The Federal Lawyer: July/August 2020

Volume 67, Issue 4

THANK YOU TO OUR DISTINGUISHED SPONSORS FOR THEIR SUPPORT IN OUR CENTENNIAL YEAR!

BAKER HOSTETLER • BARTOL LAW FIRM, P.C. LISKOW & LEWIS • MALLOY & MALLOY PL OGLETREE DEAKINS • PALEY ROTHMAN

Volume 67, Issue 4

EDITORIAL BOARD

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

July/August 2020: Convention Issue

Associate Editor James W. Satola jsatola@roadrunner.com Managing Editor Lynne G. Agoston (240) 404-6488 TFL@FBA.org Book Review Editor Caroline Johnson Levine Judicial Profile Editors Heaven Chee Hon. Noelle C. Collins Hon. Karoline Mehalchick Articles Editors Joanna Fox Sheila Hollis Christopher Lucca Bruce McKenna Anne Perry Dalmacio Posadas Elizabeth Turnbull Susan Yorke Columns Editor Arturo Bauermeister Senior Proof Editor Hon. Donna Phillips Currault Proof Editors Sarika J. Angulo Ira Cohen Mary Hope Forsyth Peter M. Mansfield Soledad M. Valenciano 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. 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.

37 The Strange State

of Appeals in Multidistrict Litigation By Jeremy T. Grabill

43 Big Data Makes Big Cases:

51 Is a Heated Political

Climate Inflaming Election Cases? By Rob Tyson

How Data Analytics Is Shaping False Claims Act Enforcement By Jason Mehta and Jennifer A. Short

July/August 2020 • THE FEDERAL LAWYER • 1

Federal Bar Association COLUMNS 3 President’s Message

The Urgent Need for Additional Federal Judgeships By Christian K. Adams

6 Washington Watch 2021 FBA Issues Agenda By Bruce Moyer

9 At Sidebar A Lowcountry Lesson: A Fort, Forgotten Law, and a Fleet By Peter Mansfield

14 Criminal Law New Kid on the Blockchain: Recent Developments in the Efforts to Regulate Cryptocurrencies By Jennifer Freel and Ryan Will

17 Diversity & Inclusion

Two Law Firms Paving the Way in South Carolina and Beyond By Ogletree Deakins and Robinson Gray Stepp & Laffitte

20 Corporate and Association Counsel Division Bargaining, Bottom Lines, and BATNA: Re-Learning the Skill of Negotiation By Michael J. Cahalane and Andrew R. McConville

22 In the Legal Community A City’s Legal Community Fosters Collaboration and Positive Change After One of the Most Heinous Acts of Racial Violence in Modern U.S. History

PROFILES

30 Hon. Julius Ness “Jay” Richardson Circuit Judge, U.S. Court of Appeals for the Fourth Circuit By Jim May

BOOK REVIEWS 54 Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring Reviewed by Patrick Wooten

56 Integration Now: Alexander v. Holmes and the End of Jim Crow Education Reviewed by Henry S. Cohn

57 The Second Founding: How the Civil War and Reconstruction Remade the Constitution Reviewed by Kevin J. Doyle

DEPARTMENTS 60 Supreme Court Previews

FBA MEMBER NEWS

66 Chapter Exchange 68 Sections & Divisions 70 Member Spotlight

By Brian Duffy

24 View From the Bench Representing the “Challenging” Client at Sentencing By Alan Ellis

26 From the Foundation Establishing Inclusion—Foundation Scholarship for Minority First-Year Law School Students By Juanita Sales Lee

27 Thought Sponsor Different by Design: Functionality in Trademarks and Design Patents By Robb Roby

2 • THE FEDERAL LAWYER • July/August 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 Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org Outreach and Foundation Manager Cathy Barrie cbarrie@fedbar.org Operations Manager Holly Delidle hdelidle@fedbar.org Editorial and Production Specialist Lynne G. Agoston TFL@fedbar.org Marketing Director Jennifer Olivares Social@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

The Urgent Need for Additional Federal Judgeships 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.

I was asked to testify on behalf of the FBA before the U.S. Senate’s Committee on the Judiciary on the urgent need for additional federal judgeships. It was a true privilege to deliver this statement remotely before Chairman Graham, Ranking Member Feinstein, and the distinguished members of the Committee, along with Hon. Brian Miller of the U.S. District Court for the Eastern District of Arkansas and chair of the Judicial Conference of the United States’ Judicial Resources Committee, Subcommittee on Judicial Statistics, on June 30. As part of the FBA Issues Agenda, the policy blueprint for the bar’s government relations and advocacy endeavors, the FBA supports the authorization and establishment of additional permanent and temporary federal judgeships, including bankruptcy judgeships, along with support personnel, as proposed by the Judicial Conference of the United States, when rising caseloads in the federal courts threaten the prompt delivery of justice. The FBA also supports efforts to educate Congress, the legal profession, and the general public about how the overwhelming caseloads threaten the ability of the Third Branch of the federal government to function. I invite you to read my written statement that is reprinted below, and to watch the video testimony, which is available on the FBA website. *** Thank you for convening today’s hearing and giving me the opportunity to discuss the urgent need to establish additional judgeships in our federal courts. I serve as National President of the Federal Bar Association, the premier national bar association devoted to the practice of federal law and the administration of justice through the federal court system. The FBA is non-partisan and politically neutral, guided in its beliefs by the principles of the Constitution and the Rule of Law. I am a litigator based in Honolulu, Hawai’i and appear before you on behalf of the thousands of attorneys in our association who practice in the federal district and appellate courts. We appear on both sides of the courtroom, as advocates for plaintiffs and defendants

or as prosecutors and defenders, seeking prompt adjudication and justice for our clients. The need for additional federal judgeships represents an urgent priority. The authorization of additional judgeships in our federal courts is critical to the assurance of timely and efficient administration of justice. It is not trite to underscore the refrain that “justice delayed is justice denied.” While our members admire and respect the diligence and hard work of federal judges to decide cases in a timely manner, limits exist on how much the bench can accomplish with present resources. Even with the incredible backstop of senior judges and the invaluable assistance they lend, there simply are not enough judges, especially in emergency districts with high caseloads. For this reason, the Federal Bar Association asks Congress to promptly exercise its authority to create additional circuit, district, and bankruptcy judgeships consistent with the recommendations of the Judicial Conference. The last comprehensive federal judgeships bill was enacted by Congress in 1990 and provided most, if not all, of the judgeships requested by the Judicial Conference. The Federal Judgeship Act of 1990 (Public Law 101-650) established 11 additional judgeships for the courts of appeals and 74 additional judgeships (including 13 temporary) for the district courts. Since that time, no judgeship has been created for the courts of appeals, and 34 district judgeships have been added to respond to particular challenges in certain districts.1 Yet caseloads in both the appellate courts and district courts have continued to increase. According to the Administrative Office of the U.S. Courts, by the end of fiscal year 2019, filings in the courts of appeals had grown by 13 percent while district court case filings had risen by 47 percent (civil cases were up 41 percent and criminal felony defendants were higher by 72 percent). The Judicial Conference of the United States reviews biennially the judgeship needs of all U.S. Courts of Appeals and U.S. District Courts to determine if any of the courts require additional judges to administer civil and criminal justice in the federal court system. July/August 2020 • THE FEDERAL LAWYER • 3

The Judicial Conference completed its last review in March 2019 and recommended that Congress establish five new judgeships in the Ninth Circuit Court of Appeals and 65 new judgeships in 27 district courts. The Judicial Conference also recommended the conversion of eight temporary district court judgeships to permanent positions. More recently, on April 28, 2020, in connection with its supplemental appropriations request, the Judiciary repeated its request for the conversion of eight temporary judgeships to permanent status. The eight temporary judgeships are in the following judicial districts: Kansas, Eastern Missouri, Arizona, Central California, Southern Florida, New Mexico, Western North Carolina and Eastern Texas. In addition, the Judiciary requested the authorization of seven additional judgeships that were included in the Judicial Conference’s larger judgeships request last year. The seven requested district judgeships are in the following districts: Southern Indiana, Delaware, New Jersey, Western Texas, Arizona, Southern Florida, and Eastern California. Today, the federal court system is in greater need of these judgeships than even a year ago. As the Judicial Conference noted in its supplemental funding request, a backlog of cases incapable of adjudication during the pandemic is building in many courts. One of the districts in urgent need of additional judgeships, the Eastern District of California, has declared a judicial emergency (under 18 U.S.C. § 3714) due to the effects of the pandemic. This declaration was issued because the Eastern District of California has a calendar so congested that it is unable to meet certain statutory time limits to hear cases. The Judicial Conference review in 2019 showed that filings in the circuit courts of appeals since 1991 have grown by 15 percent. While total criminal appeals have declined moderately since 1991, due to fewer appeals of drug cases, the number of immigration appeals increased significantly from 145 in 1991 to 920 in 2018, and firearms appeals similarly increased, from 717 in 1991 to 1,913 in 2018. The most dramatic growth in civil appeals, according to the Judiciary, has been in prisoner appeals where case filings rose 23 percent since 1991, primarily due to appeals involving motions to vacate sentences, which have more than doubled. Appeals involving administrative agency decisions more than doubled, from 2,859 in 1991 to 6,089 in 2018. These increases resulted primarily from appeals of decisions by the Board of Immigration Appeals, with the largest increase occurring in the Ninth Circuit. Original proceedings rose from 609 in 1991 to 5,041 in 2018, partially as a result of the Antiterrorism and Effective Death Penalty Act which requires prisoners to seek permission from courts of appeals for certain petitions. In the district courts, the Judicial Conference review found that total filings grew by over 100,000 cases over the past three decades, a 39 percent increase. The number of criminal felony defendants rose 60 percent since 1991, with the largest increase in immigration cases, which rose exponentially from 2,448 in 1991 to 27,812 in 2018. Defendants charged with firearms offenses more than doubled between 1991 and 2018, an increase of nearly 7,500 defendants. The civil caseload in the district courts also increased markedly, 34 percent overall since 1991. The most dramatic growth in civil filings occurred in cases related to personal injury and product liability which have grown from 10,952 filings in 1991 to 45,863 in 2018. Many of these filings are part of multidistrict litigation (MDL) actions comprising large numbers of pharmaceutical cases. Civil rights filings more than doubled since 1991, with growth primarily from increases in cases related to the Americans with Disabilities Act. Prisoner petitions increased 24 percent between 1991 and 2018, 4 • THE FEDERAL LAWYER • July/August 2020

due to significantly higher numbers of motions to vacate sentence filings and habeas corpus petitions. Intellectual property rights cases increased from 5,186 in 1991 to 12,690 in 2018, with copyright and patent filings more than tripling during the period. The number of social security cases filed more than doubled between 1991 and 2018. Fair Debt Collection Practices Act cases, first categorized separately in 2008, rose from 4,239 in 2008 to 10,764 in 2018, more than a twofold increase. This national data helps to put the need for additional judgeships into perspective. However, the Judicial Conference’s recommendations for circuit, district, and bankruptcy judgeships are not premised on national trends and aggregate data. The recommendations are based on the specific needs of each judicial district on a court-bycourt basis. The situation in courts where the Judicial Conference has recommended additional judgeships, in fact, is much more dramatic than indicated by national statistics. A review of the seven judgeships requested by the Judicial Conference in the Judiciary’s supplemental request earlier this spring, bears this out.

The Judiciary’s Seven Requested Judgeships Southern District of Indiana. The pending caseload in the Southern District of Indiana has more than doubled since 2013 and last year stood at 1,242 cases per judgeship, the fifth highest in the nation. More than 50 percent of the pending civil caseload is comprised of MDL-related personal injury product liability cases. The median time from filing to disposition for criminal prosecutions has risen by more than two months since 2013 and last year was nearly six months above the national average. District of Delaware. Overall filings in Delaware have risen 26 percent. Given the comparatively higher weight for patent cases, weighted civil filings rose 43 percent, due to an increase in patent litigation resulting from the May 2017 Supreme Court decision in TC Heartland LLC v. Kraft Foods Group Brands LLC, which modified the venue standards for patent infringement lawsuits. Civil filings are currently well above the national average at 480 per judgeship. District of New Jersey. The pending caseload has increased 53 percent since 2013 and is now above the national average, at 770 per judgeship, primarily as a result of the large volume of MDL-related cases. Overall filings have risen 46 percent since 2013 due to a substantial increase in the number of personal injury product liability filings related to MDL actions, with the vast majority of these actions in which the District of New Jersey serves as the transferee court. Western District of Texas. The court’s criminal filings are the second highest in the nation at 505 per judgeship. The number of supervised release hearings has risen nine percent since 2015 and is the fifth highest in the nation, at 123 per judgeship. Since 2015, overall filings have continued to rise as a result of increases in both civil and criminal filings. District of Arizona. The Judicial Conference’s 2019 recommendation included four additional district judgeships and the conversion of the existing temporary judgeship to a permanent position, given the consistently high level of weighted filings and the extremely heavy criminal docket due to immigration cases. Southern District of Florida. The Judicial Conference has recommended at least two additional judgeships for the Southern District of Florida in each of the past 11 surveys over the last 22 years, based on weighted filings that have consistently remained above 600 per judgeship. In the most recent review, the Judicial Conference

recommended three additional permanent judgeships and that the existing temporary judgeship be converted to a permanent position. Weighted filings have remained above 600 per judgeship for several years and were the 11th highest in the nation in 2019. Eastern District of California. The Judicial Conference has recommended at least three additional judgeships for the Eastern District of California in each survey since 2003, and has recommended five additional permanent judgeships in 2019, based primarily on weighted filings per judgeship that consistently rank among the highest in the nation. Civil filings are the sixth highest in the nation at 739 per judgeship. Without Congressional authorization of judgeships in these districts, caseloads are likely to increase to even higher levels, creating further delay in the delivery of justice. These growing delays are principally due to inadequate capacity in the number of judges available to address the growing size of court dockets. The significant increase in criminal cases undoubtedly has increased the workload burdens of judges in the adjudication of criminal motions, trials, and sentencings. Civil practitioners understand that criminal cases must take priority over the hearing of civil cases, yet that alone does not alleviate the ongoing frustration related to growing criminal dockets contributing to the extended period of time it can take to have civil motions decided and civil cases tried. I cannot overstate the detrimental impact that these delays have on all federal practitioners and litigants in all cases. The increased costs incurred by litigants due to delay are often incalculable and insurmountable. Delay can be tactically used by defendants to unfairly extract settlements and avoid blame in meritorious cases. For example, in an industrial trade secrets case in federal court, as recently recounted to me by an FBA member, well-funded defendants, in this case a Chinese manufacturing company and an American citizen, were able to exploit the federal court’s case backlog, along with frivolous motions and obstreperous discovery delays, to avoid prosecution. The plaintiff, a Canadian multinational corporation, faced significant financial losses and the taking of its technology because delay effectively undermined any timely and just federal court prosecution. When delay in the case reached several years, the corporation’s once-secret industrial process became readily available through illegitimate sources. The defendants, having exploited their intellectual property misappropriation, were able to spend or transfer their ill-gained profits for several years, all the while preparing to claim bankruptcy, if necessary, to avoid actual legal liability and damages. It is a sad day when a Canadian citizen rightly tells an American lawyer how broken the United States federal judicial system is. This is only one of countless examples of the costs of delay in our federal court system, compounded by insufficient numbers of judges to promptly administer justice. I, along with my colleagues who practice in the federal courts, respect the diligence and hard work of federal judges in attempting to hear and decide cases in a timely manner. But there are limits on how much the bench can accomplish with existing resources. Simply stated, there are not enough judges. We urge Congress to promptly exercise its authority to create additional judgeships consistent with the recommendations of the Judicial Conference. The Federal Bar Association supports the creation of new judgeships necessary to exercise federal court jurisdiction with the full understanding that there are associated costs. We are as interested as Congress in assuring that the federal courts maximize the use of

their resources to avoid the creation of additional judgeships as much as possible. We also believe that the federal courts must continue to increase their productivity and create efficiencies through a range of measures, including: shared judgeships, inter- and intra-circuit assignment of judges, alternative dispute resolution, and technological advances to give judges in other districts or circuits the ability to offer assistance without the need to travel. But the bottom line is that even with those increased efficiencies, more judgeships are necessary. The authorization of additional judgeships is crucial to curbing the delay of justice that practitioners and litigants increasingly experience in our federal system. Justice delayed is justice denied. The authorization of additional judgeships is crucial to ensuring that justice is not delayed. Only the Congress and the President can make it happen and help to ensure that justice is not denied. Thank you, Mr. Chairman, for the opportunity to appear before you today. 

Endnote Congress has created 34 new district court judgeships since fiscal year 2000. As part of the Judiciary’s appropriations for fiscal years 2000 and 2001, and as part of the Department of Justice’s authorization legislation in fiscal year 2003, Congress created 9, 10 and 15 judgeships respectively. However, five temporary judgeships have lapsed, including two in 2004.

1

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.

July/August 2020 • THE FEDERAL LAWYER • 5

Washington Watch

2021 FBA Issues Agenda By Bruce Moyer

Bruce Moyer is government relations counsel for the FBA. © 2020 Bruce Moyer. All rights reserved.

On June 12, 2020, the FBA board of directors approved the FY 2021 FBA Issues Agenda. The Issues Agenda is a prioritized list of legal and public policy issues that impact the federal legal system, federal law, and federal practitioners. The Issues Agenda represents the blueprint for the FBA’s government relations and advocacy endeavors. The new Issues Agenda adds FBA support for action by the president and the Senate to promptly nominate and confirm nominees to the U.S. Merit Systems Protection Board to assure the presence of a board quorum and prevent case backlogs from growing larger.

Active Legislative Issues Independence of the Federal Judiciary The FBA reaffirms the importance of the independence of the judiciary, recognizing that judicial decisions are not immune from scrutiny, but are to be made solely on the basis of the law.

Funding for the Federal Courts The FBA supports adequate funding for the general and continuing operations of the federal courts, including an equitable level of rent and facilities expense consistent with actual costs, budgetary constraints, staffing needs, and security considerations to permit the courts to fulfill their constitutional and statutory responsibilities.

Federal Judgeships and Caseloads The FBA supports the authorization and establishment of additional permanent and temporary federal judgeships, including bankruptcy judgeships, along with support personnel, as proposed by the Judicial Conference of the United States, when rising caseloads in the federal courts threaten the prompt delivery of justice. The FBA also supports efforts to educate Congress, the legal profession, and the general public about how the overwhelming case loads threaten the ability of the Third Branch of the federal government to function.

Federal Judicial Vacancies The FBA calls upon the president and Congress to act promptly and responsibly in nominating and confirming nominees to the federal appellate and 6 • THE FEDERAL LAWYER • July/August 2020

district courts. The FBA supports the development of strategies to reduce the time required to fill federal judicial vacancies.

Courthouse Security The FBA supports the adoption of adequate security measures to protect the federal judiciary, their families, and court personnel in and outside the courthouse, while preserving meaningful public access to judicial proceedings.

Federal Judicial Pay The FBA supports equitable compensation and regular periodic adjustments for the federal judiciary as well as senior officials of the executive branch and members of Congress to promote the recruitment and retention of the highest quality public servants.

Respect for the Federal Courts Declining public confidence in our courts undermines public respect for the courts and the legitimacy of their rulings. To counter that influence, the FBA supports programming and other efforts to educate the public about the federal courts and the role they serve in assuring a just society.

Professionalism and Stature of Federal Attorneys The FBA supports and promotes efforts to improve the professionalism and stature of attorneys employed by the federal government, including: Enhancements to the compensation packages of federal attorneys, including pay and retirement benefits, to assist in recruitment and retention. The expansion, consistent with applicable conflict of interest laws, of policies encouraging full participation of attorneys employed by the federal government in professional organizations and pro bono legal activities, including approval for use of administrative leave. Enhanced federal funding for participation in continuing legal education and training programs, including paid tuition and administrative leave. The establishment of programs for student loan deferral and repayment assistance for all federal attorneys, including federal law clerks, federal defenders, and judge advocates of the Armed Forces, in support of recruitment and retention efforts.

Social Security Disability Appeals Backlog The FBA supports adequate funding and resources for the Social Security Administration to remove the significant backlog of disability benefit appeals awaiting adjudication and to assure the fair and timely administration of justice for all appellants.

Authority of Bankruptcy Judges in “Core Proceedings” The FBA supports amendment of bankruptcy law to expressly allow bankruptcy judges to issue proposed findings of fact and conclusions of law in core proceedings in which they are otherwise barred from entering final judgments under Article III of the United States Constitution.

Commission on Nazi-Confiscated Art Claims The FBA supports the congressional creation of a commission to address identification and ownership issues related to Nazi-confiscated artworks, pursuant to the Washington Conference Principles on Nazi-Confiscated Art, as signed by the United States and the international community.

Article I Immigration Court The FBA supports the transfer of responsibilities for the adjudication of immigration claims from the Executive Office of Immigration Review within the Department of Justice to a specialized Article I court, as established by Congress, for the adjudication of claims under the Immigration and Naturalization Act.

and responsibly in nominating and confirming nominees to the U.S. Merit Systems Protection Board in a manner sufficient to assure the presence of a quorum.

Prevention of Epidemics and Civil Liberties The FBA encourages a discussion of the competing considerations between governmental restrictions to guard against epidemics and pandemics and the preservation of individual rights, as well as the use of technology to ensure the continuance of participatory governance.

Monitored Legislative Issues Courthouse Construction The FBA supports the full funding of courthouse construction proposed by the Judicial Conference of the United States.

Cameras in the Courts The FBA encourages a discussion of the competing considerations vis-a-vis proposed legislation which would authorize federal judges, in their discretion, to permit photographing, electronic recording, broadcasting, and televising of federal court proceedings in appropriate circumstances.

Division of the Ninth Circuit Court of Appeals FBA opposes the division of the Ninth Circuit Court of Appeals, consistent with its capacity to effectively and efficiently render justice.

Federal Criminal Sentencing

Continuing Legal Education Funding for the Federal Judiciary

The FBA supports efforts to advance fairness and consistency in federal sentencing, while preserving judicial independence and discretion to deal with the particular circumstances of individual cases.

The FBA supports the expansion of and enhancement of federal funding for continuing legal education and training programs for the federal judiciary.

Military Spouse Attorney Mobility

Expansion of Federal Jurisdiction Over State and LocalProsecuted Crimes

The FBA supports state-level legal licensing accommodations, including bar admission without additional examination, for attorneys who are spouses of service members, i.e., members of the uniformed services of the United States as defined in 10 USC §101(a)(5), when: (1) those “military spouse attorneys” are present in a particular state, commonwealth, or territory of the United States or District of Columbia due to their service members’ military assignment; (2) they are graduates of accredited law schools; and (3) they are licensed attorneys in good standing in the bar of another state, commonwealth, or territory of the United States or District of Columbia.

Patent Litigation Reform The FBA supports legislation that curbs abusive patent litigation practices and other responsible measures to improve the quality and clarity of patents. The FBA opposes legislation that reduces judicial discretion in adjudicating patent actions or circumvents the Rules Enabling Act by mandating changes that depart from the Federal Rules of Civil Procedure in patent cases.

Police Body Camera Technology The FBA supports the use of police body camera technology to enhance the availability of evidence in criminal, police, and civil rights investigations.

Vacancies on the U.S. Merit Systems Protection Board

The FBA advocates strict scrutiny of legislation proposing to grant original jurisdiction to federal authorities over crimes traditionally reserved to state and local prosecution.

Criminal Justice Act Panel Attorney Compensation The FBA supports congressional funding to permit an increase in compensation rates for Criminal Justice Act panel attorneys.

National Security and Civil Liberties The FBA encourages the discussion of the competing considerations in the nation’s war against terror between the protection of civil liberties and the interests of national security.

Safety of Administrative Judges The FBA supports the efforts by the Social Security Administration and the Executive Office of Immigration Review to take appropriate steps to ensure the security of their administrative law judges and immigration judges, and all others who participate in its proceedings.

Veteran Disability Claims Adjudication The FBA supports legislative and administrative improvements to the veterans disability claims process in the Department of Defense and Department of Veterans Affairs to assure equitable and expeditious determinations.

The FBA calls upon the president and the Senate to act promptly July/August 2020 • THE FEDERAL LAWYER • 7

Attorney Fee-Based Representation of Veterans The FBA supports proposals to expand the availability of fee-based representation of veterans in the disability claims process and to oppose any efforts to repeal the authority of attorney representation to veterans in the furtherance of such claims.

Frivolous Litigation

proposals to revise Rule 11 of the Federal Rules of Civil Procedure by imposing mandatory sanctions and preventing a party from withdrawing challenged pleadings on a voluntary basis within a reasonable time.  Approved by FBA Board of Directors Date: June 12, 2020

The FBA opposes legislative proposals to eliminate judicial discretion in the imposition of sanctions for frivolous litigation, including

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. 8 • THE FEDERAL LAWYER • July/August 2020

At Sidebar

A Lowcountry Lesson: A Fort, Forgotten Law, and a Fleet By Peter M. Mansfield

Peter M. Mansfield has litigated in private and government practice in New Orleans for the past 17 years. He currently serves on the FBA’s editorial board. © 2020 Peter Mansfield. All rights reserved.

“In my mind I’m gone to Carolina”1 Would-be travelers to Charleston for the FBA’s 2020 centennial convention can perhaps relate in a new way to homesick James Taylor’s plaintive wish first sung in a London recording studio in 1968. And like that landmark year, 2020 has already witnessed a great deal of disruption and unrest even before the convention in Charleston became a casualty of COVID-19. But in the information age, physical absence fortunately isn’t an impediment to learning lessons in law and life linked to a lowcountry2 landmark. In this centennial year of near-constant change, this Sidebar offers a brief examination of the sometimes controversial, oftentimes elusive,3 but always timely concept of natural law.

The Fort, Founders, and Forgotten Law In the aftermath of the War of 1812 and the successful British invasion of the U.S. mainland, President Madison recommended the construction of strong coastal defenses for the young country.4 Thus, Fort Sumter’s5 construction began in 1829 on a 2.4-acre shoal in Charleston Harbor.6 The scholarship on the development and rise of antebellum southern slavery is legion.7 For our purposes, it is sufficient to note that by the time Confederate Gen. P.G.T. Beauregard ordered the bombardment of Fort Sumter in April 1861, the nation’s highest forms of human, positive laws8—the Constitution9 and an adjudication from the Supreme Court10—had failed the 400,000 individuals enslaved in South Carolina alone. Therein laid the inharmonious coexistence of a national legality that constituted an intrinsic moral injustice, or, alternatively worded, a violation of natural law. So then, what exactly is natural law? It isn’t the scientific laws of nature, like gravity or Newtonian principles of motion.11 Rather, natural law constitutes the unwritten principles of practical rationality, or the norms of personal conduct, which are established by and in human nature and knowable through human reason.12 Natural-law theory isn’t an Enlightenment-era creation, but has an ancient lineage.

In Antigone (circa 440 B.C.), Greek tragedian Sophocles contrasted a human edict concerning burial with a set of “unwritten and unfailing statutes” that are “not of today or yesterday, but from all time, and no man knows when they were first put forth.”13 A century later, Aristotle’s Ethics addressed “what is just by nature and what is just by convention.”14 What is just by nature “has the same force everywhere,” whereas the latter consists of “measures enacted for particular occasions … and everything enacted by decree.”15 Rooted in Aristotelian reasoning, Roman statesman Cicero stated that “law is highest reason, implanted in nature, which orders those things that ought to be done and prohibits the opposite.”16 Natural law, according to Cicero, is “everlasting and unchangeable,” transcending spatial and temporal boundaries.17 Before declaring the famous “self-evident” truths and identifying certain unalienable rights in the Declaration of Independence, Jefferson first invoked authority to do so from “the laws of nature.”18 In a later letter,19 Jefferson denied any novelty in those famous phrases, admitting to the influence of the legal theories of Aristotle, Cicero, and John Locke.20 Similarly, in Federalist No. 43, James Madison appealed “to the great principle of self-preservation” and “to the transcendent law of nature, … which declares that the safety and happiness of society are the objects to which all political institutes aim.”21 Jefferson and Madison’s contemporary, James Wilson—whose founding hat trick includes a signature on the Declaration, attendance at the constitutional convention, and a seat on the Supreme Court—similarly stated that “the law of nature is universal” and “has an essential fitness for all mankind, and binds them without distinction.”22 Four score years or so later, Lincoln argued a natural-law basis to oppose slavery in the territories as part of an “eternal struggle between these two principles—right and wrong—throughout the world.”23 Similarly, seven years before the Dred Scott decision, William H. Seward boldly invoked on the Senate floor “a higher law than the Constitution” in his condemnation of slavery in the territories.24

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Natural-law theory uncoincidentally appears again in the generation-defining events of the 20th century on race relations—namely, post-World War II Nazi reckoning and the American civil rights movement. At the Nuremberg trials, “natural law principles were cited to justify the prosecution and punishment of individuals who had committed legally permissible but morally reprehensible acts while the Nazi government was in power.”25 Justice Robert Jackson, chief prosecutor for the United States at Nuremberg, intoned natural-law principles from the Declaration in arguing that the Nazi defendants “took from the German people all those dignities and freedoms that we hold natural and inalienable rights in every human being.” 26 His opening statement further differentiated between “mere technical or incidental transgression of international conventions” (i.e., human, positive laws), and “planned and intended conduct that involves moral as well as legal wrong.”27 The foremost leader of the American civil rights movement, Martin Luther King Jr., “was careful to anchor the defense of civil rights, and his own actions in their behalf, in the idea of natural law and natural rights.”28 The “supreme expression of his view” is his Letter from Birmingham Jail, which reads like “a meditation on natural law and civil rights.”29 King rightfully declared segregation statutes to be “unjust” since they did not conform to natural law.30 In particular, they “distort[ed]” and “damag[ed]” the inherent dignity of the segregated.31 So what could be controversial about something woven deeply into the nation’s founding, and successfully invoked as a bulwark against the odious manifestations of racism? Some critics argue that natural law is too rigid, affording no room for diversity of thought or action. But, as one proponent explained, this objection is wrong on two accounts. First, it relies on the very premise it criticizes by “presuppos[ing] a moral obligation to respect freedom and diversity as a matter not of mere convention, but of natural justice or natural rights.”32 Second, while natural law prohibits certain objective evils, it doesn’t limit “a legitimate variety of choices and ways of life that reflect the spectrum of human goods” or “the diverse opportunities and legitimate ways that people can realize … these goods.”33 Similarly, others may assert that natural-law theory is too religious, belonging exclusively to the Christian, or at least theistic, worldview. To be sure, there are natural law references in the Bible, and one of its most well-known theorists, Thomas Aquinas, was a theologian. This criticism, however, is at once both too generous and too limiting a view of natural law. It is too generous in the sense that natural law doesn’t come close to comprising the totality of beliefs, doctrines, and dogmas informed by religious faith; it is merely a guide on human conduct. It is too limiting a criticism because natural-law principles are found in many cultures and religious traditions34 and, more importantly, are knowable through the exercise of human reason irrespective of religious faith or its absence.35 In other words, natural law is not deduced from theological premises.36 Hence, Aristotle and Cicero acknowledge it from ancient, pantheistic cultures as confidently as Martin Luther King invokes it not as a tenet of his Baptist faith, but as a philosophical and political guide to form a more-perfect union of diverse persons.37 Even if natural-law theory, correctly understood, shouldn’t be too rigid or religious for popular consumption, some avoid it because it is too politically risky. What’s interesting, however, is that natural-law theory has been a source of derision for conservative and liberal thinkers alike.38 Moreover, it’s been used to both justify and condemn Supreme Court decisions on polarizing issues as early as 1798.39 These 10 • THE FEDERAL LAWYER • July/August 2020

debates—healthy, by the way, in a democracy that values free speech and a robust, peaceful exchange of ideas in the public square—don’t disprove the existence of an objective, unchanging natural law. Rather, they only prove that natural law, like any human law, is subject to varied interpretations, including mistaken judgments.40

The Fate of a Fleet So why the survey of this particular jurisprudential theory?41 Anniversaries, particularly a centennial, are appropriate times for reflection. The FBA has witnessed great changes in the profession over the past 100 years. We may rightly take pride in the achievement of greater diversity in the profession, including the judiciary, and greater public access to legal assistance. But still there’s a need to recommit greater fidelity to the timeless, natural-law-based, self-evident truths of the Declaration of Independence—a sort of preamble to the preamble of the Constitution.42 If the events of April 1861 at Fort Sumter lack sufficient temporal proximity to prove this requirement, the recent shootings on June 17, 2015, at the historic Emanuel African Methodist Episcopal Church in Charleston and even more-recent protests in June 2020 should charge the collective conscience of a profession that advances public awareness of and respect for the rule of law in all of its natural, human, and positive precepts. As an association comprising primarily practitioners43 rather than academics, most readers expect something of prospective practical utility on each page of The Federal Lawyer. So, with an anchor still virtually fixed in Charleston Harbor, a final nautical metaphor from 20th-century author and philosopher C.S. Lewis illustrates three practical aspects of ethical living grounded in the natural-law tradition.44 We might analogize our life’s journey, both professional and personal, to a fleet of ships. Three things are necessary for a successful voyage: first, that the ships don’t collide and get in one another’s way; second, that each ship is seaworthy and in good internal order; and third, that the fleet knows the end destination for its course.45 The first item is basic golden-rule, learned-it-in-kindergarten social ethics—as Lewis would call it: “fair play and harmony between individuals.”46 The profession, by in large, polices itself on these standards through various rules of professional conduct, mandatory ethics and professionalism training, and, if necessary, discipline through the courts and state bar associations. While we rightfully punish those that cause harm, attorneys also have an important societal role in relieving it too, irrespective of source. Notably, the FBA expanded to its national membership the SOLACE program, a Louisiana-founded initiative based on the premise that lawyers can, and should, take an active role in alleviating unforeseen burdens on fellow members in the legal community.47 But despite these proscriptions and the laudatory efforts of SOLACE and similar programs, stories abound on how poorly lawyers treat each other on a routine basis, regardless of whether it might cross the line into an actual rule violation.48 The reason? Lewis posits that any sound social ethic (item one) depends on internal harmony in each member of the fleet (item two).49 In other words, ships with bad internal steering mechanisms will keep colliding with others. On this second item, it seems members of the profession have more work than ever before in achieving internal harmony—or the “tidying up” of “things inside each individual.”50 A 2016 study found that “[a]ttorneys experience … alcohol use disorders at a rate much higher than other populations.”51 Likewise, “[d]epression, anxiety, and stress are also significant problems for this population.”52 “The

overarching message is loud and clear—[attorneys’] passionate work ethic must be intentionally tempered with healthy boundaries and well-being practices if we are to ever improve our profession’s mental-health statistics.”53 But, make no mistake, progress has occurred. Federal, state, and local bar associations have programs, educational materials, and practical assistance for lawyers struggling with addiction or other personal challenges.54 The obvious key to this second item in Lewis’s tripartite taxonomy is recognizing, then rectifying, internal issues before external consequences occur.

