Volume 69, Issue 3
Trailblazers— Highlighting Firsts in the Legal Profession page 18
Congratulations Graduates From the Federal Bar Association, our volunteer leaders, and from your fellow members: Congratulations to the Class of 2022! As you embark on your law career, we encourage you to stay connected with this community by updating your FBA profile with a non-.edu email address and new mailing address. FBA: For a career, for a lifetime.
Your membership gives you access to:
Login at fedbar.org and confirm your Member Profile today!
ü Free and discounted CLE at the national and local level ü Local chapter membership that provides networking, programs, community outreach, and leadership opportunities ü Mentorship opportunities
Connect with us here to ensure you get the latest news and updates from the FBA.
Volume 69, Issue 3
EDITORIAL BOARD
Editor in Chief Andrew Doyle doyle_andrew@msn.com Associate Editor James W. Satola jsatola@roadrunner.com Managing Editor Lynne G. Agoston (240) 404-6488 social@fedbar.org
May/June 2022: Trailblazers— Highlighting Firsts in the Legal Profession
Book Review Editors Jon Jay Lieberman Soledad M. Valenciano Judicial Profile Editors Hope Forsyth Hon. Karoline Mehalchick Articles Editors Kristine Adams-Urbinati Ellen Denum Sara Gold Niles Illich Bruce McKenna Amanda Thom Columns Editor Ira Cohen Senior Proof Editor Peter Mansfield Proof Editors Melanie L. Alsworth Anna Archer Tamar Birckhead John Black Luke P. Ihnen Elizabeth Kelley Jeffrie Boysen Lewis Glenda McGraw Regnart Kirsten Samantha Ronholt Jeremy S. Weber Stewart Michael Young 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: social@fedbar.org. Subscription Rates: $14 of each member’s dues is applied toward a subscription. Nonmember domestic subscriptions are $50 each per year; foreign subscriptions are $60 each per year. All subscription prices include postage. Single copies are $5. “Periodical postage paid at Arlington, VA., and at additional mailing offices.” “POSTMASTER, send address changes to: The Federal Lawyer, The Federal Bar Association, 1220 N. Fillmore St., Ste. 444, Arlington, VA 22201.” ©Copyright 2022 Federal Bar Association. All rights reserved. PRINTED IN U.S.A. Editorial Policy: The views published in The Federal Lawyer do not necessarily imply approval by the FBA or any agency or firm with which the authors are associated. All copyrights held by the FBA unless otherwise noted by the author. The appearance of advertisements and new product or service information in The Federal Lawyer does not constitute endorsement of such products or services by the FBA. Manuscripts: The Federal Lawyer accepts unsolicited manuscripts, which, if accepted for publication, are subject to editing. Manuscripts must be original and should appeal to a diverse audience. Visit www.fedbar.org/ tflwritersguidelines for writers guidelines.
18 Trailblazers
Anh Le Kremer, First Asian-American National President of the FBA Lawrence R. Baca, First Indian Everything
Hon. Deborah A. Batts, First LGBT African American Federal Judge Leonard M. Baynes, First African American Dean of University of Houston Law Center
Hon. Celeste F. Bremer, First Woman to Serve on the Bench of Either of Iowa’s Federal District Courts Hon. Kathleen B. Burke, First But Not Last
Hon. Elizabeth L. Gunn, First Female U.S. Bankruptcy Judge for the District of Columbia Janene D. Jackson, A Hidden Legal Trailblazer Coming Into View Emily Janoski-Haehlen, First Permanent Female Dean of the University of Akron School of Law
Irene Lord Lefkow, Esq., A Strong Female Presence in the Courtroom
Hon. Barbara M. G. Lynn, First Female Chief Judge in Texas and Legal Pioneer Michelle Otero Valdés, First Latina to Be Board Certified in Admiralty Law by the Florida Bar
May/June 2022 • THE FEDERAL LAWYER • 1
COLUMNS 3 President's Message Firsts
By Anh Le Kremer
4 Beltway Bulletin
Enhancing Court Security— An Unfortunate Imperative By Cissy Jackson
6 At Sidebar
BOOK REVIEWS 32 The Rule of Laws: A 4000Year Quest to Order the World Reviewed by Christopher C. Faille
34 Last Mission to Tokyo: The Extraordinary Story of the Doolittle Raiders and Their Final Fight for Justice Reviewed by Jon M. Sands
The Secret Benefit of Federal Lawyering
DEPARTMENTS
By Jeremy S. Weber
9 In-House Insight
The GDPR, SCCs, BCRs, and Schrems: Deciphering the Data Privacy Alphabet Soup By Michael J. Cahalane, Andrew R. McConville, and Kyle W. Cunningham
12 International Files
Comparing Women’s Rights in Afghanistan 30 Years Ago and Today As illustrated by the story of activist Delara Nasseri
37 Supreme Court Previews
FBA MEMBER NEWS 45 FBA Member News 46 Chapter Exchange 47 Sections and Divisions 52 Tax Law Essay Winners 54 Member Spotlight 57 Calendar of Events
By Beth Persky
PROFILES 16 Hon. Katherine A. Crytzer Judge for the Eastern District of Tennessee By Luke P. Ihnen
2 • THE FEDERAL LAWYER • May/June 2022
Federal Bar Association 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 • Anh Le Kremer akremer@nystromcounseling.com President-Elect • Matthew C. Moschella mcmoschella@sherin.com Treasurer • Jonathan O. Hafen jhafen@parrbrown.com Hon. Alison S. Bachus bachusa@superiorcourt.maricopa.gov Ernest T. Bartol etbartol@bartollaw.com Joey Bowers jbowersfba@gmail.com Richard Dellinger richard.dellinger@newlinlaw.com Anna W. Howard anna.howard@uga.edu Glen R. McMurry GMcMurry@taftlaw.com Adine S. Momoh adine.momoh@stinson.com Michelle M. Pettit michelle.pettit@usdoj.gov Kelly T. Scalise ktscalise@liskow.com Hon. Mimi E. Tsankov (personal capacity) mimi.tsankov@gmail.com Christie C. Varnado cvarnado@seibelsfirm.com Michael S. Vitale mvitale@bakerlaw.com Ex Officio Members W. West Allen wwa@h2law.com Darrel J. Gardner mail@darrelgardner.com Nathan A. Olin nate@oliplaw.com Jenifer Tomchak jen.tomchak@tomchaklaw.com NATIONAL STAFF Executive Director Stacy King sking@fedbar.org Deputy Director R. Yvonne Cockram ycockram@fedbar.org Director of Membership and Chapters Dominick Alcid dalcid@fedbar.org Managing Editor Lynne G. Agoston social@fedbar.org Outreach and Foundation Manager Cathy Barrie cbarrie@fedbar.org Membership Coordinator Clarise Diggs cdiggs@fedbar.org Program Coordinator Daniel Hamilton dhamilton@fedbar.org Director of Sections and Divisions Mike McCarthy mmccarthy@fedbar.org Marketing Director Jennifer Olivares social@fedbar.org Senior Conference Manager Caitlin Rider crider@fedbar.org Program Coordinator Ariel White awhite@fedbar.org Database & Technology Administrator Miles Woolever mwoolever@fedbar.org VICE PRESIDENTS FOR THE CIRCUITS First Circuit Scott P. Lopez Second Circuit Olivera Medenica Dina T. Miller Third Circuit Christian T. Haugsby Frank J. McGovern
Fourth Circuit Kacy L. Hunt Hannah Rogers Metcalfe Fifth Circuit Mark L. Barbre Paul D. Barkhurst Sixth Circuit Daniel J. Donnellon Donna J. Mikel Seventh Circuit Melissa N. Schoenbein Eighth Circuit David A. Goodwin Adam Hansen Ninth Circuit Laura A. Conover Darrel J. Gardner Tenth Circuit Kristen R. Angelos Kate Marples Simpson Eleventh Circuit Lauren L. Millcarek Oliver Alan Ruiz D.C. Circuit Patricia D. Ryan Jessica R. Toplin SECTION AND DIVISION CHAIRS Chair, Sections and Divisions Council Nathan A. Olin Admiralty Law Eric S. Daniel Alternative Dispute Resolution Angela Eastman Antitrust and Trade Regulations Robert E. Hauberg Jr. Banking Law Michael Mancusi Bankruptcy Law Angela Sheffler Abreu Civil Rights Law Robin B. Wagner Corporate and Association Counsel David Greene Criminal Law E.J. Rymsza Environment, Energy & Natural Resources Vacant Federal Career Service Karen J. King Federal Litigation Nicole Deese Newlon Government Contracts Vacant Health Law Robert Rappel Immigration Law Hon. Amiena Khan Indian Law Ann E. Tweedy Intellectual Property Law Ira Cohen International Law Federica Dell'Orto Judiciary Hon. Robin Feder Labor and Employment Law Jack Blum Law Student Glen R. McMurry LGBTQ+ Law Christine E. Dieter Qui Tam R. Scott Oswald Securities Law Liam O’Brien Senior Lawyers Albert Lionel Jacobs Jr. Social Security Law Jerrold A. Sulcove State and Local Government Relations Andrew S. Ballentine Taxation S. Starling Marshall Transportation and Transportation Security Law Ami Lovell Veterans and Military Law Stephen Charles Newman Younger Lawyers Jenifer Tomchak
President’s Message
Firsts
By Anh Le Kremer
Anh Le Kremer is a former business litigator at Stinson, LLP. She is currently the chief operating officer and general counsel for Nystrom & Associates, a behavioral health organization headquartered in Minnesota.
After the Court rises for the summer recess and Justice Stephen Breyer’s retirement becomes effective, Justice Ketanji Brown Jackson will become the first former federal public defender and first female African American jurist to serve on the U.S. Supreme Court. It is against this milestone that the FBA presents this edition of The Federal Lawyer, which spotlights “firsts” in the legal profession. It is my privilege and honor to serve as the FBA’s first Asian-American national president, and in an interview with Kiera Murphy of the FBA’s Diversity & Inclusion Committee (starting on page 19), I explain what that means to me—and more importantly, what that might mean for others. In addition, in the pages that follow ( 21 through 31), we hear the stories of 11 other lawyers who are or were trailblazers in their communities. As Justice Jackson emphasized during her confirmation hearing, trailblazers stand on the shoulders of others who preceded them. I feel the same, and I hope this special edition of The Federal Lawyer will help inspire you to lift up all lawyers (and lawyers to be) with promise. “Equal Justice under Law” are not just words written above the main entrance to the Supreme Court; they are a call to action and require collective effort to become reality.
May/June 2022 • THE FEDERAL LAWYER • 3
Beltway Bulletin
Enhancing Court Security— An Unfortunate Imperative By Cissy Jackson
Before joining Arent Fox, Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. Jackson also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. She has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation.
According to the FBI and the Department of Homeland Security, in recent years, domestic violent extremists (DVEs) have become a national threat priority on par with foreign terrorist organizations. DVEs are individuals who commit violent criminal acts in furtherance of ideological goals such as racial bias, misogyny, or antigovernment sentiment, with lone shooters responsible for the majority of the lethal DVE attacks in the United States. Their targets have included large public gatherings, houses of worship, school boards, and election workers. Unfortunately, federal court personnel have also found themselves on this list. The U.S. Marshals Service (USMS) protects more than 2,700 sitting judges and approximately 30,300 federal prosecutors and court officials, along with members of the public who visit and work in 888 federal facilities and courthouses nationwide, and the USMS reports an alarming spike in the number of threats and inappropriate communications directed at court personnel. From 2015 to 2021, that number jumped more than 450 percent, from 926 incidents recorded in 2015 to 4,511 incidents in 2021.1 Some attacks are posted on social media, some come through the mail, and some are delivered in person. In 2020, members of the bench and bar, as well as non-lawyers across the nation, grieved after a self-described antifeminist attorney shot and killed the son of federal judge Esther Salas and wounded her husband at their home in New Jersey. In 2017, after he issued an order temporarily blocking former President Trump’s first travel ban, U.S. district judge James Robart received 40,000 messages, 1,100 of which were sufficiently serious to warrant investigation. Judge Robart received more than 100 death threats, prompting U.S. marshals to set up camp around his Seattle home. Both Judge Salas’ and Judge Robart’s addresses were available online. FBA members understand that an independent judiciary is critical to the proper and effective functioning of our justice system and that protecting judicial independence has been an enduring priority for the FBA. Each year, the FBA Government Relations
4 • THE FEDERAL LAWYER • May/June 2022
Committee works with members of Congress to build support for the funding request submitted by the Administrative Office of the U.S. Courts (AO), which includes money for court security measures. In response to the increased threat level, the AO requested—and Congress appropriated—a total of $704.8 million in court security funding for FY 2022, a $41 million increase over FY 2021.2 According to the AO, the 2022 funds will be used to begin hardening courthouses to withstand hostile incursions; to hire additional court security officers; and to modernize and replace physical access control systems, video management systems, and other security equipment. In addition, the FY 2022 appropriations bill allows the judiciary to begin implementing the Judiciary Vulnerability Management Program, which is designed to reduce security risks posed by the availability of judges’ personally identifiable information online and includes the ability to redact judges’ personally identifiable information from online data sources. Permanent authorization for the full program through passage of the Daniel Anderl Judicial Security Act (named after Judge Salas’ son) remains critical, however, and advocacy in support of this bill is a top item on the FBA’s issues agenda. Approved by the Senate Judiciary Committee, the bill is awaiting a vote on the Senate floor, but it has stalled in the House Judiciary Committee. Urging members of Congress to support this legislation was a principal focus of the FBA’s recent Capitol Hill Week advocacy program. For FY 2023, the judiciary is requesting $785.6 million for the court security account, an increase of $80.8 million over FY 2022. The AO’s request states that these funds are needed for full-year implementation of the Judiciary Vulnerability Management Program as well as the court security officer program, security systems, continued funding for courthouse hardening, and additional USMS staffing requirements. The divisiveness prevalent in today’s society already exerts pressure on the impartiality of those who play a role in the judicial system, but confidence in their physical security is absolutely essential for continued on page 8
46th Annual
TAX LAW CONFERENCE
Thursday, March 3, 2022 | Washington, D.C. Friday, March 4, 2022 | Online
THANK YOU TO OUR 2022 SPONSORS: EVENT PARTNERS
CONFERENCE CONTRIBUTORS
WELCOME SPONSOR
PROGRAM PATRONS Deloitte Tax LLP Fox Rothschild LLP
CONFERENCE SUPPORTERS Ivins, Phillips & Barker Chartered Latham & Watkins LLP Morgan, Lewis & Bockius LLP Morrison & Foerster LLP Skadden, Arps, Slate, Meagher & Flom LLP
At Sidebar
The Secret Benefit of Federal Lawyering By Jeremy S. Weber
Jeremy S. Weber is a member of the editorial board of The Federal Lawyer. He currently serves as the deputy district counsel for Military and Veterans Affairs Programs at the U.S. Army Corps of Engineers, Sacramento District. He is a retired Air Force judge advocate who served as an appellate judge and law professor at Air University. Weber has numerous law review articles to his name in military and civilian journals. He is a member of the Ohio and Alabama state bars, and hopefully the California bar by the time of this publication. The views expressed are solely those of the author.
Recently, I did something out of character. I broke a promise to myself. In July 1996, I walked out of a convention center in Columbus, Ohio, in a daze. After preparing for and then enduring the two-and-a-half-day bar examination, I swore to myself that I would never take another bar exam. If I hadn’t done enough to pass, I said to myself, I would simply go back to journalism. I did not have it in me to put myself through the stress, exhaustion, expense, and uncertainty of another bar exam. Fortunately, I handily passed, and I went on to practice law for the next 20+ years as an active duty Air Force attorney. During that time, I was stationed in nine states, the District of Columbia, and a foreign country. I brought my Ohio law license with me for each position, always able to practice law without seeking admission to the state in which I was located.1 When I retired, I worked for the Alabama attorney general after having been admitted there through reciprocity, without having to sit for the bar exam.2 My promise to never take another bar exam seemed safe, as long as I remained safely within the borders of Alabama or any other state that permitted admission upon motion. In 2020, my wife and I realized we needed to move to California to take care of an elderly relative. I was fortunate to find a federal job in California, so I did not need to immediately be admitted to the California bar, but I harbor long-term career goals that require me to be licensed in the state. California does not offer admission on motion or otherwise offer exemptions from the bar exam requirement.3 So, with great reluctance, I broke my promise to myself and registered for the February 2022 California bar exam. The experience was … well, it’s over. It certainly wasn’t any easier taking the bar as a 51-year-old attorney than as a 25-year-old recent graduate, despite having practical experience in many of the exam’s subject areas. Studying at night and on weekends while working full time was every bit as exhausting as I remembered from the previous exam. It took every bit of discipline I acquired over the years to stick to my schedule. In the end, I did what I needed to do and gave myself every opportunity to do well on the bar exam. However, it wasn’t without great personal costs in terms of time, money, and health.
6 • THE FEDERAL LAWYER • May/June 2022
The experience gave me a renewed appreciation for the portability that federal attorneys enjoy. Because the majority of federal attorneys do not appear in state court, most positions simply require admission to the bar of any state or federal court. As a result, federal attorneys enjoy a degree of flexibility that most attorneys can only envy. Many federal attorneys can move from position to position and location to location without ever needing to worry about state-to-state bar requirements. This is an enormous benefit, particularly as the last two-plus years have revealed the importance of locational flexibility in many peoples’ lives. Many people would like to relocate, but few would do so at the cost of taking another bar exam. I am not alone in realizing the simple fact that bar exams are no fun. The usefulness and cost of state bar exams has been the subject of extensive scholarship recently.4 As one law professor noted, “to write merely that the bar exam is the subject of criticism would be a colossal understatement.”5 Opinion in the legal community has shifted noticeably in favor of some form of license portability or admission without taking multiple bar exams. One poll showed that 58.3 percent of attorneys polled favored them being able to easily attain admission on motion to other states, while an additional 40.8 percent favored multistate or national licensing.6 Only 0.9 percent of respondents favored state-by-state licensing without reciprocity.7 This sentiment has been reflected in the policies of 42 states that permit some sort of admission for attorneys licensed in another state without sitting for another bar exam, though many of these states require the other state to permit admission on motion under equal terms.8 Even my new home state of California, which requires passing the state bar exam in all but a very narrow set of situations,9 has begun to consider changes to the exam, though admission on motion does not seem to be on the table for now.10 In recognition of the need for portability, 40 states have adopted the Uniform Bar Examination (UBE), an exam coordinated by the National Conference of Bar Examiners that is intended to allow one’s score to be transferred to other UBE jurisdictions.11 However, even the UBE has not provided full mobility for attorneys due to factors such as holdout states, different state scoring requirements, and the fact that states
only permit scores to be transferred within a certain timeframe, sometimes as short as two years.12 Even when a UBE score can be transferred to another jurisdiction, an attorney generally must follow the new state’s licensing procedures, which can include expensive and lengthy admission requirements. One area in which portability has commendably made some gains concerns military spouses. To date, at least 40 states have adopted measures to license military spouses who accompany a military member to a new state without passing another bar exam.13 These measures have not been extended to people like me—current or former military attorneys who seek to relocate to a state other than their original state of bar admission after their military service—though proposals to offer special concessions for military attorneys have been raised.14 For me, as is the case for most attorneys, portability remains more of an illusion than a reality. Bar exams come at a cost, both financial and otherwise. I spent roughly $5,000 for a bar prep course (I chose one of the cheaper options), a background check, the test fee, the registration fee, and other miscellaneous expenses. Money, however, was the least of the “costs” imposed by the exam. The hundreds of hours I spent preparing for the bar exam carried physical and mental costs in terms of inactivity, strain, sleeplessness, and stress. Many people report that the strain of such intense and prolonged preparation, with so much at stake, tends to damage relationships with the applicant’s loved ones.15 And, of course, all of this could have been for nothing if I did not pass. For the July 2021 exam in California, the overall pass rate was 53 percent (which was up markedly from 39.6 percent in February 2021).16 Other states ranged from a low of 52.6 percent (Alabama) to 86.3 percent (Utah).17 Not everyone passes, including many people who would undoubtedly be fine lawyers. At best, unsuccessful bar examinees face a wait of five to seven months until the next exam, with the toll that takes on mental and financial health. At worst, some never pass the bar exam and are forced to take non-lawyer work, meaning they essentially squandered three years of law school and the large bill that comes with it. As I stood in line for the California bar exam, I talked with two applicants, both of whom had failed the July 2021 exam. I couldn’t help wondering what their lives were like for the past seven months as they had to go through another round of preparation while presumably not being able to find work, with the prospect of student loan repayments looming and no guarantee they would pass this time around. Serving as an attorney for the federal government is attractive for many reasons. Federal attorneys have the opportunity to work on issues of national importance, advising on and litigating high-stakes matters. Many federal positions offer a better work/life balance than the typical private practice legal job. The federal government offers great benefits to its employees. Flexibility is not often mentioned on the list of reasons in favor of practicing law for the federal government, but it should be. Like me, most people have a need to move at some point during their professional career, if not several times. With the perspective of time and distance, we can forget how traumatic the bar exam is. Until and unless license portability becomes a reality, never having to take a second bar exam is an enormous benefit, one federal agencies should continue to exploit in attracting legal talent.
