coby S. Nixon International Law Stephanie Moncada Gomez Judiciary Hon. Michael J. Newman Labor and Employment Law Catherine Cano Law Student Glen R. McMurry LGBT Law Brandon King Qui Tam R. Scott Oswald Securities Law Liam O’Brien Senior Lawyers Steve Miller Social Security Law Paul Lillios State and Local Government Relations Andrew S. Ballentine Taxation Marissa Renson Transportation and Transportation Security Law Steve Osit Veterans and Military Law Walter Kroptavich Younger Lawyers Adine S. Momoh

President’s Message

100 Years by Christian K. Adams

Christian K. Adams is the founder and managing partner at Adams Krek LLP, headquartered in Honolulu, where he concentrates his practice on complex civil and appellate litigation.

When the FBA celebrated its 20th anniversary in 1940, members attended a white-tie dinner at the Mayflower Hotel in Washington, D.C.; Supreme Court Associate Justice Harlan Fiske Stone was the guest of honor; and Attorney General Robert H. Jackson was the keynote speaker. For our golden anniversary in 1970, we threw a party at the former grand National Lawyers Club in the original Federal Bar Building. Chief Justice Warren Burger presented a special citation to retired Associate Justice—and former FBA President—Tom C. Clark, who was stepping down as director of the Federal Judicial Center. Commemorating 75 years in 1995, Associate Justice Ruth Bader Ginsburg hosted a reception at the Supreme Court, which was followed by a dinner in the Great Hall at the Department of Justice—the first such event ever held there. Now that the steadfast commitment of our volunteer leaders and members has brought the FBA to its 100th anniversary, something even more substantial seemed to be in order. In addition to the grand celebration in Washington, D.C., this March, we are pleased to have also published a centennial commemorative book. It is a monument and tribute to the FBA’s first century, and to the many dedicated leaders and members who made it so successful. Although no single volume could ever tell the entire story of the FBA and its chapters, sections, divisions, and committees, it was our goal to capture the milestones of our wonderful organization—where we came from, how we grew, and some of the men and women whose contributions helped create the foremost community for federal attorneys and judges. The FBA’s founding 100 years ago began with a commitment to serve the federal judicial system by upholding the highest standard of jurisprudence related to the issues of the day. Now, as we look back on those 100 years, we realize that in our commitment to that mission, we have intertwined our own proud and illustrious past with that of our great nation and its legal system that we endeavor to serve. With that in mind, it is a nearly impossible task to highlight any single contribution of the FBA because in doing so, we somehow relegate others of equal importance, yet

great significance, to the background. However, one important theme underlying each of these singular contributions is the FBA’s critical role as a conduit for bringing legal minds together in service to our federal judicial system. From its beginnings, Founding President James Witten and his colleagues recognized that the real goals of a legal advocacy organization were best accomplished through bringing people together on a national platform. They began with the simple act of holding monthly meetings for the purpose of promoting professional relationships and discussing legal questions at hand. Today, those meetings and opportunities for connection have blossomed into the multifaceted experience that is the FBA. The FBA continues to bring the federal legal community together through our national publication—The Federal Lawyer (previously The Federal Bar Association Journal); through an annual meeting, regional conferences, and countless chapter workshops; through advocacy and community service; through books and awards; and, finally, through a website that brought the FBA right to members’ desktops and eventually beamed its content across platforms, channels, and devices. It is in these spaces that the important work of our organization’s mission to strengthen the federal legal system is advanced and the FBA’s objective of representing its members’ interests is achieved. At a time when the rate of technological change is ever increasing, we cannot predict all of the new ways that our professional association will continue to evolve over the next 100 years; however, the strength of our community and the important work that we do assure us that there will be another 100 years. And the next 100 years will build upon everything we have already accomplished on the road to this magnificent centennial. 

January/February 2020 • THE FEDERAL LAWYER • 3

Washington Watch

When Federal Judges Are Impeached by Bruce Moyer

The heavy hand of impeachment has been used far more often in American history against federal judges than presidents. According to Wikipedia, 66 federal judges have been investigated for impeachment since the birth of the republic, and 15 have been impeached; of these, eight have been convicted and removed from the federal bench. By contrast, only three American presidents have been impeached—Andrew Johnson (1868), William Jefferson Clinton (1998), and Donald Trump (2019). Federal judges are covered by the same impeachment provision of the U.S. Constitution that covers presidents. Article II, Section 4 of the Constitution provides for the removal of “the President, Vice President, and all civil Officers of the United States…on Impeachment for and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” While the term “civil Officers” is not defined by the Constitution, it has been interpreted to apply to members of the judiciary. Just as with presidents, the same two-step constitutional process of impeachment applies. Under Article I of the Constitution, a majority of the House of Representatives must first approve articles of impeachment, and then a two-thirds supermajority of the Senate must convict for the judge to lose his or her office. There is one key difference: in the Senate trial, the vice president, as president of the chamber, presides over a judge’s trial—not the Chief Justice of the United States.

What Judicial Conduct May Be Impeached? The United States Constitution provides scant guidance as to what offenses serve as grounds for the impeachment of federal judges. As with other government officials, judges may be removed following impeachment and conviction for “Treason, Bribery, or other high Crimes and Misdemeanors.” But this provision collides with Article III, Section 1 of the Constitution, which guarantees that judges “shall hold their Offices during good Behaviour.” The framers borrowed the term “good behaviour” from the British Settlement Act of 1701, in which the British Parliament prescribed protections for English judges. No executive branch officer has such open-ended tenure. Generally, the impeachment power historically has been used by

4 • THE FEDERAL LAWYER • January/February 2020

Congress against judges in cases of serious ethical or criminal misconduct. Of the 15 federal judicial impeachments in American history, the most common charges were making false statements, showing favoritism toward litigants or special appointees, being intoxicated on the bench, and abusing the contempt power. Of the eight judges who have been convicted by the Senate and removed from the bench, seven were district judges. The other was Robert Archbald, who served on the United States Court of Appeals for the Third Circuit and the now-defunct United States Commerce Court until his 1913 removal. Only one Supreme Court justice has ever been subject to impeachment. Samuel Chase, a Federalist justice appointed by President George Washington, was impeached by a Democratic-Republican House in 1804 for “arbitrary, oppressive, and unjust” decisions on the Court. The Senate declined to remove Chase from the bench, forging precedent that upholds the independence of the judiciary. As former Chief Justice William Rehnquist noted in his 1992 book about the case, “[I]t assured the independence of federal judges from congressional oversight of the decisions they made in the cases that came before them.” Chase’s impeachment occurred on the heels of the first impeachment of a federal judge—John Pickering of the District of New Hampshire—in 1803 on charges of mental instability and intoxication on the bench, resulting in his conviction and removal by the Senate.

Penalties From an Impeachment Conviction A conviction by the Senate on any article of impeachment is sufficient to constitute a conviction in an impeachment trial. Should a conviction occur, the Senate must determine the appropriate penalty. The Constitution limits the penalty to either removal from office or removal and prohibition against holding any future offices of “honor, Trust or Profit under the United States.” Under Senate precedent since 1936, removal from office flows automatically from conviction on an article of impeachment. However, a separate vote is necessary should the Senate deem it appropriate to disqualify the convicted individual from holding future federal offices of public trust.

At Sidebar

Sailing With and Against the Wind: A Century of the FBA’s Commitment to Its Mission by Caroline Johnson Levine

Caroline Johnson Levine is an adjunct professor at Western Michigan University Cooley Law School and teaches Florida constitutional law and appellate advocacy. She also practices bankruptcy and real property and probate law for Bay Area Legal Services Inc. She has been a member of The Federal Lawyer Editorial Board since 2013 and is currently the book review editor.

Congratulations to the FBA on reaching its centennial anniversary! In 1920, a few federal practitioners came together to form the FBA because they understood that lawyers with superior ideals and exceptionally intellectual legal practices would benefit from a community of compatriots. It is clear that 1920 was an exciting time of passionate overachievers who wanted to propel the country into a better direction, as the FBA was created the same year that the Nineteenth Amendment was ratified, giving women the right to vote. The FBA is a tax-exempt 501(c)(6) organization, and its mission statement proposes: “The mission of the association is to strengthen the federal legal system and administration of justice by serving the interests and the needs of the federal practitioner, both public and private, the federal judiciary and the public they serve.” The FBA’s ultimate goals are to serve its members and parties in litigation, whose hopes and dreams are dependent on lawyers to correct injustices. The FBA’s continuous pursuit of such a bold mission statement ensures the sound administration of justice and professional development of its membership. There are countless leadership opportunities in local chapters as well as at the national level. In fact, these leadership experiences oftentimes lead to a transformation of individual practitioners as they learn executive management skills that help enhance the professional experience of the lawyers they serve. Over the past 100 years, the FBA expanded exponentially to 15,000 members throughout 100 local chapters, including chapters in Puerto Rico and the U.S. Virgin Islands. The hard-working lawyers who voluntarily operate these chapters have made substantial contributions to their local communities and to the federal practice of law. Educational and social events are routinely scheduled, and at least 700 hours of CLE credit is created or delivered by FBA members annually. Mentoring programs between seasoned attorneys and new practitioners ensures professionalism and

civility at the highest levels of legal practice. Additionally, brown bag luncheons at federal courthouses further the development of collegial relationships with opposing counsel and the federal judiciary. The FBA has 24 sections for members to join, which can assist practitioners in enhancing their legal knowledge and community connections within specific areas of law. Some of the sections are antitrust and trade regulation, banking law, bankruptcy law, civil rights law, criminal law, international law, labor and employment law, taxation, securities law, and veterans and military law. Membership in FBA sections also results in legal updates through newsletters and e-communications. A premier benefit of entry into the FBA is access to The Federal Lawyer magazine, which provides incredibly helpful information for practitioners. The extensively researched and exceedingly well-analyzed articles are priceless in their ability to create accessibility to complicated areas of the law. The collegiality of the FBA is also found in the judicial profiles in each issue. These profiles provide wonderful insight into members of the judiciary and their personal and professional path to the bench, as well as personalize the individuals who share critical courtroom experiences. Due to the hectic pace of federal practice, lawyers may never otherwise have had an opportunity to hear these wonderful stories. Educating its membership on the law is an incredibly significant contribution; however, the FBA’s focus on legislative issues at the local, state, and national level may result in wide-ranging outcomes. Annually, FBA leaders participate in Capitol Hill Day, where they educate House and Senate lawmakers about the importance of the federal court, adequate funding, and judicial vacancies. Many of these issues are also routinely discussed in the thoroughly fascinating “Government Relations Updates” on the FBA’s website. As we reflect on the accomplishments of the FBA over the past 100 years, it is important to take a January/February 2020 • THE FEDERAL LAWYER • 5

moment and consider the difficulties that federal practitioners have endured. The substantial and meaningful changes since 1920 may cause citizens to pause a moment in gratitude. Before the invention of televisions, computers, cellular phones, and driverless cars delivering meals, Americans simply endeavored to survive one day at a time. In fact, a brief history lesson demonstrates why the FBA should be heralded for its steady leadership over an entire century of American history. The Roaring ’20s was a time of prosperity and decadence for many who were happy to bid farewell to the hardship of World War I. However, an economic catastrophe ravaged the country by the end of the decade. During the Great Depression, unemployment rates exceeded 25 percent, where a denial of credit and an inability to afford basic staples plunged this country’s citizens into survival mode. While a loaf of bread only cost 10 cents, a dozen eggs cost 25 cents, five pounds of sugar was 35 cents, and 10 pounds of potatoes were a measly 36 cents, many Americans were hungry with only their hopes and dreams to sustain and nourish them. Any hope of a better tomorrow was stalled as America struggled to find its way back to economic prosperity, and the country was conscripted into a global war with perilous repercussions. World War II resulted in further rationing of basic staples, such as meat, butter, cheese, and sugar. And tragically, over 400,000 Americans perished in the war, yet it is easy to see why the survivors represent the Greatest Generation. Certainly, the veterans remade the country and provided priceless public service upon completion of the bloodletting in 1945. These veterans learned perseverance and bravery through hardship, which may have honed the courage of nine World War II veterans who served as president: Harry Truman, Dwight D. Eisenhower, John F. Kennedy, Lyndon B. Johnson, Richard Nixon, Gerald Ford, Jimmy Carter, Ronald Reagan, and George H.W. Bush. Other veterans chose service in the judicial branch and six became Supreme Court justices: Lewis Powell, John Paul Stevens, Byron White, Potter Stewart, William Rehnquist, and John Marshall Harlan. A time of economic prosperity and some measure of global peace followed, yet the Cold War, Korean War, and Vietnam War soon followed. Americans were starkly divided during the Vietnam era, when 58,000 service members died, 300,000 were wounded, and 75,000 were severely disabled. Significantly, these difficulties were also matched with the struggles of the Freedom Riders in the Civil Rights movement. Yet, the judicial branch provided stability during those times of national, executive, or legislative turmoil. In a country with the oldest surviving constitution, one which guarantees the freedoms that Americans enjoy, the FBA has been present and supportive of its members who operate under the commands of federal law. Throughout the American experience, where its citizens have traversed and navigated the difficulties of catastrophic wars, struggled through the Great Depression and recessions, withstood the attacks of September 11, 2001, and endured presidential resignation and expiration, the federal practice of law has thrived and FBA members have sustained their mission. The FBA has persisted, with the strength of its federal practitioners continuing a noble profession, serving others when the sky appears to be falling and friends and family have been lost over the generations. Throughout all of these travails, the FBA has been able to hold steady in the lean times and grow significantly in the booming economy. The stability of American democracy has prevailed with the guidance of its lawyers. 6 • THE FEDERAL LAWYER • January/February 2020

American citizens may occasionally feel deflated or worried when the country struggles through cycles of turmoil. However, the lawyers and judges who served their country in 1920 would encourage perseverance and for the newer generation of legal titans to soldier on in the face of uncertainty. So, let us celebrate this incredible achievement of centennial pertinacity and look forward to a celebration of the next 100 years. The longevity of the FBA should demonstrate that there exists no reason to feel disheartened during difficult eras, as those practitioners that are faithful and dutiful defenders of the Constitution will persist in the long-suffering battle to ensure freedom and prosperity for these United States. The magnificent efforts of the members of the FBA will always be significant and socially impactful, which is critical to ensuring stable democratic institutions. As Supreme Court Justice Oliver Wendell Holmes Jr. once said, “I find the great thing in this world is not so much where we stand, as in what direction we are moving: To reach the port of heaven, we must sail sometimes with the wind and sometimes against it—but we must sail, and not drift, nor lie at anchor.” 

Editorial Policy The Federal Lawyer is the magazine of the Federal Bar Association. It serves the needs of the association and its members, as well as those of the legal profession as a whole and the public. The Federal Lawyer is edited by members of its Editorial Board, who are all members of the Federal Bar Association. Editorial and publication decisions are based on the board’s judgment. The views expressed in The Federal Lawyer are those of the authors and do not necessarily reflect the views of the association or of the Editorial Board. Articles and letters to the editor in response are welcome.

Focus on Indian Law

Indian Givers: Illegal State Taxation of Native American Veterans by Peter Scott Vicaire

Peter Scott Vicaire works for the U.S. Department of Veterans Affairs (VA) in the Office of Tribal Government Relations, serving as a liaison between the VA and 74 tribes in a 14-state region. He is a member of the Listuguj Mi’gmaq First Nation in Quebec, Canada, where he was raised. He is also a U.S. Marine, honorably discharged as a sergeant after serving with the 8th & I Presidential Honor Guard in Washington, D.C., and as an infantry squad leader with 3rd Battalion, 4th Marines, 1st Marine Division. He holds both American (Michigan State University) and Canadian (University of Ottawa) law degrees, with a specialization in indigenous law, and also has a master’s degree in military studies from the American Military University. The views expressed here are solely those of the author in his private capacity and do not in any way represent the views of the Department of Veterans Affairs or any other entity of the U.S. government.

Even though many Native Americans were not considered citizens until 1924,1 they have fought in the American armed forces since the nation’s inception, from the American Revolution to this very moment, and continue “to be represented in the armed forces in numbers that belie their small percentage of the U.S. population.”2 In the 20th century, nine Native Americans received the Congressional Medal of Honor, America’s most prestigious personal military decoration.3 The Code Talkers Recognition Act of 20084 required the secretary of the treasury to strike Congressional Gold Medals to honor the “heroic and dramatic contributions of Native American code talkers [who] were instrumental” in American war efforts. In 2013, 33 tribal nations were honored with those medals for the use of their languages to send unbreakable coded messages during World War I and II. Today, three U.S. Department of Veterans Affairs (VA) medical facilities have been named after noteworthy Native American veterans.5 All these accolades for Native American service members makes it especially egregious that for at least 24 years (1977-2001), 26 states6 illegally taxed Native American service members who were domiciled on Indian reservations. In 1973, the U.S. Supreme Court held that Native Americans with a reservation domiciliary need not pay state income taxes,7 citing a previous case that held that “the policy of leaving Indians free from state jurisdiction and control is deeply rooted in the nation’s history.”8 In 1940, the Soldiers’ and Sailors’ Civil Relief Act (SSCRA)9 was passed, and the U.S. Supreme Court later held, in 1953, that § 514 of the SSCRA was enacted to protect service members from being taxed solely on the basis of a compulsory presence in a jurisdiction outside their domicile.10 The issue was that some states were “double-dipping,” receiving state income taxes from service members domiciled within that state (and stationed elsewhere) as well as from those service members who were stationed there for their military service (and domiciled elsewhere). On July 1, 1977, the U.S. Department of Treasury, on behalf of the individual states, began withholding

state income taxes11 from service members, including Native Americans in the military who were domiciled on Indian reservations. It wasn’t until 1994 that a remedy began to take shape, but it still remains mostly incomplete to this day. In a 1994 district court case, Fatt v. Utah State Tax Commission,12 it was determined that state taxes should not have been withheld for a Native American service member while he was serving in the U.S. Navy. While Benny Fatt received appropriate relief from the court when it relied on “rules of construction favoring members of the armed forces and Indian sovereignty,”13 that decision did not have much effect for other service members who were also being improperly taxed. It was another six years before an even broader remedy coalesced. In 2000, spurred by an inquiry from several members of Congress, the Department of Justice (DOJ) provided a legal memorandum14 to the Department of Defense (DOD) concluding that the states’ practice of taxing Native American service members domiciled on a reservation was illegal and recommended it be stopped. The 15-page DOJ memorandum provides an informative overview of general principles of Indian law, the SSCRA, and state taxation as applied to Native American service members and Native Americans in general. The memorandum was submitted to Congress on Nov. 22, 2000, and by July 2001, the DOD had implemented a new form15 enabling Native American service members to stop state income tax withholding from their military pay. Further, on Dec. 19, 2003, Congress passed a law16 that amended the SSCRA. Section 511 (now § 571) reads: “An Indian service member whose legal residence or domicile is a federal Indian reservation shall be taxed by the laws applicable to federal Indian reservations and not the state where the reservation is located.” By 2004, then U.S. Rep. Tom Udall of New Mexico (now a U.S. senator of that state) introduced to the 108th Congress the Native American Veterans Pay Restoration Act,17 which was intended to fully reimburse those lost wages for Native American service January/February 2020 • THE FEDERAL LAWYER • 7

members and veterans. In its introduction, Rep. Udall called it a “common sense bill … that will restore justice to many of our nation’s Native American veterans.”18 On Oct. 7, 2004, it was referred to the House Committee on Armed Services but was subsequently abandoned for lack of support. It was at this time that the federal government wiped its hands clean of the matter and no longer actively sought to remedy the issue. However, in 2008, New Mexico State Sen. John Pinto introduced Senate Bill 574, which created the Native American Veterans’ Income Tax Settlement Fund.19 Government-to-government consultation with tribes in New Mexico occurred before rules regarding the fund were finalized, and ultimately the state appropriated $2 million from its coffers to reimburse those lost wages. Eventually, tribes outside New Mexico also discovered that some of their veterans were wrongly taxed for decades and took active measures to address the problem. On May 24, 2012, Richard Adame, a retired U.S. Army sergeant first class from the Prairie Band Potawatomie Nation, submitted written testimony detailing the issue to the U.S. Senate Committee on Indian Affairs’ Oversight Hearing on Programs and Services for Native Veterans; however, he did not receive a response. In 2013 (the same year Congress honored Native American code talker veterans), the National Congress of American Indians (NCAI)20 passed a resolution urging Congress to restore the improperly withheld wages to all wronged veterans.21 In addition to NCAI’s resolution, from 2012 to 2017, tribal consortiums representing 66 tribes22 all passed similar resolutions urging Congress to properly honor their service members and veterans by restoring their lost wages. While Congress remains silent on the issue, two more states have recently passed laws similar to that of New Mexico. On July 1, 2016, the Arizona State Legislature introduced HB 2708, which established the Native American Veterans Income Tax Settlement Fund. With comparable numbers of Native American veterans to that of New Mexico, Arizona also appropriated $2 million for those veterans. Lastly, on July 1, 2018, the Kansas State Legislature passed HB 2147, providing an income tax refund for eligible Native veterans, including accrued interest. There was no appropriation amount specified in the language of the bill, but when comparing the Native American veteran population in Kansas to that of New Mexico and Arizona, it is estimated that around $250,000 will provide full redress. The active measures taken by the legislatures of New Mexico, Arizona, and Kansas are certainly admirable. But, of the 26 states that improperly taxed Native American service members, 23 have still done nothing, constituting over 88 percent of the taxing states. Based on the number of eligible veterans identified by New Mexico and the amount of monies returned, compared to a rough national estimate of Native American veterans in the remaining 23 states,23 the full amount for all states is in the ballpark of $20 million. And while a uniform congressional fix would still be the most effective means of making wrongly taxed Native American veterans whole again, the piecemeal, state-by-state approach that has slowly unveiled itself might unfortunately be the only way to achieve this end. Sadly, as veterans who served in the U.S. military during those years in question continue to get older, it is less likely they will see this wrong made right by the governments for which they honorably served. 

8 • THE FEDERAL LAWYER • January/February 2020

Endnotes Indian Citizenship Act, 43 Stat. 253 (1924). Herman Viola, Warriors in Uniform: The Legacy of American Indian Heroism (2008). 3 Native American Medal of Honor Recipients, U.S. Army Ctr. of Military History, https://history.army.mil/html/topics/natam/ natam-moh.html (last updated Nov. 4, 2011). 4 Code Talkers Recognition Act of 2008, Pub. L. No. 110-420, 122 Stat. 4774. 5 The three facilities (and the honorees’ tribes) are: Jack C. Montgomery VA Medical Center in Muskogee, Okla. (Cherokee); Ernest Childers VA Outpatient Clinic in Tulsa, Okla. (Muscogee (Creek)); Charles George VA Medical Center in Asheville, N.C. (Eastern Band Cherokee). 6 The states are: Alabama, Arizona, California, Colorado, Connecticut, Iowa, Idaho, Kansas, Louisiana, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nebraska, New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, Rhode Island, South Carolina, Utah, and Wisconsin. 7 McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164 (1973); see also Eastern Band of Cherokee Indians v. Lynch, 632 F.2d 373 (4th Cir. 1980). But see Maryboy v. Utah State Tax Comm’n, 904 P.2d 662 (Utah 1995) (holding that an Indian elected as a county commissioner must pay state income tax on his salary even though living on the reservation), cert. denied, 517 U.S. 1220 (1996). 8 Rice v. Olson, 324 U.S. 786, 789 (1945). 9 Soldiers’ and Sailors’ Civil Relief Act, 50 U.S.C. App. § 574 (1988). 10 Dameron v. Brodhead, 345 U.S. 322, 326 (1953). 11 5 U.S.C. § 5517 (1994 & Supp. IV 1998). This statute was amended in 1976 to authorize the withholding of state income taxes from the pay of a military member. See Pub. L. No. 94-455, § 1207 (1976). 12 Fatt v. Utah State Tax Comm’n, 884 P.2d 1233 (Utah 1994) (wages received by a Native American who did not abandon his domicile on a reservation while serving in the Navy were not subject to state income tax). 13 Id. at 1236. 14 Mem. Op. for the General Counsel, Dep’t of Defense, State Taxation of Income of Certain Native American Armed Forces Members, Nov. 22, 2000. 15 DD Form 2058-2, Native American State Income Tax Withholding Exemption Certificate. 16 Pub. L. No. 108-189, 117 Stat. 2835. 17 H.R. 5275 was a bill “[t]o provide for the remittance to certain Indian veterans of amounts withheld from military basic pay for State income tax purposes for periods of time those veterans were in active service and were domiciled in Indian country.” H.R. 5275, 108th Cong., 2d Sess. (Oct. 7, 2004). 18 Sen. Tom Udall, Introduction of the American Indian Veterans Pay Restoration Act (Oct. 7, 2004). 19 Senate Bill 574 is codified at NMSA 1978, § 7-2H-1 through § 7-2H-4. 20 “NCAI serve[s] as a forum for unified policy development among tribal governments in order to: (1) protect and advance tribal governance and treaty rights; (2) promote economic development and health and welfare in Indian and Alaska Native communities; and (3) educate the public toward a better understanding of Indian and Alaska Native tribes.” NCAI Const., Art. II - Purpose. continued on page 12 1 2

Diversity & Inclusion

Diversity & Inclusion: An Imperative for the FBA by Lisa M. Kpor, Katherine Earle Yanes, and Tara Norgard Where We Are Now

Lisa M. Kpor is a litigation attorney at Holland & Knight LLP and is a member of the FBA’s D&I Task Force. Katherine Earle Yanes is a partner in the law firm Kynes Markman & Felman PA. She concentrates her practice in the areas of criminal defense, appeals, and postconviction relief. Tara Norgard is a partner with the intellectual property law firm of Carlson Caspers. She serves as chair of the FBA’s D&I Task Force.