Conclusion That leaves Lewis’s final question: What’s the end destination for this journey? On an individual level, it’s a metaphysical question worth asking, but well beyond the limited scope of this article to answer. At the organizational level, however, it’s not just a fair question—it’s a necessary one. Our organizational end is the “advancement of the science of jurisprudence” and the promotion of “the welfare, interests, education, and professional development of all attorneys involved in federal law.”55 All of these laudatory goals, of course, rest upon the natural bedrock of equal justice under the law for all. Amidst the debates of our present time, the changes of the last century, and the undoubted challenges of the next, we do well to recommit to these unchanging ideals anew for the next 100 years of our existence. Onward to 2120. 

Endnotes James Taylor, Carolina in My Mind, on James Taylor (Apple Records 1968). 2 The South Carolina lowcountry is in the southeastern corner of the state and includes the coastal area from Charleston down to Savannah, GA. Suzanne Bopp, Road Trip: Low Country, South Carolina and Georgia, National Geographic (Sept. 14, 2010), https://www.nationalgeographic.com/travel/road-trips/lowcountry-south-carolina-georgia-road-trip/. 3 Peter Steinfels, Beliefs, N.Y. Times, Aug. 17, 1991 at 9 (noting that “natural law has been regularly declared dead” but “reports of the 1

death of natural law were often cases of mistaken identity”). JOHN FRANCIS MARION, THE CHARLESTON STORY 115 (Stackpole Books 1978). 5 Named for Thomas Sumter (1734–1832), who served as a Revolutionary War general, a congressman and senator from South Carolina, and a foreign minister to Brazil. Id. at 90. 6 Id. at 119. 7 Just browse Dewey decimal number 973.7 at your local library. 8 “Human law” (sometimes called “positive law”) is given by an earthly authority through some promulgated act (like legislation or rulemaking) or legal determination (like a precedential adjudication), in contrast to “divine law,” which is given by a higher authority usually through some act of revelation. See generally Thomas Aquinas, Summa Theologiae I–II, Q. 91, Art. 3–4; Steinfels, supra note 3. 9 U.S. Const. art. 1, § 9, cl. 1 (acknowledging then-ongoing “[i]mportation of such Persons as any of the States now existing shall think proper to admit”); art. IV, § 2, cl. 1 (the fugitive-slave clause: “No Person held to Service or Labour in one State under the laws thereof, escaping to another, shall, . . . be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”). 10 Dred Scott v. Sanford, 60 U.S. 393 (1856). 11 The scientific and physical laws of nature, however, can provide an apt analogy to the unchanging norms of human moral conduct. See, e.g., Jacques Maritain, The Natural Law, Commonweal, May 15, 1942, at __, https://www.commonwealmagazine.org/natural-law-0 (“[I]t is sufficient to believe in human nature and in the liberty of the human being . . . to know that the natural law is something just as real in the moral order as the laws of growth and of growing old in the physical order.”); Randy E. Barnett, A Law Professor’s Guide to Natural Law and Natural Rights, 20 Harv. J. L. & Pub. Pol’y 655, 656–57 & 664 (1997) (drawing a parallel “between natural laws in engineering and those which concern governance of society”); C.S. Lewis, The Law of Human Nature in Mere Christianity 4–5 (HarperOne 2001). 4

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This is the author’s attempt at a definition, relying upon and synthesizing several of the sources cited supra and infra. Admittedly, “the central tradition was by no means clear and united on the meaning or content of natural law.” Robert P. George, The 1993 St. Ives Lecture Natural Law and Civil Rights: From Jefferson’s “Letter to Henry Lee” to Martin Lurther King’s “Letter from Birmingham Jail”, 43 Cath U. L. Rev. 143, 146 (1993). 13 Sophocles, Antigone (trans. R. C. Jebb), http://classics.mit. edu/Sophocles/antigone.html. 14 Aristotle, Nicomachean Ethics (trans. Martin Ostwald) bk. five, sect. 7, 1134b (Prentice Hall 1999). 15 Id.; Aristole’s Rhetoric similarly explained that: “There is in nature a common principle of the just and unjust that all people in some way divine [i.e., understand], even if they have no association or commerce with each other.” Aristotle, Rhetoric (trans. W. Rhys Roberts), http://classics.mit.edu/Aristotle/rhetoric.1.i.html. 16 Cicero, On the Laws (trans. David Fott), https://www.nlnrac. org/classical/cicero/documents/de-legibus. 17 Cicero, On the Republic (trans. David Fott), http://www. nlnrac.org/classical/cicero/documents/de-republica. 18 The Declaration of Independence para. 1 (U.S. 1776). 19 Thomas Jefferson, Letter to Henry Lee, May 8, 1825, in Thomas Jefferson, Writings 1501 (New York: Library of America 1984). 20 Coincidentally, English natural-law philosopher John Locke reviewed and edited the constitution for the Carolina colony. Marion, supra note 4, at 24. 21 The Federalist No. 43 ( James Madison); see also Diarmuid F. O’Scannlain, The Natural Law in the American Tradition, 79 Fordham L. Rev. 1513, 1516 (2011) (“The Federalist Papers . . . frequently rely on ‘nature’ and ‘reason’ to justify general principles of law.”). 22 James Wilson, Lectures on Law: Chap. III, Of the Law of Nature (1791), http://www.nlnrac.org/node/241#Chapter3. 23 Abraham Lincoln, Debate at Alton, IL (Oct. 15, 1858), https:// www.nps.gov/liho/learn/historyculture/debate7.htm; see also Herman Belz, Abraham Lincoln and the Natural Law Tradition, https://www.nlnrac.org/american/lincoln. 24 William H. Seward, Freedom in the New Territories (March 11, 1850), https://www.senate.gov/artandhistory/history/resources/ pdf/SewardNewTerritories.pdf. 25 Rodger D. Citron, The Nuremberg Trials and American Jurisprudence: the Decline of Legal Realism, the Revival of Natural Law, and the Development of Legal Process Theory, 2006 Mich. L. Rev. 385, 401 (2006); see also Michael J. Frank, Justice for Iraq, Justice for All, 57 Okla. L. Rev. 303, 306 n.19 (2004) (collecting sources linking Nuremberg prosecutions to natural law). 26 Robert H. Jackson, Opening Statement Before the International Military Tribunal (Nov. 21, 1945), https://www.roberthjackson.org/ speech-and-writing/opening-statement-before-the-internationalmilitary-tribunal/. 27 Id. 28 George, supra note 12, at 154. 29 Id. 30 Martin Luther King, Jr., Letter From Birmingham Jail (Apr. 16, 1963), https://www.africa.upenn.edu/Articles_Gen/Letter_ Birmingham.html. 31 Id. 32 George, supra note 12, at 148. 12

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Id.; Philip Soper, Some Natural Confusions About Natural Law, 90 Mich. L. Rev. 2393, 2405 (1992) (“If we accept that natural law is just another way of claiming that ethical statements can be true or false, then we will have to recognize that people who accept the theory can nevertheless reach different conclusions about fundamental moral questions with no clear way of judgment among them.”); Robert P. George, Natural Law, 31 Harv. J. L. & Pub. Pol’y 171, 172 (2008) (“Theorists of natural law understand human fulfillment—the human good—as variegated.”). 34 C.S. Lewis, The Abolition of Man 16–18 & 83–101 (HarperOne 2000); Lewis, supra note 11, at 7. 35 George, supra note 12, at 150. 36 David Novak, Does Natural Law Need Theology?, First Things (Nov. 2019); see also Viktor E. Frankl, Man’s Search for Meaning 169–70 (Washington Square Press 1985) (asserting that a “hierarchy of values” that guides conscience has “crystallized in the course of the evolution of our species; . . . founded on our biological past and rooted in our biological depth.”). 37 As Novak similarly explained: “In a secular society like the United States, the legitimizing warrant [for natural law] is not theological but philosophical … .” Novak, supra note 36. 38 See O’Scannlain, supra note 21, at 1515 (“[W]e find natural law under attack from both sides. To the left, it is an invention of mystics and religious conservatives. To the right, it is a dangerous invitation for judges to impose their own sense of justice on the country.”); Russel Hittinger, Natural Law in American Conservatism: An Encyclopedia 606–07 (“[M]odern conservatives have been . . . sometimes hostile to natural law.”. . .“[T]he continuous and seemingly arbitrary use of ‘natural law’ by the judiciary . . . has deeply soured conservatives on the subject.”); James E. Fleming, Fidelity to Natural Law and Natural Rights in Constitutional Interpretation, 69 Fordham L. Rev. 2285, 2288 n.18 (2001); Anthony Murray, When Judges Believe in ‘Natural Law’, The Atlantic ( Jan. 27, 2014), https://www.theatlantic.com/national/archive/2014/01/whenjudges-believe-in-natural-law/283311/ (criticizing Justice Thomas and Scalia’s purported belief in natural law); Michael W. McConnell, Trashing Natural Law, N.Y. Times, Aug. 16, 1991, at A23 (responding to Prof. Laurence Tribe’s criticism). 39 See, e.g., Calder v. Bull, 3 U.S. (3 Dall.) 386, 398–99 (1798) (Iredell, J., dissenting). 40 Maritain, supra note 11; Soper, supra note 33, at 2405; George, supra note 33, at 180 (“As human beings, we are rational animals, but we are imperfectly rational. We are prone to making intellectual and moral mistakes and capable of behaving grossly unreasonably, especially when deflected by powerful emotions that run contrary to the demands of reasonableness.”); id. at 182 (“[E]ven among those who believe in natural law, there will be differences of opinion about its content and implications for certain issues … .”); Lewis, supra note 11, at 8–10. 41 In the interest of space and simplicity, this article doesn’t address the nuanced distinction between natural law and natural rights, nor attempts to index all natural-law precepts, natural rights, or the human goods they advance beyond what’s identified in the main text. Likewise, this article does not advocate judicial application of natural-law principles to interpret, invalidate, or overrule legislation or precedent. See George, supra note 33, at 191 (“[Natural law theory] does not presuppose that the judge enjoys (or should enjoy) as a matter of natural law a plenary authority to substitute 33

his own understanding of the requirements of natural law for that of the lawmaker in deciding cases at law.”); O’Scannlain, supra note 21, at 1519–20 (“[T]here is nothing contradictory about believing in natural law, on the one hand, but rejecting judicial authority to enforce it, on the other.”). 42 William Bentley Ball, Mere Creatures of the State? Education, Religion, and the Courts: A View from the Courtroom 8 (1994). 43 http://www.fedbar.org/Membership/ (judiciary comprises only 8% of FBA membership). 44 Lewis, supra note 11, at 96–98. 45 Id. This article was primarily written in November 2019, back when coronaviruses were known only in specialized infectious-disease circles. But one can still find natural-law philosophy even lurking in the response to a pandemic. In other words, for all of the media coverage of COVID-19 and debates about remedial measures, no one ever seriously debated whether illness was better than health, death was favored over life, financial loss was preferable to prosperity, or indifference superior to a cure. Likewise, efforts to combat the disease in spring 2020 provided an apt illustration of Lewis’s fleet analogy. Officials preached social distancing to limit the spread of infection, good individual hygiene to minimize personal risk of contraction, and support for research efforts into vaccines to eradicate, or at least minimize, future harm from the pathogen. 46 Id. 47 https://www.fedbar.org/about-us/outreach/solace/. 48 Admittedly, some tales are as entertaining as they are cautionary.

See Jeffrey Martin, Federal Judge Demands Lawyer Resign After String of Profane Emails to Opposing Counsel: ‘You Just Trashed Your Profession.’ Newsweek, Dec. 19, 2019, https://www.newsweek. com/federal-judge-demands-lawyer-resign-after-string-profaneemails-opposing-counsel-you-just-1477576; Benjamin Weiser, Are Too! Am Not! Are Too! Am Not! Judges Try to Impose a Civil Tone as Depositions Get Increasingly Down and Dirty, The Washington Post, March 10, 1994, https://www.washingtonpost.com/archive/ business/1994/03/10/are-too-am-not-are-too-am-not-judges-tryto-impose-a-civil-tone-as-depositions-get-increasingly-down-anddirty/9feaea53-e7f7-491e-8f0a-9ffa290d8340/. 49 Lewis, supra note 11, at 94–97. 50 Id. at 96. 51 Patrick Krill, et al., The Prevalence of Substance Use and Other Mental Health Concerns Among American Attorneys, 10 J. Of Addiction Med. 46, 52 (2016); see also Patrick J. Schiltz, On Being A Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession, 52 Vand. L. Rev. 871, 872–88 (1999) (collecting statistics on attorney health and well-being). 52 Krill, supra note 51, at 52. 53 J.E. Stockwell, Lawyers Assistance, 67 Louisiana Bar J. 268 (Dec. 2019/Jan. 2020). 54 See, e.g., https://www.americanbar.org/groups/law_practice/ publications/law_practice_magazine/2019/MJ2019/ MJ19Schimmerling/; https://louisianajlap.com/. 55 https://www.fedbar.org/about-us/.

Former United States Magistrate Judge for the Central District of California, Judge Segal is now available for mediations, arbitrations and special master assignments.

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

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Criminal Law

New Kid on the Blockchain: Recent Developments in the Efforts to Regulate Cryptocurrencies By Jennifer Freel and Ryan Will

Jennifer Freel handles pre-trial, trial, and appellate matters. For more than nine years, Freel served as assistant U.S. attorney in the Austin Division of the Western District of Texas. She is board certified in criminal appellate law by the Texas Board of Legal Specialization, an elected fellow of the Texas Bar Foundation, and a barrister in the Robert W. Calvert American Inn of Court. She is a past-president of the Austin Chapter of the FBA and is currently the chair of the Criminal Law Section of the FBA.​​​​Ryan Will is an associate in the Complex Commercial Litigation practice group at Vinson & Elkins. He concentrates his practice on antitrust and white collar matters. © 2020 Jennifer Freel and Ryan Will. All rights reserved.

Just about everyone has heard of Bitcoin, the cryptocurrency now traded on more than 200 exchanges, worth more than $9,000 each, and used in hundreds of thousands of transactions daily.1 Since its introduction more than a decade ago, Bitcoin has paved the way for the development of more than 2,000 other digital currencies, including Facebook’s Libra, which has sparked a firestorm of controversy since its announcement last summer.2 As cryptocurrencies like Bitcoin have risen in popularity and diversity, criminals have increasingly used them to facilitate money laundering, terrorism financing, and other financial crimes. Regulatory authorities around the world are now supplementing their anti-money laundering (AML) efforts to directly target cryptocurrencies in an effort to combat this new threat.3 This article provides a summary of these recent developments and the road ahead.

What Are Cryptocurrencies and Why Do Regulators Care? Cryptocurrencies are digital mediums of exchange, usually broken down into units called coins or tokens that can be exchanged between peers without an intermediary. Cryptocurrencies are typically tied to digital, anonymous addresses, rather than specific people or email addresses, which facilitates a high degree of privacy. Owners access and transact with their cryptocurrency using public and private keys known only to the owner; these transactions are recorded in a public ledger known as the blockchain.4 Blockchain is an open, distributed ledger verified by each and every node (or computer) running the blockchain, meaning “each network node verifies and stores its own copy of the blockchain.” When a transaction occurs, it is sent to the network and verified, then added to the node’s copy of the blockchain (ledger). The node then forwards the transaction record to other nodes, which verify and add it to their copies of the blockchain, and so on. In the case of cryptocurrencies, this network relies on cryptography

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(very complex codes) to secure and verify transactions before adding them to the blockchain.5 Cryptocurrency is attractive to those who would commit financial crimes such as tax evasion, terrorist financing, and money laundering because of its “anonymity, cross-borders nature, and quick transferability.”6 Governments have thus been skeptical of cryptocurrencies because of their ability to allow people to evade AML laws and other regulations with which banks and financial institutions comply. Generally, AML laws are designed to prevent legitimate financial systems from being used to make illegally gained proceeds appear legal. Although cryptocurrencies like Bitcoin are not truly anonymous—anyone can access and look at the blockchain to trace payments to a specific account7—determining the real-world identity linked to an account or whether a payment is connected to illicit activity is where the difficulty of regulation lies.

Financial Action Task Force Efforts The Financial Action Task Force (FATF) is an intergovernmental body of 37 member states, including the United States, that promotes the implementation of legal and regulatory measures to combat money laundering. FATF’s recommendations are recognized as the global AML standard. In June 2019, FATF issued guidance for implementing a risk-based approach to cryptocurrency regulation.8 The guidance built upon changes implemented to FATF’s standards in 2018, which specifically expanded them to include cryptocurrencies.9 The 2018 changes were “largely compatible” with then-existing regulatory requirements but targeted the “misuse of virtual assets.”10 The changes included: • R ecommending that jurisdictions ensure that virtual asset service providers are licensed or registered, monitored by the government, and subject to AML regulations, including due diligence, reporting, and recordkeeping; and

• R ecommending that jurisdictions assess and understand the risks associated with virtual assets and identify effective systems to conduct risk-based monitoring or supervision of virtual asset service providers.11 The FATF also defined “virtual asset provider” for the first time, and did so in very sweeping terms.12 The definition includes “any natural or legal person who is not covered elsewhere” in the FATF’s recommendations who, “as a business conducts one or more of the following activities or operations” on behalf of another entity: • • • •

Exchange between virtual assets and fiat currencies; Exchange between one or more forms of virtual assets; Transfer of virtual assets; Safekeeping and/or administration of virtual assets or instruments enabling control over virtual assets; and • Participation in and provision of financial services related to an issuer’s offer and/or sale of a virtual asset (Initial Coin Offerings).13

Before issuing its 2019 guidance, FATF announced a new interpretive note to Recommendation 15 on New Technologies. Among other things, the note required countries to (1) assess and mitigate their risks associated with virtual asset activities and service providers; (2) license or register service providers and subject them to supervision or monitoring by competent national authorities, and (3) implement sanctions and other enforcement measures when service providers fail to comply with their AML obligations.14 The note also asked countries to require certain things from virtual asset providers. The countries should ensure providers “assess and mitigate their money laundering and terrorist financing risks (“CFT”) and implement the full range of AML/CFT preventive measures under the FATF Recommendations, including customer due diligence, recordkeeping, suspicious transaction reporting, and screening all transactions for compliance with targeted financial sanctions, among other measures, just like other entities subject to AML/CFT regulation.”15 The 2019 guidance document gives instructions to virtual asset providers on how to meet these sweeping standards.16 It’s a mustread for anyone who meets the definition of a “virtual asset provider.” And, if someone isn’t sure whether their business meets that definition, there is guidance on how to determine if an entity is, in fact, a virtual asset provider.17 The FATF’s changes came in the wake of the Council of the European Union adopting its Sixth Directive on Combating Money Laundering by Criminal Law, in which the Council noted that “[t]he use of virtual currencies presents new risks and challenges from the perspective of combating money laundering” and that “Member States should ensure that those risks are addressed appropriately.”18 EU Member States are required to transpose the law, passed in late 2018, into national law by December 2020.

U.S. Government Efforts The U.S. government recently launched several of its own AML initiatives directed at cryptocurrencies: • Th e president established a Task Force on Market Integrity and Consumer Fraud, which will “provide guidance for the investigation and prosecution of cases involving fraud … with particular

attention to fraud affecting the general public; digital currency fraud; money laundering … and other financial crimes.”19 • The Treasury Inspector General for Tax Administration issued a scathing report on the effectiveness of the IRS’s Bank Secrecy Act (BSA) enforcement program, particularly noting the IRS’s failure to adopt a recommendation that the IRS develop a comprehensive strategy to include criminal BSA enforcement for cryptocurrencies.20 • The Financial Crimes Enforcement Network (FinCEN) issued guidance to remind persons subject to the Bank Secrecy Act how FinCEN regulations relating to money services businesses apply to businesses involved in the transmission of virtual currencies.21 Still, much uncertainty in the broader regulatory landscape remains. For instance, on May 9, 2019, SEC Commissioner Hester M. Peirce delivered a speech via videoconference to the Securities Enforcement Forum lamenting the commission’s failure to develop meaningful regulation in the realm of cryptocurrency and emphasizing the need for clear regulation that would be meaningful and not overly burdensome.22 Although Commissioner Peirce noted that, in her opinion, the SEC has thus far “exhibited appropriate restraint” in using its enforcement powers to police the world of cryptocurrency, she pointed out that the SEC has “not yet fulfilled [its] duty” to “provide the public with clear guidance as to how people can comply with our law.” While the commissioner noted useful steps the SEC has taken to provide more notice to businesses in the fintech space— pointing to the establishment of the SEC’s “FinHub” as a helpful resource for companies and investors in the sphere of cryptocurrency and fintech—she conceded that the SEC’s “other efforts in the crypto area [are] more of a mixed bag” and may raise more questions than answers.23

Libra—An Inflection Point Regulator concerns with digital cryptocurrencies came to a head earlier this year when Facebook announced development of its own cryptocurrency named Libra. Libra has a number of differences from traditional cryptocurrencies, and Facebook intends for Libra to be regulated. Libra will be traded on an exchange promising some degree of AML and know-your-customer compliance, though exactly how seems unknown. Libra will also be backed by a reserve of real-world currencies. According to Facebook, this will give Libra intrinsic value and therefore stability. Another difference, and the difference triggering concern from governments around the world, is the fact that Facebook’s existing userbase—currently 2.38 billion monthly active users worldwide, or 30% of the world’s population— gives Libra an enormous potential userbase.24 If successful, Libra could be orders of magnitude larger than existing cryptocurrencies, with a correspondingly larger risk of illicit activity, privacy violations, and even destabilization of monetary policy. Despite these promises of regulation from Facebook—which have yet to be backed up by any concrete plans or commitments—lawmakers, regulators, and senior administration officials in the United States and abroad have become increasingly critical of the platform. Federal Reserve Chairman Jerome Powell testified in July that Libra “raises a lot of serious concerns” about “privacy, money laundering, consumer protection, financial stability.”25 Powell also noted that any problems associated with money laundering or terrorist financing would “arise to systemically important levels just because of the July/August 2020 • THE FEDERAL LAWYER • 15

mere size of the Facebook network,” thus subjecting Libra to stricter financial regulation. Treasury Secretary Steve Mnuchin expressed similar concerns.26 For its part, Facebook representatives, including Mark Zuckerberg, have testified before Congress. None of these hearings have offered much in the way of concrete ideas to address regulator concerns. And cracks are starting to show: In early October, PayPal withdrew from the Libra Association, the group of companies Facebook assembled to launch and manage Libra. Two weeks later, the Libra Association had lost a quarter of its membership as other companies, including Visa, Mastercard, and eBay, withdrew from participation.27

The Road Ahead Cryptocurrencies are becoming increasingly mainstream, and the regulatory regimes in which they are governed must respond. The United States has long recognized that cryptocurrencies create opportunities for criminals to subvert AML and national security laws. Only recently, however, has a coherent framework for regulating cryptocurrencies begun to take shape. In September, a team of bipartisan Senators introduced the “ILLICIT CASH Act,” a promising AML bill that offers a suite of updates to the current AML regime.28 It would decrease unnecessary regulations, target shell companies, raise incentives for whistleblowers, and sweep digital currencies into the definition of “monetary instruments.” By its own terms, the bill seeks to “improve coordination among [] agencies tasked with administering anti-money laundering and counter-financing of terrorism requirements.”29 The bill targets a range of reforms. With respect to cryptocurrencies, the bill expands the definition of “monetary instruments” to explicitly empower the secretary of the treasury to provide regulations that include cryptocurrencies like Bitcoin.30 This change is specifically designed to address Congress’s finding that “transnational criminal organizations are increasingly using virtual currencies.”31 The act is currently with the Senate Committee on Banking, Housing, and Urban Affairs. Even if the Illicit Cash Act stalls in Congress, some type of update to the U.S. AML laws seems likely in the near future. As these laws and those under the EU’s Sixth Directive start taking effect, companies must begin to seriously consider how cryptocurrency may affect their business. Companies should strengthen their compliance departments and outside counsel relationships now so that they are ready to implement this new landscape of regulations when they inevitably arrive. 

Endnotes Bitcoin is 10 years old: Here’s what to expect in the cryptocurrency’s second decade, MarketWatch, https://www.marketwatch. com/story/bitcoin-is-10-years-old-heres-what-to-expect-in-thecryptocurrencys-second-decade-2018-10-26. 2 Leaks of a Facebook-backed cryptocurrency first emerged in May 2019, and Facebook formally introduced Libra via a white paper on June 18, 2019. See Facebook: An Introduction to Libra – White Paper ( Jun. 18, 2019), https://libra.org/en-US/white-paper/ (hereinafter, “Libra Whitepaper”). 3 U.S. AML laws are primarily implemented through the Bank Secrecy Act, 31 U.S.C. §§ 5311–5330 and related statutes, including the Office of Foreign Assets Control (OFAC) Regulations, 31 C.F.R. § 500, and the Financial Record Keeping and Reporting of Currency 1

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and Foreign Transactions, 31 C.F.R. § 110.310. See generally Cryptocurrencies and blockchain: Legal context and implications for financial crime, money laundering, and tax evasion; Eur. Parl. Special Committee on Financial Crimes, Tax Evasion and Tax Avoidance, http://www.europarl.europa.eu/ cmsdata/150761/TAX3%20Study%20on%20cryptocurrencies%20 and%20blockchain.pdf. 5 Id. 6 Id. 7 For instance, every Bitcoin transaction can be seen at the following website: https://www.blockchain.com/explorer. 8 Guidance for a Risk-Based Approach to Virtual Assets and Virtual Asset Service Providers, Financial Action Task Force, June 21, 2019, http://www.fatf-gafi.org/publications/fatfrecommendations/ documents/guidance-rba-virtual-assets.html. 9 Regulation of Virtual Assets, Financial Action Task Force, Oct. 19, 2018, http://www.fatf-gafi.org/publications/ fatfrecommendations/documents/regulation-virtual-assets.html. 10 Id. 11 Id. 12 International Standards on Combating Money Laundering and the Financing of Terrorism & Proliferation, The Financial Action Task Force, http://www.fatf-gafi.org/media/fatf/documents/ recommendations/pdfs/FATF%20Recommendations%202012.pdf. 13 Id. 14 Public Statement on Virtual Assets and Related Providers, The Financial Action Task Force, June 21, 2019, http://www. fatf-gafi.org/publications/fatfrecommendations/documents/publicstatement-virtual-assets.html. 15 Id. 16 Guidance for a Risk-Based Approach to Virtual Assets and Virtual Asset Service Providers, Financial Action Task Force, June 21, 2019, http://www.fatf-gafi.org/publications/fatfrecommendations/ documents/guidance-rba-virtual-assets.html. 17 Id. 18 The Sixth Directive of the European Parliament and of the Council on Combating Money Laundering by Criminal Law, http://data.consilium.europa.eu/doc/document/PE-30-2018INIT/en/pdf. 19 Exec. Order No. 13844, 83 Fed. Reg. 32926 ( July 16, 2018), https:// www.whitehouse.gov/presidential-actions/executive-orderregarding-establishment-task-force-market-integrity-consumerfraud/. 20 The Internal Revenue Service’s Bank Secrecy Act Program has Minimal Impact on Compliance, Treasury Inspector General for Tax Administration, https://www.treasury.gov/tigta/ auditreports/2018reports/201830071_oa_highlights.html. 21 21Application of FinCEN’s Regulations to Certain Business Models Involving Convertible Virtual Currencies, May 9, 2019, https://www. fincen.gov/sites/default/files/2019-05/FinCEN%20Guidance%20 CVC%20FINAL%20508.pdf 22 See https://www.sec.gov/news/speech/peirce-how-wehowey-050919. 23 According to the SEC’s FinHub site, FinHub is meant to facilitate the SEC’s “active engagement with innovators, developers, and entrepreneurs” and to serve as “a resource for information about the SEC’s views and actions in the FinTech space.” continued on page 27 4

Diversity & Inclusion

Two Law Firms Paving the Way in South Carolina and Beyond

By Rebecca Baumgartner, Kimya Johnson, and Michelle Wimes (Ogletree Deakins); and Janie Langdale and Beth Richardson (Robinson Gray Stepp & Laffitte, LLC) With the events of this past year impacting all areas of our lives, the need for connection, empathy, and inclusion is stronger than ever. Our communities and workplaces are made up of people with diverse perspectives facing unique challenges. As the emphasis on diversity and inclusion continues to grow, law firms are in an exciting position to lead and propel this force forward. Two law firms in South Carolina are making strides, and they have shared insights into their strategies and the progress made so far.

Ogletree Deakins: Innovating Its Approaches to Diversity & Inclusion Ogletree Deakins enjoys a long tradition of legal excellence. We are fully committed to the importance of diversity within the workplace and are proud of our record. The firm’s diversity and inclusion work is borne through two departments: the Diversity & Inclusion (D&I) Legal Practice Group and the Professional Development and Inclusion Department.

Ogletree Deakins’ D&I Legal Practice Group In September 2018, Ogletree Deakins formalized a new legal practice group—the D&I Practice Group. It comprises attorneys who each have an expertise that supports our clients in their diversity and inclusion efforts. D&I is an area of increasing priority for many organizations, including ours. But, in addition to implementing our firm’s robust D&I efforts, as workplace legal experts, the firm wanted to be positioned to do this work outside the firm—for our clients. With the addition of the D&I Practice Group, Ogletree Deakins became one of a handful of law firms in the country focused on helping companies realize their D&I goals. Ogletree Deakins’ D&I Practice Group focuses on newly emerging and evolving aspects of diversity

and inclusion law as well as practice. Attorneys help guide companies through the diversity assessment, data collection, D&I metrics or goal setting, and D&I data analysis processes. Attorneys provide legal advice and compliance and risk-reduction counseling that factors in D&I-oriented law. Attorneys assist with the creation of D&I plans, D&I needs assessment or engagement surveys, and D&I program execution, such as affinity group structuring and creating diverse recruiting/hiring plans. Attorneys and expert trainers offer D&I-focused training on subjects such as unconscious bias, launching a D&I initiative, and inclusive leadership. Over the past two years, Ogletree Deakins’ D&I Practice Group has been representing companies across an array of industries in these varied diversity or inclusion-oriented efforts. The firm represents organizations (from startups to Fortune 500, privately held and publicly traded, those beginning a D&I program to those having a sophisticated D&I initiative, and beyond) in the range of legal, compliance, programming, training, and mitigation issues that arise in D&I implementation. Many companies are seeking support for their D&I initiatives, given how their customers, clients, boards, executive leadership, and society are focused on it. And many lawyers, human resource professionals, and D&I practitioners are receiving more resources and have become more intensly focused on how to recruit, retain, engage, include, and promote their diverse workforce and also meet the needs of an increasingly diverse customer base. There is no shortage of D&I resources in the marketplace. But there are not many lawyers providing D&I legal counseling as well as practical strategic advice. Ogletree Deakins has set itself apart by being that D&I legal resource.

Rebecca Baumgartner is the senior manager of Diversity & Inclusion at Ogletree and is responsible for supporting and driving equity, diversity, and inclusion initiatives at the firm. Kimya Johnson is senior counsel and leads the firm’s Diversity & Inclusion Legal Practice Group. Michelle Wimes is Ogletree’s chief diversity and professional development officer and provides the visionary and strategic direction for the firm’s internal efforts. Janie Langdale is director of marketing and a member of Robinson Gray’s Diversity Equity & Inclusion (“You2”) Committee. Beth Richardson is a partner and leads Robinson Gray’s diversity equity & inclusion efforts as chair of the You2 Committee.