Endnotes 10 U.S.C. § 9037(b) provides that an Air Force judge advocate must be a member of the bar of a federal court or the highest court of a state.
1
Rules Governing Admission to the Alabama State Bar, Rule 3(a), https://admissions.alabar.org/rule-3. 3 See generally Rules of the California State Bar, Title 4, Division 1, https://www.calbar.ca.gov/Portals/0/documents/rules/ Rules_Title4_Div1-Adm-Prac-Law.pdf. California does, however, offer a one-day essay-only “Attorneys’ Examination” for attorneys who have been admitted to the active practice of law in a United States jurisdiction at least four years immediately prior to the first day of administration of the examination and who have ben in good standing during that period. Rule 4.3(C). 4 See, e.g., Marsha Griggs, An Epic Fail, 64 How. L.J. 1 (2020) (asserting that failures in administering state bar exams during the COVID-19 pandemic revealed that alternative paths to bar admission should be offered); Nicci Arete, The Bar Exam’s Contribution to Systemic Inequalities in Access to Justice Around the World, 30 Wash. Int’l L.J. 324 (2021) (arguing that standardized bar exams unfairly exclude people from marginalized communities). 5 Ben Bratman, Improving the Performance of the Performance Test: The Key to Managing Meaningful Bar Exam Reform, 83 UMKC L. Rev. 565, 565 (2015). 6 Stephen C. Sieberson, Alex Fayad, and Carola Cintrón-Arroyo, Changing Times in the Legal Profession – A Survey of Practicing Lawyers, 50 Creighton L. Rev. 443, 448 (2017). 7 Id. at 447. 8 National Conference of Bar Examiners, Comprehensive Guide to Bar Admission Requirements, ch. 15 (2022), https://reports. ncbex.org/comp-guide/charts/chart-15/. 9 The State Bar of California, Special Admissions, https://www.calbar. ca.gov/Admissions/Special-Admissions. 10 “California Officials Consider Bar Exam Options, Possible Changes,” Bloomberg Law ( Jul. 21, 2021), https://news. bloomberglaw.com/business-and-practice/california-officialsconsider-bar-exam-options-possible-changes. 11 National Conference of Bar Examiners, “Jurisdictions That Have Adopted the UBE,” https://www.ncbex.org/exams/ube/. 12 See Dennis R. Honabach, To UBE or Not to UBE: Reconsidering the Uniform Bar Exam, 22 No. 2 Prof. Law. 43, 44 (2014): "[F]or many, the UBE cannot deliver what it promises, primarily mobility. Many of the largest jurisdictions have not adopted and seem unlikely to adopt the UBE; a passing score in one UBE state may well not suffice in another; and the time limitation on UBE score portability introduces an element of inequity, for bar applicants with different financial resources." See also Suzanne Darrow-Kleinhaus, Portability of the UBE: Where is It When You Need It and Do You Need It At All?, 37 Touro L. Rev. 665 (2021) (noting limitations to UBE portability revealed by the COVID-19 pandemic). 13 Eric Cervone, “Bar Reciprocity for Military Spouses,” American Bar Ass’n After the Bar: Professional Life, https://www. americanbar.org/groups/young_lawyers/publications/after-the-bar/ professional-life/bar-reciprocity-for-military-spouses/. 14 See, e.g., Michael G. Swansburg, Jr., Note, A Solider’s Heart and a Lawyer’s Mind: An Argument for Granting Reciprocity to America’s Former JAG Attorneys, 48 U. Louisville L. Rev. 613 (2010) (asserting that every state should promulgate a blanket admissionon-motion policy for the benefit of qualified former active-duty judge advocates). While serving in the military, judge advocates may be permitted to provide legal assistance to military members and 2
May/June 2022 • THE FEDERAL LAWYER • 7
other eligible beneficiaries in a state without being admitted to that state’s bar. 10 U.S.C. § 1044(a). 15 Scott Goins, “Advance Bar Prep Part Two: Friends and Family” (May 1, 2021), https://www.johnmarshall.edu/20210501-lawschool-brief-advance-bar-prep-part-two-friends-and-family/.
National Conference of Bar Examiners, “Bar Exam Results by Jurisdiction,” https://www.ncbex.org/statistics-and-research/barexam-results/. 17 Id. 16
Beltway Bulletin continued from page 4
judges, juries, and court personnel to make decisions without fear of intimidation or violence. As the threats have increased, so has the need for countermeasures, and until the causes of the increased threats are addressed, it is imperative that we protect against their intended effects. The FBA, through the Government Relations Committee, will continue to urge Congress to prioritize and provide funds to ensure the safety and security of all those who work and have business in our federal courts.
in Spending Bill, Reuters (Mar. 11, 2022), https://www.reuters.com/legal/litigation/us-judiciary-receives-bigsecurity-funding-boost-spending-bill-2022-03-11/.
Endnotes United States Courts, Judiciary Affirms Need for Bill to Protect Federal Judges ( July 14, 2021), https://www.uscourts. gov/news/2021/07/14/judiciary-affirms-need-bill-protect-federaljudges; United States Marshals, Judicial Security (Feb. 17, 2022), https://www.usmarshals.gov/duties/factsheets/judicial_sec. pdf. 2 Nate Raymond, U.S. Judiciary Receives Big Security Funding Boost 1
Russell Turkel Federal Sentencing Consultant and Criminal Defense Attorney RUSSELL@SCOTTPALMERLAW.COM 214-987-4100
Twenty years’ experience with the federal judiciary has given me the tools to help criminal defense attorneys achieve the best results for their clients. I proudly offer the following services throughout the country:
PLEA NEGOTIATION ASSISTANCE PRELIMINARY GUIDELINES CALCULATIONS PSR ANALYSIS AND OBJECTIONS SENTENCING MEMORANDA DEPARTURE/VARIANCE MOTIONS
214-987-4100 Russell@ScottPalmerLaw.com
ht t p s:/ / www.sc o t t p a lm e rla w.c o m 8 • THE FEDERAL LAWYER • May/June 2022
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.
In-House Insight
The GDPR, SCCs, BCRs, and Schrems: Deciphering the Data Privacy Alphabet Soup By Michael J. Cahalane, Andrew R. McConville, and Kyle W. Cunningham The authors thank Professor Kevin R. Powers, J.D., founder and director of Cybersecurity Policy and Governance Graduate Programs at Boston College, for his contributions to this article.
Michael J. Cahalane and Andrew R. McConville are partners, and Kyle W. Cunningham is an associate, at Cetrulo LLP in Boston. They defend corporations in various litigation contexts and advise clients on risk mitigation strategies. Cahalane is a vice chair for the FBA’s Corporate and Association Counsel Division. ©2022 Michael J. Cahalane, Andrew R. McConville, and Kyle W. Cunningham. All rights reserved.
Interpreting the increasingly complex and evolving array of data privacy regulations is a time-consuming and expensive undertaking for businesses and their counsel. Prior to Schrems and its progeny, over 5,000 American and European Union (EU) companies relied on the transfer frameworks developed by the U.S. Department of Commerce and the European Commission (i.e., U.S.EU Safe-Harbor Agreement and the EU-U.S. Privacy Shield).1 The invalidation of these mechanisms due to the U.S. government’s alleged failure to create data privacy safeguards equivalent to that of the EU’s General Data Protection Regulation (GDPR)2 has burdened companies doing business in both the United States and the EU with high compliance costs as they scramble to implement Standard Contractual Clauses and/or Binding Corporate Rules. Due to the lack of clear guidance provided by the Court of Justice of the European Union (CJEU), U.S. businesses using EU personal data should consult with an experienced cybersecurity and data privacy specialist or retain counsel with a background in GDPR compliance to determine the best approach for their enterprise.
Introduction: What Is the GDPR? Since becoming effective on May 25, 2018, the GDPR is and has been one of the strictest privacy and security laws on earth.3 The GDPR replaced Directive 95/46/ EC, which was the previous rule governing the processing and transferring of data from 1995 until 2018.4 While both the GDPR and Directive 95/46/EC give the same general instructions and measures, the GDPR is more comprehensive and applies to all companies involved in personal data transfers concerning EU data subjects.5 The GDPR, among other things, creates rights for natural persons regarding the pro-
cessing of personal data and rules relating to the free movement of such data.6 The GDPR defines personal data as “any information relating to an identified or identifiable natural person (‘data subject’).”7 The rights created by the GDPR include: (1) The right to erasure (i.e., the right to be forgotten).8 (2) The right to know the categories of personal data being collected and who is receiving it.9 (3) The right to be informed of the appropriate safeguards taken by a third country or international organization when personal data is transferred to one.10 (4) The right to obtain from the controller without undue delay the rectification of inaccurate personal data.11 (5) The right, without undue delay, and within one month of the data controller receiving the request, to receive information on action taken regarding the personal information.12 The GDPR can create potentially high compliance and noncompliance costs for businesses, given its broad definition of identifiable data information. When the GDPR first took effect, it was estimated that larger companies budgeted an average of $20 million to $25 million for GDPR compliance, while smaller companies budgeted around $4 million to $5 million.13 Moreover, the CJEU’s striking down of EU-U.S. frameworks developed by the Department of Commerce and the Federal Trade Commission and approved by the European Commission has increased compliance costs and made it increasingly difficult for U.S. businesses to adhere to EU data security requirements.
National Security Data Collection: NSA’s “PRISM” and “UPSTREAM” Program’s Effect on U.S. Data Transfers The Schrems I and Schrems II decisions directly respond to the revelations regarding the National Security Agency’s data collection programs, codeMay/June 2022 • THE FEDERAL LAWYER • 9
named “PRISM” and “UPSTREAM,” which came to light after the Edward Snowden leaks.14 Data collection and surveillance programs such as PRISM and UPSTREAM were created following Congress’s passing of Section 702 of the Foreign Intelligence Surveillance Act (FISA) and Executive Order 12333. Section 702 created procedures allowing the attorney general and the director of national intelligence to authorize jointly, for up to a year, the targeting of certain individuals reasonably believed to be located outside the United States in order to acquire foreign intelligence information.15 Section 702 of FISA limits government surveillance to non-U.S. residents and for conversations occurring outside the United States, preventing parties targeted by data surveillance programs from asserting Fourth Amendment protections.16 Similarly, Executive Order 12333 grants the NSA power to access data “in transit” to the United States by accessing underwater trans-Atlantic cables and collecting the data before it arrives to the United States and becomes subject to FISA.17 In an attempt to assist American businesses with EU data privacy requirements, the United States developed the U.S.-EU Safe Harbor Framework in 2000, and later the EU-U.S. Privacy Shield in 2016.18 The European Commission approved both; however, they were later struck down by the Schrems decisions. In 2013, plaintiff Maximilian Schrems, an Austrian resident and a Facebook user, filed a complaint against Facebook Ireland, claiming that U.S. law and practices offer no real protection of the data kept in the United States against government surveillance due to the existence of PRISM and Facebook’s participation in it (“Schrems I”).19 On Oct. 6, 2015, the CJEU found in favor of Mr. Schrems, declaring invalid the U.S.-EU Safe Harbor principles that U.S. businesses then used to comply with EU data privacy requirements.20 In response to Schrems I, the U.S. Department of Commerce and the European Commission developed the U.S.-EU Privacy Shield, which imposed stricter requirements on U.S. businesses. In 2020, building off Schrems I, a second CJEU decision, Schrems II, invalidated the EU-U.S. Privacy Shield, citing as grounds for its ruling the Presidential Policy Directive 28 (PPD-28) and FISA. Specifically, the court found that section 702 of FISA “does not indicate any limitations on the power it confers to implement surveillance programs for the purposes of foreign intelligence or the existence of guarantees for non-US persons potentially targeted by those programs.”21 Moreover, the CJEU found that PPD-28, a 2014 directive issued by the Obama administration to establish additional limitations on bulk signal intelligence collections,22 “does not grant data subjects actionable rights against the US authorities.”23 The CJEU found that Standard Contractual Clauses, or SCCs, remain a viable option for EU-U.S. data transfers.24 SCCs are a set of pre-written clauses and conditions followed by both the sender and receiver of personal data that allow transfers of data to countries outside the EU.25 SCCs place the burden of data protection on the controllers and operators who would seek to transfer information.26 The CJEU indicated that the entity transferring the data must ensure that the subject is afforded a level of protection equivalent to that guaranteed by the GDPR, and if it is not, there must be additional measures taken to compensate for the legal systems or protections afforded by a third country.27 Since the CJEU has consistently found that the United States lacks adequate protections due to the country’s mass surveillance system, parties engaging in EU-U.S. transfers must ensure that they are taking additional measures to protect EU personal data. While the CJEU explicitly rejected the Privacy Shield, 10 • THE FEDERAL LAWYER • May/June 2022
it provided no practical guidance for developing adequate data protections compliant with the GDPR.28 On March 25, 2022, the European Commission and the United States announced that they have agreed “in principle” on a new Trans-Atlantic Data Privacy Framework to reconcile U.S.-EU data transfers in light of Schrems II.29 To date, the new agreement has not been formalized into a binding legal document.30 Moreover, Mr. Schrems has indicated that he is prepared to file suit a third time if the proposed Trans-Atlantic Data Privacy Framework is not compliant with EU data privacy laws.31 Until the proposed Trans-Atlantic Data Privacy Framework takes legal effect, companies must still operate using existing data transfer methods and should be cautious moving forward in relying on transfer frameworks.
Without U.S. Data Transfer Frameworks, Companies Must Rely on Standard Contractual Clauses and Binding Corporate Rules Standard Contractual Clauses The CJEU, in Schrems II, explicitly upheld the use of Standard Contractual Clauses to transfer personal data from the EU to the United States; however, companies relying on SCCs are solely responsible for determining that U.S. law provides the same protections under EU law and are required to use additional safeguards to supplement U.S. law where appropriate.32 In response to this requirement, on June 4, 2021, the European Commission announced the adoption of two new sets of SCCs: one for use between controllers and processors and one for the transfer of personal data to third countries.33 Businesses that are controllers or processors of personal data can still continue to rely on the earlier Standard Contractual Clauses for contracts concluded before Sept. 27, 2021, as long as the processing operations that are the subject matter of the contract remain unchanged.34 Businesses in the United States using EU personal data should consult with an experienced cybersecurity/data privacy professional or a lawyer specializing in GDPR to ensure that their use of SCCs and other contractual clauses for data transfers complies with the regulation. Businesses should also monitor the European Data Protection Board as it continues to release additional guidance on the changing GDPR compliance requirements.
Binding Corporate Rules Multinational corporations acting as data controllers within the EU should consider developing Binding Corporate Rules, or BCRs, for transfers outside the EU.35 BCRs can be used by “a group of undertakings, or a group of enterprises engaged in a joint economic activity.”36 BCRs allow international transfers from the EU to organizations within the “same group of enterprises engaged in a joint economic activity, provided that such corporate rules include all essential principles and enforceable rights to ensure appropriate safeguards for transfers of personal data.”37 These rules must also be legally binding and enforced by every member of the group. 38 For multinational corporations with an EU presence, BCRs offer several advantages to relying on SCCs for transfers of user data, including increased flexibility because a supervisory authority does not need to approve nonmaterial updates to BCRs.39 Similarly, BCRs can be easier to maintain, as they create readily accessible uniform compliance requirements across the enterprise as opposed to intergroup contracts using SCCs.40 To be effective, BCRs must be approved by the supervisory authority responsible for enforcing the GDPR in the corporation’s
European Economic Area Member State.41 When developing BCRs, a corporation must specify: 1. “the structure and contact details of the corporation; 2. the data transfers or set of transfers, including the categories of personal data, the type of processing and its purposes, the type of data subjects affected, and the identification of the third country or countries in question; 3. how the rules are legally binding in nature, both internally and externally; 4. the application of the general data protection principles and the requirements for transfers to bodies not bound by the binding corporate rules; 5. the rights of data subjects and details regarding compensation for a breach of the binding corporate rules; 6. the acceptance by the controller or processor established on the territory of a Member State of liability for any breaches of the binding corporate rules; 7. the tasks of any data protection officer designated by Article 37 or any other person or entity in charge of the monitoring compliance with the binding corporate rules within the group of undertakings, or group of enterprises engaged in a joint economic activity, as well as monitoring training and complaint-handling; 8. the complaint procedures; 9. the mechanisms within the group of undertakings or group of enterprises engaged in a joint economic activity to ensure compliance with the binding corporate rules; 10. the mechanisms for reporting and recording changes to the rules and reporting those changes to the supervisory authority; 11. the cooperation mechanism with the supervisory authority to ensure compliance by any member of the group of undertakings, or group of enterprises engaged in a joint economic activity, in particular by making available to the supervisory authority the results of verifications of the measures referred to in point (9); 12. the mechanisms for reporting to the competent supervisory authority any legal requirements to which a member of the group of undertakings or group of enterprises engaged in a joint economic activity is subject in a third country which are likely to have a substantial adverse effect on the guarantees provided by the binding corporate rules; and the appropriate data protection training to personnel having permanent or regular access to personal data.”42 Multinational corporations acting as controllers of EU data who transfer information to the United States could benefit from implementing BCRs, particularly if they already have a robust in-house legal team and experienced cybersecurity and data privacy professionals trained in GDPR compliance. Such companies should re-evaluate their BCRs following the passage of any major U.S. or EU cybersecurity law implicating EU personal data to ensure that the protections for EU data subjects provided by their BCRs are still adequate under EU law. Additionally, multinational companies using BCRs should review their rules immediately following the acquisition, divestiture, or formation of any corporate entities, members, or affiliates to ensure that the new additions to the enterprise have internal procedures for handling EU personal data consistent with their existing BCRs.
Consequences for Violating the GDPR Despite the lack of clear guidance from the CJEU following the invalidation of the EU-U.S. data transfer frameworks, businesses using EU personal data must become compliant with the GDPR or risk facing significant penalties. The consequences for failing to adhere to the GDPR can be harsh depending on the severity of the violation. Under Article 83(5) of the GDPR, fines can reach €20 million, or 4 percent of the company’s global revenue, whichever is greater.43 EU data protection authorities have been enforcing the GDPR with increasing scrutiny. The EU has issued 1,003 fines since July 2018, totaling €1.575 billion. Sector exposure has been highest in industry and commerce (224 fines totaling over €776 million) and media, telecommunications, and broadcasting (176 fines totaling over €596 million).44 Countries issuing the highest number of fines are Spain (387), Italy (123), and Romania (73).45 As a result, companies operating within these sectors or engaging in data transfers from these countries should proceed with heightened caution. In response to the harsh fines associated with violating the GDPR and lack of clear guidance from the EU, businesses have begun threatening to pull products relying on EU personal data. In its annual report issued on Feb. 2, 2022, Meta Platforms, Inc., the parent company for Facebook and Instagram, stated that if a new data transfer framework is not adopted and if Meta is unable to continue to rely on SCCs or another alternative means for transferring data from the EU to the United States, it will be unable to offer a number of products and services in Europe, including Facebook and Instagram.46
Conclusion The NSA’s surveillance programs have made compliance with the GDPR particularly difficult for companies doing business in both the United States and the EU. The PRISM and UPSTREAM programs remain in effect, with no signs of imminent repeal. Consequently, the U.S. Department of Commerce will likely face significant obstacles in creating a new Trans-Atlantic Data Privacy Framework. Since the CJEU has already declared invalid two adequacy decisions issued by the European Commission regarding prior U.S.-EU data transfer frameworks, companies utilizing EU personal data should exercise increased vigilance, given the CJEU targeting of EU-U.S. data transfers. As a result, at a minimum, it is imperative that companies consult with cybersecurity and data privacy experts to evaluate all data transfers and to identify ones that contain personally identifying information of EU citizens. When a U.S.-based business expects to receive personally identifying information from EU citizens, it should immediately refer the issue to an attorney specializing in U.S.-EU GDPR compliance. Multinational corporations based in the EU and transferring data to the United States should consider developing BCRs to help increase the efficiency of interorganizational data transfers. A new Trans-Atlantic Data Privacy Framework and the inevitable challenges thereto, including a potential “Schrems III,” could reshape the already complex data privacy landscape. Until then, understanding SCCs and BCRs and relying on qualified professionals for advice are imperative for companies to make sense of the Schrems alphabet soup and avoid costly consequences.