By most measures, the legal profession remains one of the least diverse professions in the nation.1 That fact alone is startling. More fundamentally, it is difficult to conceive how lawyers can ensure equal access to justice if we cannot provide equal access to the profession itself. Statistics related to the demographic composition of the legal profession paint a grim picture with too few strokes illustrating any substantial progress in recent years. Women have accounted for approximately 36 percent of lawyers2 and less than a quarter of partners3 in law firms for the past six years, even though they make up roughly half of the population nationwide. Representation of African-Americans and black lawyers has made virtually no gains since the Great Recession that negatively impacted our nation over a decade ago. While African-Americans and blacks comprise approximately 13 percent of the U.S. population, they account for only about 6 percent of lawyers and less than 2 percent of law firm partners. There are multiple Am Law 100 firms without a single black partner among their ranks.4 Similarly, Hispanics account for nearly 18 percent of the U.S. population, but only about 7 percent of lawyers generally and less than 3 percent of partners in law firms. Fortunately, there are some notable successes in terms of diversity and inclusion in the legal profession. For instance, while those who identify as Asian or Asian-American make up only 6 percent of the U.S. population, they comprise nearly 12 percent of associates and 4 percent of partners at law firms. In addition, the Association of Corporate Counsel reported that the percentage of women holding positions at in-house legal departments has reached a near 50-50 split with men on a global scale and that the number of minority lawyers working in-house across the nation mirrors the racial and ethnic composition of lawyers in the United States overall.5 Data related to lawyers with disabilities is limited. However, 0.53 percent of lawyers surveyed by the National Association for Law Placement Inc. (NALP) reported having a disability. Moreover, almost 3 per-

cent of lawyers surveyed by NALP identify as being a member of the LGBT community, which represents an increase over previous years. By its structure and membership, the FBA is inherently positioned to broadly embrace and impact diversity issues in federal practice as a whole. Because the organization is where all of the components of the federal legal system come together, it has a unique and powerful voice—and responsibility—to ensure that federal practice and federal courts are welcoming and inclusive for all.

Where We Are Going Recognizing that we must tirelessly and relentlessly work to ensure that our organization—and indeed, our entire federal legal community—fully reflects and includes the rich diversity of our nation, the FBA formed a Special Task Force on Diversity & Inclusion (D&I) to work with candor, reflection, and intention to understand where the FBA is today with regard to a diverse and inclusive culture in federal practice and to develop a concrete plan of action for sustainable progress toward where we aim to be. This task force is composed of a cross-section of FBA members from around the country and builds on the work of an earlier D&I task force chaired by Hon. Donovan W. Frank and Robie A. Beatty in 2011. The task force, which will become a permanent FBA standing committee in 2020, has developed an action plan to provide structure, strategy, and partnership in the FBA’s commitment to drive and lead unequivocal and meaningful diversity and inclusion in every part of our legal community. Critically, this plan does not define the boundaries of action. Rather, it is a foundation from which we expect growth and development inside and outside of the organization as we continue to advance our commitment to diversity and inclusion into—and for—the future. The FBA’s D&I action plan is founded on the recognition that diversity can only be realized through active and meaningful inclusion. In short, the presence of diversity is not enough. It requires relentless and active inclusion at every level. It requires dismantling January/February 2020 • THE FEDERAL LAWYER • 9

old systems to break down habitual and implicit barriers that will no longer be tolerated. It requires the majority to open the doors that have long been closed to others—and to do so with a genuine invitation to stand on equal footing. Inclusion is not only bringing everyone to the table but ensuring that every individual is welcomed and empowered with an open pathway to fulfill his or her full potential in the profession. Inclusion resonates across gender, race, ethnicity, sexual orientation, religion, disability, and other human characteristics that society has used to marginalize people over time. In formulating the D&I action plan, the task force was keenly aware that the FBA is by no means the first organization to address these issues with a comprehensive and institutional commitment to change. Indeed, countless judges, attorneys, and organizations have been leading the path to progress for years. Because of our composition and structure, the FBA is uniquely positioned to learn from, support, and build on the work that is being done in courts, law firms, and other organizations around the country. Our members are federal judges and lawyers from all practices and all levels of the federal court system. We span public and private arenas, organizations that are large and small, and generations ranging from law students to seasoned professionals. We are a broad umbrella and a common thread that connects judges; public, private, and in-house lawyers; law schools; and beyond. In short, this organization is powerfully situated—and bears critical responsibility—to ensure that federal practice and federal courts truly reflect the rich diversity of the nation we serve. The task force also recognizes that our federal courts and our corporate legal communities have brought bold and thoughtful leadership to the imperative of diversity and inclusion in our profession and our justice system as a whole. A core component of the FBA’s D&I action plan therefore involves ongoing guidance from and partnership with leading federal judges and corporate counsel in the form of judicial and corporate counsel advisory panels. By learning from and collaborating with leading federal judges and corporate counsel from around the country, our collective effort toward true diversity and inclusion in the federal legal community is critically strengthened. We are grateful for the support and guidance of these many leaders as we bring the FBA’s D&I action plan to life, and we look forward to our continued work together.

We Are in Motion Several of the action items in the FBA’s plan are already in motion. At the March 2019 Leadership Training, the keynote luncheon featured a preview of the D&I plan, followed by a session on implicit bias led by U.S. Magistrate Judge Evelyn Furse. At the Annual Convention in Tampa, Fla., a CLE session titled “The Demand for Diversity in Federal Practice: What We Know, Where To Go, How To Grow” addressed the demand for D&I, best practices, and how to achieve actionable data, improvements, and results. The panel included task force chair Tara Norgard, task force member and FBA ADR Section chair-elect Bryan Branson, and general counsel from several corporations that have demonstrated their commitment to diversity and inclusion. Also at the Tampa Annual Convention, the task force hosted its first Bar Leadership Forum. As part of the task force’s efforts to further the goal of building external partnerships to advance diversity and inclusion in the FBA, the FBA has appointed liaisons to national affinity bar organizations and other organizations that share the FBA’s commitment to diversity. The Bar Leadership Forum 10 • THE FEDERAL LAWYER • January/February 2020

brought together leadership from the FBA and from these affinity bars and other organizations to meet each other, discuss their organizations, and talk about the work each organization is doing and how the FBA and these organizations can support each other’s goals. This event was a tremendous success, with numerous members of FBA leadership actively engaged, along with representatives of a variety of affinity bars and other organizations. You will continue to see this work evolve throughout the organization—and we ask you to be a part of it. For example, in 2020, the FBA will begin collecting demographic data with membership renewal and new enrollment. Your self-reporting will be key to the success of this initiative. The FBA needs metrics to better understand where we are today in terms of the diversity of our organization’s members and leaders and to hold ourselves accountable for getting where we need to be. We also will ask that all chapters, sections, and divisions of the FBA reflect on their own efforts to cultivate diversity and inclusion and to create an action plan for advancing that commitment in the future. These are but a few examples of the work that is underway and that will continue. You can learn more about the FBA’s D&I action plan and how you can become involved in this work at http://www.fedbar.org/About-Us/Diversity-Statement. aspx. We welcome your ideas and your participation as we finalize and launch the plan in the coming months. The work of inclusion is an imperative for the FBA, and it can only succeed if it is embraced and carried forward by each one of us at every level of our organization— and throughout the profession. 

Endnotes Institute for Inclusion in the Legal Prof., IILP Review 2017: The State of Diversity and Inclusion in the Legal Profession (2017), http://www.theiilp.com/resources/Pictures/ IILP_2016_Final_LowRes.pdf. 2 Am. Bar Ass’n, National Lawyer Population Survey: 10-Year Trend in Lawyer Demographics (2019), https:// www.americanbar.org/content/dam/aba/administrative/market_ research/national-lawyer-population-demographics-2009-2019.pdf. 3 Nat’l Ass’n for Law Placement, 2018 Report on Diversity in U.S. Law Firms ( Jan. 2019), https://www.nalp.org/ uploads/2018NALPReportonDiversityinUSLawFirms_FINAL.pdf. 4 Vivia Chen, Am Law Firms With Zero Black Partners—How Is This Possible in 2019?, Am. Law. ( June 6, 2019, 6:05 PM), https://www. law.com/americanlawyer/2019/06/06/am-law-firms-with-zeroblack-partners-how-is-this-possible-in-2019. 5 Ass’n of In-House Couns., 2015 ACC Global Census: A Profile of In-House Counsel (2015), https://www.acc.com/ sites/default/files/resources/vl/purchaseOnly/1411926_2.pdf. 1

Younger Lawyers Perspective

Thurgood Marshall Memorial Moot Court to Celebrate 25th Anniversary by Amy Boyle

Amy Boyle is the secretary of the FBA Younger Lawyers Division and the co-director of the Thurgood Marshall Memorial Moot Court Competition. A partner at Halunen Law in Minneapolis, she handles employment law matters on behalf of plaintiffs.

The Younger Lawyers Division (YLD) will celebrate the 25th Annual Thurgood Marshall Memorial Moot Court Competition in Washington, D.C., March 18-19. The two-day competition is held in conjunction with the Midyear Meeting of the FBA. The competition is named after Associate Justice Thurgood Marshall, the first African-American justice on the U.S. Supreme Court. Before naming the competition, the YLD secured permission from Justice Marshall’s family to name the competition after him. Justice Marshall was best known for his high success rate in arguing before the Supreme Court—he argued 32 cases before the Supreme Court and won 29 of them. Most notably, in 1954, he won the Brown v. Board of Education case, in which the Supreme Court ended racial segregation in public schools. While he was a judge on the U.S. Court of Appeals for the Second Circuit, he wrote 112 opinions, none of which was overturned on appeal. He served on the Court for 24 years: He was nominated in 1996, confirmed by the Senate on Aug. 30, 1967, and retired in 1991. Justice Marshall was one of the greatest and most important figures of the American Civil Rights Movement. He was described by Supreme Court Justice Elena Kagan, one of Justice Marshall’s former clerks, as “a man who created opportunities for so many people in this country and improved their lives. I would call him a hero. I would call him the greatest lawyer of the 20th century.” Founded in 1996 by YLD board member Janet Richardson, the Thurgood Marshall Memorial Moot Court Competition is YLD’s signature event. The competition was initially created as a means to demonstrate the value of YLD’s board to the FBA and FBA membership at-large, and has grown to be one of the most prestigious moot court competitions in the country. Richardson wrote the first competition problem and bench brief, arranged for brief graders, and solicited judges. She directed the competition until 1998 and eventually became chair of the YLD. In recent years, competition directors—who are selected by the YLD board of directors—oversee the competition,

coordinating with FBA staff and working groups and committees. In addition to a problem author—who writes the competition problem and bench brief—the Moot Court Committee solicits over 60 volunteer judges for the preliminary rounds alone. Starting with eight teams in 1996 and reaching an all-time high registration of 49 teams in 2013, there is now a 40-team registration cap. Teams from across the country compete in the competition and often represent over 20 distinct law schools. The competition consists of written briefs and oral arguments. Each of the 40 teams submits a written brief, supporting either the petitioner or respondent, and participates in oral arguments at the competition. Teams are prepared to argue the positions of both petitioner and respondent. Each of the 40 teams participates in the preliminary rounds, which take place on the first evening of the competition. Following the preliminary rounds, teams are ranked based on a combination of written and oral argument scores, and the top 16 advance to day two of the competition. On day two, teams advancing in the playoff rounds (which consist of the round of 16 quarterfinal, semifinal, and final rounds) are chosen based on a combination of written and oral pleading scores. During the final round, however, the competition champion is selected based on oral argument in the final round only. The competition rounds are generally held in various courthouses. In recent years, the competition has consistently been held at the D.C. Superior Courts for preliminary rounds, the U.S. Court of Federal Claims or the U.S. District Court for the District of Columbia for the intermediate rounds, and the U.S. Court of Appeals for the Armed Forces for the final round. In addition to competing in actual courtrooms, law students present oral arguments to competition judges who are actual state or federal judges, practitioners, or scholars. Former final round judges include numerous sitting judges, FBA presidents, a U.S. brigadier general, and, at one time, a member of the U.S. Commission on Civil Rights. The competition problem involves federal law. Past problem topics have included the First, Fifth, Sixth, January/February 2020 • THE FEDERAL LAWYER • 11

Seventh, Fourteenth, Nineteenth, and Twenty-First Amendments; student free speech; punitive damages; the McCarren-Ferguson Act and Federal Arbitration Act; § 5 of the Federal Arbitration Act; ERISA’s anti-retaliation provision; civil jury trials; the Indian Child Welfare Act; and the Equal Credit Opportunity Act. Now in its 25th year, the Thurgood Marshall Memorial Moot Court Competition continues to create opportunities for law students to develop their written and oral advocacy skills. The YLD

is looking forward to commemorating the 25th Annual Thurgood Marshall Memorial Moot Court Competition in Washington, D.C., March 18-19. If you are interested in volunteering as a judge for the preliminary round (evening of March 18) or intermediate round (daytime on March 19) of the competition, please contact the competition directors, Amy Boyle (boyle@halunenlaw.com) or Marshall Watson (marshallcwatsonjr@gmail.com). 

Focus on Indian Law continued from page 8 NCAI Res. No. REN-13-075, Improper State Taxation of Reservation-Domiciled Servicemembers (2013). 22 June 27, 2012: Iowa Tribe of Oklahoma; Feb. 21, 2014: Four Tribes of Kansas (representing all tribes in Kansas); Oct. 26, 2016: United Tribes of Michigan (representing all 12 tribes in Michigan); Jan. 31, 2017: Rocky Mountain Tribal Leadership Council (representing 11 21

Thompson Hine congratulates the Federal Bar Association on its Centennial Anniversary!

ThompsonHine.com

12 • THE FEDERAL LAWYER • January/February 2020

tribes in Montana and Wyoming); Oct. 12, 2017: United South and Eastern Tribes (representing 27 tribes on the eastern seaboard); Dec. 1, 2017: Minnesota Indian Affairs Council (representing all 11 tribes in Minnesota). 23 Veterans Affairs, American Indian and Alaska Native Servicemembers and Veterans (Sept. 2012), Table 9.

Tax Law

Bitcoin, the IRS, and the Love That Was Lost by Michael March

Michael March is an associate attorney with Rosenberg Martin Greenberg, LLP, where he focuses his practice on the representation of individuals and businesses throughout all stages of civil and criminal federal and state tax controversies.

We have all heard the stories. Romeo and Juliet, Cleopatra and Mark Antony, and my personal favorite: Ilsa Lund and Rick Blaine. Everyone loves a great love story—a developing romance leading to an emotionally pleasing and heartwarming ending where love triumphs all. Unfortunately, not all love stories end with happiness. Love can wilt over time, it can fade altogether, or even worse—it can fizzle out before it even begins. This is the story about the history of Bitcoin, recent efforts by the Internal Revenue Service (IRS) to identify nonreporters, how the IRS will proceed in the future, and why the IRS and Bitcoin lost their moment in time.

The Beginning In 2009, Satoshi Nakamoto, a pseudonym for a computer programmer or group of computer programmers, created the first peer-to-peer electronic cash system.1 The idea was to allow online payments to be sent directly from one party to another without the need for a financial intermediary.2 More relevant to our analysis, transactions of bitcoins, and other virtual currencies, create a blockchain.3 A blockchain is a shared public ledger and the record-keeping technology behind virtual currencies.4 After a transaction occurs in which a virtual currency is used, the blockchain provides a line-by-line report containing information such as the date of the transaction, the amount spent on the transaction, and a user identification number.5 The user identification number takes the place of the individual’s name. As a result, the transactions cannot be linked to a specific individual without additional information linking the user to the identification number.6 Thus, virtual currency transactions are anonymous. To provide an example, imagine I purchase a piano for my daughter and send the seller bitcoins in exchange. The bitcoins leave my virtual wallet and are deposited in the seller’s virtual wallet. Thereafter, the transaction is recorded on the general ledger detailing the payment of $500, the date of May 5, 2020, and a user identification number of 114487. The blockchain

is available for public consumption, so everyone knows the transactions occurred. However, no one knows that I actually purchased the piano.

How Bitcoin and the IRS Could Have Worked Together The blockchain provides a detailed history of reportable transactions. If the IRS used blockchain to its advantage, it could calculate income, capital gains, gifts, offshore disclosures, and many other reportable transactions without ever contacting the end user. Just as important, by sorting the blockchain to a specific period of time, the IRS could accurately determine all of the reportable transactions and then compare that information with individual tax returns and disclosures, thus identifying nonreporters and inaccurate reporting. Unfortunately, Bitcoin got off to a rocky start.

Mt. Gox Opened in 2010 and located in Tokyo, Mt. Gox was one of the world’s first bitcoin exchanges.7 A bitcoin exchange is comparable to a brokerage account, providing the opportunity for customers to buy and sell virtual currencies through an online interface. It is estimated that 70 percent of all bitcoin transactions worldwide were handled on Mt. Gox.8 In June 2011, Mt. Gox was hacked.9 Allegedly, the hackers were able to compromise a computer owned by an auditor of Mt. Gox. Thereafter, the hackers manipulated the price of each bitcoin and purchased them through anonymous accounts. In a matter of minutes over 850,000 bitcoins valued at over $300 million were stolen.10 Not a great start. And, even more disconcerting, the trend continued.

Silk Road Silk Road, named after the historical trade route between Europe and East Asia, was an online market where nearly anything could be purchased through the use of bitcoins. That’s right, a website where you can purchase drugs, guns, and forged documents, January/February 2020 • THE FEDERAL LAWYER • 13

completely anonymous. Adding even more intrigue, the founder, Ross Ulbricht, was only known as “Dread Pirate Roberts” while the website was in operation.11 Silk Road only lasted for three years, but it made Ulbricht a multimillionaire and ultimately a convict. Again, Ulbricht, as well as users of Silk Road, believed everything was anonymous. In addition to Silk Road only accepting bitcoin, it also operated through Tor. Tor is a free software program used for browsing and communicating on the internet. Tor directs internet traffic through a volunteer overlay network, consisting of relays used to conceal the user’s location and usage from anyone surveilling the network.12 Eventually, the FBI caught Ulbricht and charged the 29-year-old with narcotics trafficking, computer hacking, and money laundering. It is alleged that Ulbricht was linked to Silk Road and eventually caught because he publicly advertised for an IT specialist to help launch the website. In the advertisement Ulbricht provided his personal email. Ulbricht and Silk Road generated over 9.5 million bitcoins in sales revenue and over $600,000 in commissions for its owner.13 Depending on the value of the currency at the time of sale, this means Silk Road had about $1.2 billion in sales and $80 million in commissions.14 Unfortunately, the perception of bitcoin was forever tarnished.

The Results So what started out as a viable business venture, which provided increased transparency for all users, lost its momentum due to abuse. Put succinctly, the moment when the IRS and virtual currencies could have worked together to achieve a more efficient and effective system was forever lost. After Mt. Gox, Silk Road, and other similar issues, Bitcoin was no longer a viable alternative to cash. Rather, it was identified as an enemy of the state—a currency easily susceptible to hacking, used for purchasing illicit services and goods, and known as a breeding ground for corruption. Naturally, the IRS went on the offensive. In addition to the issues described above, many users believe that due to the inherently anonymous characteristics of Bitcoin, their transactions did not have to be reported on tax returns. I am not going to bore you with the “virtual currencies are property” explanation. All you need to know is that virtual currencies are treated as property and as a result, their use can create reportable transactions.15 Moreover, gifting, leveraging, and holding virtual currencies in offshore accounts can trigger reporting requirements to the IRS and the Financial Crimes Enforcement Network.

Coinbase and the John Doe Summons Coinbase, like Mt. Gox, is a virtual currency exchange and one of the largest in the world. It is estimated that Coinbase served 5.9 million customers and exchanged $6 billion in bitcoin.16 Just as important, Coinbase is a U.S.-based company headquartered in San Francisco.17 In 2016, a federal court in the Northern District of California entered an order authorizing the IRS to serve a John Doe Summons on Coinbase.18 The summons sought records and information about U.S. taxpayers who conducted transactions from 2013 through 2015. The goal of the summons was to identify and obtain information of virtual currency traders who had reportable transactions. At first, Coinbase refused to comply. Coinbase noted that the request covered 89 million transactions and over 14,355 account 14 • THE FEDERAL LAWYER • January/February 2020

holders.19 However, the IRS issued a “Notice of Narrowed Summons Request for Enforcement” that sought information related to transactions of $20,000 in any one transaction type (buy, sell, send, or received).20 Ultimately, the court held that the narrowed summons served the legitimate purpose of investigating the “reporting gap between the number of virtual currency users Coinbase claims to have had during the summons period.”21 The court further reasoned that the discrepancy creates an inference that more Coinbase users are trading bitcoin than reporting gains on their tax returns. Thus, the IRS has a legitimate interest in investigating these taxpayers.22

Current Enforcement Efforts Over the next few months, the IRS will mail out over 10,000 letters to cryptocurrency and virtual currency account holders. The notices will encourage investors to report cryptocurrency and non-crypto virtual currency transactions that were either missing or filed incorrectly on their 2013 through 2017 federal tax returns. The letters will have three variations: Letter 6173, Letter 6174, and Letter 6174-A. The letters are designed to help taxpayers understand their tax and filing obligations, including how to correct past errors. Unfortunately, accurately reporting virtual currency capital gains or losses is not always an easy task. Often, trading platforms do not provide a summary of capital gains or losses to the account holder. As a result, investors are forced to scour through pages and pages of transactions to calculate capital gains and losses. Also, due to errors in the application of inventory methods, the basis of the virtual currency being exchanged is often calculated incorrectly. To further complicate the issue, virtual currency traders routinely leverage one virtual currency to purchase another. An example would be using a bitcoin to purchase Ethereum, Monero, or Ripple. To accurately report the capital gain or loss, the investor must apply the exchange rate between two currencies and apply the appropriate inventory method.

The IRS and Big Data The question remains whether the IRS letters will be sent to individuals previously identified in the John Doe Summons described above, or if the information was found through the IRS analyzing and sorting data it obtains from third parties or “big data.” Although, this question is left unanswered, it is slightly irrelevant. Moving forward, it is likely the IRS will leverage information already warehoused by internet conglomerates such as Amazon, Google, and Apple to further enhance the automated corrections of tax returns and further refine the audit selection process. This will likely have a large effect on small businesses and nonfilers. To provide an example: Taxpayer A regularly purchases widgets for her business from Amazon. Thereafter, Amazon creates an internal document that details the dollar amount of Taxpayer A’s widget purchases, the date and time of each purchase, and where the item was shipped. The IRS requests this internal document from Amazon to verify Taxpayer A’s cost of goods sold and thereafter adjusts the amount claimed, if necessary. All of this occurs automatically and without Taxpayer A’s knowledge or approval. The scenario outlined above may seem distant, but the automated correction process the IRS currently utilizes has already been enhanced as it relates to health insurance benefits (Form 1095-B),

mortgage payments (Form 1098), retirement benefits (Form 5498), and now virtual currency transactions. Leveraging the information described above will also help the IRS further refine their audit selection process. Be that as it may, this leads to the question: Should the IRS have the right to this information? On one hand, the information is absolutely relevant in determining whether the taxpayer is accurately reporting their tax returns. On the other hand, this seems to be a fairly intrusive process that will not only track an individual taxpayer’s internet activity, but will also house a wide array of information that is completely irrelevant to tax administration.

Conclusion So, the love was lost. Bitcoin had too many problems shortly after its inception to ever become a viable alternative to cash. Thereafter, the IRS saw Bitcoin as a threat rather than a tool that could be used to increase reporting consistency and accuracy. Moving forward, however, it is likely the IRS will use third-party data to further identify nonreporting and inaccurate reporting. 