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Ogletree Deakins’ Professional Development and Inclusion Department The firm’s internal D&I work is well-established, and the firm has been recognized as a law firm leader. The firm has an expansive D&I initiative with a myriad of longstanding programs; however, earlier investments in affinity groups and wellness programs, in particular, have proven to be worthwhile, especially during the current COVID-19 crisis. Over the past five years, the firm has developed and supported the formation and initiatives of six Business Resource Groups (BRG) aimed at our diverse attorneys. The firm supports each BRG with resource allocation that includes formal and informal mentoring programs, training, professional development, and business development opportunities for its members. The BRGs are an invaluable firm resource and means to increase belonging, connectedness, and success among diverse attorneys. Additionally, the firm leverages its annual shareholder meeting and all-attorney retreat to host biennial retreats for our women and diverse attorneys and events specifically targeted to encourage the growth and cultivation of our diverse attorneys. As a way to encourage individual engagement, the Pledge to Diversity and Inclusion–An Action Plan (DAP) asks each attorney to commit to completing five to seven activities to experience diversity in their everyday lives. The firm also recognizes the importance of a healthy balance between work obligations and life. We have implemented many programs and benefits to help attorneys achieve greater work-life integration, including formalized remote work and reduced hour policies. To ease an attorney’s transition back to work after paid parental leave (PPL), the on-ramping program was adopted. In addition to up to 16 weeks of wage replacement benefit, this gender-neutral program provides a reduced billable hours requirement without requiring an application or other approval and with no compensation adjustment. Additional supporting resources, including backup child care and a milk stork program, are available to aid in ensuring that returning attorneys can successfully ramp back up to their full productivity. Additionally, Ogletree is committed to promoting, supporting, and sustaining the health and well-being of all of our lawyers and professional staff. We are proud of the pledge we made to support the ABA’s innovative and important campaign to improve the health and well-being of those in the legal profession. In addition to reaffirming Ogletree’s pledge to support the ABA campaign and to adopt and prioritize a framework for building a culture focused on well-being, the Wellness Pledge page provides important educational opportunities and resources that are available to our attorneys and staff on topics related to well-being, mental health, and substance abuse. Most importantly, attorneys and staff have seen the firm focus on prevention and taking action. For example, at our last firmwide attorney retreat, for the first time we hosted several wellness sessions, including yoga, meditation, breathing, and stress relief. We had a relaxation lounge where our attorneys could retreat to between sessions, and we served custom mocktinis and nonalcoholic beverages during our receptions. We have been hosting Alcoholics Anonymous sessions for our attorneys during the last two retreats as well as a 5K run, through which we have also raised money to combat diseases that have been prominent in our community. We rolled out Midweek Mindfulness events and a two-month weekly webinar series to help 18 • THE FEDERAL LAWYER • July/August 2020

attorneys and professionals cope with recent events. We know that chronic stress and substance abuse are not inevitable. There are actions to be taken—individually and as a firm—that will facilitate the individual and collective ability to make health and well-being a priority. And we plan to continue to do our part.

Enhancing the Diversity, Equity, and Inclusion Process: Big Impact From a Small Firm Robinson Gray Stepp & Laffitte, located in Columbia, S.C., provides business transaction and litigation representation across the state. Known for a commitment to legal excellence and community service, D&I has always been an intrinsic part of Robinson Gray’s identity as well. Two of the firm’s founding partners—Becky Laffitte and Betsy Gray—are female, and their names appear in the firm’s name. Currently, more than 40 percent of our attorneys are female. Over the past few years, Robinson Gray has worked hard to formalize and increase our Diversity, Equity, and Inclusion (DE&I) initiatives and achieve even more diversity in the workplace. For small to mid-size law firms like Robinson Gray (currently with 32 attorneys), any formal DE&I initiative can be daunting. Fortunately, companies of all sizes can do their part, and smaller firms can often make impactful changes quickly. Robinson Gray has certainly taken culture-changing steps in a short period of time.

Internal Implementation Strong leadership and firmwide buy-in are vital components of any successful work endeavor. In 2017, D&I was chosen as one of four facets of Robinson Gray’s overall strategic plan, and for the first time in the firm’s history, it became part of the annual budgeting process. In early 2018, Robinson Gray formed a DE&I committee, with members representing every level of Robinson Gray. The initiative was formally kicked off in 2018 at Robinson Gray’s attorney retreat, where DE&I was a main focal point of the agenda. We arranged for talent management leader and D&I professional Jacquelyn Cranford to lead attorneys in a thought-provoking group discussion regarding DE&I in the workplace. Following the retreat, the committee called on Susan Kuo, dean of diversity and inclusion at the University of South Carolina School of Law, to lead a similar presentation for our nonattorney staff. Also, in 2018, Robinson Gray named its first DE&I coordinator to help lead the initiative. With guidance from a coordinator and committee leader, the DE&I committee established a three-year strategic plan, including, among other goals: (1) the establishment of an ongoing consulting relationship with a DE&I advisor to help institute transparency around the process, (2) continuing education within the firm regarding DE&I, and (3) participation in DE&I initiatives outside the firm. Engaging an Advisor in the DE&I Field As to the first goal in the three-year strategic plan, Robinson Gray works with Nika White Consulting, a nationally recognized authority on strategic diversity, intentional inclusion, and organizational effectiveness. Dr. White first assessed our current initiatives to help determine next steps useing focus groups, one-on-one interviews, documentation analysis, and employee surveys as part of her firmwide assessment. The results gave insight into areas of success and opportunities for growth. Robinson Gray branded the DE&I committee internally as “You2,” which reflects the firm’s culture and

focus on DE&I. In early 2020, Dr. White returned to lead a day-long strategic planning session with members of the You2 committee. Continuing Education Within the Firm Regarding DE&I Much like Ogletree Deakins, Robinson Gray recognizes the importance of a healthy work-life balance and promoting a workplace culture that meets its members’ diverse needs. With these values in mind, we formalized human resource initiatives by launching a program in 2018 called “WorkWell.” WorkWell’s mission is to foster an environment where attorneys and staff can all “give, grow, and thrive,” and it comprises four main components involving participation by all firm members: health and well-being (Healthy Habits); professional development (Know & Grow); events and relationship-building (Culture Club); and DE&I (You2). WorkWell updates are emailed within the firm in a weekly newsletter, which has been a useful platform for sharing information regarding DE&I. Another well-received continuing education effort from last year was the “D&I Five.” Robinson Gray aired several 3- to 5-minute videos produced by the South Carolina Bar regarding D&I at the beginning of team meetings throughout the year. We also invited the South Carolina Bar’s Nichole Davis to follow up on these videos and lead an interactive discussion with lawyers and staff regarding implicit bias. Providing a myriad of opportunities for involvement, connection, and education within the office has helped the firm keep DE&I values front and center to our organization. DE&I Involvement and Outreach Outside the Firm Just as important as our internal DE&I leadership, training, and education is Robinson Gray’s involvement in these issues with others outside the firm. Those on the You2 committee, including Robinson

Gray’s managing partner, have prioritized participation in and taken leadership roles in many DE&I efforts. In 2019, one Robinson Gray attorney presented on D&I in law and business at the South Carolina Bar’s SC Leaders Forum, and Robinson Gray’s managing partner, an active member of the South Carolina Bar’s Diversity Committee, participated in its panel discussion on implicit bias. Another lawyer was selected to participate in the award-winning program, The Riley Institute at Furman’s Diversity Leaders Initiative. Robinson Gray has also been proud to continue its longstanding financial support for and participation with the Black Law Students’ Association at the University of South Carolina School of Law and the South Carolina Women Lawyers Association. In addition, we hosted a Friends-Raiser at the Modjeska Monteith Simkins House in Columbia honoring the “Matriarch of Civil Rights activists of South Carolina,” and we sponsored the launch of the Columbia City of Women project, an initiative to address the disparity of landmarks named for women in the city.

The Path Forward It is clear that there is no one path forward and no quick fix. Just like Ogletree Deakins, Robinson Gray has learned a lot and made considerable strides in its DE&I initiatives over the past few years, and its journey is just beginning. Policy reviews, recruitment revisions, and continued education are just some of the goals we have in the coming years. Starting with small, incremental steps has helped Robinson Gray set a strong foundation and make fundamental improvements in making our business more representative of the world around us, and we are eager to continue. Whatever your company’s size and wherever you are in the process, let’s keep moving forward together. 

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.

July/August 2020 • THE FEDERAL LAWYER • 19

Corporate and Association Counsel Division

Bargaining, Bottom Lines, and BATNA: Re-Learning the Skill of Negotiation By Michael J. Cahalane and Andrew R. McConville

Michael J. Cahalane and Andrew R. McConville are partners at Cetrulo LLP in Boston. They concentrate their practices in products liability, toxic tort, and pharmaceutical litigations in state and federal courts throughout New England. Cahalane and McConville also represent several companies as National Coordinating Counsel. In that capacity, they manage all aspects of the client’s defense. Cahalane and McConville also teach undergraduate and postgraduate courses, including in conflict resolution and negotiation skills. McConville was formerly a judge advocate in the Marine Corps, where he served as trial counsel and then as a trial advocacy instructor at the Naval Justice School. Cahalane is a vice chair for the FBA’s Corporate and Association Counsel Division. © 2020 Michael Cahalane and Andrew McConville. All rights reserved.

Teaching negotiation skills to undergraduates can be a welcome diversion from the contentiousness of mass tort and product liability litigation. One of the more remarkable observations from instructing college students about the art of bargaining is how quickly many of them grasp the key concepts, including the role relationships play in conflict resolution and how the fluidity of leverage can instantly change the landscape of a negotiation. Perhaps we should not be surprised by the ease with which they comprehend basic theories because humans seem to have an innate ability to negotiate. For instance, even young children, without any training, have a knack for how to effectively negotiate for dessert, higher allowance, or a later bedtime. What is surprising, however, is how lawyers, particularly litigators, have a tendency to abandon the intuitive skills of conflict resolution. It is as if, like Maslow’s Hammer, once the lawyer understands the power of the trial as an instrument for resolving disputes, he forgets about the other tools in his chest.1 As a result, when he is required to negotiate, he does so inefficiently and ineffectively. Consequently, the typical settlement negotiation in a product liability case falls into a familiar pattern: 1. Defense counsel waits for a settlement demand; 2. Plaintiff ’s counsel issues an unrealistically high settlement demand; 3. Defense counsel calculates some fraction of the demand and asks the client or insurance carrier for settlement authority equal to that amount, using facts of the case to justify the request; 4. The client begrudgingly approves the requested authority; 5. Defense counsel makes a settlement offer, usually as irrational as the initial demand; 6. The parties proceed to trade counteroffers, making only incremental progress, while defense counsel racks up bills “defending the case,” the plaintiff remains empty-handed, and the case languishes on the docket; 7. The case settles before trial, often during mediation, with the parties “meeting in the middle” at a figure that was attainable months, or even years, earlier.

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This is not how a negotiation should be conducted. This approach to conflict resolution is known as “positional bargaining.” As Getting to Yes—perhaps the seminal text on the fundamentals of negotiation—explains, positional bargaining involves repeatedly taking and then surrendering bargaining positions, a process that is inefficient and rarely results in a mutually beneficial deal.2 Litigators must resist the temptation to resort to positional bargaining and, instead, adopt a more enlightened approach to negotiation designed to get better results for their clients while also saving time and money. There are at least five key strategies that lawyer-negotiators, particularly litigators, should employ to unlock their dormant bargaining skills and return to a more productive and cost-effective approach to negotiations. These five tactics are addressed below:

Identify and Strengthen Your BATNA The goal of every negotiation should be for the parties to end up in a position superior to than if they had not negotiated.3 The Best Alternative to a Negotiated Agreement, or BATNA, is the bargainer’s fallback plan if a deal is not reached. All negotiators should determine what they will do if they do not make a deal so that they can compare any proposed bargain against that scenario. If the proposal is inferior to the BATNA, it generally should be rejected. The litigator’s BATNA is often taking a case to trial to let a jury resolve the dispute. Accordingly, to effectively evaluate a potential settlement, the litigator needs to realistically evaluate her trial risk; that is, the chance of an adverse verdict as well as the magnitude of a potential verdict. This is her BATNA. Studies have shown, however, that litigants exhibit a high incidence of decision-making error when evaluating trial risk.4 Consequently, before abandoning settlement negotiations, litigators should carefully assess likely trial outcomes. BATNAs are fluid and, in the litigation context, fluctuate during the life of a case and even during trial. Accordingly, a litigator can constantly improve her bargaining position by bolstering her trial posture. She

should track down exculpatory witnesses, retain experts, develop legal arguments, and refine the trial presentation, all with the goal of strengthening her BATNA and improving her leverage at the bargaining table.

Beware of Bottom Lines BATNA is often confused with a bottom line, a distinct negotiating position. A bottom line is the worst acceptable outcome to a successful negotiation. If a party is unable to negotiate a result equal to or better than her bottom line, she should generally not make the deal and, instead, rely on her BATNA. The bottom line is a term that is frequently used in a negotiation to signal to the other side that a party is at the limit of its authority. In the litigation context, plaintiff ’s counsel often claim to make “bottom line demands,” and defense counsel often bluff that they have extended all of their settlement authority. There is nothing inherently wrong with “cutting to the chase” and giving the other side your best offer (in fact this strategy is likely more efficient than the traditional incremental dollar-for-dollar offer/counteroffer approach). Bottom lines are dangerous, however, when they are used as a bluff. When a party says he has offered his last dollar or made his lowest possible demand, he should mean it. If he subsequently moves below his bottom line (or offers more money) his credibility is lost. When a negotiator gains a reputation for misrepresenting his bargaining position, he will never be trusted and will not be effective. Litigators should be wary about making bottom-line demands and only do so when it is truly their last move.

Rely on Data, Not Demands The positive impact of data in decision-making is undeniable. It is used effectively in nearly every aspect of our society from finance to marketing to healthcare. Data is just as powerful in resolving conflicts. In the typical litigation negotiation paradigm recounted above, the defense lawyer waits for the settlement demand before requesting settlement authority from his client; however, the settlement demand is only relevant in that it might shed light on how plaintiff ’s counsel values the case. The demand should be irrelevant to how defense counsel values a case. Defense counsel should be able to independently evaluate a case using objective data such as verdict research, set offs, and prior settlement history. Using objective data to evaluate risk, independently value a case, and make an appropriate settlement recommendation to the client is what lawyers are paid to do. If a lawyer needs to know the other side’s demand before he can request authority, he is not doing his job. Defense lawyers do not need a settlement demand to request authority. They should be able to evaluate the case based on objective criteria and seek authority even before getting a demand.

Seek Early Resolutions As noted above, cutting to the chase by offering a bottom line may be an efficient way of negotiating because it expedites the bargaining process and saves costs, but it may not yield the best results. This approach frequently gives rise to bad deals because the party who offers a true bottom line often surrenders too much and leaves value on the bargaining table. There is a middle ground between starting at unrealistic extremes and cutting to the chase. By valuing the case based on objective information, a negotiator should be able to use the data to engage

in realistic settlement discussions rather than drag them out over the course of the case. Indeed, the Federal Rules of Civil Procedure empowers courts to intervene early in the life of a case to promote settlement and “facilitat[e] in other ways the just, speedy, and inexpensive disposition of the action.”56 As soon as discovery has allowed the parties to reasonably evaluate liability and damages, the lawyers should begin exploring early resolution options.

Think Creatively We often view negotiations as involving a single issue: how much will you pay for a car or how many vacation days will you get at your new job. The truth is that negotiations, even those that initially appear focused on one issue, such as money, are usually multifaceted. There are often terms or other intangible components of a bargain that are relevant but may not be immediately apparent. Lawyers should think creatively to identify both their own and their opponents' interests that may have value in a negotiation. For example, timing of payment, release terms, admission of fault, confidentiality, or a simple apology are all bargaining chips that litigators should consider raising in a negotiation as a way of finding an inventive solution to a case. By thinking creatively about interests underlying the parties’ bargaining positions, a lawyer may be able to reach an accord that would otherwise be unattainable.

Conclusion Litigators are trained to attack the other side’s case and win at all costs. While these may be successful strategies in the courtroom, they are frequently counterproductive at the bargaining table. When litigators are asked to negotiate, their legal training often clouds their ability to bargain. They rely on their opponent’s expectations to inform their own valuation of a case and then they engage in a painstakingly slow retreat of positions until they reach (or do not reach) an acceptable point in the middle. This approach to conflict resolution is neither effective nor cost-efficient. Instead, litigators should bolster their BATNA, avoid bottom lines, use data to inform strategy, explore early resolution when possible, and think creatively to find resolutions. In short, litigators need to awaken their latent bargaining talents and re-learn the skill of negotiation. 

Endnotes Maslow, Abraham H, The Psychology of Science: A Reconnaissance (Harper & Row 1966). 2 Fisher, Roger, William Ury, and Bruce Patton. Getting to Yes, at 4 (Penguin 3d ed. 2011 New York). 3 Id. at 102. 4 See R.L. Kiser , M.A. Asher, and B.B. McShane, Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations. Journal of Empirical Legal Studies 5: 551-591 (2008). 5 Fed. R. Civ. P. 16(c)(2)(I) and (P); see also Fed. R. Civ. P. 26. 6 John Lande, The Movement Toward Early Case Handling in Courts and Private Dispute Resolution. Ohio St. J. on Dis. Resol. 24, 81. (2008). 1

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In the Legal Community

A City’s Legal Community Fosters Collaboration and Positive Change After One of the Most Heinous Acts of Racial Violence in Modern U.S. History By Brian Duffy

Brian Duffy, a civil trial lawyer at Duffy & Young in Charleston, S.C., is chairman and CEO of The Charleston Forum. He served as president of the Charleston County Bar Association from 2016-2017. He is also a past president of the South Carolina Chapter of the FBA.

Charleston, S.C., lies on fault lines. One produced an earthquake of 7.3 magnitude in 1886 that was felt as far away as Boston. Another, its complicated racial history, erupted on June 17, 2015, at Emanuel African Methodist Episcopal Church, generally known as Mother Emanuel, and shook the entire nation. Nine worshippers, all of whom were African American, were brutally murdered while at Bible study one quiet summer evening. The community gathered together to grieve with and support the victims’ families and the congregation of the historic Mother Emanuel church. Law enforcement apprehended the suspect; the judicial process began. United States v. Roof was tried in December 2016 at the federal courthouse in Charleston, which had recently been renamed after J. Waties Waring, who served there as a pioneering district judge during the civil rights era. The assistant U.S. attorney who prosecuted the case, Julius N. Richardson, now sits on the Fourth Circuit Court of Appeals. (See the judicial profile on Judge Richardson, p. 28.) Hon. Richard M. Gergel presided over the trial. ( Judge Gergel authored the book Unexampled Courage, which is reviewed on p. 52.) The defendant was convicted on all 33 federal charges and sentenced to death. The legal players fulfilled their roles admirably. The process worked well and provided some measure of resolution for the community. The community had more than a crime to solve, however. The fault line did not disappear. Many in the community stepped forward in response. With such an abominable crime unmistakably driven by racial prejudice, people were more open to an introspective examination of attitudes and institutions. The Charleston County Bar Association, led by its then president (and past FBA chapter president), created The Charleston Forum to harness the community’s realization of the need for, and the power of, unity. Similar to parties in a lawsuit approaching a mediation,

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divergent parts of a community will not overcome racial barriers that divide them without openly sharing what policies and institutions are perceived as problems by some and why they may not be so perceived by others, and how they might move forward together and deprive those issues of their divisiveness. The Charleston Forum, now its own nonprofit corporation, tackles issues at an annual event that is part of the official commemoration events of Mother Emanuel and the city of Charleston. The Forum continues the discussion online throughout the year. The Forum focuses on issues of race in (1) policing and criminal justice, (2) education and economics, and (3) the future of the past. In the inaugural event at the Charleston Music Hall in June 2017, it engaged a sellout crowd for five hours of discussion and entertainment late into a Friday evening. A panel for each topic shared perspectives and debated solutions. Excitement took hold from the start, when DeRay McKesson of Black Lives Matter and Jane Castor, former chief of police and now mayor of Tampa, Fla., discussed issues in policing. Pulitzer Prize-winning historian David Blight of Yale, along with local leaders and Fresno State professors who have written about Charleston, addressed how the city and nation have arrived at the current circumstances and where each is headed without intervention. Individual speakers enthralled the crowd. Charleston's former chief of police, Greg Mullen, shared the process and results of the groundbreaking Illumination Project of community engagement and department reform with ongoing measurables. That project now serves as a national model, steered by another presenter and TED Talks alum, Rev. Dr. Kylon Middleton. U.S. Rep. Jim Clyburn (D-SC) laid out his vision of work to be done, and U.S. Senator Tim Scott (R-SC) closed out the evening by encouraging everyone to “be a carrier of the cure, not the disease.”

U.S. Sen. Tim Scott (R-SC)

Charleston Forum panel (above and below)

Charleston’s Poet Laureate Marcus Amaker and jazz phenom Charlton Singleton captivated attention during breaks in the presentation. Former Starbucks general counsel Paula Boggs crossed the country with her band to perform their new release, “Benediction,” in tribute to the Emanuel Nine. CNN contributor Bakari Sellers, who had joined his colleague Margaret Hoover to present their views in year one, returned to moderate a panel on education in year two. Coastal Community Foundation CEO Darrin Goss Sr. moderated a panel on economics while the Forum dug deeper into those two topics to consider solutions to problems lain bare by a College of Charleston study on racial disparities in the region. In June 2019, the Forum encouraged action in the public sphere, welcoming public servants from the South Carolina Lowcountry, including U.S. Rep. Joe Cunningham (D-SC) and Mayor John Tecklenburg, as well as the Charleston County public defender and solicitor, among others. Each official identified a measure he or she was championing and informed the audience how they could help bring it to fruition. Then, South Carolina native Craig Melvin of the Today show led an armchair conversation between fateful friends, Mother Emanuel Pastor Eric Manning and Rabbi Jeffrey Myers from the Tree of Life Synagogue in Pittsburgh. They shared their visions and work to help communities overcome pain inflicted by hateful acts and to conquer incendiary division.

Mayor John Tecklenburg

The Forum also encouraged action on the ground, bringing together a host of nonprofits to display in a farmer’s market atmosphere to interested volunteers and supporters at the first annual “Forum Expo” which was held earlier in the day. The focus of the 2020 event was the group’s survey on racial attitudes, in coordination with the city of Charleston celebrating the 350th anniversary of its founding. The Forum’s exploration of what barriers to unity exist is intended to help the community work its way over or around them. Charleston is not the only city sitting atop a fault line of race. The Charleston Forum hopes that its efforts may be of use to other communities interested in working toward a more open and cooperative approach to bridge any divide that exists. If you would like to learn more or offer support or a tax deductible donation, please visit www. thecharlestonforum.com. 

Rep. Joe Cunningham (D-SC)

U.S. Rep. Jim Clyburn (D-SC)

July/August 2020 • THE FEDERAL LAWYER • 23

View from the Bench

Representing the “Challenging” Client at Sentencing By Alan Ellis

Alan Ellis has 52 years of experience as a practicing lawyer, law professor, and federal law clerk. He is a past president of the National Association of Criminal Defense Lawyers, a Fulbright Award winner, and a federal criminal defense lawyer specializing in sentencing, prison matters, appeals, and 2255 motions, with offices in San Francisco and New York City. © 2020 Alan Ellis. All rights reserved.

In the course of my interviews with more than 30 federal judges over the past four years on what works and doesn’t work in sentencing advocacy, I asked many of them what a defense lawyer could do when he has a client who has committed a heinous crime. Most judges seem to agree that con men who prey on vulnerable victims are the worst. They shared some pretty specific recommendations with me on how to effectively mitigate sentences. Many judges want you to demonstrate that your client is not a con man or a psychopath or sociopath, if you believe this to be the case. Quite a few judges suggested to me that they want to be convinced that your client did what he did because of a mental disorder. That can be especially helpful if he sought treatment prior to sentencing and, even better, prior to being caught. “A defendant with mental health problems or substance problems which contributed to the offense conduct who has sought treatment and who has demonstrated efforts at rehabilitation prior to sentencing and better yet Judge Rakoff before they even knew they are under investigation can be impactful,” according to Judge Jed Rakoff of the Southern District of New York in Manhattan. “If you have a case where a defendant has committed an egregious crime, emphasize something in his background demonstrating possible mental health issues,” urged Judge James S. Gwin of the Northern District of Ohio in Judge Gwin Cleveland. “This can make a defendant less blameworthy.” He noted, however, that psychiatric or psychological reports prepared only for sentencing by a qualified, well respected mental health expert don’t carry as much weight as reports from a mental health professional who treated the defendant for a significant period of time.

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Judge Cynthia Bashant of the Southern District of California in San Diego emphasized that mental health reports can be useful only if the evaluator has spent a considerable amount of time with the defendant. “The report Judge Bashant where the expert has spent 15 minutes with the defendant and has concluded that he is not a risk to reoffend is not particularly helpful,” she said. “A lawyer should not hesitate to submit a report by a mental health professional who has treated the defendant for a significant period of time rather than the word from a professional forensic expert. I recognize that some clinicians who have spent a lot of time with their patients may come across as advocates but so, too, often are paid forensic experts.” Judge Bashant is particularly interested in knowing whether the offender has a treatable diagnosed mental health disorder that may have contributed to the commission of the offense. Judge Jon D. Levy of the U.S. District Court for Maine in Portland told me that he will give serious consideration to any assessment that credibly demonstrates that the mental health provider has exercised independent professional Judge Levy judgment. Like Judge Bashant, he welcomes a report from a treating evaluator. “I want to know the risk of the defendant reoffending,” Judge Levy stated. “I like the professional to come to court for the sentencing hearing. It makes him subject to cross examination. It allows him to question the expert.” Like Judge Rakoff, Judge Justin Quackenbush of the Eastern District of Washington in Spokane, who is Judge Quackenbush also considered a fairly light

sentencer, explained that if a defendant does have a demonstrated mental health problem, he looks favorably on those who have sought treatment prior to sentencing—preferably prior to being caught. Judge John R. Adams of the Northern District of Ohio in Akron, who is on the other end of the sentencing spectrum and Judge Adams has a reputation for being a tough sentencer, said, “What I have found particularly useful is a solid report from an expert who I have appointed.” He suggested agreeing on an independent expert with the prosecutor. “This independent expert report coupled with his in-court testimony can be very useful,” he said, adding that “a good report coupled with the expert’s enlightening in-court testimony at the sentencing hearing can be very, very helpful.” Judge Otis D. Wright II of the Central District of California in Los Angeles, another reputedly tough sentencer, doesn’t want to Judge Wright II feel that he is being manipulated. “The best thing a lawyer can do is to start out by making sure that he and I are on the same page,” he said. For example, in a particularly egregious case, he wants a lawyer to have acknowledged that the offense is indeed a heinous one if it is. “Once we are both in agreement as to what the client did and how victims have been impacted by it, that lawyer has a lot of credibility going forward. When I see that the lawyer and I are talking about the same person and the impact their actions have

Character letters can also be helpful. In addition, many judges told me that they appreciate being informed of good deeds a defendant has done before learning he was under investigation. Judge Ralph Erickson of the U.S. Court of Appeals for the Eighth Circuit, who was a district court judge in North Dakota when I interviewed him in Judge Erickson 2018, put it this way: “Tell me something your client did when no one was keeping score.” Examples included mowing the lawn or shoveling the snow of the walk of a disabled neighbor.

Observations I’ve been practicing criminal law for more than 50 years. During that time, I’ve come to realize that criminal behavior is deviant behavior. Deviant behavior is often driven by mental health disorders. Studies by the National Institute for Justice have shown that one-fourth of inmates in state and federal prisons have a diagnosable DSM-V mental health disorder. Accordingly, I generally have my clients evaluated by a mental health professional. This is not the report that I share with the court; it’s something that helps me devise a theory of the sentencing for my client. In choosing a mental health professional to evaluate my client and report to the court, I often ask the prosecutor who he uses for an expert. Typically, after a stunned silence, I get an answer by the next day. Then I generally use these same people. First of all, they are bullet-proof. Second, they like to burnish their resumes with

“I want to know the risk of the defendant reoffending,” Judge Levy stated. “I like the professional to come to court for the sentencing hearing. It makes him subject to cross examination. It allows him to question the expert.” on the victims, I oftentimes will give the defendant a lower sentence than the attorney even asks for.” He warned that where there are vulnerable victims and the money can’t be found, if he believes that a defendant is secreting the money with the hope of spending it when he gets out, “I will do whatever I can to make sure he doesn’t get out to spend his ill-gotten gains.” Judge Wright expects a defendant who is trying to appear remorseful to make restitution—in other words, to “put his money where his mouth is.” “I want heartbroken vulnerable victims to know that I take what happened to them very seriously. My sentences will reflect this, particularly where I believe a defendant has not done what he could have to make things right with his victims.” Similarly, Judge Adams says, “If I see a Presentence Report that shows the defendant spent a lot of money on luxuries with nothing paid back on restitution, I get very annoyed. A defendant needs to acknowledge what he has done and do his very best to make the victims whole.” It is very important to Judge Adams that a defendant disclose all his assets. “If I learn that the defendant has been hiding or has transferred assets to avoid paying restitution, it will be very harmful to him.” Even Judge Quackenbush, who is a lighter-sentencing judge, has a problem with a defendant who he perceives is hiding assets, particularly where restitution is in order.

their having worked with defense lawyers and will often give me the results I hope for. I also believe in having the mental health professional testify in court. By simply quoting from several sections of their report, I lessen the chance that the judge will say, “Why do I need to hear from the expert? I’ve read his report.” I then add that he or she will be available in court for any questions. Years ago, I read a case that said, “In America, we treat non-violent offenders who act from a mental disease or disorder differently than those who act out of greed and avarice.” Speaking of judges who get annoyed when they think a defendant is hiding his assets, one of the worst things I have seen in Presentence Reports is where, under financial status, it states that the defendant has not yet submitted a financial report to the probation officer. 

July/August 2020 • THE FEDERAL LAWYER • 25

From the Foundation

Establishing Inclusion—Foundation Scholarship for Minority First-Year Law School Students By Juanita Sales Lee

Juanita Sales Lee is a longtime FBA leader and a sustaining charter life fellow of the Foundation. She has served the FBA in many capacities, including as national president in 20082009. She is retired and lives in northern Alabama.

Now, perhaps more than ever, achieving diversity in law is not simply important but essential. The circumstances surrounding the death of George Floyd and its aftermath have brought to the forefront the need for representation of people of color in the legal profession. And it is obvious that we are not nearly reaching the level of diversity that should have been achieved by 2020. The 2019 ABA Profile of the Legal Profession reveals that, while 85 percent of lawyers are white, compared to 77 percent of the U.S. population, only 15 percent of lawyers are African American, Hispanic, Asian, Native American, or mixed race. The report further states that the statistics have remained stagnant over the past decade, even though overall U.S. minority populations have increased over that same timeframe. Overcoming this hurdle starts with reducing minority attrition rates in law schools. An analysis of ABA data conducted by AccessLex Institute, a nonprofit whose mission includes improving access to law school for historically underrepresented groups, revealed that those identifying as American Indian, Asian, Black, Hispanic, Native Hawaiian, and two or more races are disproportionately represented among students who do not persist beyond the first year. Many of these students face financial hardships that force them to make difficult decisions regarding the continuation of their legal education. This is where the Foundation wants to help. The Foundation awards more than $150,000 each year in grants and scholarships to support research, outreach, and education. This year, we are implementing the Dr. J. Clay Smith Jr. Diversity in the Legal Profession Scholarship, named in memory of the FBA’s first African American president. Dr. Smith’s long career in public service included serving as associate general counsel for the Federal Communications Commission, commissioner and then interim chair of the Equal Employment Opportunity Commission, and dean of Howard University

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School of Law. He is the author of Emancipation: The Making of the Black Lawyer, 1844–1944, published in 1993 with a foreword by Thurgood Marshall, the Supreme Court’s first African American justice. In September 1981, Dr. Smith presented to the Washington Bar Association a paper he wrote about Louis Mehlinger, a senior attorney with the Department of Justice and the first African American member of the FBA (1944). “As the twentieth century closes and as the twenty-first century is born,” Dr. Smith said, “the Federal Bar Association must continue to be faithful to the principle of race and sex diversity in its leadership ranks at the local and national levels.” The Foundation continues Dr. Smith’s legacy with the establishment of this new scholarship, which aims to promote diversity in the legal profession and encourage racial and ethnic minority students to pursue a legal education and complete law school. The Foundation of the FBA will award an annual $15,000 scholarship to a first-year law student, disbursed over three years of the student’s enrollment at an ABA-accredited law school. The recipient will also receive a complimentary FBA student associate membership. The Foundation needs YOUR help to ensure we can continue offering our financial support. It is up to all of us in the law profession to inspire racial and ethnic minority students and encourage them to pursue a legal education and complete law school. Please make a donation! It is our hope that by offering these incentives in the Dr. J. Clay Smith Jr. Scholarship, we will actively work to increase diversity in our legal educational institutions, even if it is one student at a time. ​ Aware of the magnitude and urgency of this issue, it is incumbent upon us, members of the FBA, to arise individually and collectively so that history will not find us wanting during this time when leadership by example is required. 

Thought Sponsor

Different by Design: Functionality in Trademarks and Design Patents By Robb Roby

Robb Roby is the managing partner of the Knobbe Martens New York office. Roby advises clients with respect to all forms of intellectual property and technology law, including patents, trademarks, and copyrights. Roby joined Knobbe Martens in 1997 after graduating from the New York University School of Law. © 2020 Robb Roby. All rights reserved.