Endnotes Case C-311/18, Data Protection Commissioner v. Facebook Ireland Ltd., ECLI: EU:C:2020:559 ( July 16, 2020), 134 Harv. L. Rev. 1567, continued on page 14
1
May/June 2022 • THE FEDERAL LAWYER • 11
International Files
Comparing Women’s Rights in Afghanistan 30 Years Ago and Today As illustrated by the story of activist Delara Nasseri By Beth Persky
Beth Persky is a certified specialist in immigration and nationality law with the California Board of Legal Specialization. She practices immigration law nationwide. She is the immediate past chair of the FBA’s International Law Section and the current chair of the ECOSOC committee.
Judith Wood is an immigration litigator with a number of published landmark decisions in the area of political asylum. In 1994, she won a case before the Ninth Circuit, Nasseri v. Moschorak, 34 F.3d 723 (Ninth Circuit, 1994), in which a Ninth Circuit panel reversed the district court’s decision and granted asylum to a teacher from Afghanistan who was apprehended by the Immigration and Naturalization Service upon attempting to enter the United States. The story was the basis for the 2018 film St. Judy, produced by Cannonball Productions. The author interviewed Wood about the case and its relevance to the current legal framework for Afghan asylum cases. Delara Nasseri was a teacher in a public elementary school in Kabul and had been an active member of a group in Afghanistan that opposed both the communist regime and the fundamentalist factions of the mujahidin who had seized power in Afghanistan—the National Islamic Front for Afghanistan (NIFA). Nasseri attempted to enter the United States on June 14, 1992, to seek asylum and was detained and placed in exclusion proceedings.1 Persky: Judy, in 1994 you won the Nasseri case before the Ninth Circuit. Who was Delara Nasseri, and why is her case important for the development of asylum law in the United States? Wood: Delara Nasseri was an elementary schoolteacher at the time when the country was under communist control and the fundamentalist forces were organizing a rebellion. She was also a political activist and favored the return of the constitutional monarchy. She was opposed to the communist regime and also opposed the mujahidin. This case is important because it gives a detailed opinion on the issue of credibility. Nasseri was found credible by the immigration judge (IJ), but the IJ considered her story to be implausible. The Board of Immigration Appeals (BIA) then found her not to be credible. The Ninth Circuit found that the BIA was absolutely wrong and went into great detail explaining why Nasseri was credible and why her story was plausible. So, the case goes beyond Nasseri’s own and washes over to the broader issue of credibility.
12 • THE FEDERAL LAWYER • May/June 2022
In 1990, Nasseri was kidnapped and imprisoned by the mujahidin. She was eventually released, after having been tortured. She then escaped to India after her parent’s house was bombed. In India, she was pursued by mujahidin rebels. She then left India and came to the United States. Persky: Why did the IJ deny her asylum claim in August 1992? Wood: The IJ found that Nasseri did not explain why rebels would follow her to India. She never said that they followed her. Rather they “tracked her down” there. Persky: What did the BIA use as its basis for denying her claim in exclusion proceedings? Wood: The BIA, although finding that Nasseri testified in an honest and forthright manner, held that her testimony was not plausible based on its analysis of the political situation in Afghanistan. On appeal to the BIA, Nasseri submitted further evidence establishing her membership in the NIFA and a letter from a former U.S. assistant to the U.S. Embassy in Kabul stating that Nasseri was well known as an opponent of both the communist regime, which was in power at the time, and the mujahidin. She also submitted a letter from her husband stating that she was a member of the NIFA and proof of her membership. Persky: The Ninth Circuit found that Nasseri’s persecution was on account of political opinion. What led to their conclusion? Wood: The Ninth Circuit really slammed the BIA on credibility. The court cited Turcios v. INS, 821 F2d 1396, 1300 (9th Cir. 1987), stating that negative credibility finding must be based on substantial reason and must bear a legitimate nexus to the finding. The court also cited Aguilera-Cota v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990), stating that the reasons for a negative credibility finding must be based on valid grounds for determining that the witness is not credible. Persky: At the time that Nasseri was apprehended, there was a separate “exclusion proceeding.” You
appealed to the Ninth Circuit from a denied writ of habeas corpus in the District Court for the Central District of California. What evidence did the Ninth Circuit use in support of its decision to reverse the district court decision? Wood: The Ninth Circuit correctly found that the record contradicted this erroneous finding and stated that the record clearly shows that the mujahidin regularly imprisoned, tortured, and executed members of the population, including school teachers. The record also showed that the mujahidin also maintained prisons in refugee camps in Pakistan, where Afghanis were held. The court went on to find that it was plausible that Nasseri was tracked down in India and that she did have a well-founded fear of future persecution. Persky: The Ninth Circuit reversed the district court’s decision upon review, finding that the record did not support the BIA’s conclusion. How did you get the Ninth Circuit to reverse the lower court’s decision? Wood: In oral argument and in the briefs, I argued that the IJ’s and the BIA’s decisions were wrong in so far as they found it was improbable that what Nasseri testified to was correct. I asserted that the declaration was credible and that all the supporting documents must lead to the conclusion that Nasseri suffered persecution and torture at the hands of the Mujahidin and that the same fate would meet up with her in the future if she were to return to Afghanistan. The Ninth Circuit stated that the BIA was wrong in discrediting Nasseri’s testimony and further stating that she met her burden and that the evidence of probable persecution was “overwhelming.” Persky: Why was Nasseri arrested by the mujahidin rebels? Wood: Nasseri was an outspoken person in favor of pro-women’s rights in Afghanistan. As such, she was viewed as an opponent of the fundamentalist mujahidin. For this reason, among others, she was tracked down and, if captured, would be persecuted Persky: What role did the fact that Nasseri was a female teacher play in her case? Wood: Her role as a female teacher would cause the mujahidin to believe she was an enemy to their cause. They used violent means to suppress any opposition, and Nasseri would become their victim. Persky: How did Nasseri get out of Afghanistan? Wood: Overland by foot to India. Persky: Was she safe in India? Wood: She was definitely not safe in India, and this was one of the main arguments in the case. Persky: Do you see any similarities between the events that happened to Nasseri in 1990 and 1991 and what you have encountered in recent cases from Afghanistan? Wood: There are many similarities between this case and what is happening now in Afghanistan. People who served the U.S. Armed Forces in Afghanistan during the last 20 years are now being hunted down, threatened, and in some cases killed by members of the Taliban. In particular, women who do not conform to the Taliban’s orders regarding dress code and stay at home orders are also being tracked down and in some cases raped and sometimes killed. Also, I see a similar pattern of denying asylum cases from Mexico and the Northern Triangle countries where the IJs and the BIA find that the governments in those countries are trying to combat the ongoing torture, murder, and mutilation of members of their societies, and thus, the cases are denied. Of particular concern are asylum cases from Mexico where the IJs and the BIA repeatedly find that
Mexico is trying to combat corruption and use that as an excuse to deny asylum to applicants. As far as opening the door for women asylum applicants, I believe that the Nasseri opinion remains relevant today. Although she was not fleeing an abusive domestic violence situation, she was fleeing violence directed at her specifically on account of her gender and her pro-women’s rights views. I think this is particularly important in the current environment in U.S. courts. Nasseri is a banner for women’s rights and for the rights of those who would protect those same rights. I believe we are under siege at this moment and that Nasseri’s case remains extremely relevant, both because of the findings on credibility and the advocacy for women’s rights. I am in possession of letters from the Taliban to some of these people, threatening them with death on account of their prior involvement with the United States. Services include cooking and cleaning as well as translation services and other more high-ranking services as well. Now that the Taliban is in power, ordinary people in Afghanistan are also at risk if they express any opposition to the Taliban. I am informed that retaliation is quick and brutal and that many such individuals have disappeared. It remains to be seen how these asylum claims will be adjudicated. It may be especially problematic for those Afghan refugees who were evacuated to third countries, where they languish under terrible conditions while waiting to come to the United States. Hopefully, they will not be found to have “firmly resettled” in such dire circumstances. A decade after Ms. Nasseri arrived in the United States to seek asylum, then Senate Foreign Relations Committee Chair Joseph Biden argued in favor of U.S. ratification of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) by illustrating the example of women teachers in Afghanistan: If we need any more graphic illustration of why this treaty is needed for women of the world, I just invite you to come back to Afghanistan with me. I invite you to come back to Afghanistan with me, stand there with the Minister for Women’s Affairs, and observe that even after the liberation, the majority of women are still wearing burkas. Even after this, they are still worried about their future. As I met with the Minister of Education and the Minister of Women’s Affairs in a building with no heat in the middle of January, I believe, there were a group of women, about 50 or 60, standing out in a big anteroom waiting to see the Ministers. They were all former teachers, and they all had their burkas on, and I said why? Why? And the Minister of Women’s Affairs asked the Minister of Education, whose office we were in, whether or not she could call in one of the women, and explain why she was still wearing a burka. The woman told a story in English about riding a bus and being accosted by a group of men who demanded to know why she did not wear her burka, because, though the Taliban were gone, the mujahedin were still in Afghanistan. Biden warned during the hearing that if the United States did not set an international standard by ratifying CEDAW, similar events would repeat.2 May/June 2022 • THE FEDERAL LAWYER • 13
Endnotes Exclusion and deportation proceedings were replaced by removal proceedings for cases commencing on Apr. 1, 1997. INA §§239, 240, 8 C.F.R. §§1003.12 et seq., 1240.1 et seq. 2 Treaty Doc. 96-53; Convention of the Elimination of all Forms of 1
Discrimination Against Women, Adopted by the U.N. General Assembly on December 18, 1979, and Signed on Behalf of the United States of America on July 17, 1980, 107th Cong. 4-5 (2002), https://www. govinfo.gov/content/pkg/CHRG-107shrg80461/pdf/CHRG107shrg80461.pdf. The United States has not yet ratified the treaty.
In-House Insight continued from page 11
at 1574 (2022) (citing Adam Satariano, E.U. Court Strikes Down Trans-Atlantic Data Transfer Pact, N.Y. TIMES ( July 16, 2020), https://nyti.ms/393VklG [https://perma.cc/KUZ7-28FE]). 2 Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal Data and on the Free Movement of Such Data, and Repealing Directive 95/46/EC, art. 25, 2016 O.J. (L 119) 48 [hereinafter GDPR]. 3 Ben Wolford, What is the GDPR, the EU’s New Data Protection Law? GDPR. EU., https://gdpr.eu/what-is-gdpr/ (last visited Oct. 22, 2021), 4 Julia Hamilton, Data Prot. Comm’r v. Facebook Ireland LTD. and Maximillian Schrems: Shattering the International Privacy Frame Work, 29 Tul. J. Int. Comp. L. 351, 352 (2021) (citing Council Directive 95/46, 1995 O.J. (L 281) 1 (EC)). 5 Id. 6 GDPR Art. 1; see also Data Protection Overview, DataGuidance (Sept. 2021), https://www.dataguidance.com/notes/gdpr-dataprotection-overview. 7 GDPR Art. 4(1). 8 GDPR Art. 17. 9 GDPR Art. 13(1). 10 GDPR Art. 15(2). 11 GDPR Art. 16. 12 GDPR Art. 12(4). 13 EU-Country Commercial Guide, International Trade Administration, https://www.trade.gov/country-commercialguides/eu-data-privacy-and-protection (last visited April 22, 2022); Nina Trentmann, Companies Worry that Spending on GDPR May Not Be Over, Wall St. J. (May, 25, 2018), https://www.wsj.com/ articles/companies-worry-that-spending-on-gdpr-may-not-be-over1527236586<https://www.wsj.com/articles/companies-worry-thatspending-on-gdpr-may-not-be-over-1527236586. 14 The CJEU’s Schrems Ruling on the Safe Harbour Decision, European Parliament (Oct. 2015), https://www.europarl.europa.eu/ thinktank/en/document/EPRS_ATA(2015)569050. 15 50 USCA § 1881a (West). 16 Id. 17 See Exec. Order No. 12,333, 3 C.F.R. 200 (1981), reprinted in 50 U.S.C. § 401 (1982); C-311/18, Data Prot. Comm’r v. Facebook Ir., Ltd., 2020 E.C.R. 559, ¶¶60-63 (herein “Schrems II”).
Statement of FTC Chairwoman Edith Ramirez on EUU.S. Privacy Shield Framework, Federal Trade Commission (Feb. 29, 2016), https://www.ftc.gov/news-events/pressreleases/2016/02/statement-ftc-chairwoman-edith-ramirezeu-us-privacy-shield-0.
18
C-362/14, Schrems v. Data Prot. Comm’r (Schrems I), ECLI:EU:C:2015:650. ¶ 28-30. 20 Id. at 106-107. 21 See Schrems II ¶180.: Case C-311/18, Data Protection Commissioner 19
14 • THE FEDERAL LAWYER • May/June 2022
v. Facebook Ireland Ltd., ECLI: EU:C:2020:559 ( July 16, 2020), 134 Harv. L. Rev. 1567, at 1574 (2022). 22 PPD-28: Signals Intelligence Activities ( Jan. 17, 2014). 23 Schrems II, at 181. 24 Id. at 148-149. 25 Trishla Ostwal, Why Marketers Should Care About the Latest Transatlantic Data Deal, ADWEEK (Feb. 28, 2022), https://www. adweek.com/media/marketers-should-care-about-the-latesttransatlantic-data-deal/; GDPR Art 46(2). 26 Schrems II,at . ¶¶ 116-121, 128, 131, 134. 27 Id. at 121, 126-129, 134. 28 Case C-311/18, Data Protection Commissioner v. Facebook Ireland Ltd., ECLI: EU:C:2020:559 ( July 16, 2020), 134 Harv. L. Rev. 1567, at 1574 (2022). 29 European Commission and United States Joint Statement on Trans-Atlantic Data Privacy Framework, European Commission (March 25, 2022). 30 Trans-Atlantic Privacy Shield Fact Sheet, European Commission (Mar. 25, 2022), https://ec.europa.eu/commission/presscorner/ detail/en/FS_22_2100. 31 “Privacy Shield 2.0?”- First Reaction by Max Schrems NYOB (Mar. 25, 2022), https://noyb.eu/en/privacy-shield-20-first-reaction-maxschrems. 32 Information on US Privacy Safeguards Relevant to SCCs and Other EU Legal Bases for EU-U.S. Data Transfers after Schrems I, at 6 Dep’t of Just., Off. of Dir. of Nat’l Intel. (Sept. 2020), https://www.commerce.gov/sites/default/files/2020-09/ SCCsWhitePaperFORMATTEDFINAL508COMPLIANT.PDF. 33 European Commission Adopts New Tools for Safe Exchanges, European Commission: Press Release ( June 4, 2021), https:// ec.europa.eu/commission/presscorner/detail/en/ip_21_2847. 34 Id. 35 Binding Corporate Rules, The General Data Protection Regulation, PricewaterhouseCoopers, at 1, https://www.pwc.com/m1/en/ publications/documents/pwc-binding-corporate-rules-gdpr.pdf. 36 GDPR, Recital 110. 37 Id. 38 GDPR Art. 4. 39 Binding Corporate Rules, The General Data Protection Regulation, PricewaterhouseCoopers, at 1 40 Id. 41 GDPR Art. 47(1). 42 GDRP Art. 47(2). 43 Under Article 83(5). 44 GDPR Enforcement Tracker, CMS, https://www. enforcementtracker.com/?insights (last visited Feb. 25, 2022). 45 Id. 46 Sam Shead, Meta Says It May Shut Down Facebook and Instagram in Europe Over Data-Sharing Dispute, CNBC (Feb. 7, 2022); Meta Platforms, Inc., Annual Report (Form 10-K) 7 (Feb. 2, 2022).
Judicial Profile
Hon. Katherine A. Crytzer
Judge for the Eastern District of Tennessee by Luke P. Ihnen
F
Luke P. Ihnen is an assistant federal defender in the Capital Habeas Unit at Federal Defender Services of Eastern Tennessee, Inc. Prior to that, he was in private practice in Knoxville, Tenn. Ihnen also serves as an adjunct professor at the University of Tennessee College of Law, where he instructs first-year law students in legal writing and coaches the National Environmental Law Moot Court Team. Ihnen is active in the bar, serving on the Board of Governors of the Knoxville Bar Association and as a member of the Tennessee Bar Association. He is a member of the FBA and serves on the FBA editorial board. ©2022 Luke P. Ihnen. All rights reserved.
ewer federal judges have taken the bench with as much experience in the federal judicial process as Judge Katherine A. Crytzer of the Eastern District of Tennessee. Nominated by President Donald Trump in September 2020 and confirmed later that year, Judge Crytzer returned to Knoxville after a distinguished legal career to become the second woman to be confirmed to the federal bench in the district. She and her husband, Joe Oliveri, an attorney, are settling into a renovated 19th century farmhouse and back into a community that she never truly left. Judge Crytzer’s family moved to Knoxville nearly 25 years ago after her father accepted a position in the inspector general’s office at the Oak Ridge National Laboratory. He previously served as an auditor in the U.S. Army. Her parents instilled in her a passion for public service that drives her daily. After graduating summa cum laude from the Middle Tennessee State University Honors College, Judge Crytzer enrolled at George Mason University (now the Antonin Scalia) Law School in the metro Washington, D.C., area. She graduated magna cum laude in 2009 and accepted a clerkship with Hon. Raymond W. Gruender of the U.S. Court of Appeals for the Eighth Circuit. At the time, Judge Gruender was a relatively new judge, having previously served as U.S. attorney for the Eastern District of Missouri. Judge Crytzer praises Judge Gruender’s humility and service to his community. He taught her the importance of approaching each case with the dignity and respect that it deserves. She has tried to incorporate these principles into her own judicial philosophy. Following her clerkship, Judge Crytzer joined the esteemed law firm of Kirkland & Ellis LLP to gain experience as a litigator in federal court early in her career. She credits her time at Kirkland & Ellis as well as her mentors with teaching her how to be a litigator and helping her develop the “hard skills” required of skilled trial attorneys: putting a case together from beginning to end and navigating the nuts and bolts of a case. She uses those same skills today in her role as a trial judge. A public servant at heart, Judge Crytzer
16 • THE FEDERAL LAWYER • May/June 2022
is particularly proud of her pro bono service at the firm representing disabled military veterans seeking Veterans Administration compensation related to service-connected disabilities. Her sense of public service led her next to the U.S. Attorney’s Office for the Eastern District of Kentucky (a mere three-hour drive from her family in Knoxville). Judge Crytzer was hired to work in a unit combating the opioid epidemic. She felt drawn to the work because of the impact she could have in the community, and because it allowed her to be closer to her family in East Tennessee. She quickly earned the opportunity to work on both civil and criminal crimes and worked to reduce the amount of illegal drugs in the community. The work was personal for Judge Crytzer: like many of us, friends and members of her family have suffered from addiction. Her work as an assistant U.S. attorney helped Judge Crytzer prepare for her time on the bench. She looked at cases holistically when making decisions, carefully considered the exercise of prosecutorial discretion, and appreciated the role that defense attorneys played in upholding the Constitution and protecting the rights that each of us, as Americans, hold dear. Although she was ultimately nominated by a Republican president, Judge Crytzer is proud
to have worked as an assistant U.S. attorney in both Democratic and Republican administrations. She saw her work as an assistant U.S. attorney as a commitment to the safety of the community, the Constitution, and the rule of law; she believes that these principles are not inherently political. Judge Crytzer believes that there is strength in diversity of experience and thought, and that the U.S. Attorney’s Office benefitted from that strength. According to Judge Crytzer, working across political divides to do good work should be “par for the course” in the practice of law. Next, Judge Crytzer was given the opportunity to join the Department of Justice Office of Legal Policy in Washington, D.C. Always up for a new challenge, she took the opportunity to apply her experience as an assistant U.S. attorney to the Department of Justice policy space. She also brought her hands-on experience in communities like Eastern Kentucky and East Tennessee to bear on policy issues related to the opioid epidemic and violent crime. In addition to her policy work, Judge Crytzer served on a team of attorneys at the Department of Justice that facilitated the Senate’s consideration of then-Judge Brett M. Kavanaugh and then-Judge Amy Coney Barrett to serve on the Supreme Court. As part of the process, Judge Crytzer reviewed the jurisprudence of both justices, an invaluable experience in solidifying her own jurisprudential philosophy. In September 2020, President Donald Trump nominated Judge Crytzer to the Eastern District of Tennessee following the death of Judge Pamela Reeves. Confirmed in December 2020, Judge Crytzer became only the second woman confirmed as a district court judge in the district, and one of the youngest federal district court judges in the country. She calls following Judge Reeves—a legend in the Knoxville and Tennessee bars— an honor, and cannot count the number of times she has been approached by a local lawyer who graciously shares a story about Judge Reeves. Judge Crytzer’s greatest honor may have come from the late Judge Reeves’s husband, Knoxville attorney Charles Swanson, who, after spending some time with Judge Crytzer, said: “I think she [Reeves] would have liked you.” On the bench, Judge Crytzer went straight to work helping to clear the backlog of criminal and civil cases in the district that accumulated over the COVID-19 pandemic. She believes in the adage that “justice delayed is justice denied,” and that when an individual’s life and liberty are at stake, they deserve to have their case adjudicated promptly. Once she is finally able to come up for air, Judge Crytzer would like to once again dedicate some of her time to issues related to the opioid epidemic. Judge Crytzer applies a textualist/originalist approach to her cases. That is, when interpreting text, if there is no binding precedent before her, she looks to the original public meaning at the time the relevant text was enacted. Judge Crytzer works collaboratively with her law clerks and personally reviews the briefs and pleadings that come to her chamber. She believes that
she owes it to the parties before her to read the thoughtful papers they submit. Judge Crytzer has also developed a reputation for being particularly diligent when it comes to criminal sentencing. She purposefully spends a significant amount of time reviewing the pleadings and relevant guidelines in each defendant’s case. She believes that the criminal justice system works best when defendants can understand how and why they are being sentenced, and why and how the judge exercises her discretion when doing so. And she expects the attorneys practicing before her to be civil, timely, and—most importantly—thoughtful about what they argue and how they serve their clients. Judge Crytzer and her family are adjusting to life back in East Tennessee. She enjoys gardening, especially growing wildflowers and whatever fruit and vegetables she can keep alive. She and her husband enjoy adventures outdoors and have season tickets to the Tennessee Smokies minor league baseball team. They share a love of baseball: the two met on a co-ed softball team while working at Kirkland & Ellis. In fact, Judge Crytzer thinks we might all benefit from joining a softball league, a church, or another activity to maintain community and commit to something beyond ourselves. These opportunities allow us to benefit from the richness of life. She adheres to the notion that you can disagree without being disagreeable and believes it is easier to find common ground with someone after sitting in a dugout together or sharing a meal. Judge Crytzer’s passion for public service is readily apparent, as is her desire to constantly push and challenge herself to be and do more. Both qualities will serve her well as a federal judge.