Endnotes Satoshi Nakamoto, Bitcoin: A Peer to Peer Electronic Cash System (2008), https://bitcoin.org/bitcoin.pdf. 2 Id. 3 How Does Bitcoin Work?, Bitcoin, https://bitcoin.org/en/how-itworks (last visited Nov. 2, 2019). 4 Luke Fortney, Blockchain Explained, Investopedia ( June 25, 2019), https://www.investopedia.com/terms/b/blockchain.asp. 5 Id. 6 Id. 7 Robert McMillan, The Inside Story of Mt. Gox, Bitcoin’s $460 Million Disaster, Wired (Mar. 3, 2014, 6:30 AM) https://www.wired. com/2014/03/bitcoin-exchange. 8 Mathew Beedham, A Brief History of Mt. Gox, the $3B Bitcoin Tragedy That Just Won’t End, TNW (Mar. 14, 2019), https:// thenextweb.com/hardfork/2019/03/14/a-brief-history-of-mt-goxthe-3b-bitcoin-tragedy-that-just-wont-end. 9 Id. 10 Rachel Abrams & Nathaniel Popper, Trading Site Failure Stirs Ire and Hope for Bitcoin, N.Y. Times (Feb. 25, 2014, 9:16 PM), https:// dealbook.nytimes.com/2014/02/25/trading-site-failure-stirs-ireand-hope-for-bitcoin. 11 Sam Thielman, Silk Road Operator Ross Ulbricht Sentenced to Life in Prison, Guardian (May 29, 2015), https://www.theguardian.com/ technology/2015/may/29/silk-road-ross-ulbricht-sentenced. 1

Ken Hanly, Browser Tor Used for Anonymous Browsing and Access to Deep Net, Digital J. (Aug. 8, 2017), http://www.digitaljournal.com/ internet/browser-tor-used-for-anonymous-browsing-and-access-todeep-net/article/499515. 13 Tim Hume, How FBI Caught Ross Ulbricht, Alleged Creator of Criminal Marketplace Silk Road, CNN (Oct. 5, 2013, 11:10 AM), https://www.cnn.com/2013/10/04/world/americas/silk-road-rossulbricht/index.html. 14 Id. 15 IRS Virtual Currency Guidance: Virtual Currency is Treated as Property for U.S. Federal Tax Purposes; General Rules for Property Transactions Apply, IRS (Mar. 25, 2014), https://www.irs.gov/ newsroom/irs-virtual-currency-guidance. 16 Mark Aquilio, Court Grants IRS Summons of Coinbase Records, J. Acct. (March 1, 2018), https://www.journalofaccountancy.com/ issues/2018/mar/irs-summons-of-coinbase-records.html. 17 Coinbase is domiciled in the United States. Thus, absent additional facts, account holders are not required to report foreign bank account holdings. However, since Coinbase is domiciled in the United States it is susceptible to U.S. law. It will be interesting to see if the IRS files additional summons on Kraken or other internationally based virtual currency exchanges and whether the international exchanges will comply. 18 Press Release, Department of Justice, Court Authorizes Service of John Doe Summons Seeking the Identities of U.S. Taxpayers Who Have Used Virtual Currency (Nov. 30, 2016), https://www.justice. gov/opa/pr/court-authorizes-service-john-doe-summons-seekingidentities-us-taxpayers-who-have-used. 19 Aquilio, supra note 16. 20 Id. 21 Id. 22 Id. 12

Keep in Touch With the FBA Update your information online at www.fedbar.org or send your updated information to membership@fedbar.org. January/February 2020 • THE FEDERAL LAWYER • 15

International Files

Recent Developments in Safe Third Country Agreements Feasibility and Approach: US-Guatemala, US-Canada, and EU by Beth Persky and Federica Dell’Orto Hadar

Beth Persky is a Certified Specialist in Immigration and Nationality Law with the State Bar of California’s Board of Legal Specialization. She is a graduate of the Fletcher School of Law and Diplomacy and the Boston University School of Law. Persky interned with the United Nations High Commissioner for Refugees in 1989. She is the current vice chair of the International Law Section of the FBA. Federica Dell’Orto Hadar is an associate attorney at the Law Offices of Judith L. Wood, in Los Angeles, where she practices international law, human rights law, and immigration law. She obtained her J.D. from the University of Milan and completed her LL.M. at Southwestern Law School. She is currently on the board of the FBA—International Law Section.

The United States and Canada were present at the conference to draft the United Nations Convention relating to the status of refugees, which met in Geneva in July 1951. Article 33 of the U.N. Convention states that “no contracting state shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”1 Article 42 specifies that a state that is party to the convention may not make reservations to article 33. While the 1951 convention applied primarily to refugees of World War II, the 1967 Protocol to the Convention applied the convention to events occurring outside of Europe and as the result of all events. As of April 2015, 148 countries were party to either the convention or the protocol. In addition to the United States and Canada, El Salvador, Guatemala, Honduras, Mexico, and Nicaragua were all parties to the U.N. Convention or the 1967 protocol. Congress implemented U.S. obligations under its accession to the 1967 protocol through 8 U.S.C. § 1157 for refugee admissions and § 1158 for persons seeking asylum within the United States. Section 1158 (a)(1)(a)(2)(A) states that any alien who is physically present in the United States or who arrives in the United States may apply for asylum, unless the attorney general determines that the alien may be removed, pursuant to a bilateral or multilateral agreement, to a country, other than the country of the alien’s nationality, in which the alien’s life or freedom would not be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion, and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection, unless the attorney general finds that it is in the public interest for the alien to receive asylum in the United States.

16 • THE FEDERAL LAWYER • January/February 2020

In light of recent developments, this article will address the feasibility of the safe third country agreement that the United States and Guatemala have signed, and the continued feasibility of the safe third country agreement between the United States and Canada. The article will also compare the North American approach to safe third countries with that in Europe.2

US-Guatemala Agreement In July 2019, then Acting Secretary of Homeland Security Kevin K. McAleenan and Guatemalan Minister of the Interior and Home Affairs Enrique A. Degenhart Asturias signed an agreement titled “Agreement Between the Government of the United States of America and the Government of the Republic of Guatemala on Cooperation Regarding the Examination of Protection Claims.”3 Article 3 of the agreement provides a process for protection for applicants transferred to Guatemala by the United States after arriving in the United States at or between ports of entry, and says that Guatemala will not return or expel the applicants, thereby applying the principle of non-refoulement embodied in the U.N. Refugee Convention and Protocol. The agreement does not address the scenario where refugees from El Salvador, Honduras, or other countries first arrive in Guatemala before passing through Mexico. Article 4 of the agreement provides exceptions for unaccompanied minors and people who arrive in the United States with a valid visa or other valid admission document, and Article 5 provides for exceptions in the public interest. Article 7 contains a provision for the United States to cooperate to strengthen the institutional capacities of Guatemala, and calls for an implementation plan and operationalization of the agreement upon completion of the plan. As of August 2019, annexes to the agreement were still being negotiated.

In August 2019, newly elected Guatemalan President Alejandro Giammattei expressed doubts about the feasible implementation of the agreement, indicating, in an interview with the Associated Press, that Guatemala is too poor to tend to its own people, let alone those from other countries.4 President Giammattei added in the interview that, in order to be a safe country, one has to be certified as such by the U.N. High Commissioner for Refugees (UNHCR), and Guatemala doesn’t fulfill the requirements to be a safe third country. Article 35, paragraph 2, of the 1951 convention and Article II, paragraph 2, of the 1967 protocol state that contracting states are required to provide UNHCR with information and statistical data concerning the condition of refugees, the implementation of the convention, and laws, regulations and decrees that are, or may hereafter be, in force relating to refugees.5 The agreement would also have to be ratified by the congresses of both nations to go into force.6 In a July 14, 2019, decision, Guatemala’s Constitutional Court expressed its disapproval of the Guatemalan administration’s signing of the convention without legislative approval.7

US-Canada and EU Agreements Countries are allowed to remove asylum seekers to a third country when the third country is considered safe and, therefore, there is no formal violation of Article 33 of the convention. The Safe Third Country Agreement8 between Canada and the United States was signed in 2002. This agreement establishes that refugees traveling from the United States to Canada cannot seek political asylum in Canada simply because they should have asked for it in the United States. The United States and Canada have entered into this agreement on the assumption that both countries have comparable standards for asylum procedures as well as formal guarantees to asylum seekers, so that a person transferred from one country to another will have a fair assessment of his asylum request. The agreement was also designed to end the phenomenon of “forum shopping” by individuals who had first entered the United States or were not granted asylum in the United States and wanted to thereafter seek the protection of Canada. At the time of the agreement, Canada and the United States mutually recognized each other as safe countries with respect to international obligations and standards. In ensuring that a third country is actually safe, certain factors are necessary—including that the third country also respects the principle of non-refoulement. According to UNHCR, in determining whether a third country is safe, “states should take into account the following factors: [the country’s] respect for human rights and the rule of law, its record of not producing refugees, its ratification and compliance with human rights instruments and its accessibility to independent national or international organizations for the purpose of verifying and supervising respect for human rights.”9 UNHCR also expressed its position to be that of generally favoring “the adoption between states of agreements aimed at identifying the country responsible for examining the asylum request, as such agreements may constitute the most satisfactory way to address the problem of ‘refugees in orbit’ and provide guarantees that an asylum request will be examined in substance.”10 In Europe, the Dublin Convention11 had similar purposes to those of the U.S.-Canada agreement, specifically to avoid the phenomenon of refugees in orbit.12 The Dublin Convention—later called the Dublin Regulation—essentially requires asylum seekers to make their claim in the first EU country where they set foot, in the understand-

ing that all EU member states have relatively equivalent adjudication systems for refugee claims. Both the regulation and the agreement have been highly criticized since their stipulation; specifically, the Dublin Regulation was opposed by Southern European countries on the basis that most clandestine migration into Europe is across the Mediterranean Sea. An alternative to the regulation required burden-sharing agreements, which most EU members refused to negotiate on the grounds that they do not have experience on mass migration or multiculturalism. The U.S.-Canada agreement on the other hand was almost immediately criticized by human rights organizations in Canada and around the world because they argued that the United States is much stricter in granting asylum requests. The issue was brought to the Federal Court of Canada, which upheld the validity of the agreement, stating that “a border officer’s lack of discretion to forego returning a claimant to the U.S. for reasons other than the enumerated exceptions … should be assessed in a proper factual context—that is, when advanced by a refugee who has been denied asylum in Canada pursuant to the regulation and faces a real risk of refoulement in being sent back to the U.S. pursuant to the Safe Third Country Agreement.”13 The possibility that a refugee returned to the United States could face a higher risk of refoulement was hence not denied by the court, but it was also held that the petitioners did not have a direct stake in the case and therefore did not have legal standing. This year, once again, Canadian advocates have raised the issue in Canadian courts as to whether the Trump administration’s practices with regard to asylum seekers have rendered the United States no longer “safe” within the meaning of the agreement. Claire Roque, the president of the Canadian Council for Refugees, stated that “Canadians have seen over the last few weeks how refugees are treated heartlessly in the U.S. under President [Donald] Trump: children separated from their parents, long-term detention in horrific conditions, criminal prosecution of people just for crossing the border to seek safety, new policies closing the door on women fleeing gender-based violence. The conclusion is clear: The U.S. cannot be considered a safe country for refugees.” The reason behind the filing of this action is the idea that refugees sent back to the United States are at risk of being deported and therefore face persecution and torture in their home countries. Canadian human rights organizations believe that current U.S. policies are in clear contravention of international standards and therefore the U.S. system is failing to protect refugees in a way that is compatible with the Safe Third Country Agreement’s standards. In the EU, the Dublin Regulation is also under attack. Because of the pressure that the regulation placed on EU periphery countries (e.g., Greece, Italy, Spain), collateral agreements have been entered into with neighboring countries. In 2016, for example, the EU reached an agreement with Turkey to keep asylum seekers from the Middle East from reaching the EU. Italy and Libya entered into a similar agreement this past year, an agreement that—in short—allows migrants who reached Italy to be returned to Libyan territory.

Conclusion Safe third country agreements were originally implemented with the intent of protecting refugees from unconscionably having to carry the burden of finding a state that would process their asylum request, along with the intent of upholding the rule of law and avoiding the phenomenon of “forum shopping.” In times of heightened migration January/February 2020 • THE FEDERAL LAWYER • 17

flows, it is now questionable whether these agreements are de facto becoming legal maneuvers aimed at blocking those fleeing violence and persecution, with less and less relevance being given to what actually makes a third country altogether “safe.” 

Endnotes While parties to the treaty are bound by its provisions, the convention contains provisions for withdrawing from the treaty or modifying it. Article 44 includes a provision that any contracting state may denounce the convention by notification addressed to the secretary-general of the United Nations, and article 45 states that any contracting state may request revision of the convention at any time by a notification addressed to the U.N. secretary-general. 2 For a detailed discussion of the history of the safe third country concept, see Violeta Moreno-Lax, The Legality of the “Safe Third Country” Notion Contested: Insights From the Law of Treaties, in Migration and Refugee Protection in the 21st Century: International Legal Aspects 665-721 (Guy S. Goodwin-Gill & Philippe Weckel eds., 2015), https://www.unhcr.org/en-us/ events/conferences/59632a847/legality-safe-third-country-notioncontested-insights-law-treaties.html. 3 U.S. Dep’t of Homeland Sec., Agreement Between the Government of the United States of America and the Government of the Republic of Guatemala on Cooperation Regarding the Examination of Protection Claims (2019), https://www.justsecurity.org/wp-content/ uploads/2019/07/Guatemala-Cooperative-Agreement-withSignature-Blocks-ENG.pdf. The United States entered into similar safe third country agreements with El Salvador and Honduras in the fall of 2019. Mexico does not have a safe third country agreement with the United States, but the “Migrant Protection Protocols” require asylum seekers to remain in Mexico while their asylum claims are pending. 4 Sonia Perez D., President-Elect Says Guatemala Can’t Do Migrant Deal With US, AP News (Aug. 13, 2019), https://www.apnews.com/ 1

ecd51531cbf2428c823ab06233c222a9. 5 UNHCR, Convention and Protocol Relating to the Status of Refugees (Dec. 2010), https://www.unhcr.org/enus/3b66c2aa10. 6 Id. 7 La unidad de Gaceta y Jurisprudencia, Boletín ( June-July 2019), http://200.6.233.69/Portal/Documentos/Boletines/ BOLET%C3%8DN%20JUNIO-JULIO%202019.pdf (in Spanish). 8 Final Text of the Safe Third Country Agreement, Gov’t of Can. (Dec. 5, 2002), https://www.canada.ca/en/immigration-refugeescitizenship/corporate/mandate/policies-operational-instructionsagreements/agreements/safe-third-country-agreement/final-text. html. 9 UNHCR, UNHCR Position Relating to the Resolution on Safe Countries of Origin (1992), https://www.refworld.org/ pdfid/3fa7c4f04.pdf. 10 UNHCR, Implementation of the Dublin Convention: Some UNHCR Observations (May 1998), https://www.unhcr. org/43662e1b2.pdf. 11 The Dublin Convention establishes a common framework for determining which country in the European Union decides an asylum seeker’s application. Convention Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities - Dublin Convention, 40 Official J. of the Eur. Cmtys. (Aug. 19, 1997), https://eurlex.europa.eu/legal-content/EN/TXT/?uri=OJ:C:1997:254:TOC. 12 “Refugees who, although not returned directly to a country where they may be persecuted, are denied asylum or unable to find a state willing to examine their request, and are shuttled from one country to another in a constant search for asylum. Refugees in Orbit, Int’l Thesaurus of Refugee Terminology, http://www. refugeethesaurus.org/hms/refugee_obj.php?type=terms&id=40 (last visited Nov. 1, 2019). 13 Canadian Council for Refugees v. R., 2008 FCA 229, ¶ 103 (2008), https://www.refworld.org/pdfid/497f38fa2.pdf.

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Judicial Profile

Hon. Jerry A. Brown

Judge, U.S. Bankruptcy Court for the Eastern District of Louisiana by Erin Arnold and Joseph P. Briggett

udge Jerry A. Brown remarks that he was lucky in his legal career: lucky to have had the opportunity to study at Tulane Law School, lucky to have been selected as a law clerk to legendary Judge John Minor Wisdom, and lucky to have been appointed as a bankruptcy judge. But his story shows that he made his own luck. From his upbringing in a small village in western Kentucky, he’s led a life guided by hard work, a deep appreciation for the law, and a love of his chosen home of New Orleans.

Early Years

Erin Arnold is the career law clerk for Judge Jerry A. Brown. She was supposed to start her clerkship on August 29, 2005, but that was the day Hurricane Katrina hit New Orleans. Judge Brown forgave her for missing her first day of work, and they have enjoyed working together ever since. Joseph P. Briggett, Esq., is a shareholder at Lugenbuhl, Wheaton, Peck, Rankin & Hubbard In New Orleans, practicing in the firm’s Bankruptcy, Restructuring and Creditor’s Rights and Commercial Litigation practice groups.

Brown was born in Crayne, Ky., in 1932. Crayne is a small village, at the time populated by 119 people. As a child, the rigors of education did not agree with Brown. He was resistant to his grandmother’s home reading lessons, and she declared that there was no need to send him to school. Nevertheless, at the age of almost 7, he started his studies in Crayne’s tworoom schoolhouse. Brown worked many jobs through his early years. His first job was at the counter in his family’s country general store. To give his mother and father a chance to eat together, Brown was required to manage the store, which was located across the road from their house. In his teen years, he worked during his summers off from school. In the summer of 1949, he worked on an assembly line in a Chevrolet factory in Detroit, producing gears and axles. In 1950 he worked on another assembly line at a Chrysler plant in Evansville, Ind. Back in Kentucky, Brown commuted to the city high school in Marion. He would walk or hitchhike— any way he could get to school. He played basketball and ran cross country for the one year the school had a track team. He also honed his debate skills competing as a member of the high school debate team. Brown went on to study at Murray State University. In college, he continued debating for three years. He still laughs at his debate teammate who would often begin his arguments by theatrically declaring that he had four points, while holding up four fingers, ticking off three, but then never seeming to make it to the fourth one. His claim was that this held the judges’ attention.

Something did, because Brown’s debate team at Murray State was rated superior at various tournaments around the country. In college, Brown most enjoyed history and social science classes but was not particularly focused on the law. No one in his family was a lawyer or had any connection with the law, but as a small child he reportedly expressed a desire to be a lawyer. In his economics class, he had an eccentric professor who pushed him to go to law school. Brown considered going to law school at Washington University in St. Louis or Tulane University in New Orleans, both of which had offered him scholarships. He chose Tulane. One major influence in this decision was his radio, which picked up a clear channel from New Orleans, Leon Kelner’s jazz orchestra from the Roosevelt Hotel’s Blue Room. He knew that he wanted to go to the source of that music. Although he acknowledges that St. Louis is a great city, he chose to go to Tulane based in great part on the allure of New Orleans.

Tulane University Law School Brown served honorably in the U.S. Army. He attended the Counterintelligence Corps school at Fort Holabird in Baltimore and a German-language school in Berchtesgaden, Germany. Because of his service, however, January/February 2020 • THE FEDERAL LAWYER • 19

he missed the first two weeks of his first-year law classes at Tulane. Later, when he was mystified by a professor’s lecture or a particular statement in class, he would turn to his classmates, wondering if there was a key point he had missed in those first two weeks. They assured him that he had missed nothing—no one in the first year of Tulane Law School understood everything the amazing professor Mitch Franklin put out. Despite missing those first two weeks, Brown found academic success. Much to his surprise, Brown, with no legal background and a late start, was invited to join the Tulane Law Review. While at law school, Brown took another summer job, working at the now-defunct Jackson Brewery at Jackson Square in the French Quarter. Jackson Brewery was the largest brewery in the South at the time, known for its trademark “Jax Beer.” The job paid well, and the employees could drink as much beer as they wanted. They were even allowed to drink beer while on the job. He was not the only Tulane Law student who worked there during the summer, as it was a highly sought-after job; not very hard work and all the beer you wanted to drink (but you couldn’t take it home).

Influence of John Minor Wisdom When Brown graduated from Tulane in 1959, Judge Wisdom had been on the bench as a judge only a short time. Judge Wisdom’s first law clerk, Martin L.C. Feldman (now a district judge for the Eastern District of Louisiana), was a Tulane Law graduate two years ahead of Judge Brown. Judge Wisdom selected Judge Brown as his second law clerk, and Max Nathan Jr. was the third. All were graduates of Tulane Law School, where Nathan is now an adjunct professor of law. Brown’s law clerk duties included driving Judge Wisdom from his Garden District home to the court in the morning and sometimes driving him home in the evening. They also spent 10 to 12 weeks of the year traveling the circuit. They would drive to and from the five states then within the Fifth Circuit’s jurisdiction: Texas, Louisiana, Mississippi, Alabama, and Florida. Judge Wisdom was both a gifted legal scholar and a talented writer. As a boss, he was also a taskmaster who always made corrections to Brown’s draft opinions. On one occasion, however, Brown had finally drafted an opinion that Judge Wisdom had approved with very few changes. Judge Wisdom commented at the time that Brown should be proud of his work, getting the opinion published with so few changes. The losing litigant, however, cast some doubt on his work by filing a scathing motion for reconsideration that Brown still remembers. After being Judge Wisdom’s law clerk, Brown knew that he wanted to one day be a judge. Brown learned a lot from Judge Wisdom. He came to admire not only Judge Wisdom’s brilliant legal mind but also his commitment to fairness and equal justice through the cases he weighed in on, and the important decisions he authored during his career. 20 • THE FEDERAL LAWYER • January/February 2020

Career in Private Practice Upon entering private practice, Brown joined one of New Orleans’ white-shoe law firms of the time, Monroe & Lemann. Early on, the duties of a new attorney at the firm consisted of the “court run”—sending young lawyers to court to handle filings and appearances in a potpourri of cases. Brown became the right-hand man to the then head of the firm, Malcolm L. Monroe. Unlike in today’s legal practice, where specialization predominates, in that time a well-rounded civil lawyer was expected to handle any and all court business, from successions to obtaining default judgments, trying cases and every other aspect of a civil practice. Although not a specialist, Brown did work a great deal in corporate reorganizations, which were then governed by Chapter X of the Bankruptcy Act, the predecessor to the modern Chapter 11 framework. Coincidentally, one of his most memorable cases was reorganization of the same brewery he worked for as a law student, Jackson Brewery. The company had fallen on hard financial times. Brown’s client, the American Can Company, had acquired a strong position as a secured creditor that became owner of the stock of Jackson Brewery. American Can, as an absentee owner of the stock, wound down the dwindling Jax business and oversaw the dissolution of what few assets remained. Much of the valued property of Jax had been transferred by its former owner for inadequate consideration to certain preferred creditors of Jax. Multiple suits were involved, and all of it ended up in two reported decisions from the Fifth Circuit, one of which was won by Brown’s client, American Can, and one which was lost. The Fifth Circuit opinion, In re Jackson Brewing Co.,1 is still often cited in bankruptcy settlement disputes today. It is one of the many decisions appealed in the Jax matter, extolling the importance of settlements in bankruptcy. Brown laughingly remembers the Jackson Brewery case because it was so ironic that he, who unloaded beer cases in the summer of 1958 while still a law student, became the ad hoc executive of Jax Brewery when it was first in reorganization. (This was because American Can, the owner of the stock, no longer had a representative in the New Orleans area to make day-to-day decisions as to what to do with its few remaining assets and the litigation.) Brown preferred trial work and often tried cases for those of his partners who were not accustomed to or did not particularly like to appear in court. He also gained a reputation for his work in major Chapter 11 bankruptcies. He worked on just about every major reorganization case in New Orleans during the 1970s and 1980s. Toward the end of his private practice, he moved to a boutique bankruptcy firm, then known as Bronfin & Heller. He did not stay there long, however. In 1992, he was appointed as a bankruptcy judge for the Eastern District of Louisiana.

Service on the Bench Judge Brown has now been serving as a bankruptcy judge for 27 years. At 87 years old, he is the oldest among the federal judges of the Eastern District of Louisiana.

In 2020, he will have completed the equivalent of two 14 terms as bankruptcy judge, and he hopes to live long enough to serve another few years. He comments jokingly that at 87 years of age he is “not buying any green bananas.” As a bankruptcy judge, he is cognizant of the changes in jurisdiction of bankruptcy courts. Bankruptcy courts exercise nationwide jurisdiction. Bankruptcy court is perhaps the part of the federal judiciary that most often affects ordinary Americans. There are certainly limitations on the power of bankruptcy judges, most recently highlighted by the Supreme Court in Stern v. Marshall and its progeny. But these decisions have not greatly limited the scope of cases before the bankruptcy courts as a practical matter. Judge Brown observes that many cases once considered outside of the core bankruptcy jurisdiction can be tried by bankruptcy courts with the consent of the parties. As far as his judicial philosophy, Judge Brown endeavors to make predictable decisions and to follow the law. He is generally conservative but nevertheless gives special consideration to the rights of debtors in his court, many of whom are honest and hard-working individuals who simply met unfortunate financial circumstances. He believes that all litigants in his court, right or wrong, deserve a fair chance to be heard. Therefore, he does not mind going to trial. He aims to give parties a prompt trial date (whether they like it or not). Judge Brown has a few pet peeves. He believes in the importance of open courts, and therefore, he generally does not lightly grant motions to seal pleadings or to keep settlements secret. He also lacks sympathy for those litigants where attorneys fail to cooperate with opposing

counsel in formulating an acceptable pre-trial order, as required by the court’s rules. Generally, he appreciates attorneys who come to court prepared.