When creating an intellectual property portfolio, companies often seek overlapping forms of intellectual protection for products. For example, a utility patent protects the functional aspects of a product while a design patent protects the ornamental aspects of the product, and trade dress can protect aspects of the product that are source identifying. In July 2019, the Court of Appeals for the Federal Circuit found that trademark law’s “aesthetic functionality” doctrine was inapplicable to design patents: We hold that, even in this context of a consumer preference for a particular design to match other parts of a whole, the aesthetic appeal of a design to consumers is inadequate to render that design functional. Though trademarks and design patents have certain similarities, it does not follow that trademark principles apply equally to design patents. Trademarks and design patents serve different purposes and have different governing law. Trademarks promote competition by permitting a perpetual monopoly over symbols that “distinguish[] a firm’s goods and identif[y] their source, without serving any other significant function.” Trademarks ensure that a particular producer reaps the rewards—and bears the risks—of its products’ quality and desirability. It follows that a company may not indefinitely inhibit competition by trademarking features, whether utilitarian or aesthetic, “that either are not associated with a particular producer or that have value to consumers that is independent of identification.” In contrast, design patents expressly grant to their owners exclusive rights to a particular aesthetic for a limited period of time. The considerations that drive the aesthetic functionality doctrine of trademark law simply do not apply to design patents.1 While the Federal Circuit was addressing the inapplicability of the aesthetic functionality doctrine

to design patents, similarities and differences exist in the way trademark law and design patent law address functionality in general. Knowing these similarities and differences can help companies avoid complications as they develop their intellectual property portfolio with overlapping forms of protection.

Trademarks and Functionality When it comes to trademarks, product configurations are protectable as trade dress. Trade dress has been defined as the “total image and overall appearance” of a product and may include features such as size, shape, color or color combinations, texture, or graphics. With respect to the shape, design, or packaging of a product, the nonfunctional features may be protectable as trade dress if the features have acquired distinctiveness or, in the case of packaging, are inherently distinctive. Notably, anything sought to be protected as trade dress must not be “functional” as a whole.2 As explained in the Trademark Manual of Examining Procedure (TMEP) § 1202.02(a)(iii)(A): “The determination that a proposed mark is functional constitutes, for public policy reasons, an absolute bar to registration on either the Principal or the Supplemental Register, regardless of evidence showing that the proposed mark has acquired distinctiveness.” This complies with 15 U.S.C. § 1052(f ), which states that “except as expressly excluded in subsections … (e)(5) of this section, nothing herein shall prevent the registration of a mark used by the applicant which has become distinctive of the applicant’s goods in commerce” and with 15 U.S.C. § 1091(c), which states that, “[f ]or the purposes of registration on the supplemental register, a mark may consist of … any matter that as a whole is not functional … .” Not only is it clear that functional trade dress cannot be registered, functionality is one of the grounds that can be raised in a cancellation proceeding more than five years after the date of registration,3 and functionality is a statutory defense to infringement in a lawsuit involving an incontestable registration.4 A feature is functional as a matter of law if it is “essential to the use or purpose of the article or if it affects the cost or quality of the article.”5 The mere fact that July/August 2020 • THE FEDERAL LAWYER • 27

a product has a function (e.g., a bottle of any design holds fluid) will not prevent registration of trade dress, but a product design that has a particular shape that improves performance of that function will prevent registration of the trade dress. According to the trademark law, a functional feature is any product feature that is essential to the use or purpose of the product or that affects its cost or quality. The existence of alternative designs will not save otherwise functional trade dress.6 Thus, the existence of alternative designs available to competitors will not create an ability to register an otherwise functional feature. In evaluating functionality, an examining attorney at the United States Trademark Office will consider the Morton-Norwich factors: (1) the existence of a utility patent that discloses the utilitarian advantages of the design sought to be registered; (2) advertising by the applicant that touts the utilitarian advantages of the design; (3) facts pertaining to the availability of alternative designs; and (4) facts pertaining to whether the design results from a comparatively simple or inexpensive method of manufacture.7 While there are four Morton-Norwich factors, it is not necessary to consider all four in every case, and it is not necessary that all four weigh in favor of functionality. As mentioned above, if a product design is deemed functional under the Morton-Norwich factors, then the existence of comparable alternative designs cannot save the product design from a finding of functionality.8 In some cases, even if a feature survives the Morton-Norwich factors, functionality can be found if the exclusive use of a feature sought to be protected would put competitors at a significant nonreputation-related disadvantage. The examining attorney ordinarily will request copies of patent applications and other patent information relating to product design marks. As such, during preparation of utility patent applications, it is important to be mindful of any impact that a patent application may have on later filed trade dress applications. In TrafFix, the Supreme Court stated: In a case where a manufacturer seeks to protect arbitrary, incidental, or ornamental aspects of features of a product found in the patent claims, such as arbitrary curves in the legs or an ornamental pattern painted on the springs, a different result might obtain. There the manufacturer could perhaps prove that those aspects do not serve a purpose within the terms of the utility patent. The inquiry into whether such features, asserted to be trade dress, are functional by reason of their inclusion in the claims of an expired utility patent could be aided by going beyond the claims and examining the patent and its prosecution history to see if the feature in question is shown as a useful part of the invention.9 If the utility patent only incidentally discloses and does not claim the asserted trade dress, then a court is more likely to find that the utility patent does not render functional the trade dress. If, on the other hand, the utility patent claims, and therefore protects, the asserted trade dress, then a court is more likely to find the asserted trade dress to be functional. Design patents can be evidence of non-functionality, but typically only if the design patent is for the identical configuration sought to be protected as trade dress.

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Design Patents As explained by the United States Patent Office’s A Guide to Filing a Design Patent Application, design patents can protect the configuration or shape of an article as well as the surface ornamentation applied to the article, or a combination of configuration and surface ornamentation. A design patent, however, does not protect the structural or utilitarian features; a design patent protects only the ornamental appearance of the article. By definition, an ornamental design is one that was “created for the purpose of ornamenting”; an ornamental feature cannot be the result or mere byproduct of functional or mechanical considerations. In determining whether a design is primarily functional or primarily ornamental, the Federal Circuit has held “that the overall appearance of the article—the claimed design viewed in its entirety—is the basis of the relevant inquiry, not the functionality of the elements of the claimed design viewed in isolation.”10 The ornamentality of a design is not a quantitative analysis based on the size of the ornamental feature or features; the ornamentality of a design is based on the ornamental contribution of the features to the design as a whole.11 Design patent law takes a decidedly more narrow view of functionality than discussed above with respect to trademark law; in design patent law, there is a “general rule that a design is ‘ornamental’ … when it is not primarily functional.”12 “In determining whether a design is primarily functional, the purposes of the particular elements of the design necessarily must be considered.”13 However, “[i]n determining whether a design is primarily functional or primarily ornamental the claimed design is viewed in its entirety, for the ultimate question is not the functional or decorative aspect of each separate feature, but the overall appearance of the article, in determining whether the claimed design is dictated by the utilitarian purpose of the article.”14 Generally, a patent examiner rejection for lack of ornamentality is rare. Any such rejection must be supported by evidence. The Manual of Patent Examining Procedure (MPEP) § 1504.01(c) sets forth some examples of such evidence: (A) common knowledge in the art; (B) the appearance of the design itself; (C) the specification of a related utility patent; or (D) information provided in the specification. If the patent examiner rejects an application for lack of ornamentality, then a response can be filed that includes: (A) a declaration that explains which features of the claimed design were created to increase the saleable value or demand for the article or to improve the esthetic appearance of the article; (B) advertisements addressing the appearance of the article embodying the claimed design; (C) attempts to increase consumer recognition of the design; (D) information that explains the motivating factors behind the creation of the design; or (E) information regarding possible alternative designs that serve the same function. When assessing whether a design is dictated by its function, the availability of alternative designs sometimes can be a dispositive factor. As explained by the Federal Circuit in Automotive Body Parts Association v. Ford Global Technologies, LLC: “[Best Lock Corp. v. Ilco Unican Corp.] turned on the admitted fact that no alternatively designed blade would mechanically operate the lock—not that the blade and lock were aesthetically compatible.”15 When assessing possible alternatives, “[t]o be considered an alternative, the alternative design must simply provide ‘the same or similar functional capabilities.’”16 It is rare for an alternative design to not be found, and, therefore, a finding that a design is dictated by its function is very unusual with respect to design patents.

Suggestions

3

When designing an overall intellectual property strategy for a new product, carefully consider which elements or features may be important as source identifiers and the subject of trade dress applications. Within any utility patent application, make it clear that those elements or features are flourishes and not fundamental to the functioning of the product. Be careful to not associate those elements or features with particular functions. Consider pursuing design patent applications for those elements or features that later may be the subject of the trade dress application. And, within your marketing, consider “look for” advertising or other advertising that emphasizes the nonfunctional, ornamental contributions of those elements or features. To the extent possible, identify other alternatives for each of the elements or features, as well as the combination of elements or features, and possibly include those in any utility patent application such that the impact of the utility patent application on any design patent application or any trade dress application can be minimized. Finally, remember that the touchstone of any strategy to protect a product design should respect the source-identifying nature of trade dress and the ornamentatal focus of design patents. 

4

Endnotes Auto. Body Parts Ass’n. v. Ford Glob. Techs., 930 F.3d 1314, 1319 (Fed. Cir. 2019) (internal citations omitted). 2 See 15 U.S.C. § 1052(e)(5). 1

See 15 U.S.C. § 1064(c)(3). See 15 U.S.C. § 1115(b)(8). 5 See TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 33 (2001); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 165 (1995); Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 850 (1982). 6 See TrafFix, 532 U.S. at 33. 7 See In re Becton, Dickinson & Co., 675 F.3d 1368, 1374-75 (Fed. Cir. 2012); In re Morton-Norwich Prods., Inc., 671 F.2d 1332, 1340-41 (C.C.P.A. 1982). 8 See Valu Eng'g, Inc. v. Rexnord Corp., 278 F.3d 1268, 1276 (Fed. Cir. 2002). 9 TrafFix, 532 U.S. at 34. 10 Ethicon Endo-Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1329 (Fed. Cir. 2015). 11 See In re Carletti, 328 F.2d 1020 (C.C.P.A. 1964). 12 Best Lock Corp. v. Ilco Unican Corp., 94 F.3d 1563, 1567 (Fed. Cir. 1996). 13 See Power Controls Corp. v. Hybrinetics, Inc., 806 F.2d 234, 240, 231 U.S.P.Q. 774, 778 (Fed. Cir. 1986). 14 Lee v. Dayton-Hudson Corp., 838 F.2d 1186, 1189 (Fed. Cir. 1988). 15 Auto. Body Parts Ass’n., 930 F.3d at 1320-21 (referencing Best Lock Corp., 94 F.3d 1563). 16 See Ethicon, 796 F.3d at 1331 (Fed. Cir. 2015) (quoting Rosco, Inc. v. Mirror Lite Co., 304 F.3d 1373, 1378 (Fed. Cir. 2002)).

Criminal Law column continued from page 14

Statista: Number of monthly active Facebook users worldwide as of 1st quarter 2019 (in millions), https://www.statista.com/ statistics/264810/number-of-monthly-active-facebook-usersworldwide/. 25 Paul Kieman, Fed’s Powell Says Facebook’s Libra Raises ‘Serious Concerns’, Wall Street Journal ( Jul. 11, 2019), https://www. wsj.com/articles/feds-jerome-powell-faces-senators-after-rate-cutsignal-11562837403. 26 See Kate Rooney, Mnuchin: US has ‘very serious concerns’ that Facebook’s Libra could be misused by terrorists, CNBC ( Jul. 15, 2019), https://www.cnbc.com/2019/07/15/treasury-secretary-mnuchinwill-hold-a-news-conference-on-cryptocurrencies-at-2-pm-et.html. 24

Joe Light and Olivia Carville, Libra Loses a Quarter of Its Members as Booking Holdings Exits, Bloomberg (Oct. 14, 2019), https:// www.bloomberg.com/news/articles/2019-10-14/booking-holdingsis-latest-to-pull-out-of-libra-association. 28 Improving Laundering Laws and Increasing Comprehensive Information Tracking of Criminal Activity in Shell Holdings Act, S.2563, 116th Cong. (2019) (hereinafter “ILLICIT CASH Act”), https://www.cotton.senate.gov/files/documents/2%20Illicit-CashAct-Discussion-Draft-June%202019.pdf. 29 Id. at 2. 30 Id. at 67-68. 31 Id. at 68. 27

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.

July/August 2020 • THE FEDERAL LAWYER • 29

Judicial Profile

Hon. Julius Ness “Jay” Richardson

Circuit Judge, U.S. Court of Appeals for the Fourth Circuit by Jim May

O

Jim May is an assistant U.S. attorney and senior litigation counsel for the U.S. Attorney’s Office for the District of South Carolina. He investigated and prosecuted cases with Judge Richardson for seven years. Before becoming a federal prosecutor, he was a county public defender. He attended Vanderbilt University for undergraduate and graduate school, where he anchored the offensive line at left guard for 41 games. He attended the University of South Carolina Law School.

n June 17, 2015, a young white man walked into the historic Mother Emanuel African Methodist Episcopal Church in downtown Charleston, S.C. He was welcomed by the Pastor Clementa Pinckney and the other African Americans in Bible study that Wednesday evening. The young man sat with them for 45 minutes until they started to pray. As they bowed their heads, Dylann Roof pulled out his .45 caliber pistol and shot 88 times, killing Reverend Pinckney and eight others and leaving only three survivors. Not only did the murderer’s intent to start a race riot fail, but his heinous crimes also brought together a strong community in shock, grief, and love. But that was only the beginning of justice for the victims and their families. Julius N. “Jay” Richardson had been a prosecutor for only seven years when he led the prosecution of Dylann Roof. The investigation led to only the third federal death penalty prosecution in South Carolina since the post-Furman ban and Judge Richardson’s first such case. The experience was consuming for more than a year—all of America was a victim, and President Obama came to Charleston to give the eulogy. All 12 victims had beautiful stories of the lives they were living when the ultimate tragedy struck. Judge Richardson immersed himself in each of their lives, spending hundreds of hours with each family and ultimately telling their stories to the jury through hundreds of exhibits and more than 30 witnesses during the sentencing phase of the trial. Judge Richardson claimed the victims of the Mother Emanuel tragedy were “the very best among us and were killed because of that.” Judge Richardson also recognized that he had to try to understand the evil and racist hatred of “someone who would sit in a Bible study for forty-five minutes while they studied the parable of the sower and then during prayer at the end stand up and execute nine parishioners at close range.” Nevertheless, as a federal prosecutor, Judge Richardson wanted to ensure that due process and reason drove the result in this case too: “Despite the divergence in virtue between those two groups of people, the rule of law still applied. Even though the defendant in that case

30 • THE FEDERAL LAWYER • July/August 2020

was on one end of the virtue spectrum, the rule of law still applied to him equally.” The families and community needed healing and received some of their relief through Judge Richardson’s work in preparing and trying the case. U.S. Senator Tim Scott (R-S.C.) introduced Judge Richardson at his Senate Judiciary confirmation hearing in June 2018 by praising his efforts in bringing Roof to justice: I cannot begin to explain to this committee the loss and the pain that my community endured in the wake of that horrific event, but watching that same community come together to heal with love, forgiveness, and grace was one of the most profound moments in our state’s history. An important part of the healing process for the families of the victims was bringing Dylann Roof to justice and in many ways we do have Jay to thank for that. Jennifer Pinckney, the widow of the late Reverend Pinckney, wrote a letter in support of Judge Richardson’s nomination, which was shared on the U.S. Senate floor just before his confirmation vote. She lifted him up as one of the most important people to their

family and the other victims in the wake of that terrible tragedy—and not just because Judge Richardson was able to provide the lion’s roar for justice in that case, but also because “I have seen Jay walk the path of righteousness and live a life, both personally and professionally, that we can be proud of and that we should hold up as the model of God’s teachings … you can rest assured you will not be given the opportunity to confirm a person more compassionate, caring, and committed to justice than Jay Richardson.” At the Investiture for Judge Richardson in December 2018, the benediction was given by one of his four young daughters: Dear God, thank you for this day and for the work you have given us to do. Thank you for making my daddy a judge. I hope he is a strong one. I pray that what we have done here today is pleasing to you. Please be with my daddy and grant him the wisdom he needs to do his job well. Bless all the judges on this Court and in our country. Father, send us out into the world to love and to serve you. Let us rejoice and be glad. Amen.” Earlier, to begin the ceremony, his oldest daughter recited verse eight in chapter six of Micah as guidance. There is no doubt the work of the Dylann Roof case strengthened Judge Richardson’s faith and the faith in our system of justice. Before appointment to the Fourth Circuit, Judge Richardson served as deputy criminal chief of the U.S. Attorney’s Office for the District of South Carolina. “Briefly your honor” was a common refrain heard from Judge Richardson before he stood to elucidate courtrooms. During his 10 years as a prosecutor, Judge Richardson handled several other high-profile cases, including the public corruption case of a 42-year sheriff of conservative Lexington County, an MS-13 murder for hire, and the first major criminal RICO case in South Carolina and against Hell’s Angels since the 1970s. He was also involved in numerous other investigations and cases involving terrorism, gangs, narcotics, public corruption, civil rights, crimes against children, and violent crimes. Being a federal prosecutor was the best job Judge Richardson says he ever had. And the job has some stiff competition, as he has worked at the star-studded Four Seasons Resort in Maui; clerked for two of the most prominent federal judges in the past 50 years; worked on the prestigious civil trial teams of Kellogg, Hansen, Todd, Figel & Frederick, PLLC; and now has lifetime tenure as a federal appellate judge. Judge Richardson attributes his love of the job to the incredible opportunities he had as a line prosecutor. It was also a job his mentor and former boss, the late Chief Justice William J. Rehnquist, urged on him because it is where many of the cases on the Supreme Court’s docket originate. Judge Richardson regularly speaks at Federalist

Society law school chapters. One recent talk, “The Federal Prosecutor in System of Separation of Powers,” could not be more timely. He cited Chief Justice Robert Jackson’s famous description of federal prosecutors and detailed the risks of prosecutorial abuses, noting first, as then-Attorney General Robert Jackson did, that a “prosecutor has more control over life, liberty, and reputation than any other person in America.”1 Judge Richardson’s more recent experience as federal prosecutor and his standing gave a credible reminder to all prosecutors that their internal virtues must be restrained by our system of separated powers. Judge Richardson concluded with the timeless observation of the fundamental need for our most powerful institutions to comprise good men and women. And, consistent with that, Judge Richardson served well as a federal prosecutor and now as one of the newest Fourth Circuit judges who is likely to be there for decades. Judge Richardson approaches everything he does in the law with a rigor, intelligence, and thoughtfulness; that includes freely sharing his talents with everyone he meets. That’s who he’s always been, and it’s a part of what makes him exceptional. During his investiture, Deputy Assistant Attorney General James Burnham recounted how Judge Richardson, as a prosecutor in the summer of 2018, demonstrated his tirelessness and commitment to justice. They were to try a criminal jury trial in South Carolina the same month as Judge Richardson’s Senate Judiciary Committee hearing and were in the office working every day and late into the night preparing for trial. In that process and under those circumstances, as Burnham described: “it became very clear to me what I’d always known, had really then seen firsthand, which was Jay’s deep commitment to justice, justice on behalf of the victim in our case, justice for the defendant in our case, and justice in doing—executing his role as a federal prosecutor. It was incredible.” Another participant in Judge Richardson’s investiture is one of his closest friends, Principal Deputy Solicitor General Jeff Wall. Wall, who graduated from the University of Chicago School of Law with Judge Richardson, shared that Judge Richardson recognizes that he does not have all the answers. Often, they would have discussions that strayed outside of the law on topics ranging from foreign relations to the demise of the I formation in football. Wall would find out later that Judge Richardson had, after the conversation, gone to read up on the subject and came back armed with a sort of quasi-expert knowledge of the field, long after he had forgotten the conversation in the first place. Wall quipped: “He has never let facts get in the way of a story, but he will let them get in the way of an argument.” Wall appreciates that Judge Richardson has strong principles but says “when it comes to applying those principles in the context of cases, he will have an open mind, he will listen, and he will not be persuaded by the too-easy answer.” And Judge Richardson is not afraid to say or do a thing simply because it is not popular or common. July/August 2020 • THE FEDERAL LAWYER • 31

Judge Richardson was born in the small, rural farming community of Barnwell, S.C. His paternal grandfather was a farmer, and the other, his namesake, was chief justice of the South Carolina Supreme Court. His father is a humble but unsurpassed trial lawyer, still working out of his office in Barnwell, and has played central roles in some of the biggest litigation in South Carolina and beyond. His mother was a librarian and was greatly involved in raising her three children. Their strong examples taught him the great responsibility to always have the desire to do our best for ourselves and in service to others. As part of his experiences growing up in Barnwell, Judge Richardson’s family had a parade of pets, including dogs, cats, horses, goats, chickens, and, at one point, a couple of turkeys that were given as a fee for some legal work his father did for someone who could not otherwise pay. In addition to helping care for this zoo, Judge Richardson had a green thumb and, from a very young age, planted a garden. Out behind the barn, he tended okra, tomatoes, and butternut squash. Judge Richardson learned the importance of hard work and the law of the farm from his grandfather and his own experience planting a garden behind his family’s barn. In high school, Judge Richardson worked hard and played hard too. He excelled and was a country boy at heart. In fact, one of Judge Richardson’s most faithful companions in high school was Betsy, his beat-up old pickup truck that he could drive over just about anything … and he tried. Judge Richardson was a leader on the football field, according to his high school coach. And as many Southern boys, he has his own Friday night lights story about making an open-field tackle on the goal line against a running back who would become Clemson’s leading rusher for 10 years and was later drafted into the NFL. Judge Richardson was trusted as the punt returner and played both ways as receiver and cornerback. He also spent his high school career as the number one seed on the tennis team and as the sweeper on the soccer team during the same spring season. Despite his success in school and sports, Judge Richardson did not let his academics and athletics keep him from hunting and fishing. At his investiture, Judge Richardson recognized he was given extraordinary shoulders on which to stand, and that some of his earliest memories included listening to legal discussions while sitting on the lap of his grandfather, Chief Justice Julius B. “Bubba” Ness. Judge Richardson also said he strives to live up to the example of “hard work, intellectual curiosity and devotion to the law” set by his father, Terry, whom he described as the finest attorney he had known. He called his brother, Matthew, an “outstanding attorney and my closest friend and confidant” and said his doctor sister Katy’s “deep caring for others sets an incredibly high bar to which I have always aspired.” While there were many others, he said, “I most owe credit for all those things that are good about me and blame for none of the bad to my mother Gail who has simply devoted her life to me.” Judge Richardson 32 • THE FEDERAL LAWYER • July/August 2020

considers his confidence, intellectual curiosity, and hard work the greatest attributes imbued by his parents’ example and teaching. Judge Richardson headed to Nashville for college. It was at Vanderbilt that he met and married the love of his life, Macon. Macon also graduated from the University of Chicago Law School and practiced in Washington, D.C., before they started a family. Judge Richardson thanked his wife for not only putting up with his commitment to his professional career but, more importantly, also giving him their four daughters, all under 12 years of age. Although he recounted his family and friends as his greatest blessings, he also recognized the immense influence and guidance he received from Judge Posner’s intellectual curiosity, deep insight, and belief in the value of rigorous debate. His year with Chief Justice Rehnquist was the justice’s last year, and part of it was spent working out of the late chief justice’s home. That provided a challenging and unique experience that ultimately led him home to South Carolina with Rehnquist’s encouragement. Judge Richardson loved being a prosecutor and a trial lawyer, and he lamented that his future would likely never find him in the well of a courtroom and talking to juries. Judge Richardson also said he would miss working with agents and other trial attorneys and staff, and particularly visiting with the families of victims. He closed his investiture with this commitment: “To the guy in the glass that I see in the mirror each day, I pledge to live by today’s oath, to fully engage in that deliberative process with my colleagues, and to never abandon the rule of law, not for an ill-defined sense of fairness, not for any predetermined preference for an outcome or a party, and certainly, I pledge, not out of laziness.” In his short time on the bench, Judge Richardson has lived up to that pledge. The months that Judge Richardson prepares for oral arguments are evident where he asks counsel “to help him understand” the precise question that goes to the heart of the issue. His diligence is further seen in his written opinions that cite from childrens books to ancient texts that most do not know exist. At 43 years of age … the next 43 should be equally as exciting. 

Endnote Robert H. Jackson, U.S. Attorney General, The Federal Prosecutor, Address at Conference of United States Attorneys (April 1, 1940), in 24 J. Am. Jud. Soc’y 18 (1940); 31 J. Crim. L. 3 (1940), https://www. roberthjackson.org/speech-and-writing/the-federalprosecutor/.

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36 • THE FEDERAL LAWYER • July/August 2020

The Strange State of Appeals in Multidistrict Litigation JEREMY T. GRABILL

N

ot long ago, the typical civil lawsuit involved a single plaintiff and a single defendant and was adjudicated in the jurisdiction where suit was filed. Whether plaintiff sued for breach of contract or personal injury, or perhaps regarding disputed property rights or an adverse employment decision, more often than not, civil litigation presented a one-on-one controversy that was resolved locally. But the complexity of modern society has changed all of that, as many forms of injury today afflict a large number of people across the country in similar ways and are caused by the same product, conduct, industrial/commercial practice, or man-made/natural disaster. Of course, local one-onone disputes still arise and must be resolved by the courts. But, in addition to such run-of-the-mill cases, the federal courts are increasingly being asked to adjudicate collections of thousands of related claims arising from so-called “mass torts.”

Congress responded in 1968 by enacting the multidistrict litigation (MDL) statute, 28 U.S.C. § 1407, which authorizes the transfer of related cases from around the country to one federal district court judge “[w]hen civil actions involving one or more common questions of fact are pending in different districts.” That transfer power is vested in the Judicial Panel on Multidistrict Litigation ( JPML), which consists of seven sitting federal judges who are appointed from time to time by the chief justice of the U.S. Supreme Court. Since the MDL statute was enacted, the JPML has considered consolidation in more than 2,750 dockets involving over 600,000 cases and millions of claims.1 Incredibly, approximately 42 percent of all federal civil cases are currently pending in MDLs!2 In recent years, much attention and scholarship has been devoted to the rise of multidistrict litigation and the unique procedures employed by MDL “transferee” judges to manage the thousands of related cases they are charged with overseeing. And rightly so, given the ingenuity of these managerial tools and the increasing importance and role of MDLs in the American judicial system. What has

gone relatively unnoticed, however, is the extremely limited availability of appellate review in MDLs and the many strange aspects of appellate jurisdiction and choice-of-law rules that have developed in connection with MDLs. This article will highlight these issues for practitioners and discuss why appellate review of orders and rulings in MDLs is so difficult to obtain under current law. The article will then conclude with a brief discussion of some emerging proposals to expand appellate review in this important and often high-stakes area of complex civil litigation in the federal courts.

MDLs Were Not Designed to Generate Final, Appealable Judgments In the archetypical single-plaintiff-versus-single-defendant case, absent a settlement, the trial court judge or jury resolves the parties’ dispute and a final, appealable judgment is entered. Indeed, to avoid piecemeal appeals and to “combine in one review all stages of the proceeding,” the jurisdiction of the federal appellate courts is generally limited to appeals from “final decisions” of the district courts.3 July/August 2020 • THE FEDERAL LAWYER • 37

It should not be surprising that the MDL statute did not contemplate or address any unique appellate issues because Congress enacted the statute “[t]o provide for the temporary transfer to a single district for coordinated or consolidated pretrial proceedings.”4 Thus, once pretrial proceedings had been completed in the transferee forum, the original idea was that the cases would then be sent back to their home districts for trials and appeals per traditional practice. As the U.S. Supreme Court recognized in its famous decision in the Lexecon case, an MDL transferee court cannot “unilaterally transfer[] cases to [itself ] for trial”; rather, the MDL statute “obligates the Panel to remand any pending case to its originating court when … pretrial proceedings have run their course.”5 In recent years, MDL transferee courts have been able to maneuver around Lexecon in various ways to conduct “bellwether” trials that result in traditional final judgments that can then be appealed under 28 U.S.C. § 1291.6 This is most commonly done either via a so-called “Lexecon waiver,” whereby the defendant consents to trial in the transferee court, or by trying cases that were originally filed in the transferee court (typically by local plaintiffs) such that Lexecon doesn’t apply. Additionally, some transferee judges have traveled to other districts in their circuit to conduct bellwether trials in cases originating from those districts, while yet other transferee judges have coordinated intercircuit assignments whereby they are temporarily authorized to conduct trials outside of their home district pursuant to 28 U.S.C. § 292.7 Whatever procedure is utilized, the key point is that the result of a bellwether trial is only binding on the individual plaintiff(s) and defendant(s) who are parties to the case that is tried, and only those parties can then pursue a traditional appeal of the final judgment that is entered at the conclusion of the bellwether trial. In addition to a traditional appeal following a bellwether trial, appellate courts also have jurisdiction over appeals arising from the pretrial dismissal of individual cases in an MDL. The Supreme Court recently addressed this issue in Gelboim v. Bank of America Corp.8 In that case, the MDL transferee court granted a Rule 12 motion to dismiss certain individual cases that were part of the MDL, and the plaintiffs appealed. The Second Circuit held that it lacked jurisdiction because the MDL as a whole was not yet complete. The Supreme Court, however, had no problem unanimously concluding that traditional appellate jurisdiction existed under § 1291, holding that the plaintiffs’ “right to appeal ripened when the District Court dismissed their case, not upon eventual completion of multidistrict proceedings in all of the consolidated cases.”9

Most MDL Court Orders Are Unreviewable Setting aside the appeal of a final judgment in an individual case that is part of an MDL (whether upon the granting of a dispositive motion or following a bellwether trial), and the ability to seek an appeal of a class certification decision under Rule 23(f ) of the Federal Rules of Civil Procedure (which is not unique to MDLs), MDL transferee courts enter a variety of generally unreviewable interlocutory orders that guide and shape the course of the litigation. To name just a few, transferee courts may enter general pretrial orders appointing liaison counsel, establishing discovery protocols and procedures, creating a bellwether trial selection process, and requiring counsel to contribute to a “common benefit” attorneys’ fee fund. All of these types of orders share one common characteristic: they are not entered in any particular plaintiff ’s case, but are instead entered as general MDL orders 38 • THE FEDERAL LAWYER • July/August 2020

that apply to the MDL as a whole. Here, it is important to remember that MDL consolidation does not merge separate lawsuits into a single case; rather, cases that are transferred into an MDL retain their separate identity and are simply joined together administratively not unlike consolidation under Rule 42 of the Federal Rules of Civil Procedure. As a result, there is no readily available path to seek appellate review of these types of general orders in MDLs. Instead, litigants who seek appellate review of such orders must resort to one of the limited exceptions to the final judgment rule, namely certification under 28 U.S.C. § 1292(b), the collateral order doctrine, designation of a partial judgment as final pursuant to Rule 54(b), or a petition for a writ of mandamus. These exceptions are familiar to the federal practitioner and are extremely narrow, such that, as a practical matter, most MDL transferee court orders are essentially unreviewable. For example, under the collateral order doctrine first enunciated by the Supreme Court in Cohen v. Beneficial Industrial Loan Corp., a district court decision may be final and appealable if it (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) would be effectively unreviewable on appeal from a final judgment.10 In MDLs, however, it is unlikely that general pretrial orders sought to be appealed will be viewed as “conclusive” because the transferee judge can always revisit and/or amend such orders during the course of the litigation. This was the holding of the Fifth Circuit in an MDL appeal under the collateral order doctrine that sought review of a fee-shifting order by the transferee court; therefore, the appeal was dismissed for lack of jurisdiction.11 Another potential avenue for obtaining appellate review of MDL orders is via certification under 28 U.S.C. § 1292(b). The statute establishes three criteria for certification: (1) a controlling question of law is involved; (2) there is substantial ground for difference of opinion about the question of law; and (3) an immediate appeal will materially advance the ultimate termination of the litigation. To pursue an appeal under this provision, however, the district court must not only find that these prerequisites are satisfied, but the court of appeals must also agree to accept the appeal. In MDLs, it is often the failure to satisfy the third factor that precludes appellate review of transferee court orders under § 1292(b).12

Mandamus Relief Is Rarely Granted in MDLs Perhaps the most frequently attempted option for seeking appellate review in MDLs is through a petition for a writ of mandamus, though the federal appellate courts are very protective of their mandamus jurisdiction and rarely grant such petitions. The common-law writ of mandamus is codified at 28 U.S.C. § 1651(a), which provides that “[t]he Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” Mandamus has been described as a “drastic and extraordinary remedy,” and a petition for mandamus relief will only be granted where (1) the petitioner has “no other adequate means to attain the relief he desires,” (2) the petitioner has a “clear and indisputable” right to mandamus relief, and (3) the court finds that issuance of the writ is appropriate under the circumstances.13 One need look no further than the Fifth Circuit’s ruling in the In re DePuy Orthopaedics litigation to appreciate that mandamus is unlikely to be successful in most MDL situations.14 In that MDL, the transferee court in Texas had conducted several bellwether trials

involving nonlocal plaintiffs based on the defendants’ waiver of their Lexecon objections. A dispute arose, however, when the transferee court sought to conduct an additional bellwether trial involving 10 plaintiffs from New York—defendants argued that they had not waived their Lexecon objection for all trials, but only for those specific trials that were previously held. The transferee court disagreed, finding that defendants had waived Lexecon for all cases in the MDL and set a firm date for the next high-stakes bellwether trial. The defendants responded by filing a petition for a writ of mandamus with the Fifth Circuit. A split panel of the Fifth Circuit held mandamus to be unavailable because the defendants had another available remedy, namely a traditional appeal following the challenged bellwether trial. Nevertheless, the Fifth Circuit went on to find that the transferee court “clearly abused” its discretion and that its conclusion that defendants had waived their Lexecon objections to the upcoming trial was “patently erroneous.” Thus, although the Fifth Circuit technically denied the mandamus petition, it also “requested” that the transferee court vacate its ruling and not proceed with the bellwether trial. Can you guess what happened next? The transferee court proceeded with the bellwether trial, relying on the fact that the Fifth Circuit had refused to issue a writ of mandamus. Bold move? Maybe, but I personally appreciate the transferee court’s fealty to the technical rules of procedure, if only because it highlights for us here that mandamus is unlikely to be a reliable avenue for appellate review in MDLs.15 More recently, with one notable exception, the Sixth Circuit has denied multiple mandamus petitions in the high-profile opioid MDL, In re National Prescription Opiate Litigation. The unsuccessful petitions in that litigation have sought review on issues ranging from recusal of the transferee judge, to a challenge to a bellwether trial, to the transferee judge’s refusal to rule on a personal jurisdiction challenge prior to trial, to an issue regarding a protective order.16 The one petition that was granted reversed an order of the transferee court allowing certain bellwether plaintiffs to amend their complaints long after the amendment deadline and after the completion of discovery—the Sixth Circuit was sufficiently alarmed by the transferee court’s “persistent disregard of the federal rules” to award mandamus relief in that instance.17 In one of the unsuccessful mandamus petitions, the defendant argued that it should not have to incur the significant cost, business disruption, and reputational harm associated with a high-profile MDL trial in order to obtain appellate review, but the Sixth Circuit brushed that argument aside.18 Once again, the message is clear—the appellate courts are hesitant to exercise mandamus jurisdiction to supervise MDL transferee judges.