Friend Us. Follow Us. Join Us. www.fedbar.org
May/June 2022 • THE FEDERAL LAWYER • 17
BLAZERS In preparing for this edition of The Federal Lawyer, we invited and encouraged all FBA members to share the stories of law “firsts” or “trailblazers” in their communities. What follows are the inspiring submissions we received, preceded by an interview with the FBA’s trailblazing president, Anh Le Kremer.
18 • THE FEDERAL LAWYER • May/June 2022
S
Anh Le Kremer
First Asian-American National President of the FBA Submitted by Kiera Murphy*
Anh Le Kremer has a long track record of professional accomplishments, the latest of which is her election as national president of the FBA. She is also the first Asian-American to hold that position. This achievement is the culmination of yearslong service to the FBA in positions such as chair of the Professional Ethics Committee, national treasurer, and general counsel. Showing a similar trajectory in her legal practice, Kremer became a law firm partner by age 30 and is currently the COO and general counsel at Nystrom & Associates, Ltd., a behavioral health company headquartered in Minnesota. It is, thus, beyond debate to say that Kremer is a trailblazer within the FBA and the legal profession. The following interview details how she got here and what she hopes to accomplish during her tenure as national president. Kiera Murphy: How has your legal practice developed over the years? Kremer: I started as a litigation associate at a 30-attorney law firm called Parsinen Kaplan Rosberg & Gotlieb, P.A. After focusing on growth and business development, I eventually formed a new firm named Holstein Kremer with a colleague. I later became a partner at Stinson Leonard Street LLP (now Stinson LLP). I mainly practiced in business and employment litigation. Murphy: Turning to your involvement with the FBA, how did you first get involved? Kremer: When I started my legal career in 2001, I was told by attorneys who I worked with and who took the time to mentor me that the FBA was the organization to join if I wanted to be a litigator. It provided opportunities to interact with federal judges and really get to know them outside of the courtroom setting. When I first joined the Minnesota Chapter, the judges were very involved and still are to this day. I also received invaluable networking and skill development opportunities. The FBA was just known as the organization to join to become familiar with local Minnesota practice. Murphy: What made you stay involved? Kremer: The people have kept me here. There are simply amazing individuals in the organization at the local and national levels. Additionally, I believe in the FBA’s mission, which is to promote the interests of federal courts and practitioners and ensure that individu-
als have access to the court for the administration of justice. Murphy: I agree with you there. The people in the FBA have been incredibly welcoming to me as a law student and then newer lawyer. Besides the people, what is your favorite thing about the FBA? Kremer: It is hard to name one thing. The friendships I have made over the years are wonderful, and I am very fortunate to work with individuals all over the country who I admire and respect. The FBA is filled with great judges, lawyers, and people. And when I used to be in private practice, it was helpful to know people in different jurisdictions. I would be able to reach out to people all around the country and run complex legal questions by them. Now that I am in-house, I still have that privilege. Murphy: Is there an area of the FBA that you hope to improve? Kremer: Diversity and inclusion has been an area of focus within the FBA for the past several years. D&I is near and dear to my heart, and as an organization, there are areas we can continue to improve upon. We have made great strides in multiple areas, such as expanding accessibility to programming and promoting awareness of pressing social issues, and I would like to ensure that everything the FBA does is consistent with and supports the overall D&I mission. Murphy: Switching gears a bit, would you share a little about your personal background? Kremer: My family left Vietnam in 1979. We were rescued by an Italian cargo ship and lived for a couple of years in northern Italy. We then immigrated to the United States in 1985. Murphy: How did you end up going to law school? Kremer: I actually didn’t plan on going to law school. During college, I had an interest in law and business and considered focusing on business instead. But I knew that if I ended up going to law school and not liking it, it would be easier to transition to business from there. Vice versa, the same wouldn’t necessarily have been true. I really enjoy being a lawyer, though I am now more of a businessperson than a lawyer. Murphy: When you started law school, did you know you wanted to be a litigator? Kremer: I didn’t know I wanted to be a litigator. As a summer associate at Parsinen, I did all sorts of work. I ended up debating between going into corporate law or litigation, but I really enjoyed working with the litigators. Litigators tend to work hard but know how to have fun. Murphy: What was your path to partnership like? Kremer: Like a lot of things in life, it was about timing. I was at the right place at the right time, working at Parsinen with a colleague named Linda Holstein who was interested in forming her own firm. Because I had a personal goal of becoming partner by the May/June 2022 • THE FEDERAL LAWYER • 19
time I turned 30, I decided to join her as a partner. Linda was a great mentor and partner. Then I joined Stinson, which was very different compared to the litigation boutique practice. But no matter what, the path to partnership is about the ability to develop a book of business and do a great job for clients. Murphy: Were there challenges you experienced specific to being a woman of color? Kremer: Yes, there was a perception with some clients initially that I wasn’t going to be strong or tough enough for certain litigation cases. Then, after working with me, they would realize that I was more than capable. So, I didn’t have the benefit of the doubt and had to prove myself more. This is sometimes just how it is. In private practice, I also had people comment that was I very aggressive, which always made me laugh because no one would be commenting about a male partner that way. That word is used to describe women more so than men. In the end, though, success in legal practice is all about having a track record of delivering positive results. That is why I ran some of Stinson’s largest litigation cases. Murphy: What made you decide to go in-house? Kremer: I had an opportunity to go in-house with a good client. At the time, the general counsel was leaving to take another job, and she approached me about joining the company. It was again the right timing and opportunity. I also wanted to embrace another challenge. Having a litigation background when I joined the healthcare organization was a big asset, but I was ready to learn about other areas of
the law as well. Murphy: Based on all this professional experience, what is the biggest piece of advice you’d give newer lawyers? Kremer: I love mentoring new lawyers. The main thing to say is that reputation and brand as an attorney matter. Do all you can to promote that in a positive way and safeguard your reputation with everything you have. It truly drives who you are, whether it’s the perception of clients, other lawyers, or judges. Cultivate your reputation in a way that makes you proud as an individual. Murphy: I really appreciate you taking the time to answer all these questions. As one last question, what do you see as the FBA’s future? Kremer: The FBA is the premier bar organization that is nonpartisan in nature. We work extremely hard as an organization to remain nonpartisan and unite the bench and bar to advance issues that impact federal courts and jurisprudence. We are well-positioned to continue to do so into the future while leveraging technology to help with communication and member engagement. Especially during the pandemic, things like being able to tally votes remotely, create accessible and engaging CLE content, and promote organizational adaptability is so important. In the end, the FBA is about its members and the public that we serve. *Kiera Murphy is a member of the FBA’s Membership Committee and Diversity & Inclusion Committee and serves on the Development Committee of The Appellate Project.
47th Annual
INDIAN LAW CONFERENCE April 7-8, 2022
Sandia Resort • Albuquerque, New Mexico
THANK YOU TO OUR SPONSORS Conference Supporter Rothstein Donatelli LLP
Conference Contributor Session Supporter
Fredrikson & Byron, P.A.
20 • THE FEDERAL LAWYER • May/June 2022
Lawrence R. Baca First Indian Everything Submitted by Asavachi
Lawrence R. Baca is an American Indian trailblazer. Jennifer Weddle, past president of the National Native American Bar Association, said “Lawrence Baca was first Indian everything.” A 1976 graduate of Harvard Law School, Baca was one of the first American Indians to graduate from Harvard. He was the first American Indian ever hired through the Honor Law Program at the U.S. Department of Justice (DOJ) and the first American Indian attorney to ever work in the Civil Rights Division. He was the first Indian ever promoted up through the ranks to senior trial attorney status at DOJ and the first American Indian to serve as a special assistant to any assistant attorney general.
retirement celebration, he was presented the Attorney General’s Medallion, the highest award that the attorney general can present to a retiring employee. He was the first American Indian ever to receive the Medallion. Forty years ago, Baca founded the FBA Indian Law Section and was its chairman for 20 years. He was the first Native American to chair a section at the FBA. In 2008, the Indian Law Section created the Lawrence R. Baca Lifetime Achievement Award for Excellence in Federal Indian Law. He was the first recipient of the eponymous award. Baca served as chairman of the American Bar Association (ABA) Commission on Racial and Ethnic Diversity in the Profession for three terms and was the first American Indian to chair any commission of the ABA. In 2012, he was the recipient of the Thurgood Marshall Award, the ABA’s highest award for a career in civil rights work. He was the first Native American to receive it. In 2017, Baca was presented with the FBA’s Sarah T. Hughes Award for Civil Rights, and in 2021 he received the Carlos Montezuma Award from the Mitchell Museum of the American Indian.
Forty years ago, Baca founded the FBA Indian Law Section and was its chairman for 20 years. He was the first Native American to chair a section at the FBA. In 2008, the Indian Law Section created the Lawrence R. Baca Lifetime Achievement Award for Excellence in Federal Indian Law. He was the first recipient of the eponymous award. Baca is a Pawnee Indian and at the time of his retirement was deputy director of the Office of Tribal Justice at DOJ. Formerly a senior trial attorney in the Civil Rights Division, his civil rights work on behalf of American Indians in the areas of credit, voting rights, and education was groundbreaking. He filed the first five racial redlining cases ever brought by the Civil Rights Division enforcing the Equal Credit Opportunity Act. All involved discrimination against Native Americans. He was also lead counsel on the Civil Rights Division’s first five education cases involving American Indian victims. In the Civil Rights Division, Baca was the leading proponent on behalf of the civil rights of American Indians for over 30 years. The assistant attorney general for civil rights said of Baca that he’d filed more cases on behalf of American Indians in his career than any other attorney in the history of the Civil Rights Division. At his 2008
While attending law school, Baca was a Harvard Teaching Fellow in American Indian History at Harvard College. He has taught federal Indian law as an adjunct professor at both American University Washington College of Law and Howard University School of Law. He was the first professor of Federal Indian Law at Howard. Baca is a nationally recognized authority on federal Indian law and race and is a frequent lecturer on the role of race in society, civil rights law, federal Indian law, and the role of American Indian lawyers as minority members of the majority bar at high schools, colleges, and law schools. Baca is a three-time past president of the National Native American Bar Association. And, yes, Lawrence Baca was the first American Indian elected national president of the FBA. May/June 2022 • THE FEDERAL LAWYER • 21
Hon. Deborah A. Batts First LGBT African American Federal Judge Submitted by Richard John Cole III, Esq.
Hon. Deborah A. Batts was sworn in as U.S. district court judge for the Southern District of New York during Gay Pride on June 23, 1994, becoming the nation’s first openly LGBT African American federal judge. She served in her capacity as district court judge from May 9, 1994, at age 49, until she took senior status on April 13, 2012, at age 65, although she continued to preside over various matters and was, prior to her death on Feb. 3, 2020, at age 72, slated to preside over the federal trial of Michael Avenatti over his alleged theft of Stormy Daniels’ book advance.
Park Five, rejecting New York City’s motion to dismiss the lawsuit. Later, she sentenced Mamdouh Mahmud Salim to life in prison, among other 9/11 related cases. Supreme Court Justice Sonia Sotomayor, nominated to the S.D.N.Y. on the same day as Judge Batts, considered her a close friend, calling her a “sister” and stating that she “lived her life openly and earnestly, with fortitude and conviction.”2 Although she told the ABA Journal that she never wanted to be known for her identities,3 other LGBT judges have stressed Judge Batts’ importance in breaking down the closet door and allowing them to move onto the judiciary as openly LGBT persons. She worked closely with a mentoring program in the S.D.N.Y. to promote diversity among lawyers appointed for indigent defendants. Judge Batts grew up believing herself to be heterosexual and was married to a man for a time before divorcing. She subsequently married her wife, Dr. Gwen Zornberg, in 2011. She had three children from her first marriage.
In 1994, Judge Batts wondered whether the only gay nominees who can succeed in appointment to the federal bench were ones not associated with gay rights. But it was her appointment that made her into the trailblazer she was, creating rights and generating activism by being her authentic self despite the risks. Judge Batts was born in Philadelphia, the daughter of a decorated combat surgeon and OB-GYN, and grew up with her twin, Diane, and two other sisters, Mercedes and Denise. She graduated from Radcliffe College in 1969 with a degree in government and received her J.D. from Harvard Law School in 1972. After clerking for Hon. Lawrence W. Pierce, she was an assistant U.S. attorney from 1979 to 1984 and later worked at Cravath, Swaine, & Moore. In 1984, Judge Batts became the first-ever African American faculty member at Fordham University School of Law. Judge Batts’ sexual orientation was a non-issue at her Senate confirmation hearing. According to Judge Stephen Reinhardt of the Ninth Circuit Court of Appeals, “it was like hiring Jackie Robinson, putting him on the field and no one saying anything about it.”1 Judge Batts presided over the civil litigation involving the Central 22 • THE FEDERAL LAWYER • May/June 2022
In 1994, Judge Batts wondered whether the only gay nominees who can succeed in appointment to the federal bench were ones not associated with gay rights.4 But it was her appointment that made her into the trailblazer she was, creating rights and generating activism by being her authentic self despite the risks.