Family Returning to the subject of luck, Judge Brown’s remark that he was lucky to have had the opportunity to study at Tulane has a greater significance. That was how he, a young man from Kentucky, came to meet his wife, Florence, who was born and raised in Arizona. She had been studying political science at Tulane (then Newcomb College) and graduated before Brown enrolled in the law school. They met while he was at Tulane Law School and have now been married 59 years. They have three children and five grandchildren who have come to see the proceedings in his courtroom first-hand. His son, Scott, is a lawyer, and he is hopeful that one of his grandchildren may pursue a legal career, too. Judge Brown’s sincere appreciation for the practice of law truly stands out. He does not fall into the usual trappings of cynicism about the legal profession, and in fact, staunchly rejects them. The undersigned authors of this article, his career law clerk and former extern, are of a younger generation where cynicism about the practice of law unfortunately predominates. Those attitudes do not enter Judge Brown’s outlook. He relishes the intellectual challenges, the camaraderie, and the spirit of honorable competition among opponents. It is this attitude—not luck—that has led to his great successes as a lawyer and judge. 

Endnote In re Jackson Brewing Co., 624 F.2d 599 (5th Cir. 1980).

Contact the Federal Bar Association to claim your missing issue of The Federal Lawyer or order additional copies at (571) 481-9100 or tfl@fedbar.org. January/February 2020 • THE FEDERAL LAWYER • 21

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Judicial Profile

Hon. Timothy D. DeGiusti

Chief Judge, U.S. District Court for the Western District of Oklahoma by James E. Warner III and Brandi M. Haskins

James Warner is an attorney with Nix Patterson LLP. He previously served as a law clerk to Judge DeGiusti and worked with the judge as an associate in the law firm Holladay, Chilton & DeGiusti PLLC (now Holladay & Chilton). Brandi M. Haskins is a member of Fuller Tubb & Bickford PLLC. She also previously served as a law clerk to Judge DeGiusti. Both are active members of the Oklahoma City Chapter of the FBA. The authors are grateful to those who contributed to this profile, most particularly Chief Judge DeGiusti and his judicial colleagues, staff, and former clerks.

imothy D. DeGiusti became the chief judge of the U.S. District Court for the Western District of Oklahoma on July 1, 2019. Chief Judge DeGiusti brings to the federal bench a unique personal story, one influenced by a pivotal chapter in this nation’s history. His many accomplishments, which include a distinguished career as a prosecutor and officer in the U.S. Army, are the fruit of devoted parents who valued hard work and education and passed these beliefs on to their children. In Dowell v. Board of Education of Oklahoma City,1 Chief Judge Luther L. Bohanon issued an opinion that effectively began the desegregation of Oklahoma City public schools. During this time, “young Tim” (as he was affectionately known by friends and family) lived in the Capitol Hill neighborhood of Oklahoma City. His father was a first-generation Italian-American whose parents emigrated from Northern Italy in the early 1900s. At 16 years old, DeGiusti’s father moved to Oklahoma City, where he engaged in the terrazzo (Italian marble flooring) industry, ultimately doing business as Southwest Terrazzo. In fact—in a classic case of foreshadowing—Southwest Terrazzo worked on the terrazzo floors that decorate the Western District of Oklahoma courthouse where DeGiusti now sits as chief judge. DeGiusti’s mother was born in Hooker, Okla., and raised outside of Rolla, Kan., just north of the Oklahoma panhandle. After a short stint in California during the Dust Bowl years, she moved to Oklahoma City during World War II, where she later met DeGiusti’s father. The couple went on to have five children (three boys and two girls), with Tim DeGiusti being the youngest. Pursuant to Judge Bohanon’s order, DeGiusti was bussed from Capitol Hill in South Oklahoma City to Douglass High School, a predominantly black school located on the city’s northeast side. For many Oklahoma City residents affected by Judge Bohanon’s order, the court’s decree ushered in a dramatic change in their lives. For DeGiusti, however, the court’s order introduced him to a new world that produced lessons and friendships that have lasted a lifetime. Frederick A. Douglass High School began as an elementary school. In January 1891, the Oklahoma City

Board of Education met to form schools for Oklahoma City children. A motion was made and passed for the establishment of a “colored school” to be located in a long, barn-like building. By 1898, the elementary-aged students were ready for high school and Douglass High School was born. It currently sits in northeast Oklahoma City at 900 N. Martin Luther King Avenue. It has produced such notable alumni as jazz guitarist Charlie Christian, blues singer Jimmy Rushing, and writer Ralph Ellison. During DeGiusti’s time at Douglass, approximately 90 percent of the student body was African-American (today, minority students make up approximately 97 percent of Douglass’ student body). Despite the racial disparity, Judge DeGiusti says the environment at Douglass enabled him to thrive. He was the president of his sophomore class and the student council. He played on the basketball team (the Trojans), and it was at Douglass where he met many life-long friends with whom he remains close even today. Indeed, it was at Douglass High School where DeGiusti first felt inspired to become a lawyer. As he describes it: “The first time I ever thought about the law as possibly a career choice for me was when I was at Douglass High School. I was a sophomore or junior. We had a student teacher (Patrick Cudjoe) who was full of new and great ideas. And this teacher decided January/February 2020 • THE FEDERAL LAWYER • 23

that we would put on a mock appellate argument. And it was an interesting case. It was a reverse discrimination case that had been handled by the United States Supreme Court maybe a year or so before. I can’t even remember now which side I argued, but I was selected to argue one of those sides. And so I read the opinion and I put a lot of effort into my presentation. And when I did it and I don’t even remember if I won the argument, by the way. But after I did it, I thought for the first time, you know, this is something that maybe I could do. So that seed was planted in the back of my mind.” DeGiusti remembers his time at Douglass High School as very enriching, not only from an academic standpoint but also a cultural standpoint. It was there that he learned how to blend with other cultures much different than his own and to understand the point of view of people who, at least on the surface, might appear to be different than him. Judge DeGiusti values these life lessons to this day. From Douglass, DeGiusti attended the University of Oklahoma (OU). Despite his earlier inspiration to practice law, DeGiusti did not fully commit to attending law school until his senior year of college. Instead, he gave serious thought to teaching (graduating with a degree in ethics and religion) and had been accepted into both Chicago Theological Seminary and OU’s graduate program for philosophy. Another option was going on active duty in the U.S. Army (more on that later), as he had participated in OU’s Army Reserve Officer Training Corps and received his commission as an infantry officer. By the age of 20, DeGiusti was an Army second lieutenant. Hence, the study of law, in his own words, was “late to the dance” and for all intents and purposes, third in line, as he had viable career options before him in teaching and military service. In the end, however, law school won out by a literal coin toss. Struggling with the choice, DeGiusti flipped a coin to narrow down his options; at the end it came down to law school and active duty in the Army. He flipped the coin and active duty in the Army won; he flipped it again and ended up going to law school. On that decision, Judge DeGiusti remembers knowing in his heart that he was not yet ready to go on active duty in the Army: “Something inside me, it just—I knew that I was not ready at that moment in time to go on active duty in the Army. My father recently passed away. I was uncomfortable, I think, leaving my mother—although she had help here from my brothers and sisters, I think I was just uncomfortable at that time in leaving for the amount of time that it would have taken to do a stint on active duty in the Army or, for that matter, to go to Chicago to the theological seminary and study there. So I ended up at that point selecting an option that would keep me here in the Oklahoma City area.” DeGiusti attended law school at the OU College of Law. Like many law students, he did not have any firm thoughts on the type of law he wanted to practice as a career, saying he was a tabula rasa. After about a year, however, he found himself gravitating toward trial work 24 • THE FEDERAL LAWYER • January/February 2020

and litigation. He participated in the moot court competitions each year and, in his last year, he became a moot court finalist. Additionally, DeGiusti was on the national trial team and a member of the Order of Barristers. Consequently, oral advocacy and trial work became his focus. In 1988, upon graduation from law school, DeGiusti practiced for two years with Oklahoma City law firm Andrews, Davis, Legg, Bixler, Milsten and Murrah as a litigation associate. His closest friend at the firm was Brad Henry, who would go on to become a state senator and subsequently the governor of Oklahoma. Another member of that associate class was Marcia Rupert, who currently serves as Judge DeGiusti’s career law clerk. DeGiusti always saw himself serving in the military in some capacity. Indeed, while in high school, he enlisted in the Army Reserve Components and attended boot camp in South Carolina after graduation. After two years practicing at Andrews Davis, he began champing at the bit to try cases. However, law firms do not generally allow brand-new associates to just go into the courtroom and start trying cases, and Andrews Davis was no exception. Don G. Holladay, who was a partner at the firm and DeGiusti’s mentor, spoke fondly of his time in the Air Force Judge Advocate General’s Corp ( JAG) and DeGiusti became enamored with that experience. So in 1990, after just two years of private practice, DeGiusti went on active duty in the Army JAG, where he was stationed in Baumholder, Germany. With JAG, DeGiusti got an extraordinary amount of trial experience. He tried approximately 60 general and special courts martial cases—everything from AWOL to first-degree murder. One of DeGiusti’s most memorable cases during his JAG years was his prosecution, with frequent co-counsel Capt. Randy Kirkvold, of Spc. Albert T. Sombolay, who was charged with espionage and contacting the enemy. Sombolay eventually admitted offering to provide military information once his unit was deployed to Saudi Arabia; he provided a Jordanian intelligence officer with samples of U.S. Army chemical protection equipment and Saudi deployment information, and he offered to photograph his unit’s activities in Saudi Arabia. He was sentenced to 34 years in prison. It was the only espionage case that arose out of the first Gulf War. On one occasion, when DeGiusti was on military leave back in the United States, Holladay asked him to dinner. At that dinner, Holladay said he was authorized to extend a standing offer for DeGiusti to rejoin the Andrews Davis law firm. Accordingly, after serving three years in the Army, DeGiusti rejoined the Andrews Davis law firm in 1993, where he eventually met his wife of 21 years, Elaine, who was also an associate at the firm. At Andrews Davis, he spent the next seven years developing a litigation practice. He also continued his military service between the Army Reserve and the Oklahoma Army National Guard, which is where he ended his military career. DeGiusti retired from the Army in 2003, with 22 years of combined active and reserve service. In 2000, DeGiusti left Andrews Davis and became one

of three founding partners in the firm of Holladay, Chilton, & DeGiusti, joining Holladay and Gary Chilton. Contrary to today’s standards, there was no formal partnership agreement—the three men agreed to their partnership structure on a handshake. Although he loved Andrews Davis and the people there, Judge DeGiusti wanted to experience life in a small law firm. Holladay, Chilton & DeGiusti was a boutique litigation firm whose practice was much narrower than the “full service” firm, Andrews Davis. Nonetheless, DeGiusti’s practice did not change much, and he still occasionally tried military cases despite retiring from JAG, representing a number of clients in felony-level courts martial as a civilian defense counsel. Although DeGiusti enjoyed his years in private practice, the most professionally fulfilling time for him were the years of active duty as an Army prosecutor. He longed to have that sense of duty again and began thinking about ways in which he could return to public service in the law. Accordingly, in 2006, at the encouragement of many people in his circle, including Holladay and Judge Ralph Thompson (his father-in-law), DeGiusti applied and was ultimately selected for a position in the Western District of Oklahoma. This did not come without its complications. First, such a move would obviously change the character of the firm he founded with his good friends. Second, DeGiusti’s appointment meant that Judge Thompson would have to step down

from the bench due to a federal statute prohibiting simultaneous service by family members on the same court. Despite these considerations, however, DeGiusti received overwhelming support from Judge Thompson and his law partners, making possible his appointment to the federal bench. As a federal judge, DeGiusti appreciates that he still gets to be directly involved with litigation and trials, albeit not as an advocate. He also enjoys working with students and law schools, and doing what he can to advance the law and make a positive impact on people. To this end, he is especially proud of his court’s drug reentry program, the Court Assisted Recovery Effort, which is designed to assist nonviolent drug offenders in making a successful return to society. And his love of lawyering and lawyers, as well as his own law practice experience, informs Chief Judge DeGiusti’s interaction with the bar. His message to attorneys is one of balance: “Ensure that you are healthy; that you are happy. That you are pursuing things in your personal life that are gratifying to you and help provide meaning to your life. And that you are doing the very best you can as a professional” to effectively represent your clients and advance the law. 

Endnote Dowell v. Bd. of Educ. of Okla. City Pub. Sch., 338 F. Supp. 1256 (W.D. Okla. 1972).

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Judicial Profile

Hon. Fernando J. Gaitan Jr.

Senior Judge, U.S. District Court for the Western District of Missouri by Grace Colato and Ben Stueve

Grace Colato and Ben Stueve are law clerks for Hon. Stephen R. Bough, a district judge of the U.S. District Court for the Western District of Missouri. Colato is a 2018 graduate of the University of Missouri-Kansas City School of Law and also has a B.A. in sociology from Georgia State University and her M.A. in elementary education from the University of Missouri-St. Louis. After clerking, Colato plans to begin private practice at Bryan Cave Leighton Paisner in Kansas City, Mo. Stueve is a 2018 graduate of the University of Kansas School of Law and also has a B.A. in English from Saint Louis University and an M.A. in secondary education from Avila University. After clerking, Stueve will enter private practice with Stinson LLP in Kansas City, Mo. © 2019 Grace Colato and Ben Stueve. All Rights Reserved.

he first African-American appointee to the Western District of Missouri, Judge Fernando J. Gaitan Jr.’s closest family, friends, and colleagues all describe him in the same way: A true public servant. A fair and measured judge. Introspective, quiet, and dedicated to his job. Fun-loving, comical, and loyal as a friend and family man. According to Congressman Emanuel Cleaver, U.S. Representative for Missouri’s 5th District and long-time friend and confidant of Judge Gaitan, “when a person grows up as did Judge Gaitan, it is easy to understand his commitment to justice for everyone with an almost religious obsession to administer it equally.”1 Judge Gaitan was born and raised in a segregated Kansas City, Kan., during the civil rights era. He grew up with his mother, father, and three younger brothers in a small house where they all slept in bunk beds in the same room as the household appliances. They shared one bath and one closet. While not easy, Judge Gaitan fondly remembers growing up this way, with humble means, because it “brought a closeness you wouldn’t otherwise get.” Judge Gaitan is quick to point out another advantage: growing up in a segregated neighborhood meant he was fortunate to live around more affluent African-Americans: lawyers, bankers, teachers, and other professionals. This exposure showed Judge Gaitan what was possible and made a lasting impression on him. Judge Gaitan’s parents exemplified the work ethic they strove to instill in their children. Judge Gaitan’s father dropped out of high school to join the Army and then worked at a meat packing plant. The GI Bill afforded additional training as an auto mechanic and as a tailor. Judge Gaitan’s mother married and graduated high school while pregnant with him. As a mother of four boys, she didn’t have the chance to live her dreams, but wanted her kids to be able to achieve theirs. She was a big motivator in Judge Gaitan’s life. Both of Judge Gaitan’s parents strongly encouraged him to pursue formal education through college and beyond. Inspired by his parents and the role models in his community, Judge Gaitan put himself to work while he was still a young boy in grade school. He shoveled

26 • THE FEDERAL LAWYER • January/February 2020

snow, mowed lawns, dug up worms to sell to fishermen, bussed tables, and sold copies of The Call, an African-American newspaper serving Kansas City. During high school, Judge Gaitan cleaned the offices of African-American attorneys, including the offices of Cordell Meeks Sr., who became the first African-American district judge for the state of Kansas, and Benjamin E. Franklin, who became the first African-American U.S. bankruptcy judge in the Tenth Circuit, furthering Judge Gaitan’s exposure to the legal profession.

Education Judge Gaitan was the first in his family to go to college, graduating with a bachelor’s degree in biology and psychology from Pittsburg State University (Kansas) in 1970, at a time when racial justice and diversity were not priorities on most college campuses. Unsure what career path to choose, he took a well-paying job in sales for a Fortune 500 company. During this time of societal turmoil in the United States, Judge Gaitan quickly realized his call to public service and desire to make a difference. He returned the company car and headed for Los Angeles, only to return home to Kansas City to work for Y-Pals, a youth organization co-sponsored by the YMCA and the Young Lawyers section of the Kansas City Metropolitan Bar Asso-

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ciation, where he worked with young lawyers who volunteered to serve as mentors to troubled youth. It was then that Judge Gaitan knew he wanted to go to law school. After consulting with the lawyers whose offices he used to clean, he signed up for the LSAT and soon began law school at the University of Missouri-Kansas City (UMKC).

Legal Beginnings Judge Gaitan worked his way through law school, maintaining a part-time job with Legal Aid even as a 1L in order to survive. He studied day and night while he wasn’t working. Racial tensions were ever present, even in a relatively progressive and intellectually advanced environment. The African-American students banded together, forming a chapter of the Black Law Students Association. Still, Judge Gaitan was one of only three African-American students who graduated in 1974 out of the 13 who enrolled in his 1L class. Determined to give minorities a voice in the corporate sector, Judge Gaitan began his legal career as in-house counsel for the Southwestern Bell Telephone Company. He also began serving on the boards of the Kansas City Science Museum, the National Conference of Christians and Jews, and the De La Salle Alternative School, where he would ultimately become chairman. Judge Gaitan was often the only racial minority voice for those boards. He hoped his work in the private sector and serving on boards would foster a positive image of minorities among the white majority and enable Southwestern Bell to use its resources for the betterment of the community. Judge Gaitan spent six years working for Southwestern Bell before transitioning to the judiciary.

Judicial Service Judge Gaitan has now spent almost 40 years—most of his legal career—serving our nation’s courts. While he did not always know he wanted to be a judge, or even a lawyer, Judge Gaitan has always known he wanted a life of public service. In his words, “Law school for me was a means to an end.… I figured out what I wanted to do in life and that was public service.” To Judge Gaitan, the “needle” on his compass has always pointed toward public service. Reflecting on his life, Judge Gaitan mused about where he ended up on that path: “Who knew the judiciary would be that vehicle?” In 1980, at the young age of 32, Judge Gaitan was appointed to the Circuit Court of Jackson County, Mo. Six years later, he was elevated to the Western District of the Missouri Court of Appeals. In 1991, President George H.W. Bush nominated Judge Gaitan to sit as a district judge on the U.S. District Court for the Western District of Missouri. Judge Gaitan served as chief judge for the district from 2007 until 2014, when he assumed senior status. Having served on trial courts and an appellate court, and in both state and federal systems, Judge Gaitan’s path is one few others have traveled. 28 • THE FEDERAL LAWYER • January/February 2020

Judge Gaitan presided over a wide range of cases along the way. In 1992, he was part of a three-judge panel, together with U.S. Senior Circuit Judge Floyd Gibson and U.S. Chief District Judge Howard F. Sachs, that heard two consolidated lawsuits in which the Missouri House Redistricting Commission’s redistricting plan was challenged as unfair to African-American voters in violation of the Voting Rights Act.2 Sometimes, Judge Gaitan found himself in the position to give a person a chance at life. In 1995, Judge Gaitan resentenced a 34-year-old man to time served so that the man could get a heart transplant to treat a terminal condition. At the same time, some of the most important cases to Judge Gaitan were those that involved death. In 2001, he was judge in the widely publicized death penalty trial of Keith Nelson, the man convicted of kidnapping, raping, and murdering 10-year-old Pamela Butler. Nelson was sentenced to death, and in November 2018 the U.S. Court of Appeals for the Eighth Circuit affirmed the district court’s denial of Nelson’s request for habeas relief.3 Still other cases involved a strange combination of life and death. In 2006, Judge Gaitan halted all executions in Missouri until the Department of Corrections repaired what he found to be a flawed lethal injection procedure in violation of the Eighth Amendment.4 Cases involving fraud and consumer protection laws have also been particularly important to Judge Gaitan. Judge Gaitan has presided over multidistrict litigation challenging several wireless carriers’ FCC program cost recovery fees5 and the marketing practices of Coca-Cola’s orange juice brand Simply Orange.6 Judge Gaitan has also presided over mortgage fraud and political corruption cases. The people who know Judge Gaitan best describe him as a genuine public servant and a humble, curious, and conscientious judge. Ask Rep. Cleaver, and he’ll tell you that Judge Gaitan is not in it for recognition, public exposure, or popularity and that he never introduces himself as “judge.” Ask Judge Gaitan’s longtime friend Howard Townsend and he’ll tell you that the role of a judge comes naturally to Judge Gaitan, that he was always the friend in the group who wanted to do the right thing, and that he’s had a judge’s “frame of mind all along.” Charlie Harris, former law clerk and now close friend of Judge Gaitan, describes Judge Gaitan’s judicial decisions as measured and emphasizes his “absolute commitment to doing the right thing at all costs, whether or not anyone is looking.” Ask Judge Gaitan’s daughter Avier Gaitan, a lawyer and former law clerk to several federal judges, and she’ll tell you that Judge Gaitan isn’t just a good judge to appear before, but also that he’s a good judge to work for. He’s a good judge in part because “he’s a good boss,” she says, and he takes the experiences of his clerks and staff very seriously. The impact of his mentorship to his staff and law clerks even reaches the federal bench: in 2018 Lajuana Counts, former law clerk to Judge Gaitan, was appointed as a U.S. magistrate judge for the Western District of Missouri. Judge Karen King Mitchell, appointed in 2009 to the Mis-

souri Court of Appeals, and Jacqueline Cook, former Cass County, Mo., circuit judge, also clerked for Judge Gaitan before taking the bench themselves. As to lawyers appearing before him, Judge Gaitan is reasonable, willing to listen, and wants to give each side a fair chance. While for some judges “it might just be about getting through a case as quickly as possible,” Judge Gaitan really wants to get it right.

Outside the Law Judge Gaitan’s closest family and friends consider him to be genuine, fun-loving, comical, and caring. Judge Gaitan’s wife of 44 years, Sylvia, describes him as a loving and supportive husband and dedicated father. Judge Gaitan’s daughter, Avier, describes him as her best friend. Judge Gaitan diligently cares for his special-needs son, Trey, and also makes it his mission to keep in touch with all his nieces and nephews around the country. His closest friends describe him as somebody with whom they can openly and honestly talk faith, family, friendship, and politics. For instance, Rep. Cleaver has said the following about his friendship with Judge Gaitan: “When I am around him it’s like taking a sip of water from a well back home. Everything is real. There are no games being played. He will tell me things with pure, undistilled frankness.” Throughout his career, Judge Gaitan has served various organizations, sat on a multitude of boards, and earned awards for his service to the community. He is a member of Kappa Alpha Psi Fraternity Inc. and Sigma Pi Phi Fraternity, and a life member of the NAACP. He served as an adjunct professor at the UMKC School of Law, a member of the UMKC Board of Trustees for UMKC, and on the UMKC Law Foundation Board. He also served as an advisory board member and vice-chair for the Kansas City Crime Commission’s Second Chance Foundation and as a St. Luke’s Hospital board member for more than 25 years. Judge Gaitan has received numerous honors, including the UMKC Alumnus of the Year Award; the Pittsburg State University Outstanding Alumnus and Meritorious Achievement Awards; the Urban League of Greater Kansas City’s Difference Maker Award; the Greater Kansas City Chamber of Commerce Centurion Leadership Award; the Kansas City, Kan., School District’s Reason to Believe Award; and William Jewell College’s William F. Yates Medallion for Distinguished Service. 

Conclusion Since assuming senior status, Judge Gaitan enjoys spending a little more time with his family. He enjoys traveling, golfing, and continuing to serve the community. As his judicial career unfolds, Judge Gaitan remains dedicated to his work of doing justice and making a difference. From the firm foundation of hard work and pursuit of education his parents built for him, Judge Gaitan’s life and career continue to grow and bear fruit. He has seen and experienced much as a public servant, but what he may never be able to fully view is the extent of his impact on the family, friends, communities, and court systems he has so devotedly served.