Choice-of-Law Complexities in MDLs Appellate courts have also developed some strange choice-of-law rules for MDLs that practitioners should keep in mind when seeking appellate review of transferee court orders. As discussed below, different choice-of-law regimes have emerged depending on whether the court is applying state or federal law, which reflects an inherent tension in the policies underlying MDL consolidation. As previously noted, it was the original intent of Congress that cases transferred into an MDL would eventually be returned to their home districts for trial. In light of that intent, 30 years ago, the Supreme Court held that, to the extent an MDL transferee court is going to rule on a substantive state-law issue in an individual case (for example, by considering a motion to dismiss or a motion

for summary judgment), it must apply the law of the transferor forum (i.e., the forum in which the plaintiff filed suit), including the transferor forum’s choice-of-law rules.19 In other words, transferee judges must adhere to the legal fiction that they are only temporarily standing in the shoes of the transferor judge and must apply the transferor forum’s law so as not to have the mere fact of an MDL transfer impose a change in substantive law on plaintiffs who get swept into an MDL. That said, the foregoing rule only applies to state-law issues. A different choice-of-law rule has been developed for questions of federal law in MDLs: “When analyzing questions of federal law, the transferee court should apply the law of the circuit in which it is located.”20 Before she was appointed to the United States Supreme Court, Justice Ruth Bader Ginsburg served on the D.C. Circuit and authored what has become a leading opinion on the choice-of-law rule for federal issues in MDLs in the In re Korean Air Lines Disaster case.21 In that case, the MDL transferee court was faced with a question of federal law, namely whether the per-passenger damage limitation of the Warsaw Convention applied to the crash at issue. The transferee court in the District of Columbia held that the limitation applied to all plaintiffs, rejecting contrary authority from the Second Circuit, even though some of the plaintiffs in the MDL had filed suit in New York and would have been governed by the Second Circuit’s interpretation absent MDL consolidation. The D.C. Circuit affirmed the transferee court’s ruling and held that, with respect to questions of federal law, MDL transferee courts (and, implicitly, appellate courts reviewing transferee court decisions) are not bound by the law of the transferor forum. The D.C. Circuit elucidated a principled reason for adopting conflicting choice-of-law rules, that is, for requiring transferee courts to apply the law of the transferor forum on questions of state law but the law of the transferee circuit on questions of federal law: “Our system contemplates differences between different states’ laws; thus, a multidistrict judge asked to apply divergent state positions on a point of law would face a coherent, if sometimes difficult, task. But it is logically inconsistent to require one judge to apply simultaneously different and conflicting interpretations of what is supposed to be a unitary federal law.” The court was also motivated by the view that “[a]pplying divergent interpretations of the governing federal law to plaintiffs, depending solely upon where they initially filed suit, would surely reduce the efficiencies achievable through consolidated preparatory proceedings.”22 To better appreciate the competing interests at play here—MDL efficiency versus not allowing MDL consolidation to effect a change in substantive law—let’s walk through an example. If a plaintiff who originally files suit in a New York federal court has her case transferred to an MDL in New Orleans, the transferee court in New Orleans must apply New York’s choice-of-law rules and perhaps New York substantive law in that plaintiff ’s case. In the event that the transferee court issues an order that is appealable in our hypothetical case originating from New York, where is the appeal filed? Although it is conceivable that we could require the plaintiff to file her appeal in the Second Circuit (not unlike all patent appeals have to be filed in the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., regardless of which federal district court issued the order being appealed), appeals of MDL transferee court orders go to the federal circuit with jurisdiction over the transferee district. Thus, our hypothetical plaintiff would have to file her appeal in the Fifth Circuit. So, July/August 2020 • THE FEDERAL LAWYER • 39

does that mean that the Fifth Circuit has to carry on the fiction that it is only standing in the shoes of the Second Circuit? No, on questions of federal law, the Fifth Circuit will apply its own law, thereby potentially subjecting our hypothetical plaintiff to a different substantive outcome based solely on the fact that her case was whisked away from her chosen home-state district by the JPML.

Should Appellate Review of MDL Court Orders Be Expanded? In light of all of the limitations and oddities outlined above, the legal profession has begun to debate whether it is time to expand appellate review of MDL court orders. I have been involved in multiple MDLs both as a law clerk and as a practitioner, and I have nothing but the utmost respect and admiration for the transferee judges in those MDLs and the wise case management approaches that they employed. Nevertheless, there is something a bit unsettling from an institutional perspective to giving one district judge wide-ranging power over thousands of cases from different districts consolidated in an MDL, yet effectively insulating the bulk of that judge’s decisions from appellate review. One idea that has been proposed in the academic literature is for Congress to amend 28 U.S.C. § 1292(a) to allow for nondiscretionary interlocutory appeals of certain MDL court orders, just as interlocutory appeals are presently allowed under that statute for orders regarding injunctions, orders regarding receivership, and orders in admiralty cases.23 In a related vein, the U.S. House of Representatives passed the “Fairness in Class Action Litigation Act” in 2017, which included an amendment to the MDL statute, 28 U.S.C. § 1407, that would have permitted interlocutory appeals of orders granting or denying motions to remand to state court in all MDLs and interlocutory appeals of all other orders in personal injury MDLs upon a finding that “an immediate appeal from the order may materially advance the ultimate termination of one or more civil actions in the proceedings.”24 That legislation, however, died in the Senate. More recently, a similar proposal has been made to the U.S. Judicial Conference Committee on Rules of Practice and Procedure to amend Rule 23 of the Federal Rules of Civil Procedure (by adding a new sub-section 23.3) to expand appellate review of MDL court orders.25 One common refrain in response to such proposals is that, from an empirical perspective, MDL court orders that do get reviewed by appellate courts are affirmed at a higher rate than the general population of trial court orders, such that expanded appellate oversight is not necessary.26 But, as outlined above, very few MDL court orders ever get reviewed by the appellate courts, so it may not be appropriate to extrapolate from that limited subset of orders to draw conclusions about MDLs more generally. And, even if MDL transferee courts were affirmed 100% of the time, a strong case could still be made for expanding appellate review from an institutional perspective. Surely all transferee judges would benefit from the development of a body of appellate decisions regarding the multitude of novel techniques being employed in MDLs today. Moreover, when a district court defers rulings on important issues pending trial or simply denies pretrial motions, the parties are forced to expend the time and resources on a trial before obtaining the ability to seek appellate review. Although that may be acceptable in traditional one-on-one cases, it can impose huge risks and costs in multidistrict litigation, particularly because global settlement is the endgame in most MDLs. 40 • THE FEDERAL LAWYER • July/August 2020

The transferee judge in the GM ignition switch MDL recently summarized these competing considerations in granting § 1292(b) certification of a summary judgment ruling: “An interlocutory appeal (if the Second Circuit accepts it) would result in potentially lengthy delay, and this litigation is already in its sixth year, with no end in sight absent a settlement. But the Court is not infallible. And, in the judicial system of this Nation, it is not intended to be final. Yet, absent an interlocutory appeal, the Court might well have the only – and thus final – word on these important issues.”27 It is too early to tell whether any of these proposals for expanding appellate review in MDLs will gain sufficient traction to become law. In the meantime, litigants seeking appellate review of transferee court orders must try to satisfy one of the limited exceptions to the final judgment rule and account for the reality that appellate courts will only occasionally exercise jurisdiction to hear such appeals.  Jeremy T. Grabill is a partner in the New Orleans office of Phelps Dunbar LLP, where his practice focuses on complex commercial and tort litigation and appellate representations. He has represented defendants in several prominent mass tort litigations, including the In re World Trade Center Disaster Site litigation in the Southern District of New York and the In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico multidistrict litigation in the Eastern District of Louisiana. He also served as a law clerk to U.S. District Court Judge Eldon E. Fallon of the Eastern District of Louisiana, during which time Judge Fallon presided over the In re Vioxx Products Liability multidistrict litigation. Grabill has authored multiple law review articles and other commentary on a variety of MDL issues. He can be reached at jeremy.grabill@phelps.com.

Endnotes See Judicial Panel on Multidistrict Litigation, https:// www.jpml.uscourts.gov/overview-panel-0 (last visited July 22, 2020). 2 These statistics are taken from the 2018 Judicial Business report of the United States Courts, specifically Table C (reporting that there were 372,820 total pending civil actions as of Sept. 30, 2018) and Table S-19 (reporting that there were 156,511 civil actions pending in MDLs as of Sept. 30, 2018). See generally United States Courts, https://www.uscourts.gov/statistics-reports/judicial-business-2018tables (last visited July 22, 2020). 3 See 28 U.S.C. § 1291; Cohen v. Benefit Indus. Loan Corp., 337 U.S. 541, 546 (1949). 4 Pub. L. No. 90-296, 82 Stat. 109, 109 (1968) (emphasis added). The only provision in the MDL statute regarding appeals concerns the limited availability of mandamus review of decisions by the MDL Panel itself. See 28 U.S.C. § 1407(e) (“No proceedings for review of any order of the panel may be permitted except by extraordinary writ pursuant to the provisions of title 28, section 1651, United States Code. Petitions for an extraordinary writ to review an order of the panel to set a transfer hearing and other orders of the panel issued prior to the order either directing or denying transfer shall be filed only in the court of appeals having jurisdiction over the district in which a hearing is to be or has been held. Petitions for an extraordinary writ to review an order to transfer or orders subsequent to transfer shall be filed only in the court of appeals having jurisdiction over the transferee district. There shall be no appeal or review of an order of the panel denying a motion to transfer for consolidated or coordinated proceedings.”). 5 Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 34 (1998). 1

See generally Eldon E. Fallon, Jeremy T. Grabill & Robert P. Wynne, Bellwether Trials in Multidistrict Litigation, 82 Tul. L. Rev. 2323 (2008). 7 See, e.g., Novell, Inc. v. Microsoft Corp., 731 F.3d 1064, 1069 (10th Cir. 2013) (“Novell initially filed its suit . . . in federal district court in Utah. While the case was transferred for a period to a federal court in Maryland for consolidated pre-trial proceedings with other similar suits, see 28 U.S.C. § 1407, it eventually returned to Utah for trial – along with Maryland District Judge J. Frederick Motz on an intercircuit assignment.”). 8 574 U.S. 405 (2015). 9 Id. at 408. 10 See generally Cohen, 337 U.S. at 546-47; see also Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). 11 See Citizens Bank of Pikeville v. La. Agric. Fin. Auth., No. 93-3174, 1993 U.S. App. LEXIS 40751 (5th Cir. Dec. 22, 1993). 12 See, e.g., In re Endo Pharms. Holdings, Inc., No. 15-0503, 2015 U.S. App. LEXIS 22956 (6th Cir. Nov. 17, 2015) (denying petition to appeal MDL court’s suggestion of remand order because the appellate court was “not persuaded that an immediate appeal is likely to materially advance the ultimate termination of these cases”). 13 See Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380-81 (2004). 14 See In re DePuy Orthopaedics, Inc., 870 F.3d 345 (5th Cir. 2017). 15 It is worth noting that a similar situation unfolded in the In re Vioxx pharmaceutical MDL, where the defendant sought to challenge the transferee court’s rulings on privilege assertions. Just as in In re DePuy, the Fifth Circuit refused to issue a writ of mandamus in the Vioxx MDL, but nevertheless found error and provided an instruction to the transferee court regarding how to correct that error. Unlike DePuy, however, in the Vioxx MDL the transferee court complied with the appellate court’s instruction, notwithstanding the appellate court’s refusal to issue a writ of mandamus. See Vioxx Prods. Liab. Litig. Steering Comm. v. Merck & Co., No. 06-30378, 2006 U.S. App. LEXIS 27587 (5th Cir. May 25, 2006); see also In re Vioxx Prods. Liab. Litig., 501 F. Supp. 2d 789 (E.D. La. 2007) (summarizing the protocol employed to review defendant’s privilege claims in the transferee court following the Fifth Circuit’s ruling). 16 See In re Nat’l Prescription Opiate Litig., No. 19-3935, 2019 U.S. App. LEXIS 30501 (6th Cir. Oct. 10, 2019) (recusal); In re Nat’l Prescription Opiate Litig., No. 19-3827, 2019 U.S. App. LEXIS 30500 (6th Cir. Oct. 10, 2019) (bellwether trial); In re Nat’l Prescription Opiate Litig., No. 19-3835, 2019 U.S. App. LEXIS 28645 (6th Cir. Sept. 20, 2019) (personal jurisdiction); In re Nat’l Prescription Opiate Litig., 783 F. App’x 537 (6th Cir. Aug. 15, 2019) (protective order). 17 See In re Nat’l Prescription Opiate Litig., 956 F. 3d 838 (6th Cir. 2020). 6

In re Nat’l Prescription Opiate Litig., No. 19-3835, 2019 U.S. App. LEXIS 28645, at *2 (6th Cir. Sept. 20, 2019) (“Teva argues it does not have an adequate alternative remedy and it will be unduly prejudiced if it proceeds to trial given the significant cost it will expend to defend itself, the business disruption and reputational harm it will suffer, and its inability to defend itself absent additional discovery to counter Plaintiffs’ jurisdictional theories. But Teva may challenge the denial of its motion to dismiss on direct appeal … . Nor does the extra cost of unnecessary litigation support immediate review of a pretrial order.”) (internal citations omitted). 19 See Ferens v. John Deere Co., 494 U.S. 516, 523-25 (1990). 20 In re Temporomandibular Joint (TMJ) Implants Prods. Liab. Litig., 97 F.3d 1050, 1055 (8th Cir. 1996). 21 In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171 (D.C. Cir. 1987). 22 Id. at 1175-76. 23 See Andrew S. Pollis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation, 79 Fordham L. Rev. 1643 (2011). 24 See Fairness in Class Action Litigation and Furthering Asbestos Claim Transparency Act of 2017, H.R. 985, 115th Cong. § 105 (2017). 25 See Proposal by Lawyers for Civil Justice (Sept. 14, 2018), https:// www.uscourts.gov/sites/default/files/suggestion_18-cv-x_0.pdf. 26 See Letter from Brian J. Devine to Rebecca Womeldorf dated June 25, 2019, https://www.uscourts.gov/sites/default/files/19-cv-psuggestion_devine_0.pdf 27 In re GM LLC Ignition Switch Litig., 427 F. Supp 3d. 374, 394 (S.D.N.Y. 2019) (internal citation omitted). 18

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42 • THE FEDERAL LAWYER • July/August 2020

Big Data Makes Big Cases: How Data Analytics Is Shaping False Claims Act Enforcement JASON MEHTA AND JENNIFER A. SHORT

A

s many practitioners have learned over the last few decades, the False Claims Act (FCA) is an emerging arsenal in the tool of government prosecutors. And whistleblower attorneys are taking notice and filing a large number of cases. Over the past decade, annual recoveries under the FCA have averaged more than $3 billion per year.1 Equally impressive is the number of whistleblower actions entering the FCA pipeline—roughly 650 new qui tam matters are filed each year. While these figures have remained fairly steady since 2010, the statistics do not reveal the evolutionary changes in who is “blowing the whistle,” what information they are bringing in support of their claims, and how the government is investigating and supporting FCA actions. The qui tam relator role is no longer reserved for the prototypical insider or disgruntled employee envisioned when Congress strengthened the FCA’s whistleblower provisions in 1986. Increasingly, FCA cases are being filed by corporate relators who have filtered and analyzed vast swaths of data to identify their target defendants. The government, too, has pursued a number of initiatives in recent years that proactively use data analytics to identify problematic conduct in certain sectors. And, while data alone certainly is not sufficient to prove an FCA violation, it can be powerful supporting evidence of wrongdoing as well as the basis for large financial recoveries.2 This article looks at the use of data mining in FCA prosecutions,

specifically qui tam cases, and highlights several high-profile fraud cases built on data. In light of these developments, the article also offers practical advice to those who do business with, or receive payments from, the government on how to use data mining to mitigate risk, encourage compliance, and—if necessary—defend against FCA liability.

Data Mining in Government Investigations The concept of data mining is not new. For years, private industry has been using sophisticated algorithms and software to mine large sources of data to identify patterns and highlight trends.3 The government has followed suit, most publicly and proactively in healthcare fraud initiatives, but also in investigating and prosecuting financial, procurement, and other types of fraud cases.

Using Healthcare Claims Data to Find Trends and Target Outliers The U.S. government has a vast array of healthcare data available at its fingertips. Each time a healthcare provider submits a claim to Medicare or Medicaid, for example, the provider feeds dozens of pieces of information to regulators, including the patient’s name and date of birth, the place and date of service, the current procedural terminology (CPT) code that describes the service provided, and the supporting diagnosis code. Electronic Health Record (EHR) systems have the capacity to collect even more information that can become subject to government inquiries and oversight. The government routinely looks to healthcare claims data to identify patterns of potential fraud and to substantiate (or disprove) allegations of fraudulent billing. Indeed, the Department of Health and Human Services (HHS) Office of Inspector General (OIG)—the federal agency most directly tasked with overseeing the Medicare program—prides itself on its data analytics team. In its own words, July/August 2020 • THE FEDERAL LAWYER • 43

“OIG uses Data Driven Decision Making to produce outcome focused results.”4 Further, OIG notes that it “leverages sophisticated data analysis to identify and target potential fraud schemes and areas of program waste and abuse.”5 Through the Medicare Fraud Strike Force, an initiative that began in 2007, HHS-OIG joined forces with the FBI and the Department of Justice (DOJ) to leverage the available data in pursuing nationwide and industrywide healthcare fraud schemes.6 The stated goal of the Strike Force (now one component of the Health Care Fraud Prevention and Enforcement Action Team, or HEAT) was to “shift[]from a ‘pay and chase’ approach toward fraud prevention” in healthcare.7 One of the most far-reaching examples of the use of data mining occurred in 2015, when the government examined the billing practices of compound pharmacies on an industrywide basis. Compound pharmacies were targeted for investigation due to an atypical and aberrant spike in billing to the TRICARE program, as identified in government reporting. The government used a panoply of data tools to identify “outlier” pharmacies and providers—that is, providers whose prescribing and fulfilling patterns stood out relative to their peers. Investigators looked at trend analyses, top-billing pharmacies, and pharmacies with relatively few prescribers responsible for large numbers of claims. After flagging more than $1 billion in suspect pharmaceutical claims, DOJ pursued and recovered tens of millions in FCA payments from the most egregious offenders.8 More recently, the government has used its data assessment capabilities to support DOJ’s opioid initiative, announced by then-Attorney General Sessions in 2018. In an oft-repeated speech, Attorney General Sessions proudly promoted the Opioid Fraud and Abuse Detection Unit, a new data analytics program that focuses on opioid-related healthcare fraud. In his words, this unit uses data and data-mining techniques to “tell us important information—who is prescribing the most drugs, who is dispensing the most drugs, and whose patients are dying of overdoses.”9 The results—with respect to opioid cases in particular—have been staggering, and the effort is ongoing. In June 2018, more than 600 individuals were arrested on charges related to an estimated $2 billion in false billing for opioid prescriptions.10 The following year, opioid manufacturer Insys Therapeutics reached a settlement regarding its role in the national crisis and agreed to pay $195 million to resolve a number of FCA actions that had been filed against it.11 Shortly thereafter, in July 2019, Reckitt Benckiser Group paid $1.2 billion to settle both criminal and civil charges stemming from its marketing of an opioid treatment drug.12 And in January 2020, an electronic health records vendor reached a $118.6 million settlement with the federal government and several states to resolve FCA charges that it had solicited and accepted kickbacks from opioid and other pharmaceutical companies in exchange for embedding “alerts” in the records software that were designed to encourage and increase unnecessary prescriptions.13 Government officials have noted the importance of data analytics to these enforcement efforts.14

Beyond Healthcare—Use of Data in Other Enforcement Contexts The government is making increasing use of data mining to aid enforcement in areas other than healthcare, too. In the wake of the 2008 financial crisis, for example, DOJ created a Financial Fraud Enforcement Task Force that, among other things, examined government-backed housing loans and default information to pursue FCA and other charges against some of the country’s largest mortgage 44 • THE FEDERAL LAWYER • July/August 2020

lenders.15 The effort led to nearly $2 billion in recoveries in 2016 alone. DOJ also has warned that it is using data analytics in securities and market manipulation investigations and prosecutions.16 In a similar vein, in November 2019, DOJ launched a Procurement Collusion Strike Force (PCSF), which focuses on potential antitrust violations by government contractors.17 In announcing the Strike Force, the assistant attorney general specifically noted: “The Strike Force will work on ways to improve our use of data analytics programs to identify potential ‘red flags’ of collusion in government procurement data. Many investigative agencies individually have made great strides on this front, and the PCSF will serve to facilitate collaboration and the sharing of best practices between these agencies.”18 Although the PCSF is driven by criminal antitrust concerns, its creation was no doubt driven by the criminal cases and civil FCA settlements that DOJ reached with a number of South Korean companies that had engaged in bid-rigging on Department of Defense fuel supply contracts.19 In addition to putting companies on notice that the government is using data analytics to investigate areas of potential fraud, DOJ officials have noted that companies within target industries can use similar analytical approaches to monitor their compliance internally: Whereas we are able to identify indicators and anomalies from market-wide data, companies have better and more immediate access to their own data. For that reason, if misconduct does occur, our prosecutors are going to inquire about what the company has done to analyze or track its own data resources—both at the time of the misconduct, as well as at the time we are considering a potential resolution.20

Data Analytics in Individual FCA Investigations and Prosecutions Government investigators and attorneys also routinely examine datasets on a more defendant- or case-specific level to test whether allegations of fraud are consistent with the data. These inquires also help develop evidence that can be used either in settlement discussions or at trial. Once more, the Medicare claims data, which is available to DOJ attorneys and law enforcement agents, provides the most familiar examples. For instance, a DOJ attorney might ask whether the Medicare claims data reveals a pattern or concentration of referring or prescribing physicians for reimbursable lab tests or pharmaceuticals. Does the patient population for the service or testing make sense clinically, or does the data suggest that the services were medically unnecessary?21 Did a provider routinely use a higher reimbursement code in its billing when a less expensive service was likely used (a practice known as “upcoding”)?22 Even where the government does not have the necessary data at its fingertips, it may seek data from a target company via subpoena or Civil Investigative Demand. For example, a company selling commercial items through a General Services Administration (GSA) schedule contract might be asked to provide sales and pricing data for both its government and private sector sales so that investigators can query whether the company complied with discount disclosure requirements and the contract’s pricing requirements.23 Data comes into play again after the government’s investigation substantiates a suspected FCA violation and the question of potential damages arises. Medicare claims data, for example, can reveal how much was actually paid on a set of allegedly false claims. Likewise, sales data can be used in a GSA pricing case to determine how much

the government may have overpaid for commercial items because of an asserted failure to comply with the contractual pricing formula. And, although a detailed discussion is beyond the scope of this article, the use of statistical sampling to support FCA liability and damages claims remains an active and controversial subject among practitioners in this area.24

Whistleblowers’ Use of Data to Bring Cases The government is not alone in using data to identify potential FCA violations and develop cases. Whistleblowers and their counsel are using information creatively to find and file qui tam actions. These cases are not based on an individual’s insider knowledge of a company’s practices, but on a strategic analysis of available data. The “whistleblower” in these cases might be a competitor company, an industry advisor, or even an entity created for the purpose of identifying potential FCA actions. This phenomenon has been around for a while—in 1996, an entity named Health Outcomes Technology mined publicly available Medicare and Medicaid claims data to file FCA claims against nearly a hundred hospitals that showed up as outliers in the numbers of complex pneumonia cases being billed.25 A more recent example of data-driven relators is Integra Med, a data analytics firm based in Austin, Texas, which filed a number of qui tam actions in various jurisdictions based on the company’s analysis of Medicare claims data.26 Integra Med described itself as a company that “specializes in using statistical analysis to uncover and prove fraud.”27 In its more recent cases, Integra Med indicated that it analyzed Medicare inpatient claims data from 2011 through 2017 to determine statistical abnormalities and potential areas of fraud.28 Intriguingly, courts that have analyzed Integra Med’s role as a relator have acknowledged that the company is not “a prototypical FCA relator in that it had no insider relationship with Defendants,” but found that fact “is not enough to bar its suit.”29 While Integra Med has been able to allege statistical variances in its billing analysis, it has been seemingly unable to convince the government to intervene in either of its two recent healthcare data mining cases. And, Integra Med has not fared much better on its own. Courts in both Texas and California have recently stymied Integra Med’s ability to pursue these theories on their own—generally finding that data analysis by itself is not enough to overcome the federal pleading standards required for fraud cases.30 The implicit suggestion, therefore, seems to be that data analysis alone is insufficient to bring a case past the motion to dismiss hurdle. Successful relators will likely need more than just simply data metrics—they will need data plus information related to scienter and the actual quintessential “who, what, where, when, and why” of the alleged fraud scheme. Another illustrative example of the pioneering use of data is a series of nearly a dozen FCA cases filed by the National Health Care Analysis (NHCA) Group. The founder of the NHCA Group, John Mininno, made a series of explosive allegations prior to filing any of these qui tam suits in an article titled “Medicare Scammers Steal $60 Billion a Year. This Man Is Hunting Them.”31 In the article, Mininno was described as a “big-data entrepreneur,”32 and he recalled that when the Centers for Medicare & Medicaid Services made healthcare data available to the public, he viewed it as “a massive business opportunity,” specifically with regard to qui tam suits. In total, the approximately dozen NHCA lawsuits named 38 defendants and purportedly implicated “more than 73 million prescriptions written by hundreds of thousands of different physicians for

millions of different Medicare beneficiaries.”33 DOJ ultimately moved to dismiss the lawsuits, alleging that the relator’s investigations were without merit and were “contrary to the public interest.”34 While DOJ was mostly successful in dismissing these suits, at least one of these matters is still pending.35 The effect of the NHCA lawsuits remains to be seen, but it seems to bolster the findings of the Integra Med cases—data mining, by itself, will not be sufficient to whet the government’s interest to intervene in a FCA case. Nonetheless, it seems likely that future relators will continue exploring the contours of data mining and buttressing data with other, more quintessential “whistleblower” evidence.

Limitations on Data Mining Any discussion on the use of data mining and its ability to affect government FCA prosecutions must necessarily include a conversation on data’s limitations. While the ability to mine millions of rows of data is no doubt impressive and revolutionary, it is not the be-all, end-all panacea to rooting out alleged fraud. We highlight three particular limitations of data. First, data by itself does not necessarily prove any material falsity. For example, when a physician is an outlier in the number of procedures ordered, there is nothing inherently false in the ordering of those procedures. After all, someone always needs to be the number one performer or biller. Similarly, when a bank underwrites more FHA-backed loans that default compared to other banks, that data alone does not prove that anything false occurred that would trigger liability under the FCA. While this idea—that data mining does not necessarily prove falsity—is intuitive, the temptation to overly extrapolate meaning into data is a concern. Very often, in the course of advocacy, lawyers (on all sides) impute meaning into statistical variations. While most statistics students can detect the difference between correlation and causation in a purely analytical method, lawyers often blur these distinctions in the context of advocacy. Therefore, while this might be an obvious point, it is an important one—data is often a starting point for an investigation rather than a defining conclusion of an investigation. Second, and related to the first point, data analytics generally do not provide direct evidence of FCA scienter (knowledge, actual or reckless disregard). In this respect, the FCA punishes only those actions that are made “knowingly.” Mere mistakes or negligence is not actionable under the FCA. Thus, for example, even when a physician submits false claims, these claims are not necessarily actionable. Further, certain patterns that might be apparent in the context of data mining could simply be the result of repeated innocent mistakes. Therefore, data should not necessarily be used to prove scienter. Nonetheless, when other evidence—either direct or circumstantial—supports the knowledge and falsity elements of an FCA claim, the data can provide powerful supporting and consistent evidence. Further, if the data was available to a defendant but it did not look at or analyze its own conduct, the defendant’s intent might be questioned. For example, if the problem or issue was known in the industry as a risk area, or if the defendant was required by contract or regulation to track its compliance, then a failure to do so might be construed as deliberate ignorance. Therefore, data can be used to buttress scienter evidence, but it is often used as just that—buttressing evidence, rather than being definitive conclusory evidence. Third, we caution that that relators, in particular, need to be July/August 2020 • THE FEDERAL LAWYER • 45

cautious about over-reliance on publicly available data. As the above case examples of Integra Med and NHCA prove, data alone often is insufficient to whet the government’s appetite for intervention. But, more fatally, it is possible that courts will subsequently find that pure data analysis is insufficient to overcome the FCA’s public disclosure bar. As a general matter, the FCA’s public disclosure bar prohibits relators from pursuing FCA cases where their information has already been publicly disclosed. While the threshold for a public disclosure bar was reduced under the amendments as part of the Affordable Care Act, the bar nonetheless does still preclude relators from pursuing cases unless they can show that they have “materially added” to publicly disclosed information. It remains an open question whether data mining publicly available data will be sufficient to overcome the public disclosure bar’s requirements.

Practical Compliance Tips for All Attorneys In light of the government’s and relators’ focus on data analysis, potential target companies and their counsel should consider adapting their practices and incorporating compliance measures to reflect and protect against this new wave of cases. Below are several practical tips to get ahead of the curve. First, as a threshold matter, understand the emergence of data-driven analysis. By recognizing that regulators are increasingly harnessing and using the power of data to identify outliers, healthcare providers and contractors can begin the process of undertaking proactive steps to ensure maximum compliance and reduce their risk. Second, to the extent it is not done already, take measures to collect and store relevant data. On the defense side, while most healthcare providers are already collecting some data, it is a best practice to ensure that clients have a system in place to capture as much relevant data as possible. Information is power. On the relator side, attorneys should be asking their clients about what data they might have and how that data might illustrate—or even prove—the allegations. Third, all attorneys should educate their clients about the need to teach downstream employees about the importance of data collection and data analysis. One of the most critical pieces to harnessing and leveraging the power of data is to educate employees about the importance of accurate data collection. This means teaching physicians, for example, to accurately collect data from patient encounters. It means teaching billers and coders about including all relevant fields, even if those fields might not ultimately be billed. Most practices start—with good reason—at proper collection of claims information; however, a best practice is to collect not only claims information but also relevant fields on patients’ clinical records (e.g., medications, imaging studies, lab reports), as well as other external data (e.g., prescriptions, financial information.) Fourth, attorneys should appreciate the importance of data cleanliness. Just like most clinicians understand the importance of cleanliness in the operating room, so too must healthcare providers understand the importance of cleanliness in data. Remember the adage of “garbage in, garbage out.” Unless the healthcare data is accurate when entered, the data cannot be relied upon afterwards. Therefore, providers must constantly clean or scrub data to ensure that it is accurate, correct, consistent, relevant, and not corrupted. And, relator attorneys who mine this data should be careful that the data they are searching is reliable, accurate, and up to date. Nothing is more harmful to a case than relying on antiquated or inadequate information. Fifth, compliance counsel using data to build a case for their 46 • THE FEDERAL LAWYER • July/August 2020

clients must always remember that the data is only as good as the query. To get a meaningful understanding of data to build a successful defense, compliance counsel needs to have access to the right data and query this data correctly. Looking at a million fields of data doesn’t mean much—it means only something in context. Thus, a best practice is to start at the end: ask what information is ultimately wanted. If counsel wants to know what providers are billing the most procedures, for example, they would need to focus on billing data. If counsel is interested in suspicious kickback arrangements, they would need to review billing data in concert with financial data. Similarly, relator counsel should make sure that, when mining their clients’ own data for purposes of bringing forth a case, the counsel are using proper queries designed to get the right results. In addition to the above, healthcare providers need to take care to comply with data privacy obligations under the Health Insurance Portability and Accountability Act (HIPAA) and many state statutes.36 Remember that HIPAA’s protections and mandates apply to aggregated data just like they apply to individual patient files. Therefore, follow the HIPAA security requirements—such as authentication protocols and control over access to protect the data.37 One best practice is to consider housing a de-identified dataset. The benefit is that it removes the patient identifiers and, therefore, might be exempt from HIPAA’s mandates. As such, this might allow for easier access in manipulating and analyzing the data.