Endnotes Katherine Q. Seelye & Benjamin Weiser, Deborah A. Batts, First Openly Gay Federal Judge, Dies at 72, N.Y. Times, Feb. 5, 2020. 2 Id. 3 Henry J. Reske, Appointment Break Barrier, ABA J., Dec. 1994, at 29 4 Id. 1
Leonard M. Baynes
First African American Dean of University of Houston Law Center Submitted by Carrie Criado
When he was named the ninth dean of University of Houston (UH) Law Center in 2014, Leonard M. Baynes made history and broke barriers by becoming the first person of African descent to hold the role. He is now the 34th longest serving law dean in the United States, and in the fall, he will be the second longest serving dean in UH Law Center history and the second longest serving among the law deans in the state of Texas. Baynes is an expert in corporate and communications law and has become nationally known for his passion and work on diversity in legal education. Throughout his career, he has made it a key mission to ensure an equitable and inclusive future for the legal profession and create more firsts like him. “In terms of my career and life’s work, it’s important for me to make sure there’s a next generation of lawyers of color,” Baynes said while accepting the Clyde Ferguson Award from the Association of American Law Schools’ Section on Minority Groups recently. “I am always asking myself what I can do to make a difference.” Armed with a J.D. from Columbia Law School and an MBA from Columbia University, Baynes served as a judicial clerk in the chambers of Hon. Clifford Scott Green. He would go on to become a corporate attorney in real estate and regulatory practice. With his business background and legal education, Baynes worked as a scholar in residence at the Federal Communications Commission. In 2001, he joined the faculty at the St. John’s University School of Law as a professor. While at St. John’s, Baynes was the inaugural director of The Ronald H. Brown Center for Civil Rights and Economic Development. The mission of the Ron Brown Scholars Program is to select highly accomplished college students who have overcome economic, social, or educational challenges, and support them during their application to law school and nurture an interest in equality, civil rights, and social justice. Following a 13-year tenure at the St. John’s University School of Law, Baynes became dean at UH Law Center and continued to build on the achievements at his previous institution. Baynes initiated an award-winning Pre-Law Pipeline Program designed to create more opportunities for first-generation, economically challenged, and underrepresented college students who are considering law school. The program will enter its eighth year this summer. “There is hope in pipeline programs,” Baynes said. He added, At the Law Center, the Pipeline Program has made a huge difference. It has increased LSAT scores significantly, affording
many students who participate in the program the opportunity of going to law school. We all have to do more so that there is a next generation of lawyers of color. By having more lawyers of color, we will have more diversity of thought and perspective in the legal academy. Students need the support and mentoring. The most important thing they need is the feeling of belonging and that people care and believe they can be successful. Among other accolades, the Pre-Law Pipeline Program has played a pivotal role in UH Law Center being named a Diversity Champion by INSIGHT Into Diversity magazine and for six years in a row receiving the prestigious Higher Education Excellence in Diversity Award. At UH Law, he oversees almost 60 full-time faculty and 15 centers and institutes, including the No. 7 ranked Health Law & Policy Institute and the No. 6 ranked Institute for Intellectual Property & Information Law as well as the No. 9 ranked Part-Time Program. During his deanship, the UH Law Center’s entering credentials increased from a median of 159 LSAT to 161, and the median GPA increased from 3.47 to 3.64, while ethnic/racial diversity increased from 35.6 percent to almost 40 percent, with women constituting more than 50 percent of the class. In addition, during his deanship, the Law Center hired almost 20 tenured, tenure track, or nontenure track faculty. Of this group, six of the faculty are of underrepresented backgrounds and eight were women. Baynes also instituted a voluntary “Community Service Day,” during which incoming first-year students, faculty, and staff fan out across the city to work on public service projects. He also has increased the number of scholarships and opportunities for students to serve in school-funded, public service internships at home and abroad. Amid a global pandemic and a turbulent time for race relations across the country, Baynes and Law Center faculty and staff helped to provide multiple platforms for alumni and students to share their experiences as people of color in the legal profession through a series of town hall discussions. He also established the now-annual Black Lawyers Matter virtual conference in October 2020. The first two conferences have drawn nearly 3,000 attendees. Also during his tenure, $93 million was raised from philanthropy, the state legislature, and UH system funds for the construction of the new state-of-the-art John M. O’Quinn Law Building. As he nears the close of the eighth year of his deanship, Baynes remains committed to combining diversity and excellence and illustrating the power of a legal education. “In my path, I’ve often been the first,” Baynes said. “There are so many firsts I have accomplished because of the circumstances of our society, where there were not as many opportunities for people of color,” Baynes added. “That’s the reason why, when I finally became a law professor, I said to myself, ‘We’ve got to do better.’” May/June 2022 • THE FEDERAL LAWYER • 23
Hon. Celeste F. Bremer
First Woman to Serve on the Bench of Either of Iowa’s Federal District Courts Submitted by Mike Kaufmann
In 1985, Hon. Celeste F. Bremer was selected to serve as a part-time (and later fulltime) U.S. magistrate judge, becoming the first woman to serve on the bench of either of Iowa’s federal district courts. Her commitment to public service and to diversity in society and the law can be seen throughout Iowa—in the Volunteer Lawyers Projects, in Forever Books for Kids at county jails, and through her wide variety of teaching. Judge Bremer encourages lawyers to use their access to justice to smooth the path for others—as she has done throughout her career. Judge Bremer did not always dream of becoming a judge. The daughter of a repairman and a church secretary, Judge Bremer was among the first in her family to go to college. She attended St. Ambrose College in Davenport, Iowa, with plans of becoming an FBI agent. In college, she worked at the county jail in a Pretrial Release Program. But an attorney who taught at St. Ambrose encouraged her to consider a career in law rather than law enforcement. She decided to take his advice. Judge Bremer attended the University of Iowa College of Law. In law school, she was elected president of the Student Bar Association and was one of the first members of OWLSS—the Organization of Women Law Students and Staff. After graduating in 1977, she returned to Davenport to work as a prosecutor in the felony division of the Scott County Attorney’s Office. Judge Bremer loved trial work. After two years, she began trying felony cases statewide with the Area Prosecution Division of the Iowa Attorney General’s Office. She later returned to Davenport as a partner in private practice and then served as in-house counsel at Deere & Company, managing product liability litigation nationwide. She was elected as the president of the Scott County Bar Association in 1985. As Judge Bremer developed her trial skills, she began applying to serve as a state district court judge—starting one year out of law school. After that, she focused on improving the Iowa merit selection process and increasing the pool of qualified applicants for the bench. In 1984, the Southern District of Iowa obtained a part-time U.S. magistrate judge position. Judge Bremer was the only woman out of the 45 applicants. She was selected, based largely on her extensive 24 • THE FEDERAL LAWYER • May/June 2022
trial experience, and started on Jan. 1, 1985. In January 1990, she was appointed to the full-time position. Judge Bremer’s work ethic and commitment to public service quickly made her an invaluable member of the court and of Iowa’s legal community. Upon her arrival in Des Moines, Iowa, she joined bar leaders in founding the Volunteer Lawyers Projects of both the Polk County and Iowa State Bars. She went on to frame the federal courts’ Pro Bono Prisoner Civil Rights panel and still produces court outreach programs for local schools. Judge Bremer also developed an expertise in courthouse architecture through her work on a major renovation project at the U.S. Courthouse in Davenport. She continues to participate in programs through the American Institute of Architects. In 2012, as part of the Eighth Circuit Conference, Judge Bremer hosted a session about courthouse design, which included reflections by Justice Clarence Thomas. Throughout her career, Judge Bremer has also found opportunities to teach at local colleges and universities, online, and in judicial education programs—both nationally and internationally. “You learn a lot by teaching,” she notes. She devises curricula for judicial ethics, mediation, and mentoring programs. In 2002, she earned her doctorate in education from Drake University School of Education. Her dissertation explored judicial occupational stress and using a mentoring program for newly appointed U.S. magistrate judges. In May 2021, Judge Bremer moved to Recall Status. She continues to teach, volunteer, and fill in as needed for the Southern District of Iowa and other districts. To expand the pipeline to the legal profession and the bench, Judge Bremer has tirelessly promoted diversity initiatives at every level. She has earned accolades from the Eighth Circuit’s Infinity Project, the Federal Magistrate Judges Association, and the Iowa Commission on the Status of Women. Judge Bremer tries to serve as an example that “[j]ustice must not only be done; it must be seen to be done.” She teaches that diversity on the bench is a matter of fundamental fairness to women attorneys and the public, and that without a variety of experiences and viewpoints, decision-making is not as complete as it should be. Judge Bremer believes that the highest calling of every lawyer is to make positive changes in their communities—a concept she has implemented throughout her career, and one she has drilled into her many law clerks and hundreds of interns over the years. “You are blessed. You are called to the Bar. You are privileged,” Judge Bremer advises young lawyers. “Share the wealth.”
Hon. Kathleen B. Burke First But Not Last
Submitted by Talia Sukol Karas Hon. Kathleen B. Burke’s advice to the next generation of trailblazers: Pursue your own interests. When you encounter resistance, think of the best way to address it, given the context and person. Today, bias is not always as overt as it used to be, but hidden attitudes do remain. Prove yourself one person at a time, overcoming skepticism by doing well. Judge Burke has lived this advice since she entered practice in 1973. She was raised in Park Slope, Brooklyn. A full scholarship to St. John’s University made college possible and allowed her to work in journalism after graduation. After meeting several high-level reporters with law degrees, she decided to attend law school, hoping to someday cover legal news. Instead, she fell in love with the law. For her summer associate position, Judge Burke considered only one firm outside New York: Jones Day in Cleveland. The Cleveland
enter this practice group and to become partner. The litigation practice group chair encouraged Judge Burke to become active in the Ohio State Bar Association, and Judge Burke went on to become its first female president. She saw the publicity about her achievement in this regard as an opportunity to promote her platform to reduce, for example, the influence of money in state judicial campaigns. She believed this would improve the state of the courts in Ohio. When asked how she felt about being the first woman president, she replied that it was great and that she did not want to be the last. Newly elected Vice President Kamala Harris would echo this in her 2020 first post-presidential election address: “While I may be the first woman in this office, I will not be the last.” When Judge Burke decided to leave private practice, she became the director of the Ohio Lottery Commission. As the first woman in this role, she enjoyed the lack of attention paid to this fact. To her, that was progress! Women in leadership positions were no longer news phenomena; they were a fact of life. Under her leadership, Ohio joined Powerball. She appeared on the lottery commission’s TV show, Cash Explosion, and added lottery machines at certain racetracks in Ohio. Judge Burke was appointed as a magistrate judge in the Northern District of Ohio in 2011. By this point, participants in the legal sys-
She proved herself to the practice group chair by doing excellent work, discovering along the way that she enjoyed litigation, and becoming the first woman in the Cleveland office to enter this practice group and to become partner. office had one woman partner, and, in contrast, she had encountered only one woman partner in all the New York firms where she interviewed. During her first year in practice, she was dispatched to meet the chair of the Litigation Practice Group at Jones Day. The man who would ultimately become one of her biggest champions looked out over his glasses, his skeptical expression asking, “What are you [a woman] doing here?” She proved herself to the practice group chair by doing excellent work, discovering along the way that she enjoyed litigation, and becoming the first woman in the Cleveland office to
tem were accustomed to seeing women on the bench. She served in this role through September 2021, turning over her chambers to the next magistrate, a woman who was leaving her role as an administrative law judge with the Social Security Administration. Judge Burke and her husband welcomed their fifth grandchild in October 2021, just as she retired from the district court. Without a daily docket to manage, she looks forward to spending more time with her new grandchild and her entire family. May/June 2022 • THE FEDERAL LAWYER • 25
Hon. Elizabeth L. Gunn
First Female U.S. Bankruptcy Judge for the District of Columbia Submitted by Erin E. Coughlin
As the first woman appointed as bankruptcy judge for the District of Columbia, Hon. Elizabeth L. Gunn is no stranger to being a trailblazer. She was sworn in by Zoom from her living room on Sept. 4, 2020. Judge Gunn grew up in a mill town in Oregon with a population of 3,000, raised from a young age by a single mother who was a teacher. As a child, Judge Gunn decided in middle school that she would become an attorney after learning more about the profession from extended relatives who were attorneys (and, perhaps, after watching the occasional episode of Matlock).
In 2015, Judge Gunn accepted a position as assistant attorney general for the Commonwealth of Virginia, serving as the bankruptcy specialist for the Division of Child Support Enforcement. When transitioning from private practice to the Attorney General’s Office, Judge Gunn was intent on staying involved in local and national bankruptcy bar associations. Her leadership roles have included serving as co-chair of American Bankruptcy Institute’s Consumer and Legislation Committees, director at large for the International Women’s Insolvency and Restructuring Confederation, chair of the Richmond Bar Association Bankruptcy Session, chair of the Virginia Bar Association Bankruptcy Section, and a board member of the States’ Association of Bankruptcy Attorneys. She was selected in 2017 as an honoree of the American Bankruptcy Institute’s inaugural 40 Under 40 Program. Judge Gunn is also a prolific writer, having contributed articles to the ABI Journal, Bankruptcy Law News, and The Federal Lawyer. Judge Gunn states that her involvement was a “progression of finding herself within all of these organizations.” She advises aspiring trailblazers to “volunteer for things you are able to
She advises aspiring trailblazers to “volunteer for things you are able to do, and then do them well.” She emphasizes that young attorneys should commit to developing a “personal brand,” and that doing so requires writing articles, working on leadership skills, and being knowledgeable about speaking on the law. Judge Gunn received her B.A., cum laude, from Willamette University in Salem, Oregon. As an undergraduate student, Judge Gunn studied in Chile, where she (in part) honed her ability to speak Spanish fluently by taking international economics with a German professor with whom she preferred communicating in Spanish instead of English. Thereafter, Judge Gunn received her J.D., cum laude, from Boston College Law School in 2005. Judge Gunn started her legal career in private practice with a focus on bankruptcy law almost immediately after the passage of the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA). BAPCA, which was signed into law in April 2005 and took effect on Oct. 17, 2005 (a few months after Judge Gunn began practicing), is a legislative act that made several significant changes to the U.S. Bankruptcy Code. Ever the trailblazer, Judge Gunn cut her teeth as a bankruptcy lawyer during a time when the new code provisions confounded seasoned practitioners, academics, and judges alike. During her almost 10-year tenure in private practice, Judge Gunn worked on bankruptcy cases of all sizes. She represented creditors, committees, and debtors in chapter 11 cases. She also served as counsel for a chapter 7 trustee. 26 • THE FEDERAL LAWYER • May/June 2022
do, and then do them well.” She emphasizes that young attorneys should commit to developing a “personal brand,” and that doing so requires writing articles, working on leadership skills, and being knowledgeable about speaking on the law. Judge Gunn applied for the judgeship at age 38, and she was selected to take the bench when she was 39. In total, there have been four bankruptcy judges in the District of Columbia. Her predecessor was on the bench for over 30 years. Judge Gunn, who started her legal career at age 24, has keen insight for young women attorneys who are aiming to be trailblazers or firsts themselves. Her poignant advice included cautioning women against “self-selecting out of jobs and opportunities.” Moreover, Judge Gunn urges young women to “learn to speak positively about themselves” and to learn to employ a “full stop” when speaking about themselves—which, she explained, is the ability to describe one’s accomplishments without including any justifiers. Although she does not think of herself as a trailblazer, Judge Gunn’s career and pathway to the bankruptcy bench clearly indicates otherwise.
Janene D. Jackson A Hidden Legal Trailblazer Coming Into View Submitted by Jasmine Armand and Lisa M. Kpor
Janene D. Jackson is a legal trailblazer hiding in plain sight. Recognized as one of the most influential businesswomen in the Washington, D.C., metropolitan area, Jackson is a partner at Holland & Knight who routinely utilizes her extensive experience to help clients navigate the legislative and regulatory aspects of local government. Prior to working at Holland & Knight, she served in all three branches of the government of Washington, D.C. Jackson’s resume is adorned with experience from the Office of Policy and Legislative Affairs, the DC Chamber of Commerce, and the Office of the Corporation Counsel for the District of Columbia, to name a few. Yet, her most historic feat to date is not known to many people. Jackson was the first Black female law clerk for the U.S. Court of Appeals for Veterans Claims.
one of the “best jobs” she has ever had in her life. Jackson left her clerkship with Judge Walton to become a law clerk for Hon. Donald L. Ivers of the U.S. Court of Appeals for Veterans Claims. The U.S. Court of Appeals for Veterans Claims is an Article I Court that has exclusive jurisdiction to provide judicial review of final decisions by the Board of Veterans’ Appeals within the Department of Veterans Affairs. The court had been in existence for 11 years when Jackson submitted her clerkship application. Immediately after starting the clerkship, Jackson learned that she was the first Black woman to clerk on the U.S. Court of Appeals for Veterans Claims. In the final months of her historic clerkship, Jackson began writing an opinion regarding legal fee awards that subsequently morphed into one of the most substantive undertakings of her career. As she flipped through pages of case reporters and treatises in the law library, Jackson’s research led her to question whether individuals were properly deemed prevailing parties and entitled to attorney fee awards under the Equal Access to Justice Act when cases were remanded to the Board of Veterans’ Appeals. Jackson determined that remand did not confer prevailing party status, thereby rendering attorney fee awards under such circumstances improper. Her analysis led to the pivotal opinion in Sumner v. Principi, 15 Vet.App.
After taking the LSAT, Jackson was admitted to American University Washington College of Law. She clerked for Hon. Reggie B. Walton immediately after graduation—a role that Jackson considers one of the “best jobs” she has ever had in her life. After graduating from college with a degree in English literature, Jackson spent the summer enjoying the weather on a friend’s rooftop as she pondered her career goals. A natural academic, Jackson listened for months as that friend recounted dreams of attending law school. But it was Janene who decided to take the leap and embark on a career in the legal industry. After taking the LSAT, Jackson was admitted to American University Washington College of Law. She clerked for Hon. Reggie B. Walton immediately after graduation—a role that Jackson considers
256 (2001) (en banc), aff ’d sub nom. Vaughn v. Principi, 336 F.3d 1351 (Fed. Cir. 2003), which has been cited in more than 550 legal opinions. Jackson’s success as a law clerk, government attorney, and corporate lawyer serves as a reminder to the next generation of trailblazers. As Jackson declares, “You belong there! Being first does not diminish your achievement.” For those seeking evidence of such declarations, you may refer to the Sumner v. Principi opinion and Jackson’s legal career as Exhibits A and B, respectively. May/June 2022 • THE FEDERAL LAWYER • 27
Emily Janoski-Haehlen
First Permanent Female Dean of the University of Akron School of Law Submitted by Brenna Fasko
In February 2022, Emily Janoski-Haehlen became the first permanent female dean in the University of Akron School of Law’s 100-year history. She began her legal career working in Northern Kentucky University Law School’s law library while simultaneously completing her J.D. During her time in law school, Janoski-Haehlen developed relationships with several important mentors who saw her potential early on. They encouraged her to apply for various positions and take on leadership roles and taught her how to network in an academic setting. By the time she graduated law
gender. However, Janoski-Haehlen’s mother taught her at a young age that she would need to tackle these problems head on and directly challenge those who overlooked her. Her mother stressed that she should always be respectful of others but make sure her voice is always heard. Janoski-Haehlen is also a former athlete who was voted “most athletic” in her high school graduating class. She played soccer and was a competitive figure skater as a child. She credits her involvement in sports for helping her develop her strong work ethic. Janoski-Haehlen’s nontraditional path to becoming dean will surely bring a fresh perspective to the University of Akron School of Law. She is brimming with ideas to improve the school, the impact it has on its students, and the connections it develops with its alumni. She is currently working on a project to create a “pipeline” of alumni who can return to the school in mentorship and professor roles. Her academic publishing focus is also topical: she enjoys researching artificial intelligence, data privacy laws, and “Internet of Things” devices.
Janoski-Haehlen is also a former athlete who was voted “most athletic” in her high school graduating class. She played soccer and was a competitive figure skater as a child. She credits her involvement in sports for helping her develop her strong work ethic. school, Janoski-Haehlen knew that she wanted to serve as a law school dean, and more specifically, she wanted to have a direct and positive influence on students, just as her mentors had. At 41, Janoski-Haehlen is one of the youngest law school deans in the country. Breaking age barriers is nothing new to her; at 28, within a few years of graduating law school, she was serving as the president of the Ohio Regional Association of Law Libraries. She currently serves on the executive board of the American Association of Law Libraries. Her path to becoming dean of a law school has been atypical; Janoski-Haehlen concedes that the law librarian usually does not become the dean. However, she has chosen her own path to reach her goals, a path that was not always easy. She recalls several instances in her career when she was dismissed or overlooked due to her age or 28 • THE FEDERAL LAWYER • May/June 2022
Reflecting on her career, Janoski-Haehlen’s advice to the next generation of leaders is to “get involved from the start and do not be afraid to serve in leadership roles immediately.” She adds that no matter what path someone chooses in the legal profession, they should “never give up and never let anyone tell them no.”
Irene Lord Lefkow, Esq. A Strong Female Presence in the Courtroom Submitted by Laura Lefkow-Hynes
In a story lifted straight from the musical Chicago, in 1921, Irene Lord Lefkow, Esq., defended confessed murderer Carl Wanderer against the charge of murdering the “ragged stranger.” The year before, Wanderer, a World War I veteran, had hired the ragged stranger to stage a hold up, during which Wanderer killed his eight-months pregnant wife, Ruth Johnson Wanderer, and the ragged stranger. He was convicted and sentenced to 25 years rather than death because of his insanity plea. An outraged public spurred the state’s attorney to move for a new trial, which was granted. Lefkow’s appointment to the defense team made national news. Dozens of newspapers featured a photograph of her with the caption: When Carl Wanderer goes to trial in Chicago for the killing of the “ragged stranger” last year, he will be assisted in his defense by Mrs. Irene Lefkow, one of the best women lawyers of Chicago. For several years, Mrs. Lefkow has made a practice of defending criminals and her efforts have met with great success. Wanderer’s defense team focused on the World War I veteran’s insanity, claiming he had the mind of a child. Newspapers followed the trial closely because of the sensational nature of the crime and the novelty of female players in the courtroom drama. In describing Lefkow’s direct examination of “expert alienist” Florence M. Fowler, The Atlanta Constitution claimed, “Susan B. Anthony would have smiled a broad, appreciative smile … she would have heard two attractive members of her sex battling to save a man’s life.”1 Not all press was positive. The Los Angeles Times described the same examination as “a blue serge affair, scented with violets and talcum powder” and derided Lefkow’s questions as “decidedly feminine.”2 Despite the team’s best efforts, the jury deliberated for 12 minutes before returning a guilty verdict and a sentence of death. Born in Kansas City, Mo., in 1884 to Frederick W. Lord, a lawyer, and Emma Henry, the daughter of an Illinois judge, Lefkow had passed the bar in 1914 after reading law in the office of her Hungarian-immigrant lawyer husband, Alphonse Lefkow. They formed a partnership, Lefkow & Lefkow, and maintained a varied practice.
It was said that Lefkow’s husband, who spoke seven languages, engaged the clients and she advocated for them in court. Lefkow advocated for her husband, as well, when he was sent to Cook County jail on a contempt order for not turning over certain trust funds embezzled by a former employer in 1922. The Illinois Supreme Court ruled in Lefkow’s favor, holding, “Notwithstanding the fact that none of appellants had the trust fund in their possession at any time . . . the orders were in violation of the constitutional rights of appellants and the court was without authority to enter them.”3 In 1925, Lefkow ran for alderman in the fourth ward of Chicago, although she lost that election.4The New York Sun reported Irene’s alderman campaign slogan was “clean government” and referred to her as a “star that shines in woman’s firmament.” While Irene lost the election, it was not the end of her advocacy for women or good government. She wrote op-eds advocating for stricter enforcement of alimony and liberalization of divorce and against the 1937 court-packing scheme, and she served as president of the Chicago Women’s Association of Commerce. Her husband, who was 27 years her senior, died in 1940. In her retirement, Lefkow helped to rear the seven children of their only son, Frederick Lord Lefkow, also a lawyer, and his wife, Marjorie C. Freeman (the two met as students at John Marshall Law School). Her grandson, Michael F. Lefkow, another lawyer, recalled his grandmother serving borscht with a side of commentary on the commerce clause at dinner. She died in 1966 after a lifetime of causing “good trouble.” Lefkow is a trailblazer because she passed the bar and was an “attorney mom” before women in the United States could vote. She had the courage to take on an impossible task—defending an admitted triple slayer from the noose—when she was only 36. She ran for alderman at a time when it was so unusual for a woman to participate in local elections that it made national news. Because she blazed a trail through manifold prejudices and obstacles facing women in the early 20th century legal field, lawyers like me, her great-granddaughter, have an easier time.