Judicial Profile Writers Wanted

Endnotes The source material for this article includes the following: Beyond One L: Stories About Finding Meaning and Making a Difference in the Law 205-209 (Nancy Levit & Allen Rostron eds., 2019); the U.S. Courts Eighth Circuit Library Archives; Judge Gaitan’s Senior Status Resolution; various articles from the Kansas City Star; two scrapbooks meticulously curated by Judge Gaitan’s staff; and personal interviews with Judge Gaitan and his family, friends, and colleagues. 2 Nash v. Blunt, 797 F. Supp. 1488 (W.D. Mo. 1992), aff ’d sub nom., African Am. Voting Rights Legal Def. Fund, Inc. v. Blunt, 507 U.S. 1015 (1993). 3 Nelson v. United States, 909 F.3d 964 (8th Cir. 2018). 4 Taylor v. Crawford, No. 05-4173-CV-C-FJG, 2006 WL 1779035 (W.D. Mo. June 26, 2006). 5 In re Wireless Tel. Fed. Cost Recovery Fees Litig., 293 F. Supp. 2d 1378 (W.D. Mo. 2003) (MDL 1559). 6 In re Simply Orange Orange Juice Mktg. & Sales Practices Litig., 867 F. Supp. 2d 1344 (W.D. Mo. 2012) (MDL 2361). 1

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 Lynne Agoston, managing editor, at TFL@FBA.org.

January/February 2020 • THE FEDERAL LAWYER • 29

In The BEGINN “To advance the science of jurisprudence and to promote the welfare, interests, education, and professional growth and development of the members of the federal legal profession.” Simple words, but it is their meaning that has given the mission of the Federal Bar Association (FBA) the power to inspire and motivate its members for the last century.

30 • THE FEDERAL LAWYER • January/February 2020

ING… O

ver the years, the FBA mission has brought together attorneys from all parts of the country, from all walks of life, and from all areas of legal practice, and united them in common service to the legal profession. This month, we celebrate 100 years of service by the FBA—service not only to our almost 15,000 members but also to the federal legal community as a whole. Service that was inspired by the vision of our founders so many years ago.

The year was 1919. Even as the debate over the ratification of the Treaty of Versailles raged in the Senate, attention was shifting from the international arena of World War I to the home front, where Prohibition and women’s right to vote loomed on the political horizon. It was during this time that the Woodrow Wilson administration began to deal with the problem of unjust salary classification for federal employees. To help find a solution, Congress appointed groups of employee representatives to meet and propose a proper classification of their respective positions. As a result of these conferences, lawyers from the various government departments and independent agencies were thrown together to discuss issues of mutual interest. This mingling of personnel was rare at the time, so participants had the opportunity to confer and briefly socialize with their colleagues. At the conclusion of the conferences, a group of lawyers suggested that a permanent organization should be formed to maintain the new relationships. Alexander Hugh McCormick, then with the Office of the Solicitor for the Department of the Navy and later with the Department of Justice, called for the formation of an association to which all lawyers in government service would be invited to join. A temporary organization was formed in the fall of 1919 under the leadership of James W. Witten, then the ranking attorney in the Office of the Solicitor for the Department of the Interior.

On Jan. 5, 1920, McCormick and Witten’s organization became permanent. The FBA began its work with 438 founding members who committed themselves to the mission of the fledgling group. Witten served as the first president, while McCormick served as the first secretary. David D. Caldwell of the Justice Department was elected vice president and Clara Greacen of the Treasury Department served as treasurer. From this small beginning, the FBA grew quickly—and not just in numbers but in stature. The association’s first recognition by the legal community came just two years after its formation. On Feb. 23, 1922, the American Bar Association invited the FBA to participate in a special session of the Conference of Bar Association Delegates. FBA representatives joined delegates from the American Judicature Society, state and local bar associations, and prestigious law schools—including Harvard, Columbia, George Washington, and the University of Michigan—to consider the subject of legal education. Since then, the FBA has been preeminent among the leaders of the federal legal community. The association continues to strive for excellence in the legal profession and for increased opportunities, both professional and social, for the federal lawyer. Despite the dramatic changes in the law and its practice over the last 100 years, the FBA has prospered. It is our hope that 100 years from now, the simple words of our mission will continue to inspire service to the federal legal profession.  January/February 2020 • THE FEDERAL LAWYER • 31

32 • THE FEDERAL LAWYER • January/February 2020

DISTINGUISHED MEMBERS

Witten was born in 1856 on a farm in Grundy County, Mo. He t is people who make an organization a success, left public school to attend college for three terms and then studied and the FBA is no exception. Throughout its law in private offices. In 1877, at the age of 21, he was admitted to the 100-year history, there have been innumerable Missouri Bar. He practiced law in Texas and Missouri for 14 years, people who have dedicated their time and during which time he served as city attorney for Albany, Mo., and JAMES W. WITTEN (1855–1943) later as prosecuting attorney for Gentry County, Mo. energies furthering the goals of the association, Founding FBAto President, 1920–1921 The new Democratic administration in Washington, D.C., spelled and the process not have achieved The first in president of the Federal Bar only Association wasthey salaries of federal employees, career changes for Witten. In those days, when a new political party a strong advocate for a groupbut to meet the also needs of attorneys, and even personal success they have including contributed came into power, virtually every member of the executive branch federal attorneys scattered throughout the country. left government service in 1916 greatly to the legal profession. President Theodore During his term, James W. Witten was working as an “for the very good reason thatturned in his resignation. So when the Democrat Grover Cleveland attorney in the solicitor’s office at the U.S. Departcould earn more money in took office in 1885 he had a full slate of offices to fill with fellow Roosevelt once commented, “Everyheman owes ment of the Interior, where the FBA held monthly the practice of law than as an Democrats. President Cleveland’s secretary of the interior appointed someduring of his timeyears. to the upbuilding of the profession meetings its early employee of the government,” Witten to serve as a principal examiner of land claims and contests in It was a long road that brought him there. Born in according to a profile in The to which he belongs.” Each of the following the General Land Office. Grundy County, Missouri, Witten started out practicKansas Chief newspaper. Returning law in Missouri and Texas, includinggiven stints astheir city ing to theand Interior Department When Republican Benjamin Harrison was elected in 1888, individuals have indeed time, along attorney for Albany, Missouri, and prosecuting attora few years later, in 1919 he though, Witten reluctantly returned to his private practice in Missouthe way, ensured the success of the FBA—success ney for Gentry County, Missouri. He joined the federal submitted testimony to the Joint ri. In 1893, however, when Cleveland and the Democrats returned to government as a principal of land claims Commission on Reclassification yesterday, today,examiner and tomorrow.

power, Witten returned to work for the General Land Office, where and contests for the Interior Department’s General of Salaries, which was studying Land Office (GLO) in the mid-1880s, during President salaries in the government civil he would work for a quarter century. Ultimately, he became the Land Grover Cleveland’s first administration. Witten moved service, noting: “The characterOffice’s chief law officer. Witten joined the staff of the Solicitor for to Washington, D.C., in 1893 and continued to blaze and importance of the work the Interior Department, where he specialized on public land and a trail through the GLO, serving in positions such as demanded of the law service superintendent of the of the Government cannot be Indian matters. opening and sale ofdependability overestimated.” Witten had long been concerned with the public perception James W. Witten’s and untiring Indiantolands andproper chief recognition Not long after, of the federal lawyer. In an 1888 letter, he protested against the efforts obtain for while the working law officer, and in as an attorney in the Interior Department’s solicitor’s The January 7, 1920, edition attorneys and trumpeted the unique crucial work of the federal lawyer made him a inferior salaries of government of Washington’s Evening the process reviewed office, Witten became the animating force behind the Star newspaper included responsibilities involved in the legal work ofa the federal government. perfect choice as the first president of the and settled enough FBA, culminating in its founding on January 5, 1920. short item about the FBA’s property disputes in “the“Thereupon perhaps ‘make argued the founding. 1919, to Witten his points before the Joint Commission on FBA. Referred to as Nestor ofthe theAssociation —In the Western territopunishment fit the crime’ the Judgeof toSalaries, which had been appointed by Congress Reclassification Federal Bar Association,” Witten’s name is — sentenced ries that he became serve as its first president,” former Interior Departto reappropriate federal salaries on the basis of required duties and theknown one most commonly identified with the as Judge ment Assistant Solicitor George A. Warren wrote in responsibilities. Various classes and types of government employees association’s founding era. Witten. the Federal Bar Association Journal in April 1940, on Throughout his the occasion of the FBA’s twentieth anniversary. “As career, Witten was a such, he took the helm, as it were, and steeredJanuary/February the 2020 • THE FEDERAL LAWYER • 33 vocal critic of what craft, then a small, frail one, between rocks and over he saw as the low shoals, into smoother waters.”

JAMES W. WITTEN

were to select one or more members to represent them at this commission; attorneys at the Department of the Interior selected Witten. Witten’s voice, at this time, was a rare shout of confidence for the federal lawyer. “The character and importance of the work demanded of the law service of our government cannot be overestimated,” he told the commission. Witten saw a need for a special association for federal attorneys. Government lawyers faced unique concerns and were scattered across the country so that state and local associations could not meet their needs. While at the conference on reclassification, Witten spoke with Alexander McCormick, a lawyer from the Navy Department, and many others who agreed with his point of view. It was from this meeting that the idea sprang for the creation of the FBA. During his presidency, he continued to challenge the government and the public to reward their legal public servants adequately. Today, the FBA carries on the tradition established by James Witten so many years ago by serving as the leading advocate for the federal attorney.

EARL W. KINTNER

“The bumblebee can’t fly! Aerodynamics can prove its body is too bulky for its wings. But the bumblebee doesn’t know it. So every dream of a man is haunted by the cry, ‘You know it can’t be done,’ and every step forward is made by minds that didn’t know … and did it.” Earl W. Kintner not only believed this “bumblebee philosophy,” but also exemplified the theory by example. Told on several occasions that his vision and goals for the FBA were not feasible, Kintner continued as though impossibility was never an option. After graduating from Indiana University School of Law, Kintner served as a prosecuting attorney in Princeton, Ind. He resigned his position to pursue service with the U.S. Navy until 1948. Kintner then found himself working with the Federal Trade Commission, and was appointed as chairman by President Dwight D. Eisenhower 11 years later. Following government service, he went into private practice, quickly establishing himself as a top authority in antitrust and trade regulation issues. Eventually, he became a senior partner in the Washington firm of Arent Fox Kintner Plotkin & Kahn. Louis Mehlinger rose from humble beginThroughout his career, Kintner considered his responsibilities to nings to tear down the walls of discriminauis September 27, 1948: At its annual dinner, May 2, 1949: At the suggestion of incoming his profession a top priority. This great sense of responsibility was tion. The son of an immigrant and former es the FBA announces plans for a new awards President James E. Palmer Jr., the FBA votes reflected in the commitment and dedication that he invested in the slave, Mehlinger was born in Union Point, eriprogram that will recognize three federal to require applicants for membership to FBA. The only member to serve two consecutive terms as presiLa., in 1882. After receiving a degree in FBA. attorneys for outstanding a statement thatand they are not a dent, Kintner sign personally sponsored avowing 1,032 members encouraged industrial education from Tougalooservice Collegein “the a surge in membership as it passed the 5,000 mark. Perhaps in Mississippi, he came to Washington to e is a actual performance of duties before member of the Communist Party orhis of “any greatest achievement—the accomplishment that everyone said was work as a clerk in the Treasury Department. the the courts.” organization that advocates overthrow of the not possible—was the construction of the Federal Bar Buildings at During World War I, Mehlinger was a captain in the Army, and ce. Government of the United States by force 1815 and then 1819 H Street NW. Along with this permanent home when the armistice was signed, he came home to study law at andcame violence.” for the association the formation of the Federal Bar Library Howard University. Upon graduating magna cum laude in 1921, he and National Lawyers Club. Earl W. Kintner’s dedication to the FBA became a clerk in the Department of Justice. After many years of has continued to inspire and motivate, proving, on more than one service, he was appointed senior attorney and argued cases in the HE HEADLINES HISTORIC EVENTS occasion, that the bumblebee does indeed fly. U.S. Court of Claims. Mehlinger was one of the founding members of the Washingal Bar Journal October 1, 1980: J. Clay Smith becomes the first Bar Association, which was incorporated in 1925. In 1930, deral Bar Newston & Journal African American national president of the FBA. ederal Lawyer when Howard University closed its night law program, Mehlinger the Robert H.1978” Terrell Law School. J. Clay Smith Jr. has never shied from “Theco-founded Contract Disputes Act of Mehlinger is best remembered his courageous and successful speaking his mind. He was the first Afriby Louis Spector, Trial Judge, U.S. Court offor Claims attempt to become the first African-American member of the FBA. can-American to be elected president of the (FBJ, 1980) In a 1979 interview with past FBA President J. Clay Smith Jr., MehFBA. He is also a respected historian, a linger said that he knew he was being used as a “guinea pig” to test former chair of the Equal Employment “Using Computers in Federal Trial Practice” the association’s white-only admittance policy in the early 1940s. The Opportunity Commission (EEOC), a by Lenore H. Cameron, Attorney, U.S. Department of National Council failed the test, rejecting Mehlinger’s application for professor of law at the Howard University Justice; Deputy Chairperson, FBA Council on Computers membership, but the subject was now up for debate. School of Law, a songwriter, and the author and Information Law (FBN&J, December 1981) The New York and Philadelphia Chapters threatened to secede of numerous court briefs and publications. “I’m a writer,” he says. “I unless a color-blind admissions policy was adopted. A special FBA believe that lawyers and leaders ought toAugust express themselves.” 945: 19, 1949: “Some Policy-Oriented Reflections on the AT&T civil rights committee was appointed to investigate the Mehlinger Smith says that his focus on the law began at an early age. “I arry S.Antitrust Settlement” President Truman case. This committee strongly advocated his admission before the always wanted to be a lawyer,” he says. Smith was born in Omaha, by Alan Pearce, independent consultant and former ts former appoints Clark to the National Council. Finally, in 1944, during the presidency of future Neb., in 1942. In 1960, the governor of Nebraska selected Smith to telecommunications policy adviser in the Executive Office t Tom C. Supreme Court Justice Tom C. Clark, Mehlinger’s application was Supreme Court as represent the state at President Eisenhower’s Conference on an Chilof the President, and Philip L. Verveer, Attorney, Pierson Attorney Associate Justice. approved, setting an early precedent among bar associations for dren and Youth in Washington, D.C. Smith returned to the district Ball & Dowd, and the government’s lead counsel in the antitrust investigation and prosecution color-blind admissions policies.of AT&T from to earn his law degree from Howard in 1967. Before his studies at l. 1973 to When 1977 (FBN&J, January 1982) Louis Mehlinger died in 1967 at the ripe old age of 104, Howard, Smith says, he had never had a black teacher in his life. September 1981: many realized what a debt of gratitude they owed this brave man. By After graduation, Smith began an 11-year career in the federal The monthly Federal taking a stand, he left a legacy not only for the FBA, but also to the government. He sought positions where he could have an impact on “Promoting the President’s Policies Through Bar News and the legal profession a whole. people’s Legal Advocacy — AnasEthical Imperative of the quarterly Federal Bar lives. “I did not believe that [government] was responsive

LOUIS MEHLINGER

DR. J. CLAY SMITH JR.

Government Attorney”

• January/February by Bruce Fein, General Counsel, Federal Communica34 • E. THE FEDERAL LAWYER 2020 tions Commission (FBN&J, September/October 1983)

Journal are combined into the Federal Bar News & Journal, which is published 10

)

to all people, but I thought that I could make a difference.” Smith served in the Army’s Judge Advocate General Corps during the Vietnam War. After working for three years in the antitrust section of the law firm of Arent Fox Kintner Plotkin and Kahn, Smith became the deputy chief of the Cable Television Bureau of the Federal Communications Commission. He would later serve as the commission’s associate general counsel. In 1978, President Jimmy Carter appointed Smith commissioner of the EEOC. He is proud of his tenure at the EEOC, during which he voted for the adoption of sexual harassment guidelines, a move he sees as especially important considering the recent attention the subject has received. In 1981, Smith took over as chair of the EEOC and became involved in a great struggle with the Reagan administration. “I ran the EEOC in probably the most critical period for civil rights in many years,” he says. When administration officials called for the removal of $124 million from the commission’s budget, Smith stood firm. Ultimately, Smith convinced the Office of Management and Budget to restore full funds to the EEOC. Smith was elected president of the FBA in 1981. He says that he is proud of several of the events that occurred during his presidency: women and minorities moved into leadership roles in several chapters, the FBA computerized its membership lists, and the Federal Bar News and Federal Bar Journal were combined to form the magazine format used by the FBA today. Smith also took positions for the FBA on public matters and said he was pleased to set a precedent for the association president to speak on broad issues. After leaving the EEOC in 1982, Smith became a law professor at Howard University. He served as dean of the Howard Law School from 1986 to 1988. Smith still has strong thoughts about government service. According to him, government lawyers should rise above partisanship. “They’re not there solely for a political agenda or for a [political] party or for a political ideology,” he says. Government lawyers are there “to push so that all the people in the country can benefit.” Smith believes that people in government service need to specialize, but they should also seek to diversify their lives by participating in professional organizations. “The best type of lawyer we can have in the government,” says Smith, “is one that is still professionally connected.”

MARGUERITE RAWALT

emale Marguerite Rawalt aspired to the presidency of the FBA at a time when not only the entire g her leadership was male but also nearly the entire n’s organization. Among a significant minority of nd, and law school graduates in the 1930s, Rawalt mmitfollowed in the footsteps of Allen, being ision endowed with the title of “first woman” more ureau times than she could count. hamFrom her days as a Texas farm girl, Rawalt developed a pioneernt of ing spirit that would drive her to become a nationally known lawyer ers as and leader in the fight to change the world for women. “In order to ss and Professional Women’s accomplish what she did during those nonfeminist years,” wrote be seated inJudith the American Peterson inBar her biography of Rawalt, Be Somebody, “Rawalt carved out a brand of leadership that was not always popular. she became r her entire Although 33-year career, anda skillful and compassionate negotiator, her superhuman drive, her to U.S. Army Air Corps Majoruncompromising commitment to ‘what is right’ prohibited two family memhe joined the FBA in 1935 and olunteering for committees.

and her goal-directed bootstrap style often met stubborn uncompromising resistance.” Rawalt far surpassed the limited expectations of women of her time. In 1929, Georgetown University refused to admit her to its law school solely because she was a woman. It was the first of many incidents in which she would be confronted with discrimination. After graduating from George Washington University Law School, she began work at the Bureau of Internal Revenue—the only woman among 30 newly appointed attorneys. To preserve her position at the bureau, her marriage to Maj. Harry Secord had to be kept secret. These sacrifices had their reward, however. When Rawalt retired from public service in 1965, she had attained the highest position that any woman had achieved within the bureau. After joining the FBA in 1935, Rawalt proved herself to be a definite asset to the association, recruiting new members, volunteering to serve on committees, and organizing luncheons and receptions. In spite of this obvious dedication, her decision in 1939 to run for the position of the third vice president was, to put it mildly, not well received. Seeking support in the hotly contested election that followed, the women of the FBA developed a network, individually seeking out male members who would agree to support Rawalt in her bid for national office. On May 2—while in New York celebrating the second anniversary of a marriage she would not make public for another year—Rawalt received a telegram from her supporters announcing her victory. After the election, there were the inevitable grumblings about a woman eventually being president of a national organization such as the FBA. Her opponent even went so far as to claim that, even though she was now on the leadership ladder, she could not become president because there was no precedent. With the encouragement in a telegram from her husband that said, “Do not be a quitter—follow thru with federal bar,” Rawalt stuck to her plans and, in 1943, became the first woman elected president of a national bar association composed of both men and women. Rawalt was remarkably successful in her term as president. Not only did she increase membership by 33 percent in a year when the country was at war, but she also organized a series of highly successful luncheons that attracted such notable speakers as First Lady Eleanor Roosevelt and Supreme Court Justice Harlan Fiske Stone. Following her term, Rawalt continued to be an active and productive member of the Federal Bar Foundation. Among her many FBA activities were helping to compile an earlier history of the association and serving on the Foundation of the FBA and the Federal Bar Building Corporation. Always a vigorous advocate for women’s rights, Rawalt was appointed by President John F. Kennedy to be a member of the Presidents Commission on the Status of Women, and was later re-appointed by President Lyndon B. Johnson in his succeeding Citizens Advisory Council on the Status of Women. She continued to inspire and lead other women of the FBA to brave frontiers, including Mollie Strum, another woman of firsts. 

January/February 2020 • THE FEDERAL LAWYER • 35

THE FEDERAL BAR ASSOCIATION PRESIDENTS PRESIDENT

YEARS

Christian K. Adams

2019-20

Robert C. Mueller

1997-98

Maria Z. Vathis

2018-19

Hon. Dana E. McDonald

1996-97

Kip T. Bollin

2017-18

Hon. Marvin H. Morse

1995-96

Hon. Michael J. Newman

2016-17

Alan C. Harnisch

1994-95

Mark K. Vincent

2015-16

Ellen M. Lazarus

1993-94

Matthew B. Moreland

2014-15

Malcolm W. Monroe*

1992-93

Hon. Gustavo A. Gelpi

2013-14

Alfred F. Belcuore

1991-92

Robert J. DeSousa

2012-13

Hon. Barry Russell

1990-91

Fern C. Bomchill

2011-12

Hon. William R. Robie*

1989-90

Ashley L. Belleau

2010-11

Richard J. Wieland*

1988-89

Lawrence R. Baca

2009-10

James T. Bland

1987-88

Juanita Sales Lee

2008-09

Stanley M. Fisher*

1986-87

James S. Richardson Sr.

2007-08

Gerald E. Gilbert

1985-86

William N. LaForge

2006-07

Joseph E. Ross*

1984-85

Robyn J. Spalter*

2005-06

Evan L. Hultman

1983-84

Thomas R. Schuck

2004-05

Paul G. Dembling*

1982-83

Joyce E. Kitchens

2003-04

W. Edwin Youngblood

1981-82

Kent S. Hofmeister

2002-03

Dr. J. Clay Smith Jr.*

1980-81

Russell A. Del Toro

2001-02

Thomas G. Lilly

1979-80

Robert A. McNew

2000-01

William G. Malone*

1978-79

Jackie A. Goff

1999-2000

John A. Knebel

1977-78

Adrienne A. Berry

1998-99

Richard E. Wiley

1976-77

36 • THE FEDERAL LAWYER • January/February 2020

Col. William R. Kenney*

1975-76

James E. Palmer Jr.*

1949-50

David H. Allard

1974-75

Charles Oliphant*

1948-49

Simon H. Trevas*

1973-74

Harold Lee*

1947-48

Richard G. Kleindienst*

1972-73

Heron L. Caudle*

1946-47

Normand Poirier*

1971-72

Robert H. Shields*

1945-46

A.S. Harzenstein*

1970-71

Hon. Tom C. Clark*

1944-45

Prof. Paul Treusch*

1969-70

Marguerite Rawalt*

1943-44

Cyril F. Brickfield*

1968-69

Robert W. Anderson*

1942-43

James Mcl. Henderson*

1967-68

William E. Reese*

1941-42

Paul H. Gantt*

1966-67

Heber H. Rice*

1940-41

Marshall C. Gardner*

1965-66

William N. Morell*

1939-40

Ramsey Clark

1964-65

Robert E. Freer*

1938-39

Conrad D. Philos*

1963-64

Horace Russell*

1937-38

Richard E. Lankford

1962-63

Justin Miller*

1935-37

John H. Grosvenor Jr.*

1961-62

Ralph G. Cornell*

1934-35

Thomas G. Meeker

1960-61

William A. Roberts*

1933-34

Whitney Gillilland*

1959-60

William R. Vallance*

1927-32

Earl W. Kintner*

1958-59

Charles W. Freeman*

1926-27

Laurence Axman*

1957-58

F. Clyde Baggarly*

1925-26

Earl W. Kintner*

1956-57

Thomas G. Shearman*

1924-25

Clarence A. Davis*

1955-56

F.C. Dozendorf*

1924-25

Hon. Stanley Barnes*

1954-55

Pickens Neagle*

1923-24

Bettin Stalling*

1953-54

William R. Vallance*

1922-23

Hon. William L. Ellis*

1952-53

David D. Caldwell*

1921-22

Frank J. Delany*

1951-52

James W. Witten*

1920-21

John A. Mclntyre*

1950-51 *deceased

January/February 2020 • THE FEDERAL LAWYER • 37

38 • THE FEDERAL LAWYER • January/February 2020

The Year of the Woman… President LEIA LEITNER

his past year, one of the Federal Bar Association’s (FBA) local chapters— FBA Orlando—celebrated an amazing achievement: For the first time in its history, the chapter had not just back-to-back women presidents, but back-to-back-to-back women presidents! Last year’s FBA Orlando president, Lauren Millcarek, took the baton from Tea Sisic, who took over from Kelly Garcia. Considering the chapter had only three other women presidents, having three in a row marked a seminal moment. That moment nicely coincided with FBA National President Maria Vathis’s term this year as the FBA’s 10th woman president in its century-long history.