Conclusion The emergence of data analytics is changing business as usual across all industries, and the government healthcare enforcement space is no exception. By understanding the government and relators’ focus on data analytics, and by implementing practical suggestions to use data as both a proactive compliance tool and a reactive defense, relators can better present their arguments, and healthcare clients can better defend themselves during the inevitable inquiry.  Jason Mehta is a partner at Bradley Arant Boult Cummings, LLP in Tampa, Fla. Jennifer A. Short is a partner at KaiserDillon, PLLC in Washington, D.C. Mehta and Short are both former assistant U.S. attorneys who prosecuted healthcare and procurement fraud matters under the False Claims Act. They now advise individuals and corporations in civil and criminal investigations and litigation.

Endnotes See Justice Department Recovers over $3 Billion from False Claims Act Cases in Fiscal Year 2019 ( Jan. 9, 2020), https://www.justice.gov/opa/pr/ justice-department-recovers-over-3-billion-false-claims-act-cases-fiscalyear-2019.

1

See, e.g., United States Settles False Claims Act Allegations Against Jacksonville-Based Fertility (Apr. 10, 2015), https://www.justice. gov/usao-mdfl/pr/united-states-settles-false-claims-act-allegationsagainst-jacksonville-based-fertility (“This case was developed by proactively mining healthcare reimbursement data. In mining through this data, the Center was identified as a top biller of fertility related treatments. In addition, through this data mining, government investigators were able to determine that the Center

2

had billed for services allegedly rendered by Dr. Fox – the owner of the practice – even when he was out of the country.”); see also Four Area Hospitals Pay Millions to Resolve Ambulance Swapping Allegations (Oct. 4, 2017), https://www.justice.gov/usao-sdtx/pr/ four-area-hospitals-pay-millions-resolve-ambulance-swappingallegations (“Among the tools instrumental to the settlement were those provided by HHS-OIG’s Chief Data Office, Consolidated Data Analysis Center (CDAC). CDAC provides HHS-OIG and its law enforcement partners with best practices, consultancy and skills development in data mining, predictive analytics and data management and modeling in support of fraud prevention and recovery.”). 3 See, e.g., International Educational Data Mining Society, http://www. educationaldatamining.org/; Bernard Marr, Forbes, How Big Data and Analytics Are Transforming the Construction Industry (Apr. 19, 2016), https://www.forbes.com/sites/bernardmarr/2016/04/19/ how-big-data-and-analytics-are-transforming-the-constructionindustry/#1dadc10933fc; Dan Patterson, TechRepublic, How Nonprofits Use Big Data to Change the World (Feb. 8, 2017), https:// www.techrepublic.com/article/how-nonprofits-use-big-data-tochange-the-world/. 4 HHS-OIG Semi-Annual Report to Congress, Oct. 1, 2018–Mar. 31, 2019, https://oig.hhs.gov/reports-and-publications/archives/ semiannual/2019/2019-spring-sar.pdf. 5 See HHS-OIG Justification of Estimates for Appropriations Committees for Fiscal Year 2019, https://oig.hhs.gov/reports-and-publications/ archives/budget/files/2019budget.pdf. 6 Fact Sheet: The Health Care Fraud and Abuse Control Program Protects Consumers and Taxpayers by Combating Health Care Fraud (Feb. 26, 2016), https://www.justice.gov/opa/pr/fact-sheet-health-care-fraudand-abuse-control-program-protects-conusmers-and-taxpayers. 7 Id. 8 See, e.g., United States Settles False Claims Act Allegations Against Compound Pharmacy Owner For $4.25 Million (Oct. 21, 2016), https://www.justice.gov/usao-mdfl/pr/united-states-settles-falseclaims-act-allegations-against-compound-pharmacy-owner-425 (“This case was developed through an initiative to track and prosecute compound pharmacies that submitted millions of dollars in improper claims to the TRICARE program. The government estimates that up to $2 billion of tainted and unnecessary compound prescriptions had been submitted to and paid by the government. In the Middle District of Florida, the government has recovered almost $70 million in fines and penalties over the past 18 months.”). 9 Attorney General Sessions Delivers Remarks Regarding Trump Administration’s Response to Opioid Epidemic (Mar. 22, 2018), https://www.justice.gov/opa/speech/attorney-general-sessionsdelivers-remarks-trump-administrations-response-opioid-epidemic. 10 See National Health Care Fraud Takedown Results in Charges Against 601 Individuals Responsible for Over $2 Billion in Fraud Losses ( June 28, 2018), https://www.justice.gov/opa/pr/national-healthcare-fraud-takedown-results-charges-against-601-individualsresponsible-over (“In many cases, doctors, nurses, and pharmacists take advantage of people suffering from drug addiction in order to line their pockets. These are despicable crimes. That’s why this Department of Justice has taken historic new steps to go after fraudsters, including hiring more prosecutors and leveraging the power of data analytics.”). 11 Opioid Manufacturer Insys Therapeutics Agrees to Enter $225

Million Global Resolution of Criminal and Civil Investigations ( June 5, 2019), https://www.justice.gov/opa/pr/opioid-manufacturerinsys-therapeutics-agrees-enter-225-million-global-resolutioncriminal?utm_medium=email&utm_source=govdelivery. 12 Justice Department Obtains $1.4 Billion from Reckitt Benckiser Group in Largest Recovery in a Case Concerning an Opioid Drug in United States History ( July 11, 2019), https://www.justice.gov/opa/pr/ justice-department-obtains-14-billion-reckitt-benckiser-grouplargest-recovery-case. 13 Electronic Health Records Vendor to Pay $145 Million to Resolve Criminal and Civil Investigation ( Jan. 27, 2020), https://www.justice. gov/opa/pr/electronic-health-records-vendor-pay-145-millionresolve-criminal-and-civil-investigations-0. 14 See, e.g., Byron Tau and Aruna Viswanatha, Investigators Use New Strategy to Combat Opioid Crisis: Data Analytics, Wall Street Journal (Aug. 26, 2019), https://www.wsj.com/articles/ investigators-use-new-strategy-to-combat-opioid-crisis-dataanalytics-11566811803. 15 See, e.g., Wells Fargo Bank Agrees to Pay $1.2 Billion for Improper Mortgage Lending Practices (Apr. 8, 2016), https://www.justice.gov/ opa/pr/wells-fargo-bank-agrees-pay-12-billion-improper-mortgagelending-practices; Manhattan U.S. Attorney Sues And Settles With JPMorgan Chase For $614 Million For Fraudulent Mortgage Lending Practices (Feb. 4, 2014), https://www.justice.gov/usao-sdny/pr/ manhattan-us-attorney-sues-and-settles-jpmorgan-chase-614million-fraudulent-mortgage. 16 See, e.g., Dan Mangan, Federal prosecutors, Commodity Regulators Broaden Market Manipulation Probe Beyond Precious Metals Trades, CNBC (Sept. 18, 2019), https://www.cnbc.com/2019/09/18/ federal-prosecutors-regulators-broaden-market-manipulationprobe.html (noting government’s use of data to detect “spoofing” in commodities trading). 17 Assistant Attorney General Makan Delrahim Delivers Remarks at the Procurement Collusion Strike Force Press Conference (Nov. 5, 2019), https://www.justice.gov/opa/speech/assistant-attorney-generalmakan-delrahim-delivers-remarks-procurement-collusion-strike. 18 Id. 19 Three South Korean Companies Agree to Plead Guilty and to Enter into Civil Settlements for Rigging Bids on United States Department of Defense Fuel Supply Contracts (Nov. 14, 2018), https://www.justice. gov/opa/pr/three-south-korean-companies-agree-plead-guilty-andenter-civil-settlements-rigging-bids. 20 Deputy Assistant Attorney General Matthew S. Miner Delivers Remarks at the 6th Annual Government Enforcement Institute (Sept. 12, 2019), https://www.justice.gov/opa/speech/deputy-assistantattorney-general-matthew-s-miner-delivers-remarks-6th-annualgovernment. 21 See, e.g., Millennium Health Agrees to Pay $256 Million to Resolve Allegations of Unnecessary Drug and Genetic Testing and Illegal Remuneration to Physicians (Oct. 19, 2015), https://www.justice. gov/opa/pr/millennium-health-agrees-pay-256-million-resolveallegations-unnecessary-drug-and-genetic. 22 See, e.g., Careall Companies Agree to Pay $25 Million to Settle False Claims Act Allegations (Nov. 12, 2014), https://www.justice.gov/opa/ pr/careall-companies-agree-pay-25-million-settle-false-claims-actallegations (resolution of charges that defendant submitted upcoded claims for home health services). 23 See, e.g., Informatica Agrees to Pay $21.57 Million for Alleged July/August 2020 • THE FEDERAL LAWYER • 47

False Claims Caused by Its Commercial Pricing Disclosures (May 13, 2019), https://www.justice.gov/opa/pr/informatica-agrees-pay2157-million-alleged-false-claims-caused-its-commercial-pricing (allegations that defendant provided misleading information in GSA contract negotiations, resulting in overcharges to the government). 24 https://southerncalifornialawreview.com/2018/03/01/statisticalsampling-used-prove-liability-false-claims-act-healthcare-fraudnote-milene-vega/. 25 See, e.g., Rhode Island-Based Hospital to Pay $400,000 to Settle Health Care Fraud Allegations (Oct. 17, 2002), https://www. justice.gov/archive/opa/pr/2002/October/02_civ_599.htm. The government investigated the relator entity’s allegations hospital-byhospital and reached settlements with most over a number of years before intervening in the qui tam case. The slimmed-down lawsuit itself suffered from procedural issues that eventually caused it to be dismissed. 26 See, e.g., U.S. ex rel. Integra Med Analytics LLC v. Baylor Scott & White Health, 17-CV-0886 (W.D. Tex.), and U.S. ex rel. Integra Med Analytics LLC v. Providence Health Services, 17-CV-01694 (C.D. Cal.). 27 U.S. ex rel. Integra Med Analytics LLC v. Baylor Scott & White Health, 17-CV-0886 (W.D. Tex.), Doc. No. 11, § 11. 28 Id. at § 25. 29 U.S. ex rel. Integra Med Analytics LLC v. Providence Health Services, 2019 WL 3282619, at *5 (C.D. Cal. July 16, 2019). 30 In the Integra Med action in the Western District of Texas, the court dismissed the complaint in full at the motion to dismiss phase finding a public disclosure bar. Integra Med has appealed. In the Central District of California action, the court was similarly dismissive and mostly dismissed the case. On a narrow ground, the court allowed Integra Med to proceed to discovery, but the defendants are currently pursuing an interlocutory appeal to the Ninth Circuit, and the action is currently stayed. U.S. ex rel. Integra Med Analytics LLC v. Providence Health Services, 17-CV-01694 (C.D. Cal.). 31 See J.C. Herz, Medicare Scammers Steal $60 Billion a Year. This Man Is Hunting Them, https://www.wired.com/2016/03/john-mininnomedicare/. 32 Id. 33 See The United States’ Mot. to Dismiss Relator’s Second Am. Compl. at 1, U.S. ex rel. Health Choice Grp., LLC v. Bayer Corp., No. 5:17-CV-126-RWS-CMC (E.D. Tex. Dec. 17, 2018), ECF No. 116; The United States’ Mot. to Dismiss Relator’s Second Am. Compl. at 1, U.S. ex rel. Health Choice Alliance, LLC v. Eli Lilly & Co., No. 5:17CV-123- RWS-CMC (E.D. Tex. Dec. 17, 2018), ECF No. 192; United States of America’s Mot. to Dismiss Relators’ First Am. Compl. at 1, U.S. ex rel. Miller v. AbbVie, Inc., No. 3:16-CV- 2111-N (N.D. Tex. Dec. 17, 2018), ECF No. 52; United States’ Mot. to Dismiss at 1, U.S. ex rel. CIMZNHCA, LLC v. UCB, Inc., No. 3:17-CV-00765-SMY (S.D. Ill. Dec 17, 2018), ECF No. 63; United States’ Mot. to Dismiss Relators’ Compl. at 1, U.S. ex rel. Carle v. Otsuka Holdings Co., No. 17-CV-00966 (N.D. Ill. Dec. 17, 2018), ECF No. 30; United States’ Mot. to Dismiss Relators’ Compl. at 1, U.S. ex rel. SCEF, LLC v. AstraZeneca PLC, No. 2:17-CV-01328-RSL (W.D. Wash. Dec. 17, 2018), ECF No. 15; United States’ Mot. to Dismiss at 1, U.S. ex rel. SMSF LLC v. Biogen Inc., No. 1:16-cv-11379-IT (D. Mass. Dec. 17, 2018), ECF No. 52; United States’ Mot. to Dismiss at 1-2, U.S. ex rel. SAPF LLC, v. Amgen Inc., No. 2:16-CV-05203-GJP (E.D. Pa. Dec. 17, 2018), ECF No. 18; United States’ Mot. to Dismiss at 1-2, U.S. ex rel. SMSPF LLC v. EMD Serono Inc., No. 2:16-cv-05594-TJS (E.D. Pa. 48 • THE FEDERAL LAWYER • July/August 2020

Dec. 17, 2018), ECF No. 23; United States’ Mot. to Dismiss Relator’s First Am. Compl. at 1, U.S. ex rel. NHCA-TEV LLC v. Teva Pharm. Prods. Ltd., No. 2:17-cv-02040-JD (E.D. Pa. Dec. 17, 2018), ECF No. 30. 34 See supra note 33. 35 In U.S. ex rel. CIMZNHCA, LLC v. UCB, INC., No. 3:17-cv-00765SMY-MAB, 2019 WL 1598109, at *4 (S.D. Ill. Apr. 15, 2019), the district court denied DOJ’s motion to dismiss a finding that the government’s stated purposes for moving to dismiss were arbitrary and capricious. This finding has been appealed to the Seventh Circuit Court of Appeals and remains pending. 36 The Health Insurance Portability and Accountability Act of 1996 (HIPAA) P.L. No. 104-191, 110 Stat. 1938 (1996). 37 45 C.F.R. Parts 160, 164.

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Is a Heated Political Climate Inflaming Election Cases? ROB TYSON

O

ur nation’s political climate is inflamed. It does not matter on which side of an issue you reside. Emotions are high. Citizens often muse that the government has let them down, and personal attacks on elected officials are common. It does not appear that the passion is going away any time soon. As additional individuals choose to run for office, the candidates will be analyzed closely with regard to their positions on issues and their personal demeanor. In the era of social media, candidates for office are subjected to an intense and extensive scrutiny of their online presence.

Now more than ever, there is a growing distrust in the election process. Many Americans believe a rival country or foreign entity will attack the integrity of our elections. As a result, many states and local governments are taking steps to protect the voting process and keep it safe from hacking or any other manipulations. Additionally, COVID-19 has brought increased attention to how people vote, specifically for early voting and absentee ballots.1 Other reasons for distrust include failed apps and software debacle in the tabulation and transmission of voting results during the 2020 Iowa Democratic Party Caucuses. How will this distrust affect future elections? We will likely see an increase in litigation concerning all aspects of an election—from nomination of candidates by political parties to the canvassing of votes by local governments. Recent and ongoing legal challenges alleging that South Carolina’s method of selecting its electors for the Electoral College is unconstitutional2 represent a culmination of

the current political climate. In addition, concerned South Carolina citizens have sued the South Carolina Republican Party, alleging that the it illegally canceled the GOP’s presidential primary.3 Another event that will no doubt add to the increase in election law litigation is the federal decennial census. The census will begin in 2020, culminating in the release of the census data on April 1, 2021. The federal government will use the census results primarily to apportion the number of congressional districts per state. Then the states will redraw the congressional districts to comply with the census population figures. Once states begin this complicated endeavor to redraw congressional districts, rest assured that legal challenges will come from all corners. As explained in greater detail below, however, claims of illegal partisan gerrymandering are no longer allowed in federal court given the Supreme Court’s ruling last year.4 A national grassroots organization, the National Democratic Redistricting Committee, spearheaded by former Attorney General Eric Holder, has committed to spend millions of dollars on elections and redistricting reform to help shape the redrawing of congressional and state districts over the next decade. In this current climate of focus on congressional districts, there is intense scrutiny on how the Census Bureau will conduct the census. In fact, the Supreme Court heard a challenge last year to the Trump administration’s attempt to add a question about citizenship on the U.S. census form.5 In that case, Justice Alito lamented in a separate opinion that it “is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision.”6 Granted, Justice Alito was a member of the minority in this opinion, but his sentiment about the bitter political controversy being a sign of our country’s political climate is a spot-on analysis of the American electorate. What shall we expect looking forward? Since partisanship weighs heavily on all political issues, we should expect more legal challenges July/August 2020 • THE FEDERAL LAWYER • 51

starting in 2020 and running through the 2020 redistricting cycle. This article will highlight some of the recent significant cases and describe some of the potential legal issues for the future. Enjoy and tighten your seatbelt.

Census Case Every 10 years, the United States conducts a census as required by the Constitution.7 In 2018, Secretary of Commerce Wilbur Ross announced that the 2020 census would include a question about citizenship. The census has included questions about citizenship before, but since 1950, such questions have only been asked on forms that go to some—but not all—households. The Commerce Department maintained that the citizenship question should be asked to obtain data that would assist the Department of Justice in better enforcing federal voting rights laws. Opponents of including the citizenship question argued that it was primarily for political reasons. The two primary issues addressed by the Supreme Court were: 1. Whether Secretary Ross’s decision complied with federal laws governing administrative agencies; and 2. Whether the decision to include the citizenship question violates the Constitution, which requires an “actual Enumeration” of the U.S. population every 10 years. Oral argument was held in April 2019. Prior to the Supreme Court issuing its opinion, challengers notified the Court of new evidence discovered in a separate case. In the separate case, a Republican operative—who had drawn maps for many years—wanted the citizenship question added to give advantages to “whites and Republicans.” Also, during this interim period, the U.S. Court of Appeals for the Fourth Circuit remanded a Maryland case back to the district court to determine whether Secretary Ross had added the citizenship question to discriminate against Hispanics. Against this backdrop, the Supreme Court issued its opinion on June 27, 2019, with Chief Justice Roberts writing for the majority. The Supreme Court concluded that the decision by Secretary Ross to add the citizenship question did not violate the Constitution. The Court further held that the Constitution allows for more than “simply counting the population” and could include questions for “information gathering purposes.”8 However, the Court held that the rationale for asking the citizenship question “to better enforce the Voting Rights Act” was a pretext for its actual reasoning.9 Chief Justice Roberts recognized the deferential standard given to agencies but wrote, “we are not required to exhibit a naivete from which ordinary citizens are free.”10 The consequence of this decision is that the citizenship question cannot be asked on the 2020 Census. As for other means of obtaining similar data, the Trump administration has requested executive branch agencies to supply any and all citizenship data they have so that it can be assimilated into the census count.11 The census is moving forward, so let the counting begin.

Gerrymandering Cases Partisan gerrymandering—Rucho v. Common Cause, 139 S. Ct. 2484 (2019) For years, courts have struggled with claims that partisan gerrymandering is unconstitutional. Generally, when states redraw their congressional districts—including state legislative and local government districts—politics play a major role because politicians are 52 • THE FEDERAL LAWYER • July/August 2020

usually tasked with drawing the new boundaries. What often follows the re-drawing of boundaries is an individual or group of individuals, usually from the minority party, claims that the majority party unfairly redrew the boundaries at the expense of the minority party. Thus, the argument is that the partisan gerrymandered districts violate the Constitution. However, the Supreme Court has not been able to delineate a workable standard to assess when a majority party crosses the line. Last year, the Supreme Court ruled in two cases concerning partisan gerrymandering challenges in Maryland and North Carolina.12 The Supreme Court held that it was inappropriate for federal courts to consider partisan gerrymandering claims because the claims raise political questions beyond the competence of the federal judiciary.13 In other words, the Court found that partisan gerrymandering claims present a “political question” that lacks “judicially discoverable and manageable standards for resolving them.”14 Thus, the Court held that federal courts do not have jurisdiction over these claims.15 Chief Justice Roberts wrote that to allow federal courts to decide partisan gerrymandering cases would be “an unprecedented expansion of judicial power into one of the most intensely partisan aspects of American political life.”16

Partisan gerrymandering claims in state court Now, the issue becomes whether partisan gerrymandering cases will be successful in state courts. Will state courts follow the Supreme Court’s lead and decline to entertain partisan gerrymandering challenges based on the nonjusticiable political question doctrine? North Carolina already has jumped into the fray by rejecting the holding in Rucho. Shortly after the Supreme Court issued its decision in Rucho, a three-judge panel of state court judges at the trial court level held that the North Carolina legislative’s redrawing was a partisan gerrymander that violated the North Carolina Constitution.17 In the coming years, we can expect to see plaintiffs in other states implementing the North Carolina model as they try to convince their respective state courts to throw out partisan gerrymandered maps on state constitutional grounds.

Racial gerrymandering Racial gerrymandering challenges also will continue, especially in light of the Supreme Court’s ruling that partisan gerrymandering challenges are no longer allowed in federal court. In certain regions, it is hard to distinguish between racial and partisan gerrymandering because electors vote in blocs. This creates the risk of map drawers potentially cloaking racial discrimination under the guise of partisan justifications, thereby avoiding allegations of racial gerrymandering. In the past few years, the Supreme Court has heard challenges to the state legislative districts and congressional districts in North Carolina.18 In both cases, the plaintiffs successfully challenged the state’s maps on the basis of racial gerrymandering. In Covington, the plaintiffs claimed that the General Assembly of North Carolina racially gerrymandered their voting districts comprising majorities of black voters. The General Assembly already had been ordered by the district court to redraw the district lines and conduct elections accordingly. When the General Assembly failed to remedy the constitutional ailments, a special master was appointed and drew revised districts; however, the plaintiffs claimed the new lines still separated them because of their race. Because the plaintiffs

claimed they remained separated because of race—even after the redrawing—their claims were still justiciable. Although the defendants asserted that the General Assembly did not consider race at all when redrawing the district lines, the Supreme Court stated that while the map drawers were instructed not to consider race, there was “sufficient circumstantial evidence that race was the predominant factor governing the shape of those four districts.”19 The Court affirmed the district court’s decision redrawing the districts in certain counties. But the Court held that the district court was without authority to redraw other districts that were not a product of racial gerrymandering.20 In Cooper, some registered voters sued North Carolina officials for impermissible racial gerrymandering in two congressional districts. These two challenged districts had histories of suits relating to unwarranted racial gerrymandering.21 While addressing the merits, the Supreme Court held that it must conduct a two-step analysis and determine (1) whether race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district; and (2) if racial considerations predominated over others, the design of the district must withstand strict scrutiny.22 The Supreme Court upheld the trial court’s determination that there was more than enough evidence for the plaintiff voters to meet the first prong of the analysis.23 In determining whether strict scrutiny applied, the state argued that it acted to comply with Section 2 of the Voting Rights Act. In determining whether strict scrutiny applied, the state argued that its actions in drawing the districts was done to comply with Section 2 of the Voting Rights Act. The Court did not buy the state’s reasoning. Instead, the Court held that for state to use this as justification, the evidence must support it, and in this case, it didn’t meet this threshold.24 As to the other congressional district—which was making its fifth appearance this decade before the Supreme Court—the Court concluded the district was illegal. The Court held “race, not politics, accounted for the district’s reconfiguration” and affirmed the district court’s judgment that North Carolina officials had engaged in impermissible racial gerrymandering.25

Conclusion Legal challenges based on political disagreements will always be plentiful, whether they are questioning a candidate’s qualifications or a potential misstep in the election process. It is a certainty that lawsuits and election challenges will persist given the highly polarized electorate in the country. It should provide good theater. 

by requiring in-person voting. The governor unsuccessfully sued to delay the primary. Wisconsin Legislature v. Evers, No. 2020AP608-OA (Wis. S. Ct. April 6, 2020). Also, since many people attempted to vote by absentee ballot, the local election commissions were delayed in getting the absentee ballots to the voters and would not be able to count the ballots in a timely manner, the plaintiffs alleged in an action brought in federal court. The defendants were concerned that loosening the process at such a late date potentially would lead to voter fraud. Thus, the courts had to step in to resolve the dispute. The U.S. Supreme Court reversed the district court’s decision to extend the deadline for absentee ballots to be submitted. Republican Nat’l Comm. v. Democratic Nat’l Comm., 589 U.S. __ (2020). 2 See Baten v. McMaster, 374 F. Supp. 3d 563 (D.S.C. 2019) (dismissing the plaintiffs’ complaint with prejudice), appeal pending, No. 19-1297 (4th Cir.). 3 See Inglis v. S.C. Republican Party, No. 2019-CP-40-05486 (S.C. Ct. Comm. Pl. filed Dec. 11, 2019) (denying plaintiffs’ motion for preliminary injunction and granting defendants’ motion to dismiss). 4 Rucho v. Common Cause, 139 S. Ct. 2484 (2019). 5 Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019). 6 Id. at 2596 (Alito, J., concurring in part and dissenting in part). 7 See U.S. Const. Art. I, § 2, cl. 3. 8 Dep't. of Commerce, 139 S. Ct.. 9 Id. at 2574 (majority opinion). 10 Id. at 2575 (quoting United States v. Stanchich, 550 F.2d 1294, 1300 (2d Cir. 1977)). 11 See Trump Backs Off Census Citizenship Question Fight, NPR, https://www.npr.org/2019/07/11/739858115/trump-expected-torenew-push-for-census-citizenship-question-with-executive-acti (last visited February 24, 2020). 12 Rucho, 139 S. Ct. 2484 (2019). 13 Id. at 2508. 14 Id. at 2494 (citation omitted). 15 Id. at 2499. 16 Id. at 2506. 17 Common Cause v. Lewis, No. 18 CVS 014001, 2019 WL 4569584 (N.C. Super. Sept. 03, 2019). 18 North Carolina v. Covington, 138 S. Ct. 2548 (2018); Cooper v. Harris, 137 S. Ct. 1455 (2017). 19 Covington, 138 S. Ct. at 2553. 20 Id. at 2554. 21 Cooper, 137 S. Ct. at 1465. 22 Id. at 1463–64. 23 Id. at 1469. 24 Id. at 1470–71. 25 Id. at 1482.

Rob Tyson is a partner with Robinson Gray Stepp & Laffitte in Columbia, S.C., where his practice focuses on litigation and governmental law, including election law disputes, redistricting matters, and Voting Rights Act challenges.

Endnotes The primary election in Wisconsin highlighted the legal challenges resulting from the COVID-19 pandemic. Changes were sought to the voting process so not to potentially jeopardize people’s health

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Book Reviews

Unexampled Courage: The Blinding of Sgt. Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waites Waring By Richard Gergel Sarah Crichton Books, 2019 324 pages, $27.00

Reviewed by Patrick Wooten

On July 10, 2015, thousands gathered to watch as officials lowered the Confederate flag from its prominent place on the South Carolina State House grounds. Bipartisan support for removing the flag arose only in the wake of a horrific act of racial violence; the prior month, a white supremacist named Dylann Roof had murdered nine African American worshippers at Mother Emanuel Church in Charleston. The following year, U.S. District Court Judge Richard M. Gergel oversaw the trial where Roof was tried and convicted. A few years later, Gergel published Unexampled Courage: The Blinding of Sergeant Isaac Woodard and the Awakening of President Harry S. Truman and Judge J. Waties Waring. In the book, Gergel tells the story of a different, largely forgotten act of racial violence in South Carolina that also served as a catalyst for long-needed change with respect to racial issues. The book begins with Sergeant Isaac Woodard, a battlefield-decorated World War II veteran, boarding a Grey54 • THE FEDERAL LAWYER • July/August 2020

hound bus in Augusta, Ga., on Feb. 12, 1946, to head home to Winnsboro, S.C., after serving in the Pacific theater. Woodard and the white bus driver have a heated exchange of words when, according to Woodard, the bus driver initially refused to allow him to get off the bus to use the restroom during a stop, cursing at him and rudely telling Woodard to sit down. Woodard, who was still in his uniform, responded: “God damn it, talk to me like I am talking to you. I am a man just like you.” At the next stop, in Batesburg, S.C., the bus driver reported Woodard to the local police chief, Lynwood Shull, who took Woodard into custody and beat him with his blackjack, leaving the 26-year old Woodard permanently blinded. As Gergel explains, the blinding of Sergeant Woodard occurred at a critical moment in America’s history. Having defeated the Nazis and fascism in World War II, America emerged as the leader of the free world, but “the American self-image as the champion of human dignity and equality confronted the reality of this nation’s treatment of its black citizens.” Gergel paints a vivid picture of the Jim Crow South in the years following World War II, describing the laws, customs, attitudes, and racial violence that kept African Americans subjugated to whites more than 80 years after the Civil War. In this context, “[t]he brutality and injustice of Woodard’s treatment encapsulated the angst and outrage of the nation’s 900,000 returning black veterans, who felt their service in defense of American liberty was not appreciated.” The Woodard incident gained national attention thanks in large part to the NAACP, the black press, and Orson Welles, who skillfully (and relentlessly) conveyed the drama and import of the incident to his large radio audience. In Unexampled Courage, Gergel argues that Woodard’s blinding set off a multiyear chain reaction of events that played a significant but overlooked role in the modern civil rights movement. Two of the key characters in this story are President Harry Truman and Judge Waites Waring, a U.S. district court judge who served in the same Charleston courthouse where Gergel now presides, and

who oversaw the criminal trial of Lynwood Shull. Neither Truman nor Waring were likely candidates to play an important role in the civil rights movement. Truman was born in a portion of Missouri highly sympathetic with the Confederate cause and, as president, risked alienating southern whites by pressing civil rights issues. Waring was an eighth-generation Charlestonian who never questioned the racial status quo prior to being appointed to the bench in 1943. When asked later in life about his attitudes toward race prior to becoming a judge, Waring said, “We didn’t give them any rights, but they never asked for any rights, and I didn’t question it.” But the Woodard incident—and, for Waring, watching the half-hearted prosecution of Shull followed by an immediate acquittal by an all-white jury—led to an “awakening” in Truman and Waring, each of whom went on to make significant contributions to the civil rights movement. NAACP Executive Secretary Walter White relayed the Woodard incident to President Truman during a meeting on Sept. 19, 1946. Truman became visibly angered and said, “My God! I had no idea it was as terrible as that! We have got to do something.” And Truman did do something. For starters, he created the President’s Committee on Civil Rights, which issued a landmark report on Oct. 29, 1947, titled To Secure These Rights. The committee’s report candidly assessed Americans’ deep and widespread problems with racial injustice and recommended concrete solutions. Notably, the report explicitly attacked the “separate but equal” doctrine of Plessy v. Ferguson1, arguing it was inconsistent with the Equal Protection Clause of the Fourteenth Amendment. President Truman also integrated the U.S. military and, pursuant to his committee’s recommendations, began having the Justice Department file amicus briefs in important civil rights cases—a program that had much success. Southern Democrats were appalled by Truman’s focus on civil rights issues, leading to the creation of the breakaway “Dixiecrat” party led by, among others, South Carolina Governor Strom Thurmond. When someone pointed out to Thurmond that he had

supported President Franklin Roosevelt, who had the same civil rights platform as Truman, Thurmond responded, “I agree, but Truman actually means it.” Truman, when discussing the importance of advancing the civil rights of African Americans, frequently told the story of Sergeant Woodard—even repeating the story in a meeting with Judge Waring, who informed President Truman that he not only knew the story, but had presided over the trial of Woodard’s attacker, Lynwood Shull. Perhaps the most compelling part of Unexampled Courage, however, is its account of Judge Waring’s evolution from being apathetic about civil rights issues to being a “gradualist” and, finally, to becoming a civil rights activist who was eager to use his position of power to effect immediate change in South Carolina, even if it meant becoming a social pariah and, indeed, putting his life at risk. Gergel’s exploration of Waring’s moral awakening benefits not only from Gergel’s years of research but also from his perspective as a current federal judge in Charleston, a lawyer with more than two decades of trial experience, and a historian who has studied the civil rights movement throughout his life. Also notable is Gergel’s ability to describe the key civil rights events of post-World War II South Carolina while weaving in and out of a broader discussion of the civil rights movement at the national level—allowing the reader to see both the forest and the trees. One of the most striking parts of the book is the level of resistance South Carolina’s white establishment showed to racial progress. In the 1940s, Waring issued several important decisions in civil rights cases, including holding that African American teachers must receive pay equal to their white counterparts; holding that the University of South Carolina School of Law could not exclude African Americans unless a separate but equal law school existed for African Americans; and, most significantly, holding that the Democratic presidential primary could not prevent African Americans from voting. But, rather than accepting these rulings, South Carolina’s governing class had to be dragged, kicking and screaming, into the modern era, often resorting to desperate and creative attempts to maintain the status quo. For example, when the U.S. Supreme Court ruled in Smith v. Allwright 2 that Texas could not exclude African Americans from the Texas Democratic Party primary, the Court relied in part on the detailed state statutory

scheme regulating primaries. Rather than accepting the ruling of the Supreme Court, South Carolina’s governor, Olin Johnston, worked with the General Assembly and state attorney general’s office to repeal all 150 statutes in the South Carolina Code governing the primary, hoping that this would allow South Carolina to evade the Court’s ruling. In Elmore v. Rice 3, Judge Waring held that the South Carolina Democratic party must allow African Americans to vote, finding that their statute repealing scheme did not allow them to evade the law, and he concluded his opinion by declaring that “it is time for South Carolina to rejoin the Union.” Party leaders were outraged, and they responded by requiring every African American who wanted to vote in the primary to sign an oath attesting that he or she opposed integration. As Gergel explains in dramatic detail, Judge Waring was ultimately forced to threaten party leaders with imprisonment to ensure compliance with the law. Judge Waring’s civil rights decisions also led to relentless verbal attacks on Waring, an attempted impeachment by South Carolina political leaders, and threats of violence from, among others, the Ku Klux Klan. Unexampled Courage culminates in the story of Briggs v. Elliott 4, which was the first of five cases that were combined under the caption of Brown v. Board of Education. In the trial, future Supreme Court justice Thurgood Marshall, as counsel for the plaintiffs, squares off against future Dean of the University of South Carolina School of Law, Robert Figg, as counsel for the defendants. The facts surrounding Briggs are so dramatic and captivating that a summary cannot do them justice. Although Gergel’s book describes many courageous men and women, perhaps the most courageous were the 21 African American residents of Summerton, S.C. who agreed to serve as plaintiffs in the Briggs case. These plaintiffs, who were not in positions of power like President Truman and Judge Waring, knew that they were risking their lives by bringing the lawsuit, and many were subjected to intense persecution. Judge Waring’s landmark dissent in Briggs declaring that “segregation is per se inequality” would become the defining holding of the U.S. Supreme Court’s unanimous holding in Brown, and in his dissent, Waring recognized the plaintiffs’ “unexampled courage in bringing and presenting this cause” challenging “the long-established and age-old pattern

of the way of life which the state of South Carolina has adopted and practiced and lived in since and as a result of the institution of human slavery.” So, what lessons can we take from Unexampled Courage? One is that we should not blindly accept the status quo; instead, we should approach every issue with a curious and skeptical mind. Waring’s views on racial issues were shaped in part by his reading of literature by those most critical of the racial beliefs held by his peers. Gergel explains that Waring’s “awakening” occurred partly after he read The Mind of the South by W.J. Cash and An American Dilemma by Gunnar Myrdal. Waring’s second wife, a northern socialite with progressive views about racial issues, also impacted Waring’s thinking. Another lesson is to play the long game. Judge Waring was ostracized by Charleston society in the 1940s and 1950s, but now the federal courthouse in Charleston is named after him. Finally, Gergel’s book shows us that sometimes confrontation with the most concentrated form of a particular type of evil is necessary before we can achieve progress with respect to subtler versions of the same evil. Just as the Mother Emanuel shooting led to the removal of the Confederate flag, the blinding of Sergeant Woodard led to the awakening of President Truman and Judge Waring and, as Gergel persuasively argues, many of the landmark civil rights developments in the years that followed. Judge Gergel’s book tells a story that desperately needed to be told, and Gergel was the ideal person to tell it. If you are interested in civil rights, history, or good stories with interesting and dynamic characters, Unexampled Courage is a must read.  Patrick Wooten is a partner in the Charleston office of Nelson Mullins Riley & Scarborough, where he practices in the areas of business litigation, commercial litigation, and trust and fiduciary litigation. From 2011 to 2012, Wooten served as a law clerk to Hon. Richard M. Gergel, U.S. district judge for the District of South Carolina. Wooten is a graduate of the University of South Carolina Honors College and the Duke University School of Law.