Endnotes Alexander R. Jones, Women May Save Man from Noose for Slaying Two, Atlanta Const. J., Mar. 15, 1921, at p. 1. 2 Feminists Dominate Trial of Wanderer, The Los Angeles Times Mar. 15, 1921, at p. 15. 3 People v. LaMothe, 331 Ill. 351, 359 (1928). 4 Three Women Enter Race for Council Seat, Chi. Daily Trib., Jan. 31, 1925, at p. 7. 1
May/June 2022 • THE FEDERAL LAWYER • 29
Hon. Barbara M. G. Lynn First Female Chief Judge in Texas and Legal Pioneer Submitted by Kate Marcom
No list of legal trailblazers would be complete without the inclusion of Hon. Barbara M. G. Lynn, the first female Chief Judge of the Northern District of Texas, who has shattered gender barriers throughout her career and continues to open doors for women in the legal profession. Chief Judge Lynn’s lengthy list of “firsts” began with her entering the University of Virginia in the first coed class of the college. She became the first female member of the Jefferson Literary and Debating Society, one of the university’s oldest and most prestigious student organizations. Since its founding in 1825, no women had been permitted to join. Fortunately, on Feb. 15, 1972, after much heated debate and political bargaining—in addition to a fortuitous trip of conservative members to Mardi Gras and the strategic calling of a special meeting by vice president, Mike Lynn, Judge Lynn’s future husband—a quorum of progressive members voted to admit women, and Judge Lynn became the society’s first female member. Judge Lynn went on to graduate first in her class from Southern Methodist University’s (SMU) Dedman School of Law in Dallas. However, prior to that, Judge Lynn and other successful female students experienced the chill of gender discrimination when seeking employment. As Judge Lynn recalls, “we had this crazy idea that if we worked hard, did well in law school and demonstrated our skills, we would get job offers. We noticed that men with grades well below several of the women in our class were getting interviews and offers while those same law firms were ignoring female law students.” In response, Judge Lynn and four other female SMU law students filed suit against the would-be-employer law firms. In the end, four of five settled, and soon, most law firms in Dallas were hiring female attorneys, including Judge Lynn, who joined Carrington Coleman, where she had had a summer internship as the firm’s first female associate. She later became its first female partner and first female executive committee member. An active trial lawyer, Judge Lynn was the first female member of the American College of Trial Lawyers selected from North Texas. 30 • THE FEDERAL LAWYER • May/June 2022
In 1999, President Clinton nominated Judge Lynn to the federal bench, and in 2016, she became the first female chief judge in Texas. Since sitting on the federal bench, Judge Lynn has gained a reputation as a tireless and thoughtful jurist, who tackles complex matters with gusto and good humor. Despite a full docket, Judge Lynn finds time to give back, including to her alma mater through service on the Dedman Law Executive Board and the Tate Lecture Series Board of Directors. She also chairs the American Bar Association’s Section of Litigation and its Judicial Division, as well as the Litigation Section’s Judicial Intern Opportunity Program—designed to provide opportunities to law students who are members of groups that are traditionally underrepresented in the profession. Judge Lynn has also been very active in the American Inns of Court and served as a past president of the Judge Patrick Higginbotham Inn of Court. In 2011, The Honorable Barbara M.G. Lynn American Inn of Court was chartered as an inn focused on intellectual property, and in 2022, Judge Lynn spearheaded the creation of an American Inn of Court in North Texas dedicated to federal criminal practice, the first of its kind. Judge Lynn is the incoming president of the National American Inns of Court Foundation. Never one to be satisfied with the status quo, Judge Lynn has also been a pioneer in incentivizing law firms to give oral advocacy opportunities to junior lawyers. Judge Lynn strongly encourages litigants to be mindful of opportunities for lawyers practicing seven years or less to argue at hearings, and many years ago entered an order providing that “a representation that the argument would be handled by a young lawyer will weigh in favor of holding a hearing.” Since then, many judges have followed Judge Lynn’s example and issued similar orders encouraging oral advocacy opportunities for junior lawyers. Judge Lynn believes that her order provides a basis for firms “to do what they think is the right thing” and a reason for clients to give junior lawyers oral advocacy opportunities. Judge Lynn has found that the order has also led to greater oral advocacy opportunities for women and minority attorneys because they are underrepresented among more experienced attorneys. As Judge Lynn points out, in the absence of the incentives provided by her order, “the default is to senior lawyers, and the more senior lawyers are more white and male.” As Judge Lynn enters her 23rd year on the bench, and sixth as chief judge, it’s clear that her tenacity, dedication, mentoring, and creativity have enhanced opportunities for trial lawyers in Texas and beyond.
Michelle Otero Valdés
First Latina to Be Board Certified in Admiralty Law by the Florida Bar Submitted by Michelle Otero Valdés
Life is full of firsts: first day of school, first kiss, first woman to run for president. The list goes on. When I was asked to do a column on “firsts” for the FBA, however, the first person I thought of was myself— being the first Latina to be board certified in Admiralty Law by the Florida Bar. I never intended to be the “first” of anything; in fact, the pursuit of board certification only happened because a good (white male) friend in my firm was surprised that I had not previously sought board certification. By that time, I had been practicing law about 13 years; had worked in house for the largest marine insurer in
to work, I am not afraid of a challenge, so these excuses I was telling myself rung hollow to me. When I searched deep inside myself for the real reason I did not seek to become board certified, I had to face a few hard facts, some which were really hurtful: 1) I had faced a lot of hostility in becoming an admiralty lawyer in the first place, having been rejected by every single law firm in South Florida, claiming I had to have experience in the Navy or the U.S. Coast Guard, one attorney in an interview going so far as to say I should “stick to family law”; 2) I had to own a boat (which I did before law school but had to sell it to afford to go to law school); 3) I had to have a client or industry following (even though I was a law student); 4) when I was in house, my settlement authority on cases was $250,000 when other, less experienced, non-Florida Bar licensed individuals (who were always men) had settlement authority of $1 million; and 5) because throughout my career to that point, I never truly felt like I was taken seriously in this area of law as a woman and a Latina. The list goes on, but in other words, I swallowed a lot—a lot of hostility, sexism, and
The point is that life is full of memorable firsts, and a professional one such as board certification should be high on that list. Wonderful will be the day where these firsts will be only a distant memory and our profession does not need to have these stories to inspire others. I can say that my story is not necessarily an inspiration except in one aspect—I learned that there is no limitation in life but in my own mind. the world, handling at any one time up to 850 claims files, of which over 200 could be in litigation; and had industry experience that many admiralty lawyers could only dream about. It seems ridiculous now that I did not think of it myself given that my experience would make it easy for me to pass this exam. But my 2007 brain provided every excuse for why I did not want to do the work to be board certified—I had too many billable hours, I was too busy, my young daughters needed me, clients do not really want that, the firm is not requiring it, it was too much work to achieve, it is expensive to keep up, you name it. But when it comes
discrimination, and everything in between. Thankfully for me, this attorney from my firm was persistent. I studied hard and passed the board certification exam on my first try. The point is that life is full of memorable firsts, and a professional one such as board certification should be high on that list. Wonderful will be the day where these firsts will be only a distant memory and our profession does not need to have these stories to inspire others. I can say that my story is not necessarily an inspiration except in one aspect—I learned that there is no limitation in life but in my own mind. May/June 2022 • THE FEDERAL LAWYER • 31
Book Reviews
The Rule of Laws: A 4000-Year Quest to Order the World By Fernanda Pirie Basic Books 2021
571 pages, $19.99
Reviewed by Christopher C. Faille
In what follows, I will use two expressions that I find nowhere in the book being reviewed. I will speak here of “street law” on the one hand and of “grand law” on the other. The distinction those labels suggest is integral to this book. The book turns out to be all about the troubled relationship between those two sorts of law, and it has alongside its merits the one minor flaw of never putting the theme quite that concisely. The subtitle of Fernanda Pirie’s book speaks of a 4,000-year quest to order the world. That time reference is presumably an allusion to the Code of Hammurabi, the renowned law-giver who acquired the throne of Babylonia in 1793 B.C. If we take that as the beginning of the “quest,” then it has now lasted 3,815 years, close enough for this rounding-out. The dust jacket of this book, though, includes a blurb from Edward J. Watts, an 32 • THE FEDERAL LAWYER • May/June 2022
authority on the fall of the Roman Republic, who teaches at the University of California San Diego. Oddly, the Watts blurb praises the author for the masterly way in which she leads the reader “across five millennia.” Even before opening the book, then, one may be wondering: why does the chronology as Watts understands it differ so markedly from the chronology that justifies the subtitle? Are we looking to 5,000 or merely a little less than 4,000? The answer is that in the first chapter of this book, before we reach Hammurabi, Pirie introduces us to a family in the city of Lagash, a family whose name is lost to us, but one that established itself as the royal family there around 2900, in the region we would now describe as southeastern Iraq. The self-elevation of one Lagash family to a monarchy seems to have inspired something of a race to do likewise among families in neighboring cities, and soon all the new kings between the rivers Tigris and Euphrates were proclaiming that they could intercede with the gods on behalf of their people. This actually meant that they were interceding in the lives of their people on behalf of their gods. The preliminary material here, covering the development of law between the lost names of a family in Lagash and the still-renowned name of Hammurabi in Babylon constitutes the difference between the four-millennia and the five-millennia readings of this book. Pirie—a professor of the anthropology of law at the Centre for Socio-Legal Studies at the University of Oxford—gives the period between Lagash and Babylon just five pages. But it is a concisely expressed and factually packed five! Those five pages reference a King Uruinimgina, the last ruler of the first dynasty of Lagash, who, around 2450 B.C., had an inscription made in which he assured the gods that “never would [I] allow the orphan or the widow to suffer at the hands of the powerful.” By this time, then (as Pirie puts it), “Writing had become a means for kings to make grand statements about justice.” The statements that kings make, whether addressed to the gods or to the widows and
orphans supposedly under a grand name’s protection, have little or nothing to do with the actual lives of those widows and orphans. The grand law propounded by grand names is addressed to a void, and real history, along with what one may call street-level law, proceeds regardless. It is the grand law that seeks to “order the world,” in the words of this book’s subtitle, while a street-level law proceeds to order the specifics of the lives of ordinary people, usually in ways that get more sensible the more independent they prove from grand law and its promulgators.
Secure at the Top Let us regard that first post-Lagash period as prologue and look to the proper beginning of this book: Hammurabi. Pirie, using again her gift for concision, gives a brief account of the military campaigns that made Hammurabi’s Babylon the unchallenged capital of all the land between the two great rivers. Once secure at the top of the pyramid of power, Hammurabi dictated a law code that was inscribed on a granite slab and put in a public place so that all could see it and all who could read at all could study it. The slab also contains an image of the great king standing before the god of the Sun, Shamash, presumably receiving some infusion of instruction and authority. The slab contains 300 laws, some quite detailed. Some read more like case reports than statutes. Pirie quotes the following example, which I condense, “If a man has given a field to a gardener to plant as a date orchard … in the fifth year, the owner and gardener shall divide the yield in equal shares and the owner shall choose his share first.” This particular clause encourages several observations. First, clearly private property in land, and the lease of that land to commercial tenants for profit, was an accepted practice quite early in the development of civilization, although (then as now) the details needed thrashing out. Second, the thrashing out in question on this specific point—the respective shares in the profit of an enterprise that could be claimed by the landlord and the tenant—seems not really to have been
definitively settled when these words were set down. If they were really entitled to “equal shares,” what was the point of stipulating who gets the first choice? Doesn’t the first choice suggest that there were going to be two separate piles of proceeds and that one pile might be higher than the other (i.e., they may not be equal)? The language seems to suggest a compromise, and a still-unsettled one, between an equal split on the one hand and ownership pre-eminence on the other. Pirie observes that “local communities were probably enforcing these sorts of practices anyway” before Hammurabi codified what they had been doing. He was including a bit of street-level law that had come into existence without him. What was the significance of such a codification? Pirie observes that Hammurabi’s code and its rules “do not seem ever to have been referred to in legal cases.” Indeed, surviving records of subsequent Babylonian legal disputes have little correspondence with what the code says. So, what was the point? It gave the king a chance to preen. The text concludes, “I am Hammurabi, king of justice, to whom Shamash has granted the truth.” Along the way to that bang-up ending, the code turned street-level disputes over dates and a gardener into the grist for the grandiose task of ordering the world. The code depicts, detail by detail, a settled, largely literate society with established occupations, social ties, and an elaborate hierarchy. By setting its workings out in this way, it became possible for the king to imagine he had founded those workings for the ages. We get the same impression from the Hammurabi material that we might have gotten from the briefer mention of Uruinimgina earlier. In both cases, we have a king who has puffed himself up by associating himself with the notion of justice. Yet, in neither case do the grand proclamations seem to have been important to the lives of the people of the time. In both cases, the key takeaway may be the sharp contrast between grand law and street law—that which is trumpeted to posterity and that which affects the lives of the real people of the day.
Grand Law Comes to Republican Rome Now, let us skip ahead considerably, to the laws of the ancient Roman Republic. Early in its history (449 B.C.), the “Twelve Tables,” a detailed listing of the rights and duties of a Roman citizen, were set up in the Forum for all to see. There was no single outstanding
leader to whom this decision can be attributed, and the wording of the rules on those tables was the work of a committee. And, as that categorization suggests, the Twelve Tables were very practical in orientation. They set out compensation for injuries, thefts, minor crimes, rules about wills and inheritances, the specification of circumstances in which a free man might fall into debt bondage. There was even as Pirie calls it, “the beginnings of urban planning” here, a couple of clauses that concerned boundaries and roads. This was, precisely, street law. Over the following centuries in Rome, law became a specialized profession, one engaged in by ”jurists,” generally drawn from the well-born senatorial class. It was in this climate that the career of Marcus Tullius Cicero became possible. In the hands of the intellectual elite in ancient Rome, or the part of it that gathered around Cicero, law became an intellectual exercise increasingly devoid of the practical concerns that had motivated the creation of the Twelve Tablet. In Pirie’s words, “Learned men conducted debates in the rarefied surroundings of their aristocratic mansions, where they were free to develop their intellectual interests. Roman law had become an elite pursuit, insulated from the social and political pressures of Roman life.” Thus, even given Rome’s republican origins, so different from the monarchies of Lagash or Babylon, both sides of the distinction between Grand Law and street law could reassert themselves. Grand law speaks on behalf of an earthly sovereign, toward its presumed heavenly patrons and toward the people who ought to be awed. It doesn’t need a monarch to do this, although the cultivation of grand law by such as Cicero can weaken republican impulses and help prepare the way for a monarchy. As we noted above, Professor Watts, the bestower of a jacket blurb, is an authority on exactly that development in the history of Rome.
Grassroots and the Grasslands Is it fair to describe street law as, in essence, stateless law? Pirie’s professional work on legal history until now has been largely on a matter that speaks directly to that point: she has written on the law of the grasslands of Tibet. Pirie makes a convincing case that, through long periods of time, Tibetans have
avoided the legal systems of China simply by … ignoring it, and living their lives by their own rules. The vast grasslands of eastern Tibet, Qinghai Province in particular, are the home of mutually hostile and migratory tribes, so there is a lot of room for conflict. Further, there is a culture among them that both allows for raids and stresses the armed defense of honor, one in which it is natural that all men carry knives, “which hang ostentatiously in decorated sheaths around their waists.” Yet despite all this, the relations among the tribes are not as violent as they might be. Is this because distant officials in Beijing would not approve of violence? That is hardly a consideration. Yes, during China’s “Cultural Revolution,” there were efforts to collectivize herding activities. But by the 1980s the government had allowed, and the tribes had in fact re-established, their older patterns. Since then, the government has largely ignored eastern Tibet, and the eastern Tibetans have returned that favor. So, what does limit violence between tribes? Local deterrence and mediation. “Most feuds are settled [quickly] … through payment of compensation,” Pirie writes. “Everyone knows that it is much better to negotiate and avert a cycle of vengeance, angry though the young men may be, and must be seen to be.” If members of one tribe have raided the pens of another and made off with sheep, the members of the latter will naturally be furious and know that they must act it. They must refuse compensation and talk as if war is imminent. But “skilled mediators” can “go patiently between the two sides” and wear down obstinance, perhaps calling in a senior Buddhist lama in an especially difficult case, Pirie explains.
Final Thoughts All of this could well be employed to make a case for anarchism. Perhaps the only good law is the sort that arises spontaneously, from the grass roots, precisely because of its statelessness. Perhaps state law is addressed into a void when everyone is lucky, but it can be “devastating” (the word Pirie uses of the Cultural Revolution) when it does interfere with the locals making their own way in the world. But in Pirie’s hands (I report with some regret), the observations I’ve summarized here, and many others to much the same May/June 2022 • THE FEDERAL LAWYER • 33
effect, do not make a case for anarchism. She has some sympathy with the effort to use law to “order the world.” Or, at least she identifies with efforts to reclaim valuable materials from those efforts. Grand leaders making grand law may indeed be sending their messages into the void, but those messages in time return, often in ways that would have surprised (and perhaps dismayed) the original authors. They are reclaimed at the street level. The grand statements get into the hands of not-so-grand people and encourage and become rallying-points for resistance to oppression. Yes, Pirie says in her concluding chapter, “Hammurabi was a ruthless warlord who wanted to bequeath a benign image for posterity,” and others who have used much the same tone since his day have been birds of the same feather. But, she adds, “once laws set out a vision that people believe in, they can also be used against any power-holder who tries to ignore them. This is what gives law its ability to both legitimate and limit power.” Much may be said about the note of optimism there. But I will do none of it. I have set out the broad arc of the argument of this book. Like the oft-cited arc of the universe, it bends toward justice, though it takes its time. This book is worthy of study and contemplation, both of its particulars and in its themes. Its ambition, and much of its execution, is worthy of something more: admiration. Christopher Faille has written on a variety of legal, regulatory, and financial issues for decades. He was an early reporter with Lipper HedgeWorld and has contributed to Forbes, Hedge Fund Law Report, and Alternatives Watch.
34 • THE FEDERAL LAWYER • May/June 2022
Last Mission to Tokyo: The Extraordinary Story of the Doolittle Raiders and Their Final Fight for Justice By Michel Paradis Simon & Schuster 2020 480 pages, $28.00
Reviewed by Jon M. Sands
“How do you tell a man he would be killed tomorrow?” Last Mission to Tokyo asks this question twice: at the start and toward the end. The question, although asked in the same place, Shanghai, was asked four years apart—in 1942 and again in 1946, in two different courtrooms, by two different military justice officers, one Japanese and one American. The question frames this remarkable account of two war crime trials—first, the Japanese military trials of eight American Doolittle airmen captured after the raid in Tokyo, and second, the U.S. military trials of four Japanese officers charged with executing three American airmen. The first trial lasted an hour, and the second trial lasted 17 days. Last Mission to Tokyo recounts the verdicts and itself delivers a definitive historical verdict. Michel Paradis’s book misleads only in its title. One thinks it is another history of Lt. Colonel James Doolittle’s raid on Tokyo on April 14, 1942, a daring long-distance bombing in the aftermath of Pearl Harbor. But it is much more. The raid, which did
scant damage, became a propaganda victory for the United States and proved highly embarrassing to Japan. The book becomes an account and a deliberation of vengeance, what passes for justice in each court, and what constitutes fairness to enemy combatants. We do not need another twice-told tale of the raid, as brave as it was; we do need this evenhanded recounting of the role that trials play in the historical record. Paradis, a lawyer, scholar, and pundit, served on the U.S. Department of Defense Military Commissions Defense Organization, dealing with court cases arising from Guantánamo Bay after Sept. 11, 2001. Full disclosure: I am part of a defense team for a defendant in Guantánamo charged before the Military Commissions, but I don’t know Paradis. Paradis brings a sensitivity to the varied reasons for such tribunals, the many motivations of governments and various institutions, the roles of counsel and judges, and the human stories of the participants. We know of Doolittle’s raid as brave and sacrificial, launched from an aircraft carrier that was in harm’s way, with Tokyo barely within the range of the bombers. We know how the bombing occurred and of the explicit instructions to target military installations rather than civilians. (The Pacific campaign eventually culminated in firebombing air raids on Japanese cities.) Paradis describes the view of the Japanese populace, which was shocked and angered by their civilian casualties, which included children in school. It was the first-ever successful foreign attack on the homeland. The military, which controlled the government and country, reacted with fury. When two bombers in the Doolittle raid, on fire, crashed in Japanese-held China, and the airmen were captured, vengeance was forthcoming. The airmen were starved, beaten, and tortured. Japan quickly passed the Enemy Airmen’s Act, which made bombing raiders against Japanese-held territories and Japan itself criminal acts. Orders from on high were to try and execute attacking airmen. So much for the laws regarding prisoners of war. The airmen’s trials were held in Shanghai. They were show trials, with the proceedings not translated, no real defense permitted to be raised, and the verdict foregone: death. In a show of mercy, five airmen were spared, but three were chosen for execution. They were William Farrow, Dean Hallmark, and continued on page 36
I love LawPay! I’m not sure why I waited so long to get it set up. – Law Firm in Ohio
+ Member Benefit Provider
Trusted by 50,000 law firms, LawPay is a simple, secure solution that allows you to easily accept credit and eCheck payments online, in person, or through your favorite practice management tools. 22% increase in cash flow with online payments Vetted and approved by all 50 state bars, 70+ local and specialty bars, the ABA, and the ALA 62% of bills sent online are paid in 24 hours
YOUR FIRM LOGO HERE
Trust Payment IOLTA Deposit New Case Reference ***
**** **** **** 9995
TOTAL: $1,500.00 POWERED BY
PAY ATTORNEY
Get started at
lawpay.com/fedbar 866-262-3763 Data based on an average of firm accounts receivables increases using online billing solutions. LawPay is a registered agent of Wells Fargo Bank N.A., Concord, CA, Synovus Bank, Columbus, GA., and Fifth Third Bank, N.A., Cincinnati, OH.