Why is this moment an “achievement,” an important milestone to reach? Hopefully, it marks a sea change. When it comes to gender and bar leadership, we are closer than ever before to bridging the gap between gender disparities—but because women’s bar presidencies can still be measured by the handful, it still feels important for us to celebrate the occasion. As Pamela Roberts, chair of the American Bar Association (ABA) Commission on Women in the Profession, stated, “I’ve found that in many respects, bar associations and the organized bar might be a bit more open to women in leadership. That doesn’t mean [women] are there yet.” She went on to state, “While some pipelines are established and making good headway, there are also pockets that

are not.” The challenge is not only to maintain and build on that momentum in associations that do have established pipelines, but also to spread the gender-equality gospel to other bars, law firms, and organizations where such equality between men and women does not fully exist. While obstacles remain, the FBA is one of those voluntary bar organizations that has provided better networking opportunities to establish and dedicate opportunities for women lawyers, allowing them to thrive in leadership. The intent and hope is that by celebrating today’s successes, we provide the foundation for tomorrow’s more diverse bar and legal community leadership. As Vathis poignantly pointed out in a discussion regarding gender disparities in the legal profession during International Women’s Day (March 8): As lawyers, men and women alike, we have a unique and essential role to play in empowering the women and girls of the world—which is not only the right thing to do, but also the smart thing to do. Empowering women and girls has a well-documented “multiplier effect” on society, with the potential to transform the global economy. A recent study by the McKinsey Global Institute found that, in a scenario where women and men play identical roles in labor markets, as much as $28 trillion would be added to global annual GDP by 2025. As a female bar association leader, I am proud that the FBA has long recognized that strength lies in diversity and that the law is a potent force for change. As the FBA marks InternaJanuary/February 2020 • THE FEDERAL LAWYER • 39

tional Women’s Day, we rededicate ourselves to the values of diversity, equality, and justice for all. In light of this important moment in our bar’s history, we asked these women presidents to reflect on their terms in leadership, their challenges and victories, and how they are paving the way for the next generation. Their answers are below.

Maria Vathis

FBA President, 2018-2019 The FBA’s 2018-2019 president, Maria Vathis, is of counsel to Bryan Cave Leighton Paisner, where she practices complex business litigation and consumer financial services litigation. She has proudly served the FBA since the start of her legal career in 2002. This includes serving as a board member from 2012-2015; serving two terms as one of the vice presidents of the Seventh Circuit; chairing the National Essay Contest for the last two years; chairing the Audit Committee and Convention Committee; and being an active member of the Second Annual Women in the Law Planning Committee, the Nominations and Elections Committee, the 100-Year Anniversary Planning Committee, the Bench/Bar Committee, and the Task Force on Conventions. She is also chairing the Social Events Committee for the 100-Year Anniversary Celebration.

Q: Why is it important to you to involve women in leadership roles in the FBA? A: The FBA is forward-thinking when it comes to diversity and inclusion, so I think that the composition of our leadership should reflect that. Being inclusive brings strength and balance to our organization. I am incredibly proud and grateful to the FBA members for the amazing opportunity to lead such an esteemed and accomplished group of professionals. I am only the 10th female FBA president in the 100 years that the organization has existed. I am grateful to my mentors, friends, and supporters over the years who made this possible. There is a place for everyone in the FBA, and women make great leaders! As a female attorney and national bar association leader, I believe that it is important to mentor young women in the legal community and beyond. During my term as FBA president, I have had young women from different parts of the world see social media posts from the FBA and contact me to tell me that they view me as a role model and inspiration because I hold a national leadership position at a relatively young age. I will never forget those messages, and it has forever changed my perspective. I learned that there are different ways to be a mentor—from up close or from afar.

Q: What legacy do you hope you left as the 10th woman president of the FBA? A: One of my initiatives this year was to focus on health, wellness, and civility. Statistics show that lawyers experience high levels of stress, depression, and anxiety. Lawyers often suffer from stress-related illnesses, and lawyers frequently deal with incivility. Focusing on health and wellness can help alleviate these issues. During my term as national president, we offered fitness classes at our conferences, 40 • THE FEDERAL LAWYER • January/February 2020

including yoga, 5K runs, and Jazzercise. We also provided healthy food options at our conferences. In addition, the Senior Lawyers Division launched a webinar series on attorney wellness. I am pleased to see that the organization will continue to have a permanent focus on health, wellness, and the importance of civility. In addition, we are focused on celebrating the achievements of women in the law and the importance of diversity and inclusion. We also continue to focus on civics education and have made great strides in educating students about the third branch of government. To combine those efforts, next years’ national essay contest topic will focus on voting in honor of the 100th anniversary of the Nineteenth Amendment, which gave many women the right to vote. More details to come!

Q: How did you get involved with the FBA? What advice would you give to other women lawyers who hope to become leaders in the FBA? A: I joined the board of the Chicago Chapter of the FBA when I was a brand-new attorney. My colleague was an officer, and she strongly encouraged me to join and become involved because the board was looking for younger members. As the years passed, I eventually became an officer of the Chicago Chapter and then became chapter president. Once I finished my presidency with the local chapter, I got involved at the national level by joining the national board of directors and as a Seventh Circuit vice president. I also participated in our annual Capitol Hill Day, during which we meet with lawmakers to lobby for various issues, and I also chaired numerous committees at the national level. After several years of being active at the national level, I was successful in becoming an officer. While I have enjoyed all of my time in the FBA, my year as national president has been special. I truly enjoyed visiting different FBA chapters all around the nation, speaking at conferences and events, and meeting our members. My advice to female attorneys who would like to become FBA leaders is the same as my advice to female attorneys in general, which is to work hard and to remember to ask for what you want, whether it’s a position in an organization, a promotion, or business from clients.

Q: What’s the best leadership lesson you’ve learned in your career? A: Plan in advance, but make sure that you remain flexible, because inevitably, there will be a few curveballs!

Lauren Millcarek

FBA Orlando President, 2018-2019 Lauren Millcarek is a federal litigator at Shutts & Bowen LLP, where she focuses her practice on complex business litigation and cyber-assisted fraud. Millcarek is an active member of the Orlando legal community, serving as chair of the Grievance Committee of the Middle District of Florida, Orlando Division; as treasurer of the Central Florida Association for Women Lawyers; and now as the national delegate of the Orlando Chapter to the national FBA. She served as FBA Orlando’s youngest chapter president ever and its sixth woman president from 2018-2019. Prior to entering private practice, Millcarek served as a federal judicial law clerk to Hon. Roy B. “Skip” Dalton Jr.,

alongside her predecessor and good friend Tea Sisic. Millcarek first became involved with FBA Orlando during her clerkship.

Q: What was your biggest challenge during your term? A: One of the biggest challenges during my term was that I left the law firm where I had worked for nearly five years to move to a new firm. Changing jobs mid-presidency was not an easy decision to make, nor was it easy to carry out. However, I had a great example in my predecessor, friend, and former colleague Tea Sisic. She had also made the decision to change jobs and move during her term—a big upheaval to her life that was really brave, and something she did to make herself and her family happier. I learned from her example of empowering her board members to lead by encouraging those around you to lead. If I had tried to do everything myself and micromanage my board, I never would have survived that difficult job transition. I knew that, with Tea’s example before me as inspiration, I could make that scary, important leap with the strong support of my board members and my trust in their abilities. So, the challenge turned out to be a great lesson—and my life is much better for it.

Q: What was your favorite moment during your term? A: My favorite moment during my term was the first moment! I was sworn in as president by my mentor and former boss, Judge Dalton. He swore me into the Florida Bar at the beginning of my career, so having him swear me into my presidency was such a lovely, full-circle moment. Tea flew in from California to pass the gavel to me. I happened to have several close friends who were serving as presidents of other local voluntary bar organizations—they all turned up to support me. There have been many amazing moments during my term, but looking out into the crowd to see a packed house of friends, colleagues, and judges, while repeating the words of the oath of office spoken by my beloved mentor, Judge Dalton, is a moment I will remember for the rest of my life.

Q: What legacy do you hope to leave FBA Orlando? A: The theme of my year was “FBA is your access.” Having practiced in federal court for my entire career, I know that the federal bar is an incredibly small, tight-knit community. This can be wonderful in many ways, but it can also be insular, leaving some practitioners feeling isolated and intimidated coming into federal court; I wanted to change that perception. To flesh out this theme into action, I set three major goals for my term: (1) to increase the diversity of our board and our membership in order to make everyone feel comfortable and included in the federal bar community; (2) to increase our focus on new and young federal lawyers to prepare them better to enter federal court; and (3) to further cement our partnerships with other local voluntary bar organizations and to make FBA Orlando more visible in the community, in order to make federal court feel more accessible and make our FBA members a more integral part of our larger bar. I am thrilled to report that we achieved all of these goals during my term. We slated and elected the most diverse board of directors we have ever had, with people of different races, genders, ethnicities, orientations, ages, and practice areas. I appointed a Diversity Committee for the first time in our chapter’s history, headed by Lakisha Davis, and our committee participated in events targeted toward increasing diversity and inclusion in our local bar. I also appointed a Young Lawyers Committee for the first time, to back our long-running position of Young Lawyers director on the

board; this year’s Young Lawyers’ director was Dustin Mauser-Claasen, and he and his team did a phenomenal job. We held numerous programs this year targeted to young lawyers: We partnered with our local Young Lawyers Section of the Orange County Bar Association to hold our second annual Federal Practice for the Occasional Federal Practitioner seminar (a program that I created and chaired in its inaugural year in 2018), which garnered over 100 attendees. We started student chapters at both of our local law schools and held events there benefiting students. We also became an affiliate of the Florida Bar’s Young Lawyers Division (YLD) for the first time and received grant money from the bar to hold a health and wellness event in conjunction with the YLD’s statewide initiative. We also continued our strong partnership with other local voluntary bar organizations, joining with them on multiple programs, and hired a community outreach coordinator to assist in putting on more programming targeted to the public and to liaise with the court and the larger bar. Finally, we increased our visibility within the bar by launching a weekly newsletter and a daily social media presence; my communications director, Leia Leitner, has done an incredible job of getting the word out on Facebook, Instagram, and Twitter about our programming, and we have been reposted often by FBA National and the Florida Bar. I am so proud of my team for showing that FBA Orlando truly is our members’ access point for training, education, and networking, and I know President-Elect Colin Baker will continue this legacy.

Q: You are the youngest FBA Orlando president ever and only the sixth woman president in the chapter’s nearly half-century history. What advice would you give to other young women lawyers who want to follow in your footsteps? A: Women have made so much progress in the profession, but we also have so much further to go. When I was in law school, I heard the stories of women lawyers and professors who spoke of being mistaken for the secretary or the court reporter, who had opposing counsel call them “sweetie” in court or depositions, and who were spoken over by male colleagues in meetings and on conference calls. Unfortunately, I too have experienced all of those things—millennials are not immune from the gender-based discrimination that plagued earlier generations. However, we are so much more aware of these things now. There are CLEs about #MeToo and impostor syndrome and how to negotiate your salary. My advice would be not to let it take you by surprise: There is still sexism in this profession. You will experience it. But we have so many more options as to how to handle it now. Use your voice. Here’s what I tell the young women associates I mentor: 1. Always ask for $20,000 more than you think you’ll get. Seriously. Just ask. 2. Find women mentors—but also find men who will mentor you and lift you up. 3. Find the partners who will acknowledge to the client that you were the one who did the work. Find the ones who will tell the judge that you wrote the motion and will let you argue it. They exist! 4. Find a work environment that is sustainable for the kind of life you want to have, whatever life that is—they also exist! 5. Get a therapist, get a gym membership, and get a meditation app. Actually use all three. Don’t wait until you are exhausted and burnt out to take care of yourself! January/February 2020 • THE FEDERAL LAWYER • 41

Tea Sisic

FBA Orlando President, 2017-2018 Tea Sisic serves as in-house counsel at Hired, Inc., in California. Previously, she was in private practice in Florida, practicing labor and employment litigation and business litigation. Prior to her work in private practice, she served as a federal judicial law clerk to Hon. Anne C. Conway and Hon. Roy B. Dalton Jr. Sisic has been involved with the FBA since law school. She first started serving on the board of FBA Orlando following her clerkships, and served as president of the Orlando Chapter from 2017–2018.

Q: What advice can you give women on balancing career and family life? A: I am reticent to give any woman advice on balancing her family and career life because what may work for one of us may not work for the other. The important thing is that we are allowed the flexibility to choose for ourselves what that balance may look like. On some days, it may mean missing your daughter’s school performance to attend a long-anticipated product launch at your company, and on others, it may mean you are missing an important policy-setting meeting with one of the executives because you chose to attend your son’s Mother’s Day breakfast. What matters is that a woman is not punished for either choice and that it is hers and only hers to make. I am lucky to be at the stage of my career where I have finally struck the right balance for my family, my employer, and me. That is all I can wish for all of us working mothers out there. Q: What have you sacrificed (both personally and professionally) at each stage of your career? A: Each stage of my career presented challenges one would normally expect with new beginnings—they are tough, but also exciting and hopeful. I try—though many a time early in my career I failed—to keep things in perspective and to remember that I do not need to have everything and all at the same time. I am finding it much easier now to do that and to enjoy my life and my career, stage by stage, day by day. Q: What were your biggest struggles balancing family and a bar leadership role with the FBA? A: I was seven months pregnant with my second child when I took office in 2017. I have to give a major shoutout to my predecessor, Kelly Garcia, who nominated me to be her president-elect knowing I was about to have my hands full (times two). When she and I talked about plans for her presidency and her board, she never once asked me whether I could handle it or if it would be the right decision for my family. She simply said that, given my experience and past service on the board, I was the best person for the job. That meant the world to me. Nevertheless, feelings of self-doubt were a constant noise and difficult to ignore, and the question, “Should I accept this?” crossed my mind more times than I would like to admit. But I kept thinking about the sacrifices my parents made when they immigrated to the United States 17 years earlier from war-ravaged Bosnia and about my then 2-year-old daughter who will undoubtedly have her own doubts about her abilities one day. I wanted to make my parents proud, and I wanted to be able to tell my daughter with conviction that she can do 42 • THE FEDERAL LAWYER • January/February 2020

whatever her little heart desires. So, the biggest struggle for me was actually getting to the “yes” to serving as president of the Orlando Chapter. Once that was out of the way, I was able to focus on achieving my goals, choosing the best board our local chapter has ever had, and planning for my absence with the help of my president-elect and my dear friend, Lauren Millcarek.

Q: What were some of your goals as your time as president of FBA Orlando? A: I had four overarching goals that I wanted to empower my board to accomplish: community outreach, strengthening and expanding partnerships with other local bar associations, balancing our budget for the first time in our then 46-year chapter history, and enlarging our board. I could not be more proud to share that we accomplished all of our goals with amazing results: We raised funds for our local shelter for the homeless and underprivileged, as well as for relief efforts in Puerto Rico following Hurricanes Irma and Maria; we partnered with six other local bar associations to bring our members amazing speakers, such as Congressman Darren Soto, Hon. Shira Scheindlin of New York, then-president of the American Bar Association Hilarie Bass, and FBA national president Maria Vathis. We accomplished an 11 percent year-over-year growth after we balanced our budget, and by enlarging the board to add at-large board members, we allowed more members to become actively involved, chair FBA events, and build their resumes for future executive board positions. None of this would have happened without the unwavering commitment of my board and our executive director, Jessica Strong. While I was on maternity leave, Lauren and Jess took the oar with enthusiasm and full support of my agenda. It meant so much to me that I had strategic partners in them and each of the members of the executive team. So many stepped up and chaired their own events, and so many jumped in wherever and whenever needed. I truly believe that leadership is not about the leader at all, and my board was a true testament to that. We also have an invaluable partner, supporter, cheerleader, and mentor in our federal bench and court staff. All of our events held at the federal courthouse are met with huge success, and that is only because of them. From meeting with federal bar leaders across the country, I know this is rare and truly special, so I want to thank them for all that they do.

Q: Do you have mentors? If so, what’s one core message you received from your mentors? A: Of course I do! I owe everything I have accomplished in my career—and partly in my personal life, as well—to my mentors. There are some people who simply enter your lives and change it for the better for good. For me, these are Hon. Anne C. Conway and Hon. Roy B. Dalton Jr. I am beyond grateful for the love, support, mentorship, friendship, and family I have gained from and in them. If I had to choose core messages they’ve shared with me, they would be that: (1) I am smart enough and good enough; and (2) I do not need to know everything, but I am capable of and should always be open to learning new things. To a young, wide-eyed Bosnian-American woman finding her place in this world, these words and the conviction with which they were said have been instrumental in the pursuit of my dreams.

Kelly J.H. Garcia

FBA Orlando President, 2016-2017 Kelly Garcia is a shareholder at Gray Robinson, where she focuses her practice on litigating complex business disputes, ERISA benefits matters, and appeals in state and federal courts. Garcia served as an active member of the Orlando Chapter’s board from 2013-2018, and as chapter president from 2016-2017. While serving as the president-elect, Garcia participated in the FBA’s Capitol Hill Day and met with several of Florida’s congressional staff as well as Sen. Bill Nelson. During her presidency, Garcia and the Orlando Chapter collaborated with Community Legal Services of Mid-Florida to initiate the pro se clinic services held at the Orlando Division Courthouse. Garcia also served as the Civics Outreach liaison between the Orlando Chapter and FBA National from 2017-2018.

Q: What are some traits you think great leaders possess? A: Listening to the membership and working cohesively as a team are fundamental traits of a great leader. I believe that leading through consensus builds a stronger group.

Q: What woman inspires you and why? A: Justice Ruth Bader Ginsburg. Because of her courage in pioneering gender equality, her incredible work ethic, and her dedication

not only to the rule of law, but also to how the rule of law impacts real people. I could go on for pages; she is such an incredible and amazing person.

Q: What are some strategies that can help women achieve more prominent roles in voluntary bar leadership? A: The recruitment, encouragement, and mentoring of other women into these roles is essential. You cannot simply say it; you must do it.

Q: What do you think is the most significant barrier to women in bar leadership? A: Breaking through the continued societal belief that men are the natural choice for leading an organization. Men in management roles have long held and fostered the networking connections and relationships that women generally are just learning to develop. Finding a way to change the societal mindset so that strong women are not viewed as aberrations is the hurdle we must overcome.

Q: What advice would you give to the next generation of female leaders? A: Support, encourage, and mentor other women. Women in leadership must reject the notion that helping another woman somehow makes either of them look weak. Women supporting women is not gender-bias or favoritism, but rather a proactive movement toward leveling the playing field. 

S I G N AT U R E R E S O LU T I O N .C O M

January/February 2020 • THE FEDERAL LAWYER • 43

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THE FEDERAL LAWYER:

THEN AND NOW

ublication of the Federal Bar Journal began in September 1931, ostensibly as a semiannual review of federal legal problems. At that time, the journal served principally as a permanent historical record of speeches made at various functions of the association, as a place to publish reports by the FBA delegate to the ABA, and as a forum for papers and addresses by FBA members at assemblies of other institutions. Since the first issue was released eight or nine months after the beginning of the fiscal year, the journal afforded little opportunity for communicating chapter and association programs, special events announcements, or general news items. To address this need for timely communication, the association initiated the publication of the Federal Bar News in October 1940. In 1944, the editor—who for years was also the fourth vice president of the association—introduced the concept of abstracting recent court decisions and administrative rulings of particular import. These sections now comprise the most read columns of the contemporary journal. The annual meeting report for 1944 announced that the ambition of the FBA leadership included developing the journal “into an authoritative publication in administrative law, commensurate with and truly representative of the rich field of potential material which is the daily experience of its membership who are engaged in the many phases of governmental law.” The Federal Bar Journal continued as a substantive forum for the membership, and, beginning in October 1944, was published as a quarterly review. Many of the back issues make fascinating reading, but the January-March 1954 issue is of particular interest. It includes a foreword by then Vice President Richard M. Nixon, which proved prophetic in more ways than one. It begins: “The Federal Bar Association is rendering a significant service to the nation by compiling M

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and publishing a series of articles on the conduct of congressional investigations.” “As one who has been a member of congressional investigating committees in both the House and Senate,” Nixon wrote, “I know from experience the necessary and important contribution congressional investigations have made in the past and can make in the future both in the field of legislation and in carrying out the vitally important function of informing the public on national issues. I am also convinced that the most effective congressional investigations are those which are conducted with proper rules of procedure which recognize and protect the rights of witnesses before the committees.” The journal continued primarily to publish articles dealing with phases of the federal administrative process, reflecting as well the dynamic events happening in the federal arena that took place during that time. Reading the journal from the 1930s, for example, you can sense the excitement caused by the establishment and operation of government agencies in areas not before undertaken, the apprehenJanuary/February 2020 • THE FEDERAL LAWYER • 45

sion of many attorneys of the problems attendant to the growth of administrative law, and the struggle both to formulate the problems produced by new fields of law and to resolve those problems effectively. Not surprisingly, the journal also reveals the tumult of the war years and the new complexity in federal practice, especially in the procurement field, which developed in the post-war years. At the same time, the Federal Bar News began leaning toward publication of works on both professional and substantive issues. For example, in July 1956, “The Editor’s Yak” column included the following reflections: “There is a tradition that part of a lawyer’s time should be devoted to improving his profession and the social and political life of his community. But there are still too many lawyers who aid neither their profession nor public affairs—at least, outside of the narrow confines of their remunerated work…” “To commemorate the increasing unity and effectiveness of the profession, the News will make the central theme of two future issues ‘The Lawyer in Private Practice,’ and ‘The Government Lawyer.’ Short contributions on related subjects are solicited.” Initially, the Federal Bar News was printed in a two-column format of announcements. Within a couple of years, however, it resembled a lean newspaper. Later, it took the form of a magazine. In 1957, for example, the February issue was forty pages and was dedicated entirely to law schools and law professors. In 1958, the editor explained to the National Council that the primary purpose of the Federal Bar News was to present the activities of the association’s committees, chapters, members, and other events of interest, but that it also contained lead articles and columns, like newspapers do. Even then, there was some question as to the competition between the two publications, although the Federal Bar News editor rationalized that the emphasis of his publication was on shorter articles,

without footnotes, and “with a light theme and style.” It is surprising, nevertheless, that the merger of the Federal Bar News with The Federal Bar Journal did not occur until 1981, when the Federal Bar News & Journal finally came into being. As its name suggested, the new publication combined the attributes of both its predecessors; it contained both news of the association and its members, as well as scholarly articles on issues of substantive law. Published 11, and then 10 times per year, it was organized by theme, with three to five articles proffered by an association section sponsoring the issue in that section’s area of concentration, and one or two non-theme articles, as well. In recent years, however, with more and more FBA members writing on legal issues of particular concern to the author, two issues per year have been comprised entirely of non-theme work. In 1995, the publication took another leap forward, becoming The Federal Lawyer. The focus shifted from the scholarly to the newsworthy, from several articles per issue with in-depth treatment focused on one topic to articles of shorter length on contemporary legal topics. For the last 25 years, The Federal Lawyer has continued to cover the nation’s most important discussions, like Obamacare, LGBT Rights, Intellectual Property, and the rise of new technologies. As members continue to make great strides in federal practice, The Federal Lawyer is there to document it. Keeping ahead of the curve, the FBA created an archive of past issues of The Federal Lawyer so that members could go back and read their favorite stories. A judicial profile index was also created as a resource for members to go to learn about judges. In the last 100 years, as the FBA’s membership diversified, so did the publication that serves it. 

WRITE A BOOK REVIEW TO BE FEATURED IN THE FEDERAL LAWYER The Federal Lawyer encourages book review submissions. Writer’s guidelines are available online at www.fedbar.org/ TFLwritersguidelines. Email tfl@fedbar.org with book suggestions or questions regarding your submission today.

46 • THE FEDERAL LAWYER • January/February 2020

Notice of Elections for FY2021

2020 Nominations and Elections Committee Christian K. Adams President and Chair W. West Allen President-elect Maria Z. Vathis Immediate Past President David A. Goodwin Circuit Vice President Oliver Alan Ruiz III Circuit Vice President Marissa Rensen Section Chair Hon. Michael J. Newman Division Chair Claire Wong Black Chapter Representative Joseph G. Feldstein Chapter Representative Pursuant to Bylaw 8, Sec. A1, the Nominations and Elections Committee is responsible for administering the procedures applicable to nomination and election of national officers of the Association during the annual election as prescribed in Article V, Section 3, of the Constitution and Bylaw 6. The Committee shall be composed of the President, who shall chair the Committee; President-elect; immediate past-President; two Vice Presidents for the Circuit designated by the President; a Division chairperson designated by the President-elect; a Section Chairperson designated by the President, and two Professional Chapter representatives designated by the President-elect.