Endnotes 163 U.S. 537 (1896) 321 U.S. 649 (1944) 3 72 F. Supp. 516 (E.D.S.C. 1947) 4 342 U.S. 350 (1952) 1 2

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Integration Now: Alexander v. Holmes and the End of Jim Crow Education By William P. Hustwit University of North Carolina Press, Chapel Hill, 2019

288 Pages, $35.95

Reviewed by Henry S. Cohn

William P. Hustwit, a professor at Birmingham-Southern College, begins Integration Now with Brown v. Board of Education,1 known as Brown II. Brown II was a follow-up case to the historic Brown v. Board of Education,2 which rejected segregation in public schools and declared that “separate” could never be “equal.” Brown II considered the remedies that the parties and the courts had available to implement the first Brown decision. Chief Justice Earl Warren in Brown II recognized existing obstacles to integration but ordered the Southern school boards to make a good faith effort to start the process. Using an old equity term, suggested by Justice Felix Frankfurter, the chief justice ordered the boards to accomplish integration “with all deliberate speed.”3 The challenge of implementation was captured by Justice Hugo Black when he told his fellow justices at the conference for Brown II that he knew the Southern lower court judges, and that integration would not occur for a generation.4 Hustwit’s Integration Now is a detailed yet clearly written history of Alexander v. Holmes County Board of Education,5 in which

the Court rejected Brown II. It discusses the culture and geography of a Mississippi county, the political climate of the times, and the figures who played a role in the death of “all deliberate speed.” Holmes County is located in the center of Mississippi, and, with rich farm soil and navigable waterways, its chief enterprise is farming. From the 1880s to at least the middle of the 20th century, its black population faced acts of violence, including lynching, as well as discrimination from corrupt sheriffs and other officials who sought to keep them in their place. Virtually no black person voted between the end of Reconstruction and enactment of the Voting Rights Act of 1965, and the schools, of course, were segregated. Holmes County was slightly different from other Mississippi counties in that, through the Federal Farm Security Administration, a number of blacks owned their own farms and had severed their dependence on the white-held plantations where they had been sharecroppers or tenant farmers. The black farm owners were able to organize in the 1950s and thereafter to gain support for their civil rights. Through a group known as the Holmes County Movement, black people attempted to register to vote. One effort at registration occurred in April 1964, when a group of prospective black voters confronted the local sheriff, who was armed with a blackjack outside the county building. A few of the applicants bravely entered the building and visited the office of registrar of voters, only to be refused registration by the county officials. In the early 1960s, the NAACP Legal Defense Fund (LDF) brought lawsuits to enforce the original Brown decision, which had been virtually ignored since it was issued in 1954. Overwhelmed, the LDF chose only certain counties in Mississippi, and Holmes County, with its history of organized protest, was one. The defendant in these LDF suits was normally the county school board, which was accused of dragging out the holding in Brown I and the orders of Brown II. The federal district court in the Holmes litigation ordered the school board to take “baby steps,” primarily putting in place a “freedom of choice” plan that left the schools with de facto segregation. On appeal to the Fifth Circuit, the case appeared to be heading for a more meaningful result for the LDF. But, in 1968, with the election of Richard Nixon, the Fifth Circuit deferred to his victory. Nixon’s Department of Health, Education,

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and Welfare, on request of the Fifth Circuit, submitted a suggested plan calling for delay in integration. The Fifth Circuit ordered the plan put into place, at least temporarily. This order resulted in the LDF’s petitioning for certiorari to the Supreme Court and led to the case of Alexander v. Holmes County. After oral argument, at the case conference,6 Chief Justice Warren Burger and Justices John Harlan, Potter Stewart, and Byron White favored giving the Fifth Circuit and HEW plan a chance. But Justice Black, according to Hustwit, trying to redeem his vote in Brown II, opposed any language supporting further delay. He threatened a dissent. Finally, after give and take and some editing by Justice William Brennan, the Court issued a two-page per curiam opinion declaring that, after 14 years, the “all deliberate speed” standard was “no longer constitutionally acceptable.”7 At the same time, the Court gave the Fifth Circuit the authority to cooperate with HEW as plans for a unitary school system were developed by the school board. After the decision, as Mississippi officials expressed anger with Alexander, President Nixon commented that he expected that the LDF would have its work cut out for it even under “integration now.” He was ready as usual to try various maneuvers as part of his “Southern Strategy” to frustrate the LDF’s goal of an integrated school system in Mississippi. President Nixon was mostly correct that Alexander would not bring about an immediate change. Hustwit admits that the district court and the Fifth Circuit still struggled to merge facilities. And the increase of so-called “private schools” for whites complicated the issue further. According to Hustwit, however, the number of all-black schools in the South dropped from 68 percent to 18 percent after Alexander. In addition to tracing the history of the case, Hustwit provides outstanding biographies of the persons who played a role in Alexander. One such influential person was Marion Wright Edelman, a Yale Law School graduate who was born in the South and returned to Mississippi to organize the Alexander suit and others. Edelman’s work in the 1960s on these projects is less remembered today because she is now revered as the founder of the Children’s Defense Fund. Another LDF lawyer was Jack Greenberg, the plaintiffs’ counsel in Alexander. Greenberg was Thurgood Marshall’s successor at the LDF; Hustwit calls Greenberg “perhaps

the most respected civil rights attorney in America.” According to Hustwit, Greenberg was a first-rate intellect with leadership skills, a talented strategist, and an inspiration to his staff. He had a relentless desire to win his cases. Hustwit also praises Mel Leventhal, an attorney who helped Greenberg in Alexander. Leventhal visited Holmes County as an inspired law student and then became an LDF organizer. He was such a familiar figure in the community that he would affect a Southern drawl over his hints of a Brooklyn accent. In writing this book, Hustwit made use of Leventhal’s knowledge. Hustwit also discusses segregationists, among them John Creighton Satterfield of Yazoo City, Miss. As president of the ABA from 1961 to 1962, Satterfield attacked the Supreme Court for weakening states’ rights. Satterfield represented the Holmes Board of Education. A week after oral argument, on Oct. 31, 1969, Time Magazine called him “the most prominent segregationist lawyer in the country.” Hustwit writes that Satterfield dismissed the LDF’s arguments in the case as based on “specious sociological theories.” Hustwit makes Judge Harold Cox of the Southern District of Mississippi the villain of the piece. Judge Cox became a federal judge in 1961 in an appointment by newly elected President John F. Kennedy. The president and Attorney General Robert Kennedy were pressured into approving Cox’s appointment by Senator James Eastland, chairman of the Senate Judiciary Committee. Cox, both privately and in open court, spoke against rights for blacks and made anti-Semitic remarks as well. His rulings were almost always overturned on appeal, and he welcomed the reversals with a condescending attitude. In addition to serving as the trial judge in Alexander, he dismissed the 1964 charges against the murderers of civil rights workers Schwerner, Chaney, and Goodman, but, after the Supreme Court intervened, he allowed a trial on certain charges against seven of the accused. Hustwit recognizes that the strongest outcome from Alexander was the Supreme Court’s rejection of Brown II. Yet he ends Integration Now by noting that the case did not quickly bring about integration in Holmes County. This result, even today, has not been obtained completely. But Hustwit concludes on a positive note, quoting from a “former slave preacher”: “Lord, we ain’t what we oughta be, We ain’t what we want to be, We ain’t what we gonna be, But Thank God, we ain’t what we was!” 

Judge Henry S. Cohn was appointed to the Connecticut Superior Court in 1997 and has been a judge trial referee since 2015. He has co-written a book on the Hartford, Conn., Circus Fire, published by Yale University Press, and has written numerous other pieces, including book reviews for The Federal Lawyer.

Endnotes Brown v. Board of Education, 349 U.S.294 (1955). 2 Brown v. Board of Education, 347 U.S. 483 (1954). 3 Brown II, 349 U.S. 301. The phrase has been linked to the Latin term festina lente or “make haste slowly.” 4 Black’s Southern-born law clerk was even more pessimistic, telling Black that integration would not occur during his lifetime. See Dickson, Supreme Court in Conference 665 (2001). 5 Alexander v. Holmes County Board of Education, 396 U.S. 19 (1969). 6 Dickson, supra note 4 at 671-673. 7 Alexander, 396 U.S. at 20. 1

The Second Founding: How the Civil War and Reconstruction Remade the Constitution By Eric Foner W.W. Norton & Company, 2019 224 pages, $26.95

Reviewed by Kevin J. Doyle

Modern historians view Reconstruction (1865-1877) as a watershed moment in American history, a period in which the

nation grappled with fundamental questions of how to order our society in the aftermath of the Civil War and the abolition of slavery. From the late 19th century until well into the 20th century, however, Reconstruction was widely viewed as an era of corruption and overreach by the federal government, especially in its efforts to protect the rights of newly freed black Americans. Eric Foner’s The Second Founding examines Reconstruction’s “attempt, flawed but truly remarkable for its time, to build an egalitarian society on the ashes of slavery.” The book focuses on the Thirteenth, Fourteenth, and Fifteenth Amendments—what the author refers to as a “constitutional revolution” that, among other things, abolished slavery, established equality as a principle of constitutional law, and gave black men the right to vote. This constitutional revolution so fundamentally reconfigured the American polity as to constitute a “second founding” of the United States. Not only did these amendments embody “a new era of individual rights consciousness,” but they “greatly enhanced the power of the federal government, transferring much of the authority to define citizens’ rights from the states to the nation.” Foner reminds us that whereas the Bill of Rights was silent as to how its fundamental guarantees would be implemented, the Reconstruction Amendments each ended with a clause empowering Congress to enforce their provisions, thus “guaranteeing that Reconstruction would be an ongoing process, not a single moment in time.” This latter observation is particularly poignant, given that Reconstruction came to an end in 1877, ushering in the long Jim Crow period of legalized segregation. Yet, while Reconstruction may have failed to permanently change the culture of its time, it was nevertheless a testament to American constitutionalism. As Foner observes, even though the Constitution had apparently failed to resolve the slavery question—resulting in the terrible carnage of the Civil War—the American people maintained “the widespread desire to find a secure constitutional basis for public policy.” In tracing the political processes that culminated in the Reconstruction Amendments and related civil rights laws, the book also examines the role of the Supreme Court in interpreting these new amendments. As a historian reflecting upon the fundamental transformation of the post-Civil War legal order, Foner is uniquely positioned to assess July/August 2020 • THE FEDERAL LAWYER • 57

the Supreme Court’s jurisprudence in light of the historical record of the period.

The Thirteenth Amendment Comprising just 32 words, the Thirteenth Amendment outlawed slavery and involuntary servitude in the United States “except as a punishment for crime whereof the party shall have been duly convicted.” Although President Lincoln had signed the Emancipation Proclamation in 1863 freeing the slaves in the Confederate states, it did not abolish the institution of slavery. Numerous states’ laws providing for slavery remained intact. Lincoln himself feared that the Proclamation’s constitutionality might be challenged after the war. Thus, the Thirteenth Amendment represented Congress’s effort to give enduring constitutional protection to the intention of the Proclamation. In one of many illuminating observations in the book, Foner notes that while the Fourteenth Amendment is often viewed as the catalyst for increased federal power after the war, “it was the Thirteenth, the first amendment in the nation’s history to expand the power of the federal government rather than restraining it, that initiated the redefinition of federalism.” The Thirteenth Amendment abolished the institution of slavery, but it did not speak to the crucial question of what rights freed slaves should have. Among the unresolved questions were the rights to vote, marry, own property, and testify in court. Ultimately, the Thirteenth Amendment was “one indispensable part of a dynamic process that continued for years and gave birth to the Fourteenth and Fifteenth Amendments, further civil rights legislation, and an unprecedented experiment in the South in interracial democracy.”

The Fourteenth Amendment It is difficult to overestimate the significance of the Fourteenth Amendment to our system of law. Conceived as a measure to address “specific problems arising from the war” (such as whether certain classes of former Confederates should be permitted to hold significant public office), it has become one of the most important legal mechanisms for the establishment of equality between 1868 and today. In language that has become central to Americans’ understanding of their constitutional rights, the Fourteenth Amendment established birthright citizenship; barred states from enacting laws abridging the rights of citizens of the United States; prohibited states

from depriving individuals of life, liberty, or property without due process; and established the right to equal protection of law. Foner captures the profound impact of the Fourteenth Amendment on “rights consciousness” in American life: “It makes the Constitution a vehicle through which aggrieved groups and individuals who believe that they are being denied equality can take their claims to court.” In making the federal government the guarantor of fundamental rights against state efforts to limit those rights, the Fourteenth Amendment marked the beginning of a “deeply modified federalism.” Indeed, many of the most consequential Supreme Court decisions over the last 100 years—whose subject matter ranges from segregation to criminal defendants’ rights to privacy to affirmative action—have arisen under the Fourteenth Amendment. As Professor Richard Beeman has described the link between the Fourteenth Amendment and the country’s founding ideals, the Amendment “brought the principles enunciated in the preamble of the Declaration of Independence into the realm of constitutional law.”1 In other words, it gave the force of law to the notions of equality and fundamental rights. Congress passed the Fourteenth Amendment along strict party lines—no Democrats voted for it; no Republicans voted against it. And no one was fully satisfied in the end. Abolitionists felt it should have included black male suffrage; southern Democrats objected that its provisions infringed upon states’ rights. The “profound irony,” Foner writes, is that even though Congress ultimately avoided addressing black suffrage in its provisions, the Fourteenth Amendment would never have passed without the votes of black men in the South.

The Fifteenth Amendment The “second founding” culminated in the 1870 enactment of the Fifteenth Amendment, which ensured that the right to vote could not be denied or abridged “on account of race, color, or previous condition of servitude.” The amendment could have been written to simply enfranchise all adult male citizens (women received the right to vote with the passage of the Nineteenth Amendment in 1920), but was instead drafted specifically to prohibit use of race as a disqualifying factor for voting. As Foner explains, the drafting decision was due in part to the fact that Congress aimed to eliminate one

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of the last vestiges of discrimination against black Americans. However, it was also due to lingering nativist sentiment against immigrant groups of the time, particularly Chinese-Americans, Irish Catholics, and Germans. As a consequence, the ultimate wording of the Fifteenth Amendment preserved the states’ traditional prerogative to set voting requirements, except with respect to race. Some states exercised this prerogative in nefarious ways. With the end of Reconstruction and the emergence of the Jim Crow era, the amendment proved ineffective against states that imposed race-neutral voting qualifications, such as poll taxes and literacy tests, whose effect was to disenfranchise blacks. Ku Klux Klan violence against black citizens exercising their new rights further thwarted the guarantee of the Fifteenth Amendment. Almost a century later, Congress passed the Voting Rights Act of 1965 to fulfill the promise of the Fifteenth Amendment by outlawing the discriminatory voting practices adopted by many southern states in the post-Civil War period.

Supreme Court Jurisprudence The Second Founding concludes with the author’s reflections on the Supreme Court’s role in giving authoritative meaning to the Thirteenth, Fourteenth, and Fifteenth Amendments. In these highly personal chapters, the veteran historian of Reconstruction renders a candid assessment. “[O]ver time, the Court played a crucial role in the long retreat from the ideals of Reconstruction.” Reviewing 30 years of jurisprudence from shortly after the war to the early twentieth century, he concludes that in almost every decision, the Court restricted the intended scope of the “second founding.” In the Thirteenth Amendment context, for example, the Court failed to recognize that, properly interpreted, the amendment should be read not just to abolish slavery as an institution, but also to address the “badges and incidents of slavery,” such as laws permitting exclusion of black people from public accommodations. Under the Fourteenth Amendment, he posits that the “state action” doctrine—the principle that the Constitution’s protection of individual rights applies only to government actors—unnecessarily prevented application of the amendment to discriminatory conduct by private actors. And in the realm of black voting rights, he reports that by 1900, southern states’ laws designed to disenfranchise blacks survived scrutiny

under the Fifteenth Amendment so long as they did not reference race explicitly. The ultimate failure of Reconstruction is a remarkable and tragic story. What began as an inspired effort to finally conform the country’s legal and social order to its founding principles ended instead in retreat from those principles. The author concedes that “the country has come a long way toward fulfilling the agenda of Reconstruction,” but in his view the jurisprudence of the Reconstruction era casts a long shadow. For Foner, its legacy is a narrower understanding of the Thirteenth, Fourteenth, and Fifteenth Amendments, which prevents today’s Court from unleashing their full power for social good. But in the end, he is hopeful. “Every day we live the complex legacy of Reconstruction and its overthrow. And because the ideals of freedom, equality, and democracy are always contested, our understanding of the Reconstruction amendments will forever

be a work in progress.” Indeed, the same can be said of the Constitution generally. For its challenge to think more deeply about Reconstruction and its constitutional legacy, The Second Founding is a welcome contribution to the conversation.  Kevin J. Doyle is the first assistant U.S. attorney in the District of Vermont. He has worked in both the Civil and Criminal Divisions since joining the U.S. Attorney’s Office in 2007. He is also an instructor at the U.S. Department of Justice National Advocacy Center and an adjunct professor in the Criminal Justice Department at Norwich University. The opinions expressed in this review are the author’s alone and do not reflect the views of the U.S. Attorney’s Office or the U.S. Department of Justice.

Endnote Richard Beeman, The Penguin Guide to the United States Constitution 77 (Penguin Books 2010).

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Supreme Court Previews

The previews are contributed by the Legal Information Institute, a nonprofit activity of Cornell Law School. The previews include an in-depth look at two cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.

United States v. SinenengSmith (No. 19-67)

Oral argument: Feb. 25, 2020 Court below: U.S. Court of Appeals for the Ninth Circuit

Question as Framed for the Court by the Parties Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. § 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.

Facts Respondent Evelyn Sineneng-Smith (Sineneng-Smith) ran an immigration consulting firm in California where she helped clients obtain permanent residence in the United States through a Labor Certification program. Most of Sineneng-Smith’s clients were Philippine natives who were already working in the United States illegally. Although Sineneng-Smith’s retainer agreements with her clients stated that she would assist them in obtaining “permanent residence through Labor Certification,” the Labor Certification program expired in 2001. Even though Sineneng-Smith knew that the program had expired, she continued to onboard new clients through 2008, erroneously telling them that they could still receive permanent residence through the Labor Certification program. Some of Sineneng-Smith’s clients testified that they would have left the United States had they been informed that they were not eligible for permanent residence through the Labor Certification program. In 2010, Sineneng-Smith was charged with three counts of violating § 1324(a)(1) (A)(iv) (Subsection (iv)), which provides that anyone who “encourages or induces an

alien to . . . reside in the United States, knowing or in reckless disregard of the fact that such . . . residence is . . . in violation of law” is subject to criminal liability under § 1324(a)(1)(B). If a person violates Subsection (iv) “for the purpose of . . . private financial gain,” then he or she must be fined or imprisoned (or both). Before trial in the U.S. District Court for the Northern District Court of California, Sineneng-Smith moved to dismiss the counts under Subsection (iv), arguing among other things that Subsection (iv) violates the First Amendment because it impermissibly restricts free speech. The district court denied Sineneng-Smith’s motion to dismiss but in doing so did not reach the First Amendment argument. At trial, the jury convicted Sineneng-Smith of violating Subsection (iv), finding her guilty on all three counts. Sineneng-Smith then moved for a judgment of acquittal, arguing that there was insufficient evidence to support her conviction. The district court denied the motion and sentenced Sineneng-Smith to 18 months in prison and ordered her to pay various fines. Sineneng-Smith appealed to the U.S. Court of Appeals for the Ninth Circuit, again arguing that Subsection (iv) violates the First Amendment. The Ninth Circuit reversed the conviction, holding that Subsection (iv) violates the First Amendment due to its overbreadth. In so ruling, the Ninth Circuit first reasoned that the phrase “encourages or induces” is broad enough to encompass speech, not just conduct that would facilitate illegal immigration. The court then determined that Subsection (iv) criminalizes a significant amount of protected speech, such as an attorney who advises an undocumented client to remain in the country in order to realize greater due process protection.

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The United States appealed to the U.S. Supreme Court, which granted certiorari on Oct. 4, 2019.

Legal Analysis The Meaning of “Encourage” and “Induce” Petitioner, the United States, contends that Subsection (iv) does not infringe on a substantial amount of protected speech because “encourag[ing] or induc[ing] an alien to come to, enter, or reside in the United States” refers only to facilitating or soliciting illegal activity. Specifically, the United States argues that a person “encourages or induces” illegal conduct only if he aids, abets, or solicits the violation. In support of its argument, the United States points to criminal law norms, explaining that accomplice liability commonly includes “encourage” as one form of abetting. The United States further argues that earlier immigration statutes linked “encourage” and “induce” to aiding-and-abetting liability. The United States contends that, in passing subsequent statutes that listed only the words “encourage” or “induce,” Congress was merely shortening the statute while still preserving the prohibition on facilitation and solicitation. The United States additionally asserts that prohibiting speech that “encourages” or “induces” illegal activity is consistent with the First Amendment even if the underlying offense is civil, rather than criminal. The United States claims that the Supreme Court has permitted the prohibition of speech intended to encourage or induce illegal activities in cases involving only civil offenses. Sineneng-Smith counters that Subsection (iv) is impermissibly overbroad because the words “encourage” and “induce” do not mean just “solicit” or “facilitate” or just “aid” and “abet,” but are expansive terms that also encompass speech. According to Sineneng-Smith, dictionary definitions of “encourage” and “induce” indicate that the ordinary meaning of those words includes speech. Sineneng-Smith also argues that Congress intended for “encourage” and “induce” to convey a different meaning than words such as “aid” and “abet” because Congress was capable of including words

like “aid” and “abet” in Subsection (iv) yet declined to do so. In support of this argument, Sineneng-Smith points to the subsection immediately following Subsection (iv), § 1324(a)(1)(A)(v)(II), which expressly prohibits aiding and abetting. Sineneng-Smith thus argues that since the words “encourage” and “induce” are not listed alongside any other terms and instead appear in isolation, they retain their ordinary, expansive meaning. Sineneng-Smith further argues that Congress intended for Subsection (iv) to have a broad application because over time Congress omitted all of the other terms that historically had been grouped alongside “encourage” and “induce.”

Is Subsection (IV) Consistent with the First Amendment? The United States claims that Subsection (iv) is not overbroad because it has a legitimate sweep that does not infringe on speech protected under the First Amendment. The United States argues that Subsection (iv) has a “plainly legitimate sweep” because it prohibits specific crimes that involve only conduct or unprotected speech. For example, the United States contends, Subsection (iv) has previously been used against actors who sold fraudulent documents to unlawfully present aliens, misleadingly lured aliens into the country for work, and participated in smuggling-related activities. The United States thus argues that because many prosecutions under Subsection (iv) “involve only “nonexpressive conduct,” they do not implicate the First Amendment. While the United States recognizes that some facilitative conduct is achieved partially or entirely through speech, such as speech that “encourages” an alien to stay in the country, the United States maintains that there is still no First Amendment violation in those cases because that speech is not protected under the First Amendment. According to the United States, Congress can permissibly restrict speech that is “intended to induce illegal activities.” Specifically, the United States argues that courts have long considered the First Amendment as being inapplicable to laws that criminalize speech that encourages specific crimes. If this were not the case, the United States warns, then all speech used in furtherance of a crime would be immune from prosecution, even speech that is “an integral part” of criminal conduct. In contrast, Sineneng-Smith argues that Subsection (iv) has a sweeping scope and primarily functions to criminalize

speech protected by the First Amendment. Sineneng-Smith claims that the United States’ examples of crimes that prohibit conduct and unprotected speech are already covered by other provisions of § 1324(a), and therefore Subsection (iv) functionally criminalizes only protected speech. For example, Sineneng-Smith asserts, the harboring provision of § 1324(a)(1)(A)(iii) encompasses the same “aiding and abetting” conduct that Subsection (iv) targets: acts of “providing fraudulent documents and identification information.” And therefore, Sineneng-Smith continues, Subsection (iv) is redundant to regulate this conduct. Sineneng-Smith additionally argues that Subsection (iv) is not necessary to target “smuggling activities,” as the United States contends, because such activity is likewise covered by the harboring provision’s prohibition on assisting in the unlawful transportation or harboring of undocumented persons. Sineneng-Smith further claims that Subsection (iv) is unnecessary to prohibit those who misleadingly lure undocumented immigrants to the United States because this activity is already regulated under § 1324(a) (1)(A)(i) and (ii), which prohibit bringing or transporting undocumented persons into the country through unlawful means.

Discussion Does the Statute Chill Protected Speech? The Immigration Reform Law Institute (IRLI), in support of the United States, argues that because Subsection (iv) is designed to criminalize conduct, it does not chill protected speech. The IRLI claims that Subsection (iv) cannot reasonably be expected to chill protected speech any more than other statutes that criminalize the encouragement of illegal activity. The IRLI argues that Subsection (iv) does not have a chilling effect on speech that is coupled with acts of “pure advocacy,” such as where people participate in protest marches. In that case, explains the IRLI, there is no motive of financial gain and the advocacy is not meant to encourage or induce the illegal immigration of any particular individual. The Rutherford Institute and others (collectively, the Rutherford Institute), in support of Sineneng-Smith, respond that Subsection (iv)’s breadth undesirably chills protected speech. The Rutherford Institute claims, for example, that Subsection (iv) is broad enough that it criminalizes the encouragement of civil disobedience. As a result, the Ruther-

ford Institute contends that the government could severely impede social protest, thereby harming citizens who seek to raise awareness of injustice and inequality. Without encouragement of civil disobedience, the Rutherford Institute concludes, citizens cannot push for social change.

Effect on Professional Immigration Advice and General Advocacy The United States asserts that Subsection (iv) does not present a “realistic danger” of stifling professional immigration advice or general immigration advocacy, pointing out that there are no instances where Subsection (iv) has actually been used to prosecute such speech. The United States implies that, while Subsection (iv) might be read as literally applying to such speech, it “cannot sensibly be read” to be so broad. To that end, the United States explains, a lawyer who informs an undocumented immigrant that he or she is unlikely to be prosecuted for remaining in the country illegally does not run afoul of Subsection (iv). The United States likewise claims that it is perfectly lawful to post on social media advocating for immigration law reform, implying that it is not realistic to read the statute to apply to such behavior. Immigration Representatives and Organizations (Immigration Representatives), in support of Sineneng-Smith, argue that Subsection (iv) unjustly criminalizes immigration advice and hampers the U.S. Immigration System. The Immigration Representatives assert that the statute’s overbreadth criminalizes non-fraudulent speech with no exemptions for truthful immigration advice concerning a valid government program. According to the Immigration Representatives, the legal system relies on professionals being able to provide competent advice in order to administer justice fairly because immigration law is highly complex. The Electronic Frontier Foundation (EFF) agrees, claiming that Subsection (iv)’s breadth will also hinder the speech of online organizations that provide services to immigrants. The EFF argues that even the speech of organizations such as the ACLU, which provides accurate information to immigrants regarding their legal rights, can be criminalized under Subsection (iv). Full text available at https://www.law. cornell.edu/supct/cert/19-67.  Written by Allison Franz and Zora Franicevic. Edited by Brady Plastaras.

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Lomax v. Ortiz-Marquez (No. 18-8369) Oral argument: Feb. 26, 2020

Court below: U.S. Court of Appeals for the Tenth Circuit

Question as Framed for the Court by the Parties Whether a dismissal without prejudice for failure to state a claim counts as a strike under 28 U.S.C. § 1915(g).

Facts Petitioner, Arthur Lomax, is currently a prisoner at Limon Correctional Facility. Before being incarcerated at the Limon facility, Lomax was incarcerated at the Centennial Correctional Facility in Colorado. During his time at Centennial, Lomax filed a complaint against the facility and a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915, allowing him to bring a lawsuit without being liable for the costs incurred. Prior to filing this motion, Lomax had filed three actions before the U.S. District Court for the District of Colorado. The district court dismissed Lomax’s first and second action based on case law established in Heck v. Humphrey. Heck held that a litigant cannot challenge a conviction’s legitimacy unless the conviction has been dismissed. In Lomax’s third action, the district court dismissed his claim without prejudice for lack of subject-matter jurisdiction as well as failure to state a claim. Pursuant to 28 U.S.C. § 1915(g), the district court screened Lomax’s motion under the statute’s three-strike provision. The three-strike provision states: “In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on three or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed . . . unless the prisoner is under imminent danger of serious physical injury.” The district court that screened Lomax’s current complaint held that all three of Lomax’s previous claims counted towards the three-strike rule. Thus, the district court held, Lomax had accumulated three strikes prior to the action in question and was now required to show cause before he could file in forma pauperis. In response, Lomax first asserted that dismissal of his previous complaints without prejudice (i.e., the case was dismissed but he was not legally barred from filing the

case again) does not count as a strike under § 1915(g). Second, Lomax argued that even if the dismissals count as strikes, his case falls under the physical-injury exception of § 1915(g). Lomax asserted that he is under imminent danger of serious physical injury at Limon Correctional Facility because of how the guards treat him. He claimed that the guards have physically attacked him and, in general, the guards were biased against him due to his sex-offender status. The district court rejected this argument, denied his motion for leave to proceed in forma pauperis, and required Lomax to pay a filing fee if he wished to proceed with his claim. Lomax appealed the district court’s denial of his motion and pursued his claim without representation. The U.S. Court of Appeals for the Tenth Circuit held that motions denied without prejudice count as strikes under § 1915(g). The Tenth Circuit asserted that whether a motion was denied with or without prejudice is immaterial to the three-strike rule. Thus, according to the Tenth Circuit, the district court correctly found that Lomax had accumulated three strikes prior to his current complaint. The Tenth Circuit also concluded that Lomax has not alleged sufficient, imminent danger to fall under § 1915(g)’s exception. Following the Tenth Circuit’s opinion, Lomax petitioned the U.S. Supreme Court for a writ of certiorari, and the Supreme Court granted certiorari on Oct. 18, 2019.