Book Reviews continued from page 34
Harold Spatz. How does one decide to seek death for injustice in war and tell a man that he is going to die tomorrow? The warden charged with the execution was troubled about the proceedings. However, there had been a verdict and sentence, and he was ordered to carry it out. Four years later, again in Shanghai, a U.S. military tribunal held court. Before the tribunal stood Shigeru Sawada, Yusei Wako, Ruyhei Okazaki, and Sotojiro Tatsuta. The last was the warden who was charged with executing the American airmen. All four Japanese men had supervised the executions. The last was the warden charged with executing the American airmen. The U.S. War Crimes Office was both prosecuting and defending. The prosecution team was composed of three lawyers, and the defense team had two. The book concentrates on the lead lawyer for each side. The lead prosecutor was Robert E. Dwyer, a graduate of Harvard Law School, a bit too old to have been drafted, but he did his duty nevertheless. Dwyer came from a political family from upstate New York; he was ambitious and was in Shanghai, looking to move into the spotlight. The lead defense counsel was Edmund J. Bodine, who served as a pilot in the war but had transferred into the office because he’d met a girl he fancied, a Russian refugee working as a translator. Everyone was being sent home in 1946, except those in the War Crimes Department, and this was his ticket to stay. His credentials? A Georgetown undergraduate, he was affable
and athletic (good enough to consider pro baseball), and he had taken night law classes at Fordham before dropping out to join up. Good enough for the military: his file declared him a lawyer. Joining him was a young captain. Paradis admirably chronicles the proceedings. Both Dwyer and Bodine were less than perfect, but they sought justice in the best sense. Paradis is masterful at recounting the investigation, strategies, and tactics. He makes the contrast with the Japanese proceeding stark. Drawing from the transcripts, memoirs, interviews, and news accounts, Paradis makes the American proceedings gripping. The themes employed, the evidentiary twists and turns, the drama of introducing the ashes of the deceased and the differing tones and terror of the defendant’s testimony, the defendants’ blaming higher-ups, and the use of “only following orders” defense (this was after Nuremberg), which entailed claiming not to have known that the proceedings were a sham and therefore unlawful—these are all spellbinding. This book is every bit as compelling as the best of courtroom dramas. Yes, we can handle the truth when told like this. The verdict is surprising and affirming. How do you tell a man he is going to die? How do you prosecute soldiers for doing their duty? Do verdicts that shock us undermine, or validate, the system? Paradis presents these questions but does not provide definitive answers. But he creates a sense that justice was done and leaves the
reader with pride at the proceedings, however flawed they were. Some footnotes. Bodine went on to defend other people charged with war crimes. Bodine finally got his law degree in 1951. His military career stalled as a result of McCarthyism because he married a White Russian refugee and had been in China. Later, as a practicing lawyer, he defended those of the LGBQT military community who had been accused of immoral acts or being a security threat. After the verdict, Dwyer met with the warden he had prosecuted. His act will impress the reader with his sensitivity. He went on to prosecute other war crimes cases. It took a toll. He drank himself to death in 1947. Bodine was a pallbearer. In the prosecution’s case for the death of the Doolittle airmen and the torture of others, Dwyer stressed the barbarism of the acts, including waterboarding. The account in the record is horrifying. Six decades later, the United States engaged in torture and waterboarding. Indeed, at a recent Guantánamo Military Commission verdict, the military jury asked for leniency because the defendant had been tortured and waterboarded and the military code besmirched. The juries chastised the government’s treatment as “a stain on the moral fiber of America” and as “a source of shame.” Jon Sands is the federal public defender for the District of Arizona.
ARE YOU A SUSTAINING MEMBER? Support Sixty dollars of every sustaining membership is used to support educational programs and publications of the FBA.
Save Sustaining members save 5 percent on national event registrations and publications orders.
Upgrade your membership—contact the membership department at (571) 481-9100 or membership@fedbar.org. 36 • THE FEDERAL LAWYER • May/June 2022
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 several cases plus executive summaries of other cases before the Supreme Court. The executive summaries include a link to the full text of the preview.
Arizona v. San Francisco (No. 20-1775) Oral argument: Feb. 23, 2022
Question as Framed for the Court by the Parties Whether states with interests should be permitted to intervene to defend a rule when the United States ceases to defend.
Facts Under federal immigration law, 8 U.S.C. § 1182(a)(4)(A), the government may deny noncitizens admission or adjustment to immigration status if they are “likely at any time to become public charge[s].” Government interpretations of the “public charge rule” have changed over time. Between 1999 and 2019, the Department of Homeland Security (DHS) defined “public charge” in accordance with field guidance issued by the Clinton administration. The guidance defined “public charges” as individuals likely to receive “[c]ash assistance for income maintenance [or] institutionalization for long-term care at government expense.” The federal government followed this nonbinding field guidance until August 2019, when the Trump Administration issued a final rule defining “public charge” after notice-and-comment rulemaking. The rule defined a “public charge” as someone who is “more likely than not at any time in the future to receive one or more designated public benefits for more than 12 months in the aggregate within any 36-month period.” The 2019 rule faced state challenges. Several states sought preliminary injunctions, alleging that they were injured when noncitizens, confused by the rule’s language, unnecessarily disenrolled from state public benefits. District courts in the Second,
Fourth, Seventh, and Ninth Circuits issued preliminary injunctions. The Ninth Circuit stayed the injunctions that were issued in its circuit, allowing the 2019 rule to go into effect. While the Second and Seventh Circuits initially denied stays, the Supreme Court stayed the preliminary injunctions issued within their circuits. Although the Supreme Court granted stays in the Second and Seventh Circuits, the Second, Seventh, and Ninth Circuits continued litigation on the public charge rule and affirmed the issuance of their preliminary injunctions. In response, the federal government filed petitions for certiorari for the Second, Seventh, and Ninth Circuit decisions. The petitions were pending before the Supreme Court when the Biden administration, which opposed the Trump administration’s 2019 rule, took office. In March 2021, DHS announced that it would no longer appeal court rulings enjoining the 2019 rule’s enforcement. The Seventh Circuit granted the federal government’s motion to dismiss Cook County v. Wolf, a public charge rule case on appeal from the Northern District of Illinois. DHS subsequently announced that the Northern District of Illinois ruling, which had vacated the 2019 public charge rule, would be in effect nationwide and that the 1999 field guidance would control. The federal government filed joint stipulations to dismiss the public charge rule cases pending before the Supreme Court, and the cases were dismissed. The filing occurred hours after DHS announced that it would no longer defend the rule. In response to dismissals in the Seventh and Fourth Circuits, fourteen states collectively filed motions to intervene, arguing that because the United States announced
its intention to stop defending the rule and the cases were dismissed so quickly after the announcement, the states were unable to intervene. The Fourth and Seventh Circuits dismissed the states’ motions, and DHS issued a final rule removing the 2019 rule. The states’ effort to intervene in the Ninth Circuit public charge litigation was likewise denied. On June 18, 2021, the states of Arizona and twelve other states filed a petition for writ of certiorari in the Supreme Court.
Legal Analysis INTERVENTION OF RIGHT Arizona argues that the States fulfilled all requirements necessary for intervention of right under Rule 24 of the Federal Rules of Civil Procedure. Under Rule 24, Arizona explains, there are four requirements courts use to analyze a movant’s intervention of right. First, Arizona notes, courts determine if there has been a timely submission for the intervention application. Second, Arizona argues, courts analyze if the moving party has a significant interest regarding the transaction that is the subject of the legal action. Third, Arizona contends courts assess whether the action may impair the applicant’s ability to protect its interest. Fourth, Arizona notes, the court must determine if the “existing parties” in the suit adequately represent the applicant’s interest.” In arguing that the States have fulfilled the requirements needed for intervention of right, Arizona analyzes each of the four requirements. First, Arizona argues that the States’ intervention motion was timely. Arizona explains that without warning, on March 9, 2021, the United States declared that it would no longer defend the Public Charge Rule and the States’ interests in this case. Arizona contends that the States moved to intervene on March 10, 2021, in the Ninth Circuit, even though the Ninth Circuit had not issued its mandate yet. Arizona explains, the States did not delay in reacting to the United States’ decision. Moreover, Arizona notes that the idea that the States needed to intervene prior to when the United States stopped defending May/June 2022 • THE FEDERAL LAWYER • 37
this rule goes against the Supreme Court’s decision regarding the timeliness benchmark in United Airlines, Inc. v. McDonald. Specifically, Arizona explains, United Airlines v. McDonald held timeliness is based on how quickly intervenors act once it becomes evident that existing parties no longer protect the intervenors’ interests and the time between seeking intervention versus the period in which intervenors could have appealed. Second, Arizona argues that the States have a “significant protectable interest that could be impaired.” Arizona explains that the continuation of the Public Charge Rule will save money for the States. Additionally, Arizona argues that DHS stated that the Rule would cause a decrease of 2.5 percent in public benefit programs’ enrollment levels. Moreover, according to Arizona, the federal government only covers a portion of public benefit programs’ costs. Third, Arizona argues that the invalidation of the Public Charge Rule could impair their ability to protect its interest. Specifically, Arizona asserts, economic harm will fall on the States if the Public Charge Rule is invalidated because the States will not receive the benefits they could have obtained under the Public Charge Rule. Thus, Arizona argues, the States have a valid interest in preventing economic damage that would support their intervention and the invalidation of the Public Charge Rule could impair their ability to protect its interest. Fourth, Arizona argues that the current parties to the case no longer adequately represent the States’ interests. Arizona asserts that the United States abandoned litigation and every case regarding the Public Charge Rule was dismissed, therefore no remaining party defended the States’ interest in the Public Charge Rule. Thus, Arizona argues, since Arizona satisfied all four requirements for intervention of right in this case, the Ninth Circuit should have granted the States’ motion to intervene. San Francisco argues that the circumstances in this case do not warrant intervention as of right. San Francisco argues that the Supreme Court does not need to analyze whether the States’ motion to intervene was timely or if the States have a sufficient interest to warrant intervention because the States cannot demonstrate that their alleged interests would be impeded or impaired by this case. San Francisco notes that Arizona only points out that the States would be deprived of benefits they would have received under the Public Charge Rule as their 38 • THE FEDERAL LAWYER • May/June 2022
impairment. San Francisco argues, however, that this case does not impact Arizona’s ability to gain those benefits through alternative methods. Specifically, San Francisco asserts that the preliminary injunctions in this case do not harm Arizona’s economic interests because they are not applicable in the State. Since the injunctions do not apply to the Petitioners’ States, the States are third parties to the suit and therefore do not have a valid interest in the outcome set forth by the Ninth Circuit. San Francisco argues that, even if the preliminary injunction applied to the States, Arizona’s interest would not be impaired because the preliminary injunction has been superseded by the final judgment issued by a district court in the Northern District of Illinois, which abandons the Public Charge Rule and the federal government’s actions. San Francisco argues that once the Seventh Circuit dismissed the appeal of the judgment from the Northern District of Illinois and issued the mandate to vacate the Public Charge Rule, the judgment from the Northern District of Illinois went into effect. San Francisco argues that, as a result of the vacatur ruling from Illinois district court, the federal government issued a rule that removed the Public Charge Rule from the Code of Federal Regulations and restored the previous text from August 2019. Thus, San Francisco argues, the Ninth Circuit’s preliminary injunctions are not relevant to the States and do not harm their economic interests. Moreover, San Francisco asserts, Arizona failed to cite any cases in which a court contemplated an appeal from a preliminary injunction after a different court ordered final relief, thus rendering the preliminary injunctions useless.
PERMISSIVE INTERVENTION Arizona maintains that the Ninth Circuit should have granted permissive intervention. Arizona argues that under Rule 24(b) (1)(B), federal courts can allow litigants to intervene, if they file a “timely motion” and have “a claim or defense that shares with the main action a common question of law or fact.” Arizona asserts that the standard for permissive intervention was satisfied because the States’ motion was timely and shared a common question of law with the main action. Arizona explains that the States’ motion shared a common question of law with the main action because the States wanted to argue that the Public Charge Rule
was procedurally and substantially valid. Separately, Arizona argues that the Ninth Circuit should have granted permissive intervention since Respondents acted in an unprecedented manner by quickly issuing a multi-court, nationwide surrender. Arizona notes that this is the first Administration to act in such a manner. Moreover, Arizona argues that refusing the grant the States’ permissive intervention was an abuse of the Ninth Circuit’s discretion that permitted the Government to bypass the Administrative Procedure Act’s (APA) rulemaking process. Arizona emphasizes that one of the main goals of intervention is to allow unnamed parties, that would be negatively impacted by the suit, to join the litigation and try to stop the “deprivation of their rights,” as the APA notice-and-comment rights, which solicit public opinion, can be burdensome to the Government. San Francisco counters that denying permissive intervention was not an abuse of the Ninth Circuit’s discretion. San Francisco asserts that while courts may grant permissive intervention, they are not required to do so under any circumstances. San Francisco explains that intervention is not available to every movant who wishes to argue in favor of an action. San Francisco asserts that if every party who moved to intervene was permitted to do so, then there would not be a difference between filing to intervene as a party and filing an amicus brief. Furthermore, given the discretionary nature of permissive intervention, San Francisco argues that courts can refuse to allow intervention “even when the requirements of [Rule] 24(b) are satisfied.” Moreover, San Francisco counters that DHS is not avoiding the notice-and-comment requirements because DHS invited the public to submit written or oral comments regarding the Public Charge Rule from August 2021 to October 2021. Additionally, San Francisco asserts, DHS is following court orders that prohibit DHS from exercising the Public Charge Rule during the notice-and-comment process. Therefore, San Francisco argues, the Ninth Circuit did not abuse its discretion.
Discussion POTENTIAL DISRUPTION TO GOVERNMENT RULEMAKING The state of Ohio warns that prohibiting the states from intervening would prove disruptive to administrative procedure as it would allow the federal government to bypass
normal rulemaking procedures. Ohio argues that disallowing state intervention would contribute to a “troubling” trend where the federal government engages in policymaking through collusive settlements. Ohio asserts that the federal government circumvented the notice-and-comment rulemaking process ordinarily required to repeal or alter administrative rules when its actions made one district court’s ruling effective nationwide. Ohio criticizes the federal government’s actions as “gamesmanship” for which it has faced no consequences. Ohio maintains that allowing state intervention will disincentivize the federal government from collusively settling challenges to federal law. The federal government argues that barring state intervention would not represent a detrimental departure from established practice. The federal government maintains that it was not unprecedented for the government to stop appealing adverse rulings against the 2019 rule. The federal government contends that the decision not to pursue further review depends on, and has historically depended on, various legal and prudential considerations. The federal government notes that Congress has, as a matter of policy, granted the Solicitor General the authority to determine how and whether to pursue appellate review. Thus, the federal government argues, it is permissible for successive administrations of the Executive Branch to take different positions on government litigation.
IMPACT ON GOVERNMENTAL RESOURCES America First Legal Foundation (AFL) contends that prohibiting the states from intervening could prove costly to the government and the public in the long term. AFL claims that the federal government’s nationwide vacatur of the 2019 rule would make it more difficult to return to the 2019 rule. Should the federal government’s new rule prove unlawful, until a new rule is promulgated through notice-and-comment, an unlawful rule would govern in the intervening years. As the state of Arizona argues, states would also have to make unexpected adjustments to their budgets to respond to the federal government’s rejection of the 2019 rule. Arizona claims that the 2019 rule would save states $1.01 billion annually by causing an approximately 2.5 percent decrease in enrollment in public benefits programs. Arizona maintains that the government could
distribute the money saved to economically disadvantaged people. The federal government counters that it would be a waste of judicial and executive resources for states to take up an appeal when it declines to do so. The federal government argues that state intervention would likely call for the federal government’s involvement, diverting government resources from rulemaking. The federal government also asserts that it would be undesirable for DHS to take litigation positions on the public charge issue before completing notice-and-comment rulemaking. The federal government emphasizes that litigation would require potential intrusive, resource-intensive discovery into communications between senior Executive Branch officials at the time of the 2019 public charge rule’s adoption. The federal government also points to the high cost of continuing to enforce the 2019 rule, which it claims has had a “negligible” effect on noncitizen status adjustment decisions while generating widespread confusion and discouraging eligible noncitizens from applying for government benefits. Full text available at https://www.law. cornell.edu/supct/cert/20-1775. Written by Victoria Quilty and Alison Draikiwicz. Edited by Noah Welch.
West Virginia v. Environmental Protection Agency (No. 20-1530) Oral argument: Feb. 28, 2022
Question as Framed for the Court by the Parties Whether, in 42 U.S.C. § 7411(d), an ancillary provision of the Clean Air Act, Congress constitutionally authorized the Environmental Protection Agency to issue significant rules — including those capable of reshaping the nation’s electricity grids and unilaterally decarbonizing virtually any sector of the economy — without any limits on what the agency can require so long as it considers cost, nonair impacts and energy requirements.
Facts In 1963 Congress passed the Clean Air Act, which aimed to “protect and enhance” the quality of our air. In 1970, Congress amended the Clean Air Act and granted the Environmental Protection Agency (EPA) additional powers to regulate any “new and
existing” sources of air pollution originating from stationary sources. Congress gave the EPA ninety days following the 1970 law’s enactment to list prominent stationary source categories, such as power plants. The EPA was also required to issue new “standards of performance” for every newly constructed stationary source within each category going forward, and new guidelines for how to reach those standards. All regulations of power plants must undergo this process, and the federal government partners with state governments to ensure its standards are met through a variety of coordinated enforcement measures. In 2015, the EPA reaffirmed an earlier finding that greenhouse gas emissions endanger public health and began preparing a factual basis for a new regulatory rule. In 2019, the EPA adopted the Affordable Clean Energy (ACE) rule to regulate the greenhouse gas emissions of power plants. The ACE rule repealed and replaced a preexisting set of regulations, called the Clean Power Plan. The Clean Power Plan had to be repealed because, in the EPA’s view, it violated Section 7411(d) of the Clean Air Act by accomplishing some of its stationary source emission reduction measures offsite. The EPA claimed that the ACE Rule rectified this issue by implementing a new system of emissions reduction–solely for coal-fired power plants–that involved on-site heat-rate improvement technologies. The ACE rule’s guidelines for emissions reduction ranges were non-mandatory; and, the EPA predicted that the ACE rule would reduce carbon dioxide emissions by less than 1% by 2035. The EPA relied on these estimations to argue the efficiency of the ACE rule, but environmental advocacy groups would later use the same estimates to argue the ACE rule did not go far enough. The ACE Rule’s regulations also extended the States’ deadlines for enforcing regulatory compliance plans and altered some of the evaluation mechanisms for keeping an eye on the States’ compliance with the emissions reductions. Several groups—including state and local governments and environmental advocacy groups—objected to the issuance of the ACE Rule and its repeal of the Clean Power Plan. Defending its rule, the EPA argued that getting rid of the Clean Power Plant, in favor of the ACE Rule, was statutorily required by the “clear and unambiguous” language of Section 7411 of the Clean Air Act. However, the United States Court of Appeals for the May/June 2022 • THE FEDERAL LAWYER • 39
District of Columbia Circuit (D.C. Circuit) disagreed with the EPA, giving its interpretation of Section 7411 no deference and holding that the EPA’s interpretation was not required by Congress. As a result, the D.C. Circuit concluded that the EPA had not relied on its own judgment and expertise in implementing the ACE rule, and accordingly invalidated the rule and remanded to the EPA. West Virginia, along with several other states (after the consolidation of several cases), petitioned the Supreme Court to review the D.C. Circuit’s decision.