The Nominations and Elections Committee (Committee) hereby gives notice that there will be an election for the following officers of the association for the fiscal year beginning October 1, 2020: President-elect; Treasurer; one Director who is a past or present Vice President for the Circuits; one Director who is a past or present Section or Division Chair; one Director who is a past or present chapter president; one Director who is, at the time of his or her election to the Board, age 40 years or younger, and one Vice President for each of the 12 circuits. Please review specific qualifications for each position at www.fedbar.org/qualifications. All officers will assume their elected position on October 1, 2020, and serve the following terms: President-elect and Treasurer, one year; four Directors, three years; and Vice Presidents for the Circuits, two years. The incumbent President-elect will automatically succeed the incumbent President on October 1, 2020. Under Article V, Section 3 of the FBA Constitution, there are two ways for members to be listed on the ballot: • By nomination of the Nominations and Elections Committee; or • By petition: (1) a candidate for national office must be endorsed by not less than fifty members in good standing; and (2) a candidate for Vice President for Circuit must be endorsed by not less than twenty members in good standing of chapters and/or members at large in that particular circuit. Under Article V, Section 2 of the FBA Constitution, all members of the association at the time of nomination, whose dues are paid for the current fiscal year and who otherwise are in good standing, and meet all other qualifications, as may be required by the Constitution, Bylaws, and policies of the Association, shall be eligible as candidates for any elective office (including directors). The FBA welcomes and encourages diverse individuals to apply for leadership positions. Nominations Members interested in being nominated for office by the Committee shall complete and submit the FBA Application for National Office along with an electronic resume and photo to Christian K. Adams, Chair of the Nominations and Elections Committee, at elections@fedbar.org, to be received by February 1, 2020. The Committee shall require, at a minimum, that each candidate provide her/his name; place of professional practice (firm, office, court, agency or other); preferred mailing address; contact telephone number; facsimile number; e-mail address; date of FBA membership; and the title of the office sought. Also, the Application shall provide space for a candidate to provide a biographical sketch of his/ her qualifications for the office that should include 1) why he or she is seeking national office (2) a description of the candidate’s FBA activities and leadership positions; (3) professional experience and awards received; (4) other volunteer activities; (5) what is one significant issue facing the FBA

and, as a leader, how would you address the issue? The biographical statement is limited to one page electronic document no larger than 8.5”X11” using 12-point font. By February 28, 2020, the Committee shall nominate one or more members in good standing for each of the elective offices becoming vacant for the coming term. By April 1, 2020, the Committee shall cause to be mailed or electronically sent to each member in good standing—either in The Federal Lawyer or otherwise—notice of the upcoming annual election and of the offices to be filled therein; of the Committee’s nominations for those offices; and the manner and time by which nominations of candidates may be made by petition as provided in Article V, Section 3.b. of the Constitution and Bylaw 6(C). Petitions Members who have not been nominated for office by the Committee, but who wish to be placed on the ballot for national office, may do so by delivering to Christian K. Adams, Chair of the Nominations and Elections Committee, at elections@fedbar.org, a petition, including an Application, specifying the office being sought and bearing the required number of signatures indicated previously. Petitions must be received by April 25, 2020. Election In accordance with Bylaw 6(D), by June 15, 2020, the Committee shall cause a Notice of Election to be mailed or transmitted electronically to each member of the Association in good standing. The notice shall list the names of all nominated candidates and candidates by petition in alphabetical order under each elective office. The notice also shall contain such instructions as necessary for members to cast their votes as prescribed by policy adopted by the Board of Directors. Completed ballots shall be received by the Chair of the Committee or by such person as designated by the Chair no later than June 30, 2020. The Committee shall review and certify the tabulated votes and report as elected the candidate for each office who has received a plurality of the votes cast for that office by July 1, 2020. In the event that any deadline herein specified is a Saturday, Sunday, or legal federal holiday, the next succeeding business day shall substitute for that specific deadline.

48 • THE FEDERAL LAWYER • January/February 2020

MOVIN’ ON UP

s early as the 1930s, the Federal Bar Association had hopes of funding the construction of a permanent headquarters building. In those early years, however, money was scarce, due in large part to such gigantic social upheavals as the Great Depression and two world wars. When only $2,000 had been collected over a 20-year period, the idea was abandoned. It was revived briefly in 1950 under the leadership of FBA President Frank Delany, who created the Committee on a Permanent Home. It was not until Earl W. Kintner was elected president in 1956 that the dream of constructing a central building to house the association started down the road to reality. The first phase of Kintner’s plan was set in motion on Dec. 2, 1958, with the incorporation of the Federal Bar Building Corporation. The sole purpose of this new affiliated organization was to find a way to construct a national headquarters in Washington without initial cost to the association. “I find keen, almost unanimous interest among our members in the proposed building,” wrote Kintner in his March 1959 president’s message. “With the help of many, many others, I intend to do everything within my ability to advance this project to reality this year. It is right; it is sound; it is good for our Association and we will have it if humanly possible.” It was with this type of dogged determination that the Building

Corporation approached its task. Private firms were contacted to gauge the level of interest within the Washington legal community, resulting in initial commitments for approximately 100,000 square feet of rental space. With enthusiasm running high, a proposal for construction of a 10-story building on K Street between 13th and 14th Streets, NW was submitted and subsequently approved by the National Council in November 1958. Then disaster struck. The association lost its tentative written commitment for a first mortgage, 100-percent cost of construction loan on the original building. “The straw that broke the camel’s back,” wrote Kintner in early 1959, “was a false report that … Federal Bar Association was a poor credit risk and owed bills all over Washington. It mattered little that the Association in nearly 40 years had not defaulted on an obligation, that it then had over $25,000 in the bank, and that it had for years paid its bills every two weeks. The damage was done.” Kintner would not let go of his dream. He began searching further for sources of capital and worked to propose an alternative plan for constructing a building to Henry Glassie, a recognized expert in building financing, mortgage loans, and real estate law. When he was asked by the membership in May 1959 where the association stood with regard to the building project, Kintner was glad to report, “We have signed two preliminary contracts which will provide full financing of a 12-story building on a sale, lease back, and option to buy in 10 years basis. Our most able Board is working as a team to complete the other transactions.” On April 14, 1960, wreckers began to demolish the buildings that stood on the property of 1815 H Street, NW, the future site of the FBA headquarters building. An overflow crowd turned out on June 30, 1960, to hear Chief Justice Earl Warren speak at the groundJanuary/February 2020 • THE FEDERAL LAWYER • 49

breaking ceremony for the Federal Bar Building. District of Columbia Commissioner Robert McLaughlin proclaimed the day “Federal Bar Association Day”—and a special day it was for Earl Kintner as he watched his vision take shape. On Jan. 12, 1962, dedication ceremonies for the Federal Bar Building were held in front of 1815 H Street. Chief Justice Earl Warren officiated, while Attorney General Robert Kennedy, the principal speaker for the event, braved the bitter temperatures to stand at the outdoor podium, despite the fact that he had not brought an overcoat. The headquarters’ sister building was commissioned in 1965 and erected at 1819 H Street. The centerpiece of the building, and Kintner’s brainchild, was the National Lawyers Club, an inexpensive social center serving both local and visiting attorneys. Formal dining facilities were coupled with private rooms for client and committee meetings. Other services included a public stenographer and dictating machines, phone message service, rooms for showering and changing clothes, and a reservation service for hotel and travel arrangements. The idea was obviously a good one. By March 1961, more than 1,200 applications for membership in the National Lawyers Club had been received, with dozens more coming in each day. Many law firms and corporate law departments joined as units. At one time, club memberships were representative of 49 states plus Italy, Spain, and Puerto Rico. In a July 1961 interview for Federal Bar News, one of the editors asked if he could have a drink while touring the almost-completed building to help combat the sweltering 90-degree temperatures. Kintner jokingly told him that he should wait and have the drink in the Lawyers Club, which was scheduled to open in September. The National Lawyers Club was formally dedicated on Oct. 6, 1961, by Supreme Court Justice and former FBA President Tom C. 50 • THE FEDERAL LAWYER • January/February 2020

Clark; it opened for business in January 1962 following the dedication of the building. The club quickly became one of the premier places in Washington, where the movers and shakers of the legal community met for quick buffet lunches and more formal dinners on the terrace overlooking the park. The Lawyers Club remained in operation until spring 1992, when diminishing interest led to the doors closing for the last time. By 1998, the buildings on H Street were showing their age, and tenant occupancy was declining. The Federal Bar Building Corporation sold the property and purchased a five-story office townhouse at 2215 M Street, NW, just east of Georgetown, to serve as the new FBA headquarters. The staff moved into the new location in late 1998. The FBA enjoyed the new headquarters for nearly 10 years and saw neighborhood improvements like the addition of the Ritz-Carlton Residence and Hotel directly across the street. By the mid-2000s high operating expenses and anticipated shortfalls weighed heavy on the budget, and the Building Corporation sold the property in January 2007. The FBA staff moved to temporary offices in Arlington’s Crystal City area while a brand-new office condo was being built out in Clarendon, another Arlington neighborhood. Because the new space would be designed to fit the FBA’s needs, it would offer maximum functionality with minimum maintenance cost. By March 2008, staff occupied the FBA headquarters at 1220 North Fillmore Street and remains there today. Moving is a fact of life for people and businesses alike. No matter the location, the FBA has always endeavored to offer the highest service and benefits to its members, taking advantage of the opportunities to improve and grow with each move. The FBA’s next 100 years will no doubt continue this tradition! 

52 • THE FEDERAL LAWYER • January/February 2020

THE HISTORY OF THE FOUNDATION

he Foundation of the Federal Bar Association Outreach Project in April, the Thurgood Marshall Memorial Moot Court Competition, and The Ilene and Michael Shaw Awards for was chartered by Congress as a 501(c) Public Service. (3) organization in 1954. Its purpose is to procure funds that advance objectives Scholarships The Robert A. McNew Law Student Scholarship promotes the practice exclusive to the following educational, charitable, of federal law by awarding a $5,000 scholarship to a law student scientific, or literary purposes: • • • •

Promote and support legal research and education; Advance the science of jurisprudence; Facilitate the administration of justice; and Foster improvements in the practice of federal law. The Charter further explains this mission in detail:

• T o uphold high standards for the federal judiciary and for attorneys representing the government of the United States; • To promote and improve the administration of justice, including the study of means for the improved handling of the legal business of the several federal departments and establishments; • To facilitate the cultivation and diffusion of knowledge and understanding of the law and the promotion of the study of the law and the science of jurisprudence and research therein, through the maintenance of a law library, the establishment of seminars, lectures, and studies devoted to the law, and the publications of addresses, essays, treatises, reports and other literary works by students, practitioners, and teachers of the law; • To provide for the acquisition, preservation, and exhibition of rare books and documents, sculptures, paintings, and other objects of art and historical interest relating to the law, the courts, and the legal profession; • To do any and all things necessary or incident to the accomplishment of the foregoing purposes. Through the years since its establishment, the Foundation has supported many programs and initiatives in its efforts to fulfill its mission, including two yearly $5,000 scholarships, Chapter Community Outreach and Diversity Grants, the annual National Community

attending an ABA-accredited law school. The scholarship recipient must be a current law student who is an FBA law student associate member in good standing. Applicants must exhibit professionalism and high character in their personal and professional lives as demonstrated in application materials. An award will be based on student participation in the FBA, law school, community activities, and academic achievement. The Kintner Public Service Scholarship is funded by the Earl W. Kintner Memorial Fund. Earl W. Kintner was a distinguished member of the FBA and two-time national president. His professional and civic leadership and dedication serve as a model to any aspiring academic. The Foundation provides a scholarship to a graduating high school senior planning to attend a four-year college or university. At least one of the parents (or guardians) of the student must be a current federal government attorney or federal judge and a member of the FBA. The $5,000 scholarship may be used for tuition, books, fees, or housing.

Community Outreach Chapter Community Outreach Grants provide funding to support community service or outreach projects that involve FBA chapter participation. Projects must address the need for legal services in the community or fall under any component of the Foundation’s mission. Diversity Grants support educational, community service, or outreach projects or programs with a diversity focus that involve FBA chapter, section, division, or member participation. Projects and programs must focus on the elimination of bias or the promotion of diversity, including race, gender, ethnicity, national origin, religion, age, sexual orientation, gender identity, disability, or any other unique attribute. January/February 2020 • THE FEDERAL LAWYER • 53

The National Community Outreach Project began in 2016 as a means to support civics-focused programs geared toward middle and high school students, with educational topics such as “Law Day,” “The Bench in your Backyard,” and “Schoolhouse to Courthouse.” The Minnesota Chapter Donor Advised Fund enables the Foundation to distribute funds to law schools and nonprofit organizations at the recommendation of the Minnesota Chapter. The fund’s objective is to enhance the availability of legal service, to support programs of law-related education, and to advance the administration of justice within the federal court system.

Research and Education The Foundation provides continuous support for research, programs, and education relating to the federal courts and federal jurisprudence. Funding and other support for analytical research and educational programs and activities is made on a broad range of subject matters, including the history and role of the federal court system and the judiciary, the structure and operation of the courts, the independence of the judiciary, federal jurisprudence, and the relevance of the rule of law to society. The Foundation provides annual financial support to the Thurgood Marshall Memorial Moot Court Competition, sponsored by the FBA’s Younger Lawyers Division. Law schools from all over the United States send teams to Washington, D.C., to compete for the honor of adding the school’s name to the champions trophy.

Awards and Recognition The Foundation funds the following FBA awards and recognition, through generous donations given specifically for these purposes: The Elaine R. “Boots” Fisher Award is intended to stimulate, encourage, and recognize exemplary community, public, and charitable service by members of the FBA. The Foundation makes an annual charitable contribution of $1,000 to an organization for which an FBA member has performed outstanding public service. The Ilene and Michael Shaw Public Service Award is designed to assist and encourage FBA chapters in providing service to their communities. The Foundation provides $5,000 in needed funds to continue worthwhile efforts and/or provides seed money to plan and implement public service programs. The Ilene and Michael Shaw Younger Lawyer Public Service Grant enables the Younger Lawyers Committee of an FBA chapter to provide service to the public through the development and implementation of public service projects and pro-bono law-related services. The $5,000 grant encourages an increased and continued commitment to public service responsibility by young lawyers. The Foundation is constantly searching for new and innovative ways to fulfill its mission. Now in our 66th year, we look forward to supporting members, chapters, sections, and divisions during the FBA’s next 100 years and beyond. 

44th Annual

TAX LAW CONFERENCE March 5-6, 2020

Ronald Reagan Building and International Trade Center 1300 Pennsylvania Avenue, NW Washington, D.C.

THURSDAY, MARCH 5 Noon

Registration Opens

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*Schedule subject to change. Please check the event webpage for up-to-date information.

Symposia Topics Include: • Domestic Corporate Tax

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With your support of the following programs and initiatives, the Foundation of the Federal Bar Association works toward our mission to •Promote and support legal research and education •Advance the science of jurisprudence

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45th Annual

INDIAN LAW CONFERENCE April 6-7, 2020 Sandia Resort • Albuquerque, NM

SERVING OUR TRIBAL NATIONS: BEST PRACTICES IN REPRESENTATION

www.fedbar.org/IndianLaw20 Join the FBA Indian Law Section for its 45th Annual Indian Law Conference as panelists examine how to best serve tribal nations. Returning to the basics and focusing on best practices can help improve tribal representation for those within this unique field of law. Perhaps more so now than at any other time in distant memory, tribal nations are waging battles to protect the most fundamental aspects of their sovereignty in this political climate. Over the course of this two-day conference, panelists will examine strategies, methods, and best practices for Indian law practitioners to better represent clients and tribal nations. Tribal leaders, attorneys, and advocates are encouraged to attend this collaborative annual event for CLE credit and networking.

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Book Reviews

some people do act freely—and that whether one does or does not act freely may result in significant legal consequences? If no one is ever free, then it is not intuitively clear what is special and deserving of protection about the insane or about those acting under duress. In many cases, those individuals’ mental conditions fade into the dark background like the feathers of a crow after nightfall. Christian List, a professor of philosophy and political science at the London School of Economics, believes that Harris’s hypothesis that individuals act without free will is simply wrong.

Philosophy Vocabulary for Lawyers

Why Free Will Is Real By Christian List Harvard University Press, Cambridge, MA 2019 215 pages, $24.95

Reviewed by Christopher C. Faille

Many ideas regarding “free will” lie near the heart of the philosophy of law. In fact, individuals who commit malfeasance upon others may be viewed as acting under duress, or as a consequence of a mental disease or defect, or to have lost the benefit of testamentary capacity. In any such case, many people intuitively and lawyers by training, consider that the individual under scrutiny may not have acted of his own free will, so his actions that follow should not have the same legal consequences as those invested with free will. But what is this free will? Neuroscientist and philosopher Sam Harris wrote recently: “Free will is an illusion. Our wills are not of our own making. Thoughts and intentions emerge from background causes of which we are unaware and over which we exert no conscious control. We do not have the freedom we think we have.” Is Harris right? If yes, how does this impact those fields of law that assert that

List assumes a secular view of the world and of the human species within it. Therefore, I will usher out of the room (with proper respect) the idea that we might each be an immortal soul conjoined for a time to a particular body, and that this immortal soul in pursuit of its salvation exerts will as a transcendent faculty from a place beyond all this matter-in-motion. Can we reason within naturalistic premises and still lay a foundation for the way the law regards us as fully responsible creatures? Let us define some terms. First: determinism. This is the notion, as List puts it, that “the past fully determines the future.” Therefore, if one knew everything there was to know about the universe seconds after the Big Bang and all of the laws of nature in operation then or since, one would know why I bet on one basketball team rather than another to win last Tuesday’s game, or why I have a gambling problem, and indeed whether I will be further in debt to my bookies next year than I am now. It all would be as inevitable as the arrival of the next hour in a mechanical clockwork and the sound of that cuckoo. Determinism can coexist perfectly with responsibility and indeed with freedom in any sense in which it figures into legal and social judgments. This brings us to our next key term: compatibilism. Some philosophers (including Daniel Dennett) deny that determinism raises any issue for moral or legal responsibility at all. The negation of compatibilism

58 • THE FEDERAL LAWYER • January/February 2020

is incompatibilism. Incompatibilism comes in at least two forms. Some incompatibilists argue that determinism and responsibility are incompatible—and determinism is right—so we will have to learn to get along without our present notions of responsibility. Other incompatibilists though, assert that determinism and responsibility are incompatible— fortunately determinism is wrong—so we can continue with a sense of moral responsibility grounded in our physics and metaphysics. Robert Kane is one of the outstanding contemporary incompatibilist indeterminists. In earlier generations, William James, Isaiah Berlin, and Karl Popper have all advocated this position. So, we have thus far three possible positions: incompatibilist determinism, compatibilism, and incompatabilist indeterminism. That ends our vocabulary lesson.

Where Stands List? Consider three facts about List’s book. First, it is titled Why Free Will Is Real. Second, as previously noted, the author takes a secular and scientific view of the subject matter. Third, List writes often about the importance, for any judgment about a human action, of the inquiry into whether alternatives existed. Thus he writes, “the possibility of doing otherwise is particularly salient in cases of wrongful harm. A murderer is responsible for his action, in part because he could have done otherwise, or so we commonly think.” Therefore, you might expect in this book that List is an incompabilist indeterminist, in the camp of Kane et al. However, a more complete statement is that List believes in different levels of scientific study, a hierarchy in which the more complicated levels may have emerged from the simpler ones. He believes that the more complicated, or if you will the “higher” levels, have to be studied and understood on their own terms. By way of example, cell division and genetic inheritance cannot be understood by someone intent on talking only about atoms and molecules. Biology emerges from chemistry, as chemistry emerges from physics, but biology having emerged

cannot coherently be reduced to that substratum. List writes, “every living cell consists of billions or trillions of atoms, and an organism consists of billions or trillions of cells. Even the best supercomputer would struggle with the astronomical task of computing the processes inside a single organism at the atomic or molecular level.” And even if it could, the microscopic data would still ignore “many macroscopic regularities we are interested in.” Just as biology cannot be reduced to chemistry, psychology cannot be reduced to biology. List is arguing that responsibility is incompatible with determinism only if one is discussing determinism at the psychological level. A strict determinism at the level of mental causation would entail the proposition that adult intentions and actions are brought about by childhood traumas, and that this happens as reliably as the pull of gravity upon apples or of magnetism upon iron filings. In this sense, List is an indeterminist. He believes that it is important that human actions be found not to be determined at their own level, the mental level, in a rigorous way. But, he also argues that the “human and social sciences, to the best of our understanding, support the claim that there is indeterminism in human agency … the indeterminist requirement for free will is in fact met.” Where the requirement is not met, where a specific individual’s actions are in fact fully determined at the psychological level, could that not serve as a working definition of insanity, or the other non-free conditions of will I mentioned at the start of this review? List does not state this explicitly, but he might be willing to accept that as a further inference from his discussion. Thus, if it relieves us to think that a central feature of the common-law legal system is not utterly irrational, we may sigh in enjoyment of that relief now. We are sometimes free and sometimes not, the difference turns on the presence of alternative courses of action, and we should be subject to different judgments when we are acting with free will than when we are not.

Final Thought List gives to his own view two distinct labels. He calls himself first a compatibilist libertarian, because his view of free will is compatible with any level of rigor in the determinism that may be found at any level lower than the psychological level. But, he also calls himself

a free-will emergentist, because his view of free will is that it is real precisely because the psychological level emerges from those lower level with phenomena of its own, of which unconstrained choice is an example. Is List right? I think it is good to have his view expounded. This book is a formidable contribution to the literature, and it will be fascinating to see whether the other participants in future debates over free will take up cudgels against it.  Christopher C. Faille is a member of the Connecticut Bar and the author of Gambling with Borrowed Chips, a heretical account of the Global Financial Crisis of 2007-2008. He regularly writes for AllAboutAlpha.com, a website devoted to the analysis of alternative investment vehicles, and for InsidetheNation.com, part of the OneQube network.

Without Precedent: Chief Justice John Marshall and His Times By Joel Richard Paul Riverhead Books, New York, 2018 502 pages, $30.00

Reviewed by Louis Fisher

In the introduction, Joel Richard Paul states that Chief Justice John Marshall “established over the course of his tenure the principle of judicial review and elevated the dignity of the Supreme Court as the final arbiter of the Constitution’s meaning.” Yet as Paul explains later in the book, in Chapter 18, it is incorrect to say that Marshall “invented the power of judicial review in Marbury v. Madison.”

There were many precedents for judicial review in U.S. courts before Marshall became Chief Justice, but the claim of judicial finality is of particular interest. Paul discusses the Neutrality Proclamation that President George Washington issued in 1793, directing citizens to remain neutral regarding military conflicts between England and France. As Paul explains, Marshall strongly defended the proclamation but it “ignited a firestorm of protest.” Those who failed to comply with the proclamation could be prosecuted. The administration brought numerous individuals into court, but the check would not come from the judiciary. Paul does not mention that jurors announced they would acquit anyone subject to prosecution because, as they told Washington, criminal law in the United States is made by Congress, not by the president. He got the message, stopped the prosecutions, and went to Congress for statutory authority, which was passed the next year as the Neutrality Act. Jurors understood the Constitution better than Washington and his circle of legal advisers. On this important constitutional issue, the check on presidential abuse came not from the judiciary, but from citizens. The Federalists passed the Sedition Act of 1798 to punish anyone who chose to criticize the John Adams administration. Paul calls the statute “infamous” for intending “to silence the Republican press and the president’s critics.” However, the check did not come from the courts filled with Federalist judges. Far from performing as an independent branch determined to protect constitutional principles, these judges chose to promote and defend partisan objectives. Repudiation of the Alien and Sedition Acts would come from Thomas Jefferson after he and the Republicans won the presidency and Congress in 1800. One of Jefferson’s first actions as president was to call the Sedition Act unconstitutional and to pardon all individuals punished or prosecuted under it. In reimbursing individuals who had been fined under the Sedition Act, the House Judiciary Committee explained that funds were being provided because the statute was “unconstitutional, null, void, passed under a mistaken exercise of undelegated power, and the mistake ought to be corrected by returning the fine so obtained, with interest thereon.” In New York Times Co. v. Sullivan 376 U.S. 254 (1964), the Supreme Court acknowledged that although the Sedition Act

January/February 2020 • THE FEDERAL LAWYER • 59

was “never tested in this Court, the attack upon its validity has carried the day in the court of history.” Paul devotes a chapter to “The Jonathan Robbins Affair,” concerning an individual in South Carolina charged with murder. Under Article 27 of the Jay Treaty, President John Adams was authorized to extradite a British citizen to England to be tried for murder or forgery. Robbins claimed he was an American citizen born in Connecticut, but the British consul claimed his real name was Thomas Nash and he was born in Britain. The Secretary of State in the Adams administration agreed he was Thomas Nash, as did the judge in South Carolina where Nash was held. This controversy developed in 1800 when President Jefferson and the Republicans were running against President Adams and the Federalist Party. As Paul explains, the Republicans hoped “to lay blame squarely on President Adams” and yet documents “proved conclusively” that Robbins was actually Nash. Still, Jeffersonians hoped to either impeach or censure Adams for turning the accused over to England. John Marshall, as a member of the House of Representatives, took the floor to defend Adams. Paul notes that Marshall during his speech described the President as “the sole organ of the nation in its external relations, and its sole representative with foreign nations.” What did Marshall mean by “sole organ”? Sole means exclusive, but what is “organ?” Simply the President communicating to other nations what is U.S. law, expressed in a statute or treaty? Marshall clearly meant the latter. President Adams was not claiming some exclusive constitutional authority to decide foreign policy. He was carrying out a treaty, which was his duty under Article II of the Constitution. As Paul explains: “The president had no inherent power to extradite absent a treaty.” Marshall’s speech was so persuasive and solidly reasoned that Jeffersonians dropped their plans to impeach or censure Adams. Paul adds: “Marshall’s address would be remembered as among the greatest orations ever given in Congress, and his statement that the president is the ‘sole organ’ of foreign relations powers has become enshrined in constitutional law.” Describing the president as the “sole organ” of foreign affairs goes far beyond what Marshall actually argued. He defended President Adams for carrying out a treaty.