Legal Analysis Meaning of “Dismissal” Petitioner Arthur Lomax argues that the Court should not read § 1915(g) to include actions dismissed without prejudice for failure to state a claim because § 1915’s purpose is to curtail abusive litigation by inmates that bring meritless actions. In contrast, says Lomax, an action dismissed without prejudice does not speak to the action’s merits but rather a curable procedural defect. Lomax also argues that § 1915(g) incorporates a common legal phrase with an established meaning. Lomax explains that the language of § 1915(g) mimics that of Federal Rule of Civil Procedure 12(b)(6), which is a well-known concept allowing a defendant in a civil suit to file a motion to dismiss when the plaintiff “fail[s] to state a claim upon which relief can be granted.” Lomax argues that because dismissal for failure to state a claim is read to be a judgment on the merits unless otherwise

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indicated, § 1915(g)’s language should be read the same way. Therefore, concludes Lomax, a dismissal for failure to state a claim should act as a judgment on the merits that precludes bringing a secondary claim, and thus act as a strike under § 1915(g), unless the court explicitly specifies that it is dismissing the claim without prejudice so that the inmate has the opportunity to readjudicate the claim at a later date. Respondent Christina Ortiz-Marquez (Ortiz-Marquez) counters that § 1915(g) covers all such dismissals, including those without prejudice. Ortiz-Marquez argues that the plain text of the word “dismissal,” as evinced by Black’s Law Dictionary, encompasses both dismissals with prejudice and dismissals without prejudice. OrtizMarquez then references various circuit court opinions, such as those from the Seventh, Eighth, and Ninth Circuits, that have looked to the plain meaning of the words in § 1915(g) to determine that both dismissals with prejudice and dismissals without prejudice for failure to state a claim are meant to act as strikes under § 1915(g). Ortiz-Marquez agrees with Lomax that § 1915(g) borrows the language of Federal Rule of Civil Procedure 12(b)(6). Ortiz-Marquez argues that Rule 12(b)(6) includes both with-prejudice and without-prejudice dismissal, and just because Rule 12(b)(6) presumes that dismissals are made with prejudice unless specified otherwise, that presumption does not now exclude without-prejudice dismissals from the definition of “dismissal” under Rule 12(b)(6). Therefore, argues Ortiz-Marquez, “the well-settled meaning of ‘dismissed for failure to state a claim’ provides further support for the conclusion that dismissals under § 1915(g)—just like dismissals under Rule 12(b)(6)—include dismissals with and without prejudice.”

Structure of the PLRA Lomax next argues that the Prison Litigation Reform Act's (PLRA’s) structure reinforces that dismissals without prejudice are not strikes under § 1915(g) because dismissal for failure to state a claim cannot be read to include without-prejudice dismissals. Lomax notes the other two grounds for dismissal in § 1915(g) are for “frivolous” or “malicious” actions. Both frivolous and malicious claims refer to actions that cannot succeed on their merits, according to Lomax. Therefore, argues Lomax, it would be inconsistent to understand the third factor in § 1915(g)—dismissal for

failure to state a claim—to include claims that may be meritorious. Ortiz-Marquez counters that the PLRA’s structure actually reinforces that dismissals without prejudice are strikes under § 1915(g). Ortiz-Marquez states that the other grounds for dismissal in § 1915(g)—dismissals for frivolous or malicious actions—also include dismissals with and without prejudice. Therefore, argues Ortiz-Marquez, Lomax’s “core claim”—that frivolous or malicious dismissals are always on actions that cannot succeed on their merits—falls apart.

Legislative History of the PLRA Lomax argues that the PLRA’s legislative history confirms that dismissals for failure to state a claim without prejudice are not strikes under § 1915(g). Lomax states that Congress adopted the PLRA’s three-strikes policy to disincentive inmates from filing “bad” claims and to facilitate consideration of the “good” claims. Lomax cites testimony from Senator Dole and Senator Hatch, co-sponsors of the PLRA, to show that sponsors wanted the PLRA to deter “truly meritless and frivolous actions” but in no way “prevent inmates from raising legitimate claims.” Therefore, argues Lomax, treating dismissals without prejudice for failure to state a claim as strikes under § 1915(g) is inconsistent with this legislative history that only meritless claims are to be penalized. Ortiz-Marquez counters that the PLRA’s legislative history supports § 1915(g)’s plain meaning. Ortiz-Marquez argues that Congress never discusses or limits the meaning of “dismissal” anywhere in the PLRA’s legislative history. Rather, says Ortiz-Marquez, Congress has only expressed intent to effectively limit inmates’ abuse of federal courts. Ortiz-Marquez notes that Congress passed the PLRA not long after the Supreme Court decided Neitzke v. Williams, in which the Supreme Court actually suggested that sua sponte screening of inmates’ complaints and dismissing those complaints that fail to state a claim would effectively combat the challenges facing federal courts. Ortiz-Marquez argues that Congress likely recognized and codified the Supreme Court’s suggestion from Neitzke in § 1915(g).

Discussion Preserving Disadvantaged Prisoners’ Access to Courts vs. Preventing Serial Prisoner Litigation In support of Lomax, the National Asso-

ciation of Criminal Defense Lawyers (the Association) alleges that if the Court holds in favor of Ortiz-Marquez, it will neuter judges’ equitable power to preserve prisoners’ ability to refile meritorious claims that were dismissed due to being improperly filed. The Association explains that judges have the power to preserve prisoners’ access to courts due to judges’ ability to decide whether to dismiss a claim with or without prejudice. The Association asserts that prisoner litigation is extremely complex and thus it is difficult for a prisoner to successfully file a complaint without a lawyer. The Association maintains that it is well-established that prisoners may constitutionally assert their rights in court and that a technicality—such as filing a meritorious claim too early— should not revoke this right. The Association explains that prisoners are often poorly-equipped to file an error-free complaint due to being unrepresented by counsel and having limited access to legal resources such as the internet, libraries, telephones, and even writing utensils and paper. Identifying additional hurdles that indigent prisoners may face when filing a complaint, the Association notes that for many prisoners, English is not their first language. Additionally, the Association notes, as of 1997 only 41% of prisoners had received their high school diploma or G.E.D., and as of 2005 more than half of prisoners suffer from some form of mental illness. The Council of State Governments and others (the Council), in support of Ortiz-Marquez, asserts that without-prejudice dismissals must count as strikes to preserve § 1915’s ability to reduce serial prisoner litigation. The Council notes that serial prisoner litigation is undesirable because it costs state and local governments millions of dollars to defend such meritless lawsuits. For example, the Council notes that when Congress debated § 1915’s passage in 1995, state and local governments had spent $95 million dollars defending meritless prisoner lawsuits. The Council explains that during such debates, Congress cited numerous examples, including, two prisoners’ allegations of cruel and unusual punishment where one prisoner’s ice cream had melted and another was served chunky instead of smooth peanut butter. It relies on the fact that because over 90% of all prisoners are in state or local prisons, state and local governments benefit the most from the PLRA’s reduction of prisoner lawsuits.

The Council notes that the PLRA reduced prisoner-civil rights or prisoner-mandumus lawsuits from 17.1% to 10.6% of all lawsuits filed. The Council implies that this reduction in lawsuits has increased the overall percentage of meritorious prisoner lawsuits, noting that after the PLRA’s passage, prisoners have enjoyed a greater statistical likelihood of winning their prisoner civil-rights suits. Full text available at https://www.law. cornell.edu/supct/cert/18-8369.  Written by Emma Horne and Nicole Jaeckel. Edited by Lauren Devendorf.

Opati v. Republic of Sudan (No. 17-1268) Oral argument: Feb. 24, 2020 Court below: U.S. Court of Appeals for the District of Columbia Circuit

This case asks the Supreme Court to decide whether it can retroactively apply portions of the Foreign Sovereign Immunities Act to impose punitive damages on a foreign nation. Petitioners Monicah Okoba Opati and others seek to recover punitive damages from the Republic of Sudan for its role in al Qaeda’s 1998 embassy bombings. Opati contends that under Republic of Austria v. Altmann, the Act’s immunity exception for foreign states applies retroactively, thereby reaching the al Qaeda bombings even though they occurred prior to the current statute’s enactment. Respondents the Republic of Sudan and others counter that Altmann does not apply here, and the FSIA’s plain text does not allow plaintiffs such as Opati to retroactively recover punitive damages under the Act’s immunity exception for foreign states. This case’s outcome will affect fairness between victim litigants and foreign states, and also implicate the amount of deference given to political branches. Full text available at https://www.law. cornell.edu/supct/cert/17-1268. 

United States Forest Service v. Cowpasture River Preservation Association (No. 18-1584) Oral argument: Feb. 24, 2020 Court below: U.S. Court of Appeals for the Fourth Circuit

These two consolidated cases ask the Supreme Court to determine whether the Mineral Leasing Act authorizes the U.S.

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Forest Service to grant a right-of-way under the national trail system. The U.S. Court of Appeals for the Fourth Circuit held that the Forest Service lacks authority to grant a right-of-way for a natural gas pipeline under the Appalachian Trail, which is administered by the National Park Service. Petitioners the Forest Service and Atlantic Coast Pipeline contend that the Forest Service has authority under the Mineral Leasing Act to grant a right-of-way under any trail that crosses through national forest land owned by the Forest Service. Respondents Cowpasture River Preservation Association and others counter that the Appalachian Trail is National Park land and, accordingly, only Congress—not the Forest Service—may grant a right-of-way. The Court’s decision in these cases will influence future pipeline development, environmental preservation, and the economies of communities along the Appalachian Trail. Full text available at https://www.law. cornell.edu/supct/cert/18-1584. 

Department of Homeland Security v. Thuraissigiam (No. 19-161)

Oral argument: Mar. 2, 2020 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to decide whether, under the Suspension Clause, 8 U.S.C. § 1252(e)(2) is constitutional as applied to noncitizens who have secretly entered the United States. Petitioner Department of Homeland Security argues that noncitizens entering clandestinely, treated properly as seeking initial admission to the United States, are entitled to no due process protections; that such noncitizens are not entitled to habeas corpus under the Suspension Clause; and that even if the Suspension Clause does apply, the statute’s provision of administrative review and limited judicial review are sufficient. Respondent Thuraissigiam counters that notwithstanding the Government’s misreading of applicable law, clandestinely entering noncitizens within the United States are entitled to due process under the Fifth Amendment; that the Suspension Clause does apply to individuals in immigration proceedings; and that the statute provides an inadequate substitute for habeas corpus. This case has implications for states’ resource spending, revenue collection, and citizen welfare. Additionally, this case’s outcome could impact federal

courts’ work load, depending on whether federal courts must open up to a new class of alien-petitioners. Full text available at https://www.law. cornell.edu/supct/cert/19-161. 

Nasrallah v. Barr (No. 18-1432)

Oral argument: Mar. 2, 2020 Court below: U.S. Court of Appeals for the Eleventh Circuit

This case asks the Supreme Court to determine whether § 1252(a)(2)(C) of the Immigration and Nationality Act (INA)— which provides that courts do not have jurisdiction to review “final orders of removal” against any noncitizen ordered removed from the country for committing certain criminal offenses—prohibits federal courts of appeals from reviewing the facts underlying orders granting or denying noncitizens relief from deportation under the United Nations Convention Against Torture (CAT) Act. Under CAT, the United States cannot remove a noncitizen to a country where they are likely to be tortured. While § 1252(a) (2)(C) strips courts of the ability to review “any final order of removal,” Petitioner Nidal Khalid Nasrallah argues that CAT orders are distinct orders that fall outside this phrase. Respondent William P. Barr, on the other hand, argues that § 1252(a)(2)(C) intends to include CAT orders within the phrase “final order of removal” and thus limits judicial review of the facts underlying those orders. The outcome of this case will affect the number of opportunities that criminal noncitizens have to challenge the accuracy of the facts underlying a denial of their claim for CAT relief. Full text available at https://www.law. cornell.edu/supct/cert/18-1432. 

Liu v. Securities and Exchange Commission (No. 18-1501)

Oral argument: Mar. 3, 2020 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks the Supreme Court to determine whether the Securities and Exchange Commission (SEC) may obtain disgorgement in civil actions under its power to seek equitable relief, even though the Supreme Court has previously ruled that disgorgement is a penalty rather than an equitable remedy at least under some circumstances.

64 • THE FEDERAL LAWYER • July/August 2020

Petitioners Liu and Wang contend that the Supreme Court ruled in Kokesh v. SEC that disgorgement was a penalty, and that therefore the SEC lacks the authority to order Liu and Wang to disgorge any ill-gotten gains in connection with their investment fund. Respondent the SEC counters that Kokesh held disgorgement to be a penalty only for statute of limitations purposes. The outcome of this case has implications on the SEC’s effectiveness in future civil actions at deterring financial crime and at making the victims of financial crime whole. Full text available at https://www.law. cornell.edu/supct/cert/18-1501. 

Seila Law LLC v. Consumer Financial Protection Bureau (No. 19-7)

Oral argument: Mar. 3, 2020 Court below: U.S. Court of Appeals for the Ninth Circuit

This case asks whether the President of the United States is unconstitutionally restricted from removing the director of the Consumer Financial Protection Bureau (CFPB). Established through part of the Dodd-Frank Act and in response to the financial crisis in 2008, the CFPB regulates the financial markets and enforces consumer protections. The CFPB is headed by a single director who is removable by the President only for “inefficiency, neglect of duty, or malfeasance in office.” Petitioner Seila Law LLC and Respondent CFPB both argue that this removal restriction violates separation of powers because it impermissibly restricts the President’s ability to remove an executive officer. The Court-appointed Amicus Curiae maintains that so long as the President has the exclusive removal power, a modest restriction on that power is constitutional. The outcome of this case has implications on accountability mechanisms used by administrative agencies, state consumer protection regulators, and industries regulated by the CFPB. Full text available at https://www.law. cornell.edu/supct/cert/19-7. 

June Medical Services LLC v. Gee (No. 18-1323) Oral argument: Mar. 4, 2020 Court below: U.S. Court of Appeals for the Fifth Circuit

This case asks the Supreme Court to determine whether a Louisiana law that requires physicians who perform abortions to have

admitting privileges at local hospitals, comports with the Court’s precedent. The parties agree that the Louisiana law at issue in this case is substantially similar to the Texas law that the Supreme Court struck down in Whole Woman’s Health v. Hellerstedt. Petitioners June Medical Services and others argue that precedent from Whole Woman’s Health and Planned Parenthood of Southeastern Pennsylvania v. Casey control

and that Louisiana’s Act is unconstitutional because it unduly burdens women seeking abortions. Respondent Doctor Rebekah Gee on behalf of Louisiana argues that June Medical Services lacks standing to bring forth a claim on behalf of their patients and further asserts that Whole Woman’s Health does not control the outcome of this case because the Louisiana Act does not unduly burden women seeking abortions. The outcome of this

case has important implications on access to abortion services for women, including women of color, and could impact lower courts’ fact-finding authority. Full text available at https://www.law. cornell.edu/supct/cert/18-1323. 

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.

July/August 2020 • THE FEDERAL LAWYER • 65

Chapter Exchange

Left to right: Joseph McAfee and Olen Haynes Jr., representing FBA: NETN; Stephanie Walker, representing First Tennessee Human Resources Agency; and Kay Hale, Director, representing DouglasCherokee Economic Authority, Inc. (moderate social distancing employed).

SIXTH CIRCUIT Northeast Tennessee Chapter The Northeast Tennessee Chapter of the Federal Bar Association (“FBA: NETN”) recently donated $4,000 to support two organizations that are locally responsible for Meals on Wheels. Between First Tennessee Human Resources Agency (FTHRA) and Douglas-Cherokee Economic Authority (“Douglas-Cherokee”), Meals on Wheels services are provided to all 10 of the counties comprising Northeast Tennessee. Meals on Wheels consists of a nationwide network of local organizations that provide delivery of nutritious meals to low-income, food-insecure seniors. However, delivery of meals is only a part of the services provided. During each delivery, providers are engaging recipients in a friendly visit and conversation as well as a safety check because, along with the inevitable impacts of aging, come the increased risks of medical emergencies, falls, and other accidents.

Joseph McAfee, treasurer of FBA: NETN provided the following statement: “We want to do what we can to help out during this uncertain time now more than ever. With strength comes responsibility. FBA: NETN had previously allocated funds to support several special events in the months of April and May that have been postponed indefinitely. Rather than have the donated funds just sit around, we wanted to make sure that we were doing what we could to help a very worthy cause. When we reached out to FTHRA and Douglas-Cherokee, it became clear that both groups were essentially “all hands on deck” and that the current demand for services had increased greatly due to the COVID-19 pandemic. Thanks to the leadership of our president, Olen Haynes Jr., as well as the generosity of our entire board, we are grateful for this opportunity to help feed our community and, hopefully, inspire others to seek out ways to help.” Other FBA: NETN board members tak-

66 • THE FEDERAL LAWYER • July/August 2020

ing part in the effort were attorneys Suzanne S. Cook, Erick Herrin, Joseph B. Harvey, Corey Shipley, Matthew Spivey, Wayne Taylor, Nick Wallace, Jeffrey Ward, and Magistrate Judge Cynthia Wyrick. For more information, visit mealsonwheelsamerica. org, call FTHRA at (423) 461-8217 or Douglas-Cherokee at (423) 318-6935. 

D.C. CIRCUIT DC Chapter International Holocaust Remembrance Day Event Attracts SoldOut Crowd Nearly 100 people attended the District of Columbia Chapter’s January Distinguished Lawyer Luncheon featuring acclaimed Nazi hunter Eli Rosenbaum, director of human rights enforcement strategy and policy at the Department of Justice. Chief Judge Merrick Garland, U.S. Court of Appeals for the District of Columbia Circuit, and Chief Judge Beryl Howell, U.S. District Court

From left to right: T. Cary Devorsetz (Program Co-Chair); Nicole Bacon (President, DC Chapter); Hon. Merrick Garland (Chief Judge, U.S. Court of Appeals for the District of Columbia Circuit); Patricia Ryan (Program Co-Chair); Eli Rosenbaum; Cynthia Barvin; Hon. Beryl A. Howell (Chief Judge, U.S. District Court for the District of Columbia); Ruth Vernet (Immediate Past President, DC Chapter) (Photo Credit: FBA)

for the District of Columbia, were among the attendees of the sold-out event, which was co-sponsored by the Federal Litigation Section and coincided with International Holocaust Remembrance Day and the 75th

anniversary of the liberation of Auschwitz. Chief Judge Howell introduced Mr. Rosenbaum. The speaker’s presentation, “Prosecuting Nazi War Criminals and Other Human Rights Violators in the United States,” revealed little-known details of cases he prosecuted as head of the department’s former Office of Special Investigations—the office that hired him out of Harvard Law School in 1980—including that of notorious Nazi war criminal John Demjanjuk. Mr. Rosenbaum also explained the mission of the department’s Human Rights and Special Prosecutions Section and the characteristics and challenges of contemporary human rights investigations. At the conclusion of the program, the DC Chapter presented Mr. Rosenbaum with a flame-shaped award plaque inscribed with the words, “In recognition of a lifetime of taking the side of justice.” 

Eli Rosenbaum, Director, Human Rights Enforcement Strategy and Policy, Department of Justice.

July/August 2020 • THE FEDERAL LAWYER • 67

Sections & Divisions

Front: Libby Benton, Hon. Judith E. Levy, Hon. Nancy Blount; Back: Heidi Naaskow, Steve Tomkowiak.

SECTION ON CIVIL RIGHTS LAW Evictions and Civil Rights Panel Draws Diverse Audience in Detroit By Robin B. Wagner “We have an outsized problem and therefore an outsized responsibility to do something,” Hon. Judith E. Levy informed an audience of 45 gathered to learn more about Michigan’s eviction crisis and the federal civil rights issues implicated by it. Michigan courts handled 191,512 eviction cases in 2018, which is an eviction filing rate of 17 percent for rental households. To put this in context, Chicago has an eviction filing rate of under 4 percent, and Philadelphia’s is less than 8 percent. Michigan also has a very high rate of filings that lead to eviction orders—22 percent in Wayne County and 25 percent in Genesee County, as two examples. With these bleak numbers in mind, the Eastern District of Michigan Chapter and the Civil Rights Section kicked off the new

year on January 7 with a very well attended and engaging program on Michigan’s eviction crisis and what federal civil rights laws are implicated in eviction cases. Judge Levy moderated the panel, which featured Hon. Nancy Blount of the 36th District Court; Elizabeth Benton, attorney at Legal Services of South Central Michigan; Heidi Naasko, pro bono counsel at Dykema LLC; and Steve Tomkowiak, executive director of the Fair Housing Center of Metro Detroit. Judge Levy opened the discussion by recalling her days as an assistant U.S. attorney, when she worked on civil rights enforcement. Showing off her highlighted and hand-annotated copy of the Fair Housing Act, she described a case she brought on behalf of six women who had been forced by their landlord to perform sex acts or face eviction. Judge Levy explained that this case came to her as a referral from a legal aid attorney who was representing one of the victims on an eviction and recognized the federal civil rights claim.

68 • THE FEDERAL LAWYER • July/August 2020

Benton then provided an overview of Michigan’s eviction crisis and some of the contributing factors. Benton, who is a co-investigator with a team from the University of Michigan’s Taubman College of Architecture & Urban Planning evaluating the data on all Michigan eviction filings between 2013 and 2018, explained that evictions in Michigan are highest in the southern part of the state and concentrated around urban centers. She explained that evictions disproportionately affect black women, Hispanic renters in otherwise white neighborhoods, and families with children. A key theme of the panel was the crucial need for representation in eviction proceedings. Benton’s data showed that Michigan tenants rarely face eviction proceedings with counsel—only 2 percent of tenants in Washtenaw County were represented by counsel, while 90% of landlords were represented. Judge Blount then spoke to the specific situation in Michigan’s largest landlord-tenant court, 36th District in

Left: Steve Tomkowiak explains evictions that have a civil rights component. Below: Judge Levy addressing the Evictions and Civil Rights Panel.

Detroit. She explained that the three—that’s right, only three—judges who handle the landlord-tenant docket at her court handle over 30,000 eviction filings annually. They do this in two-a-day court sessions hearing 70 cases each a day. She explained that half the cases are resolved in consent judgments. Judge Blount acknowledged the low rate of representation for tenants, even though the court provides a legal clinic and a diversion program for individuals in HUD-subsidized housing. She also reminded the audience that landlord-tenant cases are brought under the state’s summary procedure rules, which require complete adjudication of the claim within 56 days of filing the complaint. Naasko, who has been closely involved in Detroit’s right-to-counsel movement, which has brought mandatory representation to New York, Cleveland, Philadelphia, and Los Angeles, among other cities, implored those present to become involved in addressing the crisis. She noted that organizations like Lakeshore Legal Aid truly need the assistance of volunteer pro bono attorneys to assist with their onsite clinics and that the applicable laws are easy to learn. Naasko further noted that a right-to-counsel measure is pending before the Detroit City Council, and that it would have an immense positive impact on the city. Studies from New York, which has had a right-to-counsel for a couple years already, show that for each $1 spent on providing tenants with an attorney, the city

saves $12 in costs associated with eviction, such as homelessness and social services. Finally, Tomkowiak, who litigated housing civil rights cases for nearly 30 years before he became the leader of the Fair Housing Center, provided an overview of the legal issues and challenges of addressing civil rights violations that are a core issue within an eviction situation. He explained that in his experience, cases in which a lease is not renewed are the most common situations in which to find a civil rights violation. He also warned the practitioners in the room that an attorney could do the client unintended harm by raising a civil rights issue—for instance, quid-pro-quo sexual harassment around the landlord’s

conduct with the tenant—as an affirmative defense. Instead, he recommended bringing the civil rights claims as a counterclaim with a motion to remove the matter to the circuit court. He also noted the various preclusion doctrines that make it difficult to bring a case in federal court. In closing, Judge Levy reminded the group that Susan DeClercq of the U.S. Attorney’s Office was one of the organizers of the program and leads the group in the Eastern District of Michigan that can enforce Fair Housing cases. The other organizers for this panel were Todd Pierce-Ryan and Carrie Floyd, attorneys at Lakeshore Legal Aid, and Robin Wagner of Pitt McGehee Palmer & Rivers.  July/August 2020 • THE FEDERAL LAWYER • 69

Member Spotlight * Denotes Sustaining Member

FIRST CIRCUIT Karla Carrillo Russe Margarita RosadoToledo

Hon. Raymond L. Acosta Puerto Rico

Rebeca Acosta-Perez Dom Acosta Jason Aguilo Charles Allen Alejandra Arnaldy Jose Caceres Cardona Jose Cruz Carlos Infante Gutierrez Roberto Latimer Dorielisse M·rtir Aura MontesRodriguez Francisco Ojeda-Diez Angela Olivera Diana Perez-Seda Michelle Quiles Montalvo Pablo Ramos-Torres Gretchen Rodriguez Zarel Soto Acaba Saul Suarez-Flores Vivian Torralbas Halais Carlos Torres-Velez Pedro VazquezPesquera

Rhode Island

Andre McConville

SECOND CIRCUIT

Cenceria Edwards Christie McGuinness Jaclyn Ruggirello

Eastern District of New York Lou Calixte Spencer Shapiro Stacy Skorupa

Southern District of New York Margaret Malloy John Troy* Karen Yau*

Western District of New York Nelson Thomas*

THIRD CIRCUIT

Delaware Chapter Kelsey Bomar Valerie Caras Renee Delcollo Daniel Goettle* Kenneth Listwak Jaclyn Marasco Marcy McLaughlin Smith Elizabeth Wang

Eastern District of Pennsylvania Selby Brown*

FOURTH CIRCUIT Rebecca Dulik Alexander McDaniel Yvonne Murray-Boyles

Eastern District of North Carolina Halerie Costello Alan DuBois Charlotte Hall* Elizabeth Lane Jake Pugh Preetha Rini Lori Warlick

Hampton Roads Jordan Heath Molly Kiser Brian Latuga Erin McDaniel Matthew Sarfan Deborah Waters*

Maryland

Eva Cockerham Charles Gamper Teresa Kelly Eli Noff

Northern Virginia Chapter Madeline Taylor Diaz Libbey Van Pelt

South Carolina Jennie Clark Lucy Dinkins

Western District of North Carolina Valerie Caldwell Nicole Haynes Lana Threlkeld

FIFTH CIRCUIT Renee Bourg Daphne Lancaster

Austin

Lafayette/ Acadiana

Gilbert Aucoin* James Cain Alice Dukes Christopher Handy Michael Juneau Robert Kallam* John Kolwe

Mississippi

Stacey Buchanan Kenneth Walker Mary Wall

New Orleans

Taylor Bologna Courtney Crowell* Brendan Curtin Victor Dantin Ian Dunbar Krystin FrazierSantiago Jay Mattappally Jon McGill Frannie Montegut Alex Robertson Charlotte Washington Thomas Wicker

San Antonio

Matthew Mueller Jason Palliam Jason Whitney*

Southern District of Texas Laura Duncan

SIXTH CIRCUIT Thomas Darrow LeAnn Scott Kyle Shelton* Thomas Simiele

“CincinnatiNorthern Kentucky, John W. Peck” Douglas Cole Brian Morris James Tate

Anne Derrig Jeffrey Quilici Jonathan Wilkerson*

Columbus

Baton Rouge

Edward Fisher

Katilyn Hollowell Seth Lawrence

Dallas

Amanda Bridson* David Elmquist*

Jacksonville

Brian Joslyn

Dayton

Kentucky

SEVENTH CIRCUIT Chicago

Sean Dutton Beata McCann Shandice Sluch

“P. Michael Mahoney (Rockford, Illinois)” Patricia Hall

Southern District of Illinois Suzanne Garrison

EIGHTH CIRCUIT Craig Lisher Natalie Warner

Minnesota

Hedi Bogda Grant Christensen Paul Fling* Hannah Fotsch Robert Hopper* Elliot Ko Jeannine Lee Hannah Mosby Mary Nikolai Eric Nystrom Michael Pacelli Kara Pfister Miguel Pozo Stephen Premo*

Montana

Hillary Wandler

Nebraska

Calandra McCool

Nevada

Chelsea Latino

NINTH CIRCUIT Deborah Abbey Lina Baroudi Andrea Garcia Timothy Gauthier

Alaska

John Putikka

Idaho

Monte Gray

Los Angeles

Sunni Harris

Bret Hembd Shawn Ledingham

Western District of Michigan

Northern District of California

Katrina Quillen

Alexandra Stafford

70 • THE FEDERAL LAWYER • July/August 2020

Prerna Lal Charles McCurdy Maggie Poffenbarger

Orange County Joseph Abrams* Robert Benson*

Matthew Camphuis Gregory Clarkson John Rogers Ellie Shefi

Utah

Oregon

ELEVENTH CIRCUIT

Sara Ghafouri Nicholas Lauren

Palm Beach

Bruce Reinhart

Phoenix

Eddward Ballinger Scott Beemer Jennifer Corbet Michael Dvoren Deborah Fine Molly Karlin Dominic Lanza Michael Liburdi James Metcalf

San Diego

Daryl Crouse James Gaeta Nellie Klein

San Joaquin Valley Karen Escobar

Washington State Brenda George David Martin Adam Tabor

“William D. Browning (Tucson)”

Eric Markovich James Soto Victoria Trull

TENTH CIRCUIT Stefani Boyle Kim Taylor

Colorado Kate Finn

New Mexico Robert Silva

Northern/Eastern Oklahoma Chapter Jodi Jayne Jeremiah Ross

Oklahoma City Justin Bates Jason Bollinger Phoebe Mitchell Ashley Schovanco

St. Louis

John Berosky Jason Lewis J. Underhill

James Jackson Paul Shakespear

Broward County Antonisha Baker Adonia Simpson

Orlando

Embry Kidd Kathleen Krak*

South Florida Alex Charap Erick Cruz Ezra Greenberg Gera Peoples Sarah Schall Nicola Seivright James Slater

Tampa Bay

David Costello Eric Feld Mark Rankin*

D.C. CIRCUIT

Conor Desmond Sean Mahard Jane Pearce Mike von Klemperer

Capitol Hill

Windy Venable

District of Columbia

Subhashini Bollini Frances Kern Jessica Ledingham Dave Rifkin

Pentagon

Shane Bagwell

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Federal Bar Association Calendar of Events 

J U LY

J U LY 1

Webinar: Lessons from John Steinbeck’s Grapes of Wrath: Copyright Terminations Under Section 203 and 304 of the Copyright Act J U LY 6

J U LY 1 7

Webinar: Transportation Security and Resilience Amid COVID-19 | Part I J U LY 2 0

Webinar: U.S. Supreme Court Round-Up

Webinar: A Judge’s Perspective on the Science and Art of Legal Writing

J U LY 2 1

J U LY 9

J U LY 2 4

Webinar: Issues Surrounding Law Enforcement’s Liability | Part I J U LY 1 0

Webinar: Employment Litigation: A Discussion with Federal Magistrate Judges

Visit Fedbar.org for more information.

Webinar: Issues Surrounding Law Enforcement’s Liability | Part 2 Webinar: Transportation Security and Resilience Amid COVID-19 | Part II J U LY 2 7

Law Student Series: Kick-Off & Careers in the Department of Justice

Law Student Series: Judge Advocate Panel August 6 New Orleans Chapter: 2020 Federal Practice Series – The Art of Persuasion – Openings and Closings

J U LY 1 5

AU G U ST

J U LY 1 3

New Orleans Chapter: Virtual Lunch with the Court with the Hon. Meredith S. Grabill J U LY 1 5

Webinar: How to Support Asylum Seeker and Asylee Clients During the Current Crisis J U LY 1 5

Webinar: Dispute Resolution in the Workplace: Managing Remote Workers J U LY 1 5

Foundation of the FBA Board Meeting

AU G U S T 1 0

Law Student Series: Careers in Tax Law Panel AU G U S T 1 3

New Orleans Chapter: 2020 Federal Practice SeriesExamination and Cross Examination of Experts at Trial

AU G U S T 2 4

Law Student Series: Hidden Jobs on Capitol Hill AU G U S T 2 5

New Orleans Chapter: 2020 Federal Practice Series- Pre-Trial and Trial Motions – Winning your Case before it Begins

SEPTEMBER

SEPTEMBER 8–11

FBA 2020 Virtual Annual Meeting SEPTEMBER 8

Circuit Vice President Meeting SEPTEMBER 9

Sections & Divisions Meeting SEPTEMBER 9

Chapters Leadership Meeting SEPTEMBER 10

FBBC Board Meeting SEPTEMBER 10

National Board of Directors Annual Meeting SEPTEMBER 11

Foundation of the FBA Board Meeting SEPTEMBER 11

National Council Meeting

AU G U S T 2 0

New Orleans Chapter: 2020 Federal Practice Series- Building your Case through Lay Witness Testimony

July/August 2020 • THE FEDERAL LAWYER • 3

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