Paul does not discuss how Marshall’s speech was later entirely misrepresented by the Supreme Court in United States v. Curtiss-Wright, 299 U.S. 304 (1936). At issue was a statute that empowered President Franklin D. Roosevelt to place an arms embargo in an area in South America. In issuing a proclamation to carry out the law, President Roosevelt never claimed some type of exclusive power to decide foreign policy. Instead, he stated clearly he was acting pursuant to statutory authority. Writing for the majority, Justice George Sutherland upheld the delegation but then announced that the president possesses “plenary and exclusive” power for foreign policy while serving as the “sole organ” in external affairs. Claiming exclusive power in the president over foreign affairs ignores and violates the plain text of Articles I and II of the Constitution. Sutherland’s claims were not merely extraneous to the decision (“dicta”). They were erroneous. Scholars immediately took Sutherland to task for twisting historical and constitutional precedents, a record covered in my article for Constitutional Commentary in 2016, “The Staying Power of Erroneous Dicta: From Curtiss-Wright to Zivotovsky.” Despite the clarity of Marshall’s speech, federal courts, executive officials, and some scholars relied heavily on Sutherland’s errors to expand presidential power at great cost to constitutional government. As noted by Harold Koh in The National Security Constitution (1990), Sutherland’s “lavish description of the president’s powers is so often quoted that it has come to be known as the ‘Curtiss-Wright, so I’m right’ cite—a statement of deference to the president so sweeping as to be worthy of frequent citation in any government foreign-affairs brief.” Litigation in President George W. Bush’s administration involved the Jerusalem passport case, prompting the Supreme Court to review some of the Curtiss-Wright dicta. Paul does not discuss this case. On July 23, 2013, the D.C. Circuit relied five times on the “sole organ” doctrine to uphold independent presidential power. Guided by Marshall’s words but not his meaning, the D.C. Circuit demonstrated no understanding that the “sole organ” doctrine announced by Justice Sutherland was not merely dicta but erroneous dicta. The misconception by the D.C. Circuit prompted me to file an amicus brief with the Supreme Court on July 17, 2014, pointing

60 • THE FEDERAL LAWYER • January/February 2020

out that the Supreme Court “has yet to correct” the errors by Sutherland and it “is time to do so.” While the Supreme Court was in session, the National Law Journal ran a column called “Brief of the Week,” selecting a particular brief out of the thousands filed each year. On November 3, 2014, it selected my brief, featuring a provocative title: “Can the Supreme Court Correct Erroneous Dicta”? On June 8, 2015, in Zivotofsky v. Kerry, 576 U.S. 1059 (2025), the Supreme Court finally jettisoned the “sole organ” doctrine but never acknowledged that the D.C. Circuit relied five times on Curtiss-Wright dicta. Nor did the Supreme Court explain how Justice Sutherland flagrantly misinterpreted John Marshall’s speech. Was it considered inappropriate to point an accusing finger at a particular justice in 1936 and underscore how his colleagues failed to double-check Marshall’s speech to make sure it was being properly cited? A clear and straightforward analysis would have alerted the D.C. Circuit and other courts to take special care when citing dicta, particularly when the “sole organ” doctrine had been repudiated by scholars for more than seven decades. Having finally rejected the “sole organ” doctrine, the Supreme Court proceeded to create a substitute model that promotes independent presidential power in external affairs. It began by stating that the recognition of foreign nations is a topic on which the federal government must “speak with one voice” and that voice “must be the President’s.” To the presumption that presidents somehow possess “unity,” the Court attributed four other characteristics to the president: decision, activity, secrecy, and dispatch, borrowing those four words in the Federalist No. 70 from Alexander Hamilton. In his treatment of Marbury v. Madison, 5 U.S. 137 (1803), Paul explains that the “one person who was uniquely situated to testify that the plaintiffs were confirmed as justices of the peace and that the commissions were properly signed and sealed was John Marshall,” during his prior service as secretary of state. But as Marshall “was the sitting chief justice, that was impossible.” Given Marshall’s official involvement in the Adams administration and his failure to see that the commissions were delivered to William Marbury and the other plaintiffs, why wasn’t he disqualified from participating in this case? Paul notes that Marshall “did not continued on page 67

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FBA membership includes one professional chapter membership. Any local chapter dues are indicated next to the chapter name. If no chapter is selected, you will be assigned a chapter based on geographic location. *No chapter currently located in this state or location.

Members of the association distinguish themselves when becoming sustaining members of the FBA. Sixty dollars of the sustaining dues are used to support educational programs and publications of the FBA. Sustaining members receive a 5 percent discount on the registration fees for all national meetings and national CLE events. Private Sector Member Admitted to Practice 0-5 Years..............................m $170 Member Admitted to Practice 6-10 Years ...........................m $235 Member Admitted to Practice 11+ Years ............................m $285 Retired (Fully Retired from the Practice of Law) .................m $170

Public Sector m $150 m $215 m $245 m $170

Active Membership Open to any person admitted to the practice of law before a federal court or a court of record in any of the several states, commonwealths, territories, or possessions of the United States or in the District of Columbia. Private Sector Member Admitted to Practice 0-5 Years..............................m $110 Member Admitted to Practice 6-10 Years ...........................m $170 Member Admitted to Practice 11+ Years ............................m $215 Retired (Fully Retired from the Practice of Law) .................m $110

Public Sector m $85 m $145 m $175 m $110

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National Membership Dues Total: $ __________ Sections - optional communities by Practice Area m Admiralty Law ..............................$25

m Indian Law ...................................$15

m Alternative Dispute Resolution ..$15 m Antitrust and Trade Regulation ... $15

m Intellectual Property Law .............$15

m Banking Law ................................$20

m Labor and Employment Law ......$15 m LGBT Law .....................................$15 m Qui Tam Section ..........................$15 m Securities Law Section .................$0 m Social Security .............................$10 m State and Local Government Relations ......................................$15 m Taxation .......................................$15 m Transportation and Transportation Security Law ......$20 m Veterans and Military Law ..........$20

m Bankruptcy Law...........................$25 m Civil Rights Law ...........................$15 m Criminal Law ................................$10 m Environment, Energy, and Natural Resources ......................$15 m Federal Litigation ........................$20 m Government Contracts................$20 m Health Law...................................$15 m Immigration Law .........................$10

m International Law ........................$15

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Member News 64 | Chapter Exchange 66 | Sections & Divisions 68 | Member Spotlight Not a Member? FBA Members enjoy these great benefits: ADVOCACY • Regular Issues Updates for Federal Practitioners • “Washington Watch” Articles • Government Relations Efforts • Annual Capitol Hill Day NETWORKING AND LEADERSHIP • Legal Career Center • More Than 90 Chapters Across 12 Circuits • 23 Practice Area Sections • Six Career Divisions • Volunteer Leadership Opportunities

EDUCATION • Judicial Profile Index • Bimonthly CLE Webinars • National CLE Conferences COMMUNICATIONS AND PUBLICATIONS • The Federal Lawyer Magazine • Bimonthly eNewsletter • Section, Division, and Chapter Newsletters OTHER • Member Plus Affinity Program • Member-Only Directory • “Need an Attorney” Listing

January/February 2020 • THE FEDERAL LAWYER • 63

Chapter Exchange

Mississippi Chapter: (left to right) Patrick McDowell, President (Brunini); Mary Helen Wall, Vice President (U.S. Attorney’s Office); Judge Starrett; Kristi Johnson, Treasurer (U.S. Attorney’s Office); Nick Morisani, Secretary (Phelps Dunbar); Dean Jim Rosenblatt, Executive Director (Mississippi College School of Law).

FIFTH CIRCUIT Mississippi Chapter Shortly after taking senior status, U.S. District Court Judge Keith Starrett spoke to the Mississippi Chapter’s bimonthly meeting at the Capital Club in Jackson, Miss. Judge Starrett shared with the attendees what it is like to have senior status as well as discussed his work on the reentry initiative he has championed. All expect Judge Starrett to continue to have an active docket. The Mississippi Chapter hosted Senior U.S. District Court Judge Michael Mills for its bimonthly meeting at the Capital Club before an overflow crowd. Judge Mills previously served on the Mississippi Supreme Court and the Mississippi House of Representatives. From this later experience, Judge Mills described some of his experiences in crafting legislation. 

Mississippi Chapter: (left to right) Dean Jim Rosenblatt, Executive Director (Mississippi College School of Law); Patrick McDowell, President (Brunini); Judge Mills; Kristi Johnson, Treasurer (U.S. Attorney’s Office); Nick Morisani, Secretary (Phelps Dunbar).

64 • THE FEDERAL LAWYER • January/February 2020

Federal Bar Association

CAPITOL HILL DAY

Thursday, March 19, 2020 Program

Plan to participate in this acclaimed event as FBA leaders from across the country meet with House and Senate offices to discuss important FBA legislative issues that impact the administration of justice and the federal courts. During meetings on Capitol Hill, FBA participants will discuss issues critical to the Third Branch of government, including: adequate funding for the federal courts, filling judicial vacancies, adding new judgeships, and establishing an independent immigration court.

9:00 a.m. Continental Breakfast Kickoff and Group Photo at the Watergate Hotel

FBA Capitol Hill Day is becoming more popular each year. Don’t miss out on this opportunity to broaden the FBA’s visibility and influence in Congress.

10:00 a.m. Participant meetings with House and Senate offices begin and continue into the afternoon

Training and materials will be provided to Capitol Hill Day participants in advance of the event. Participants are responsible for scheduling their meetings with their Senate and House offices. Between meetings, participants will have the opportunity to visit the Senate and House galleries, as well as the Capitol Visitors Center. Capitol Hill Day will be held in conjunction with the 2020 Leadership Summit and FBA Centennial Celebration (March 18-21, 2020). A discounted block of rooms has been reserved for Centennial and Leadership Summit attendees at the Watergate Hotel at the rate of $299/night (plus state and local taxes). To reserve your room, call 844-617-1972 and refer to the “Federal Bar Association 100th Anniversary Leadership Summit” to receive the discounted rate. The deadline to reserve your room within the discounted block is Friday, February 21.

Visit the FBA website for additional information and to register online today!

Lunch On Your Own 4:00 p.m. Group debriefing on Hill meetings

Sections & Divisions

Left to right: Todd Swanson, Aimee Hall, Hon. Tilman E. “Tripp” Self, Edgar Bueno, and R. Scott Oswald.

SECTION ON QUI TAM On September 24, 2019, the Qui Tam Section’s traveling CLE, “The False Claims Act Today,” made its second visit to the Eleventh Circuit—this time touching down in Macon, Ga., for an event at the Mercer University School of Law. Over lunch, attendees heard about the key provisions of the FCA, with a special emphasis on its application in the Middle District of Georgia and the Eleventh more generally. On hand to share their experience and wisdom were the Hon. Tilman E. “Tripp”

Self, District Judge for M.D. Ga.; Todd Swanson, Assistant U.S. Attorney for M.D. Ga.; relator’s counsel Aimee Hall of Pope McGlamry; and Edgar Bueno of Morris, Manning & Martin, representing FCA defendants. Among the useful nuggets: Judge Self is always open to extending the seal on FCA cases at prosecutors’ request, but he requires some showing that progress is being made, while Mr. Swanson’s office is eager to work with healthcare fraud relators who bring cases alleging harm to patients—especially

ongoing harm that would be stopped by government action. The event was moderated, as always, by section chair R. Scott Oswald, managing principal of The Employment Law Group, P.C., and included a question and answer opportunity and CLE credit. If you’d like to bring “The FCA Today” to your jurisdiction in 2020 or beyond, email Scott Oswald at: soswald@employmentlawgroup.com. 

Friend Us. Follow Us. Join Us. www.fedbar.org 66 • THE FEDERAL LAWYER • January/February 2020

Book Reviews continued from page 60

always recuse himself from cases in which he had a clear interest, most notably Marbury v. Madison.” Paul asserts that Charles Lee, attorney for the plaintiffs, “argued convincingly” that their right to receive their commissions was “vested and that the executive was bound to deliver the commission by the legislative act that created the justices of the peace.” Their claim might have been reasonable, but what gave them the right to bring their case directly to the Supreme Court? Why weren’t they required to begin in district court? Paul discusses how the plaintiffs relied on Section 13 of the Judiciary Act of 1789, which gave the Supreme Court original jurisdiction “in certain specific types of cases involving ambassadors, public ministers, and

states.” However, the plaintiffs did not fit those categories. Why didn’t Chief Justice Marshall simply decide that Charles Lee had misinterpreted Section 13 and would have to begin litigation in the district court? Instead, as Paul notes, Marshall chose to strike down Section 13 “as unconstitutional.” Why invalidate a statute so poorly interpreted by the plaintiffs? An available and reasonable choice was to advise the plaintiffs that they lacked authority to come directly to the Supreme Court. Paul concludes that Marshall “ignored the plain meaning of the statute in order to manufacture a conflict with the Constitution that did not exist.” Thus, Marshall chose to rely on a political calculation rather than legal and constitutional analysis. 

Louis Fisher is scholar in residence at The Constitution Project at the Project on Government Oversight and visiting scholar at the William and Mary Law School. From 1970 to 2010, he served at the Library of Congress as senior specialist in separation of powers at the Congressional Research Service and specialist in constitutional law at the Law Library of Congress. He is the author of 27 books, including Reconsidering Judicial Finality: Why the Supreme Court is Not the Last Word on the Constitution (University of Kansas Press, 2019). For more information, see http://loufisher.org.

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 Lynne Agoston, managing editor, at tfl@fedbar.org or (240) 404-6488 with topic suggestions or questions.

January/February 2020 • THE FEDERAL LAWYER • 67

Member Spotlight † Denotes New Member * Denotes Sustaining Member

FIRST CIRCUIT †Acey Calhoun †John-Louis Dell †JoAnn Dodge

Maine

†Daniel Dube

Massachusetts

†George Bahnan †Alexandra DeSantis *Eric Raciti †R. Talmadge Reeves †Annabel Rodriguez †Kent Sinclair

Hon. Raymond L. Acosta—Puerto Rico

†Alexandra Acevedo †Salvador Antonetti-Stutts †Ana Mercado †Luis Minana †Xiomara Quiles Morales †Elizabeth San Roman †Ashley Vega-Muniz †Jessica Velazquez

Rhode Island

Southern District of New York

†Stephanie Lane-Weber †Ami Lovell †Scott Williamson †Jean Zachariasiewicz

Austin

Vermont

Middle District of North Carolina

Baton Rouge

†Christopher Fitzgerald †John Inguagiato †Joshua Simonds

THIRD CIRCUIT †Melinda Basaran †Alexis Bunt †Joshua Materese †Cali Spota

Delaware

†Francis DiGiovanni †Jaleesa Komolafe †Beth Swadley †Daniel Taylor

Middle District of Pennsylvania *Adam Martin †Daina Pizarro

Virgin Islands †Glenda Lake

†Jennifer Van Zant

Northern Virginia †Robert Armstrong †Bryon Becker †Tillman Finley †Patricia Giles †Lindsay McKasson †Lindsay McKasson †Jeffrey Thomas

Northern District of West Virginia †Jared Phalen †Seth Underwood

Richmond

†Elizabeth Gunn †John “Jack” Robb III †Andrew Willis †Benjamin Wills

†Christy Durant †Joseph Galindo Jr. †Daniel Procaccini

Western District of Pennsylvania † Christopher Hsu

†Juval Scott

SECOND CIRCUIT

FOURTH CIRCUIT

South Carolina

†Robert Cini †Crystal Liu †Marjorie Mesidor †Melissa Peterson †Erika Rosenblum †Alexandra von Stackelberg *Tracey Walsh †Lane Waples

District of Connecticut †Shannon Hopkins

Eastern District of New York

†Brian Campbell †Mary Campbell †Cristian Catanese †Dwayne Coleman Jr †Nicholas DeLollo *Mirel Fisch †Tana Forrester †Blair Hendricks †Lillianna Iorfino †Sabrina Jorge †Taylor Lopa †Catherine Mapelli †Mary Michalos †Cameron Michelsen †Ryan Minett †Alison Noonan *Nadia Pervez †Cali Ross †Elizabeth Sheehan †Eric Silverstein †Nicole Teta †David Vegvari †Bailey Waltman †Connor Winship

†Isabella Anderson †Kathleen Barnes †Johnathan Barton †Victoria Bruno †Jenitza Castro †Jamie Deitzler †Ashley Faulkner †Daniel Granfield †Isaac Grosswiler †Ellennita Hellmer †Shawnee Hogbin †Makeia Jonese †Ramsey Jorgensen †Julie Merow †Erin O’Brien †Sydney Pack †Ammar Phillips †Casey Putney †Haley Robb †David Sharfstein †Emilee Withrow

Eastern District of North Carolina †Scott Lemmon

Hampton Roads †John Cooper †Garrt Hartlieb †L.Diane hernandez †Jeanne Noonan †Micaylee Noreen

Maryland

†John Condliffe †Douglas Desmarais *Donald Enright †Kelly Goebel

68 • THE FEDERAL LAWYER • January/February 2020

Roanoke

†Cameron Blazer †Margaret Bradley †Martin Cain *Tina Cundari †Emily Harrill †Allison Hawkins †Victoria Jaworowski †William Page †Jonathan Ray †Anna Smith †Allessandra Stewart †Allessandra Stewart †Chance Sturup †Chlo’e Thornton †Lauren Trask †Abigail Wood

Western District of North Carolina

†Glen Hardymon †Edward Hennessey IV †Todd Hess †Geraldine Sumter †Nevin Wisnoski †James Yandle

FIFTH CIRCUIT †Gianni Avalos †Dorinda Bordlee *Gordon Bush II †Stuart Cobb †Daniel Dailey †Sharan Lieberman †Elizabeth McIntosh †Natalie Mitchell †Todd Townsley †Joseph Vinas

*Cameron Cox *Scott Tschirhart *Charles Zech †Brittany Alexander †Rebecca Escoto †Jamie Flowers Jr. †Candace Ford *Renee Pennington †Robert Piedrahita †Stacy Porche

Central Louisiana †Eric Belin †John Conine †Katie Price

Dallas

†Ferdose al-Taie †Daniel Charest †Jason Nardiello

El Paso

†Daniel Ortiz

Fort Worth

†Justin Fairless †Christopher Lankford

Lafayette/Acadiana †Emily Borgen †Monica Bowers †Cade Cole †Kathryn Love

Mississippi

†Emily Nobile †Marc Perez †James Tyrone

New Orleans

†Andrea Agee †Haley Butler *Megan Daily †David Dye †Patrick Fisse †Jacqueline Gilds †Greg Guidry †Maximilian Hass †Katherine Julia Holt †Nowal Jamhour †Ryan McCabe †Dara Mouhot †Jo Neuman †John Parchman †Olivia Philipp †Joseph Rumage †Caroline Sanches †Joshua Stein †Thomas Taff †Wendy Vitter †Christine White

North Louisiana †Nichole Buckle †James McMichael

Southern District of Texas *Jack Byrom †Nicholas Dickerson

SIXTH CIRCUIT

†Katelyn Ashton †Christi-Anne Beatty †Rasheed Gilmer †John Greiner †Racquel Hawley *Farah Hobballah †Paul Laufman †Matthews Maxwell †Samuel Otis †Cory Rutherford †Milaka Spann

Chattanooga

†Bret Alexander *Mary DeCamp †Martin Lester †Samuel Robinson III †James Thomas †Travis Thompson

Columbus

†Jason Beehler †Jonathan Grey †Christina Mahy †Michael Robertson

Dayton

†Corrie Brock †Nicolas Davis †Gwenevier Johnson †Melissa Mazer †Ricky Murray †Daniel Rafferty †Michael Scarpelli †Natiece Smith †Mitchell Walton †Jordan Wolfe

Eastern District of Michigan

†Sabrina Balgamwalla †Loren Khogali †Daniel Weininger

John W. Peck Cincinnati/ Northern Kentucky †Maureen Bickley †Jennifer Brumfield †Daniel Byrne †Jacob Conners †Nicolette Crouch †Brian Davis †Damon Davis †Jorge Diaz-Guma †Daniel Elmlinger †Emily Feeley †Alyssa Foster †Cristina Frankian †Jonathan Giannoutsos †Keeley Gogul †Jenna Graham †Jacob Harrod †Michelle Hessling †Alexis Hogya

Federal Bar Association Calendar of Events 

JA N UA RY JA N UA RY 7

Civil Rights Law Section & Eastern District of MI Chapter: Making a Federal Civil Rights Case Out of Evictions Tax Law Writing Competition Submission Deadline JA N UA RY 8

Minnesota Chapter: Monthly Luncheon JA N UA RY 1 0

Palm Beach Chapter: Luncheon JA N UA RY 1 4

John W. Peck CincinnatiNorthern KY Chapter: U.S. District Court for the Southern District of Ohio Federal Practice Seminar JA N UA RY 1 5

Webinar: Military Justice Update JA N UA RY 1 6

Broward County: January Lunch JA N UA RY 2 3

Southern District of New York: Serving and Responding to Federal Non-Party Subpoenas

F E B R UA RY F E B R UA RY 5

John W. Peck CincinnatiNorthern KY Chapter: Winter Luncheon

F E B R UA RY 6

2020 Art Law & Litigation Conference F E B R UA RY 6

South Florida: Judicial Reception F E B R UA RY 7

2020 Fashion Law Conference F E B R UA RY 1 2

Minnesota Chapter: Monthly Luncheon F E B R UA RY 2 1

FCSD: Hon. Don F. McGahn CLE on Judicial Selection FCSD: Hon. Don F. McGahn CLE on Judicial Selection F E B R UA RY 2 7 - 2 8

2020 Qui Tam Conference

M A RC H

MARCH 5-6

2020 Tax Law Conference MARCH 6

Palm Beach Chapter: Luncheon MARCH 11

Minnesota Chapter: Monthly Luncheon

Visit Fedbar.org for more information.

MARCH 13

Southern District of New York: International Women’s Day Program MARCH 18

FBA Board of Directors Meeting - Spring 2020 MARCH 18-21

Centennial Celebration & Leadership Summit MARCH 18-19

Thurgood Marshall Memorial Moot Court Competition MARCH 20-21

2020 Rising Professionals Symposium MARCH 20

FBBC Board of Directors Meeting - Spring 2020 Foundation Board of Directors Meeting Spring 2020 MARCH 25

South Florida: Luncheon

APRIL

APRIL 6-7

APRIL 15

South Florida: Luncheon APRIL 22

Western Distirct of Missouri and Kansas Chapter: From Murder to Museums: Abraham Lincoln, Adolph Hitler, and the Hunt for Nazi Looted Art in America

M AY

M AY 1 3

Minnesota Chapter: Monthly Luncheon M AY 1 4

Broward County: Federal Judicial Reception M AY 1 5 - 1 6

2020 Immigration Law Conference M AY 1 8

Younger Lawyers Division: 2020 Supreme Court Admissions Ceremony M AY 2 8 - 2 9

2020 Insurance Tax Seminar

2020 Indian Law Conference

SEPTEMBER

APRIL 8

2020 Annual Meeting & Convention

Minnesota Chapter: Monthly Luncheon

SEPTEMBER 9-12

Happy 100th Birthday, FBA! HAPPY BIRTHDAY MESSAGE

Enjoy Our Gift to You:

A Reimagined Federal Bar Association Website. Experience the new site today at www.fedbar.org.