Legal Analysis MAJOR QUESTIONS DOCTRINE West Virginia argues that Congress did not clearly authorize the EPA to take any measure it deems helpful to reduce carbon emissions solely by administrative rule-making. According to West Virginia, under the major-questions doctrine, if the power at issue has vast economic and political impact, Congress needs to delegate it to an administrative agency with clear and unambiguous language. West Virginia argues that Section 7411 does not provide the requisite clear congressional authorization. According to West Virginia, the only evidence that the federal statute clearly authorizes such power stems from the phrase “best system of emission reduction” in Section 7411(a)(1). West Virginia contends that the phrase, by itself, is unable to support the lower courts’ overbroad interpretation of Section 7411. West Virginia refutes the lower courts’ reasoning that Congress delegates such power as long as the statute does not clearly deny it to the EPA; instead, West Virginia insists that such power must be affirmatively granted, and that only the former ACE rule is within the scope of the statute. West Virginia further argues that the power at issue is undoubtedly significant: according to the D.C. Circuit’s interpretation, it says, Congress authorizes the EPA to determine which method comprises the “best system” for a regulated source. West Virginia contends that, per the D.C. Circuit’s view, the EPA could take almost any measure to compel stationary sources to meet a given standard of performance, such as shutting down carbon-emitting facilities and banning the importation of carbon-intensive goods. West Virginia also points to the actual financial difficulties facing states and individuals should the D.C. Circuit’s decision stand. According to West Virginia, 40 • THE FEDERAL LAWYER • May/June 2022
re-implementing the CPP alone would cause the cost of wholesale electricity to rise by $214 billion, and it would cost an additional $64 billion to replace the power capacity reduced under the CPP. West Virginia further argues that the scope of the D.C. Circuit decision’s implicit grant of authority is also unprecedented, tacitly permitting the EPA to regulate any building that uses or produces carbon-generating power. According to West Virginia, the lower court’s overbroad interpretation of Section 7411 allows the agency to impose measures that impact millions of Americans, constituting a “major question” of utmost importance. The EPA refutes West Virginia’s argument that the major-questions doctrine requires a narrow reading of Section 7411(d)(1)(A). According to the EPA, the principal language of Section 7411 is directed not at the EPA, but rather at the states (when they devise and implement their own regulatory police powers in coordination with the EPA rule). The EPA argues that the Court has never restrained the police power of the states while interpreting a federal regulation. The EPA contends that the issue of whether the regulation involves a major question must be decided on a case-by-case basis; even if some exercises of an agency’s power might implicate the major-questions doctrine, the EPA contends, it does not follow that all exercises of that power are categorically forbidden. Consolidated Edison and other power companies (Power Companies) are also Respondents in this case alongside the EPA and argue that the major-questions doctrine is not applicable here because what West Virginia asks for is essentially an advisory opinion. According to Power Companies, the lower courts’ decision that the statute does not limit the agency’s authority does not by itself constitute agency action. Power Companies also point out that the application of the major-questions doctrine will depart from the Supreme Court’s precedents; so far, the Court has only reviewed actual agency regulation. According to Power Companies, if the Court applies the doctrine as West Virginia asks, it will contradict the Court’s long-established principle to avoid judicial overreaching and will create administrability problems.
TEXTUAL INTERPRETATION West Virginia asserts that Section 7411, when correctly interpreted, does not em-
power the EPA to regulate across industries or manage the country’s electricity supply, but only gives the EPA power inside the fenceline. West Virginia argues that the lower court improperly interpreted the terms in an unlimited, context-free way. According to West Virginia, the terms that Congress uses are source-specific: for example, for a standard of performance to reflect “achievable” degrees of emission reduction through an “adequately demonstrated” system, the EPA cannot pick any target it wants, but must base its evaluation on techniques that have been tested in the real world. If the EPA can pick any target and average emissions across different sources, West Virginia argues that any system can be “adequately demonstrated” and any target achievable. West Virginia also distinguishes the singular and plural forms of the word “source” in Section 7411(b)(1) and (d)(1). According to West Virginia, since standards of performance must be established “for any existing source,” they are case-specific, which makes it hard to interpret the term “best system” without taking a particular source into account. Since outside-the-fenceline measures do not connect to a specific source, West Virginia argues that they are excluded. West Virginia also emphasizes that any standard of performance must apply to the “stationary source,” which is the building itself, rather than to its “owner or operator,” which is separately defined, and therefore no outside-the-fenceline measure is allowed. West Virginia further points out that Congress must use explicit language if it intends to delegate to a federal agency power that is traditionally reserved to the states. According to West Virginia, regulating utilities is long associated with the police power of the states. West Virginia further argues that Congress also takes federalism into account when it allows the states to enact and administer their own regulatory programs. West Virginia also contends that the plan that the EPA intends to implement would upset the balance between the state and federal government by allowing the EPA to step into realms traditionally reserved to the states. The EPA refutes West Virginia’s argument that it cannot use outside-the-fenceline measures based on the text. According to the EPA, West Virginia misreads the word “achievable” in the statute: the word “achievable” qualifies the “degree of emission limitation,” and the “degree of emission limitation achievable” is evaluated based on
“application of the best system of emission reduction.” The EPA argues that, for each source category subject to regulation under Section 7411(d), the EPA first determines the “systems of emission reduction” that are “adequately demonstrated,” then evaluates the “best” of those systems, and finally derives from the best system an “achievable” “degree of emission limitation.” According to the EPA, nothing in the requirement that states must “establish standards of performance for any existing source” distinguishes inside-the-fenceline measures such as heat-rate improvements and carbon capture and sequestration from outside-the-fenceline measures like biomass co-firing and trading. The EPA argues that even if, as West Virginia contends, the standard of performance must apply to the building itself, it does not bar outside-the-fenceline measures, because nothing in the text indicates that all emission reduction must occur at the source. The EPA argues that West Virginia’s interpretation of the statute undermines rather than supports federalism concerns. According to the EPA, the statute’s language used by West Virginia in support of their argument is directed at the states, not the EPA, and any limitation it reads into the text would also be imposed on the states. The EPA thus concludes that nothing in Section 7411(d) bars states from using outside-the-fenceline measures, and a narrow reading of the text would unreasonably constrain state power.
Discussion SCOPE OF THE EPA West Virginia argues that one of the biggest problems with the D.C. Circuit’s decision is that it widened the scope of the power of the EPA. According to West Virginia, the lower court’s decision gave the EPA a “judicial edict” to not satisfy itself with a narrower interpretation of emission reduction practices limited to individual plants. West Virginia argues that, unless the decision is reversed, the EPA has been given “universal power” to affect American life, and that such authority is far too expansive. West Virginia further claims that the EPA has been given power to influence hundreds of billions of dollars over several industries. The North American Coal Corporation (NACC), in support of West Virginia, argues that the D.C. Circuit’s interpretation of the case grants the EPA power to restructure all carbon-emitting industries with a huge level of control over economic ac-
tivity across the country. The NACC goes further, contending that the EPA has been given “carte-blanche” to decide the entire climate change policy of the country. Westmoreland Mining Holdings further makes the point that giving the EPA expansive authority to decide climate change policy runs roughshod over the rightful power of Congress to set policy. Several Respondents, including the State of New York, counter that such arguments are slippery-slopes and not justifiable. Similarly, Federal Respondents argue that what Petitioners really fear is any future rule-making the EPA might engage in that would impact their specific economic interests. However, they argue, such fear is not only unjustifiable but also unrealistic. The D.C. Circuit did not, they contend, embolden the next “Green New Deal,” but simply upheld the consistent themes and mandates of the EPA itself. Climate Scientists, in support of the EPA, also push back on Petitioners’ complaints that the EPA’s scope has been impermissibly expanded. The Climate Scientists argue that the EPA should be given extensive power to combat climate change. The Climate Scientists contend that the Supreme Court should “exercise caution” in limiting the EPA’s powers to combat climate change and its effects in any way. Thomas Jorling, one of the chief architects of the Clean Air Act and in support of the EPA, rebuts Petitioners’ argument that the D.C. Circuit expanded the EPA’s powers at the expense of Congress’s powers. Jorling argues that the D.C. Circuit’s decision is consistent with the Clean Air Act’s powers, which were explicitly established by Congress itself. Full text available at https://www.law. cornell.edu/supct/cert/20-1530. Written by Tori Staley and Jenny Guo. Edited by Ryan Schelwat.
Denezpi v. United States (No. 20–7622)
Oral argument: Feb. 22, 2022 Court below: U.S. Court of Appeals for the Tenth Circuit
This case asks the Supreme Court to decide whether prosecution of the same conduct, first in a Court of Indian Offenses (CFR court), a federally-constituted Article I trial court with jurisdiction over cases arising on Indian reservations, and then in a federal court, is permissible under the dual sovereignty exception to the Double Jeopardy Clause of the Fifth Amendment. Petitioner
Merle Denezpi argues that his prosecution in a federal district court following his conviction in the Ute Mountain Ute CFR court violates the Double Jeopardy Clause of the Fifth Amendment, which prohibits successive prosecutions of the same offense, because the CFR court derives some of its judicial power from the federal sovereignty of the United States government. Respondent the United States counters that Denezpi’s crime falls within the dual sovereignty exception to the Double Jeopardy Clause because the Ute Mountain Ute CFR court is an extension of tribal, not federal, sovereignty and, as Denezpi’s conduct violated both tribal and federal law, he can be prosecuted successively under each law by the two separate sovereigns. The outcome of this case has implications for tribal sovereignty and public safety in tribal communities. Full text available at https://www.law. cornell.edu/supct/cert/20-7622.
Ysleta del Sur Pueblo v. Texas (No. 20-493)
Oral argument: Feb. 22, 2022 Court below: U.S. Court of Appeals for the Fifth Circuit
This case asks the Supreme Court to decide whether Texas can regulate bingo and other gaming activities on tribal lands. Petitioner Ysleta del Sur Pueblo argues that the Court’s precedent of Cabazon Band should control for purposes of statutory interpretation. Under Cabazon Band, tribes cannot operate games that state law prohibits; however, tribes do not have to follow state regulations governing games that are not otherwise prohibited. Respondent Texas maintains that the Restoration Act controls this issue, and that the Act does not incorporate the Cabazon Band interpretation. Therefore, Texas asserts that all gaming activities on tribal lands are subject to Texas regulations. The outcome of this case is limited to two tribes in Texas but could have implications on their tribal sovereignty. Full text available at https://www.law. cornell.edu/supct/cert/20-493.
Ruan v. United States (No. 20-1410)
Oral argument: Mar. 1, 2022 Court below: U.S. Court of Appeals for the Eleventh Circuit
This case asks the Supreme Court to consider the requirements for criminal conviction May/June 2022 • THE FEDERAL LAWYER • 41
under the Controlled Substances Act (CSA), 21 U.S.C. Section 841(a)(1). Two physicians, Petitioners Xiulu Ruan and Shakeel Kahn, were convicted of violating the CSA by prescribing medication without legitimate medical purposes. Both physicians brought good-faith defenses, arguing that they did not intentionally or knowingly violate the CSA. The physicians claim that a subjective lack of knowledge or intent is sufficient to maintain innocence under the CSA. At trial, juries were instructed to find the physicians innocent only if the physicians reasonably believed they were in compliance with the law. Respondent United States claims this objective standard is the correct reading of the statute, and Ruan and Kahn claim the objective standard creates an impermissibly low standard for conviction. This case has important implications for the future of medical practice, medical research, and mens rea requirements in criminal law. Full text available at https://www.law. cornell.edu/supct/cert/20-1410.
Marietta Memorial Hospital Employee Health Benefit Plan v. DaVita, Inc. (No. 20–1641) Oral argument: Mar. 1, 2022 Court below: U.S. Court of Appeals for the Sixth Circuit
This case asks the Supreme Court to decide what type of dialysis-reimbursement schemes are acceptable for group health plans considering that end-stage renal disease (ESRD) patients are eligible for Medicare. The Medicare Secondary Payer Act (MSPA) prohibits health plans from “tak[ing] into account” Medicare eligibility of ESRD patients and “differentiat[ing]” in benefits provided to Medicare-eligible ESRD patients. Marietta contends that its plan did not violate the “take into account” or “differentiation” provisions of the MSPA because the dialysis reimbursement applies equally to dialysis patients with and without ESRD and because the purpose of the MSPA is coordination-of-benefits for ESRD patients rather than anti-discrimination. DaVita counters that the design of Marietta’s plan is intended to induce ESRD-patient members to drop the Plan in favor of Medicare, and that the plan design differentiates based on the disparate impact that ESRD patients face when seeking dialysis reimbursement. The outcome of this case has heavy implications for ESRD access to care, 42 • THE FEDERAL LAWYER • May/June 2022
dialysis-treatment reimbursement, and health insurance plan structuring. Full text available at https://www.law. cornell.edu/supct/cert/20-1641.
Egbert v. Boule (No. 21-147)
Oral argument: Mar. 2, 2022 Court below: U.S. Court of Appeals for the Ninth Circuit
This case asks the Supreme Court to consider extending the implied right of action from Bivens v. Six Unknown Federal Narcotics Agents to a situation involving a federal officer carrying out immigration enforcement functions. In Bivens, the Court recognized a limited federal cause of action for damages when federal officers, acting under color of federal authority, violate an individual’s constitutional rights. Currently, the Court recognizes Bivens actions for Fourth Amendment violations committed by law enforcement officers, as well as violations of rights secured by the Fifth and Eighth Amendments. Erik Egbert argues that extending Bivens to encompass First Amendment retaliation claims and Fourth Amendment claims involving immigration enforcement officials is unwarranted. Robert Boule counters that extending Bivens to his two claims ensures that individuals are provided with a constitutional remedy when federal officers violate fundamental rights. This case has significant implications for civil rights, separation of powers, and questions related to judicial overreach in matters involving alleged constitutional violations. Full text available at https://www.law. cornell.edu/supct/cert/21-147.
Berger v. North Carolina State Conference of the NAACP (No. 21-248)
Oral argument: Mar. 21, 2022 Court below: U.S. Court of Appeals for the Fourth Circuit
This case asks the Supreme Court to determine whether state legislators have a right to intervene in a lawsuit filed against the state of North Carolina concerning the constitutionality of the state’s voter-ID law when the Attorney General is already representing the state in the matter. Petitioners Philip E. Berger, President Pro Tempore of the North Carolina Senate and Timothy K. Moore, Speaker of the North Carolina House of Representatives argue that Rule 24(a)
(2) of the Federal Rules of Civil Procedure (FRCP) and North Carolina law grant state legislators the right to intervene on behalf of the state in judicial proceedings. Petitioners further maintain that Rule 24 only requires state agents to establish a minimum standard of inadequate representation to intervene in litigation involving their state’s interests. Respondents North Carolina State Conference of the NAACP and other North Carolina NAACP branches counter that Rule 24(a) (2) does not allow an additional party to join the case when its interests are identical to the existing party’s interests. Moreover, the Respondents argue that state legislators need to demonstrate a higher standard of inadequacy to show that the Attorney General is inadequately representing the state to join the case. The outcome of this case has important implications for the role of state governments in litigation, future parties that are or will be engaged in litigation with the states, and the judiciary. Full text available at https://www.law. cornell.edu/supct/cert/21-248.
Morgan v. Sundance, Inc. (21-328)
Oral argument: Mar. 21, 2022 Court below: U.S. Court of Appeals for the Eighth Circuit
This case asks the Supreme Court to interpret the Federal Arbitration Act (FAA) to assess whether arbitration clauses in contracts may be waived by entering litigation. The FAA provides standards that courts must apply when enforcing contractual agreements to arbitrate disputes. Robyn Morgan argues that the FAA requires courts to interpret arbitration agreements to be no less and no more enforceable than other contractual provisions. Therefore, Morgan contends that she does not need to show that she was prejudiced in order to establish that her employer, Sundance, Inc. (Sundance), waived an agreement to arbitrate. Sundance counters that the FAA merely provides minimum standards for arbitration clauses, and even if it did not, proving waiver in this instance requires a showing of prejudice. The outcome of this case has heavy implications for arbitration proceedings and employment contracts. Full text available at law.cornell.edu/ supct/cert/21-328.
Golan v. Saada (No. 20-1034)
Oral argument: Mar. 22, 2022 Court below: U.S. Court of Appeals for the Second Circuit
This case asks the Supreme Court to determine whether, under the Hague Convention, a court may consider ameliorative measures, such as protective orders or custody determinations, to prevent grave danger to a child when ordering a child back to their home country. The Hague Convention requires that children abducted in violation of parental custody rights must be returned to their country of habitual residence. Narkis Golan, a United States citizen living in Italy, brought her Italian-born child to the United States, and did not return to Italy because she was a victim of domestic abuse by her Italian husband, Isaac Saada. Saada then sued Golan under the Hague Convention. Golan claims that her case falls under an exception within the Hague Convention that stops the return of the child if there is risk that the child will be in grave danger. While the lower court found sufficient ameliorative measures to prevent potential danger and granted Saada’s petition, Golan argues that the ameliorative measures are counter to the goals of the Hague Convention and should not be required or considered, especially where there is domestic violence. Saada responds that ameliorative rights must be considered to fairly assess the child’s return to their habitual residence. The outcome of this case could affect the safety of children, Hague Convention proceedings, and cooperation between foreign nations. Full text available at https://www.law. cornell.edu/supct/cert/20-1034.
ZF Automotive US, Inc. v. Luxshare, Ltd (No. 21-401) Oral argument: Mar. 23, 2022 Court below: U.S. Court of Appeals for the Second Circuit
This case asks the Supreme Court to decide whether a private commercial arbitral tribunal is a “foreign or international tribunal” for purposes of 28 U.S.C. § 1782, a federal law that governs international judicial assistance. International judicial assistance refers to aid provided by one sovereign government to another in judicial proceedings. In ZF Automotive US, Inc. v. Luxshare, Ltd, Petitioner ZF Automotive US, Inc. contends that, based on the plain meaning and legislative
history of § 1782, it does not apply to private commercial arbitral tribunals located in foreign nations. Respondent Luxshare, Ltd. counters that the dictionary definitions and legal use of the terms “foreign” and “tribunal” show that the statute does apply to private commercial arbitration. In AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, Petitioner AlixPartners, LLC argues that its arbitral panel does not qualify under § 1782 simply due to the international nature of the parties or the dispute because that does not turn the panel itself into an “international tribunal.” Respondent Fund for Protection of Investors’ Rights in Foreign States counters that the arbitral panel does constitute an international tribunal because it is resolving a dispute over whether one country violated its obligations under a treaty. These cases implicate the fair and efficient resolution of arbitral disputes, party autonomy, and international comity. Full text available at https://www.law. cornell.edu/supct/cert/21-401.
LeDure v. Union Pacific Railroad Company (No. 20-807)
Oral argument: Mar. 28, 2022 Court below: U.S. Court of Appeals for the Seventh Circuit
This case asks the Supreme Court to determine whether a train that has stopped temporarily in a rail yard as part of its journey is considered “in use” on a railroad’s line and subject to the Locomotive Inspection Act (LIA) and other safety regulations. LeDure asserts that precedent cases under related legislation apply to the LIA and argues the term “use” encompasses locomotives, like UP5683, stopped en route to a destination, furthering the goal of the statutes to protect employees. Union Pacific counters that the precedent under similar statutes does not interpret “use” to encompass sidelined locomotives, and that the LIA contains unique aspects that limit the “use” of locomotives to their main purpose of actively hauling railcars. The outcome of this case has important implications for the safety and compensation of employees and the expectations of railroad operations. Full text available at https://www.law. cornell.edu/supct/cert/20-807.
Southwest Airlines Co. v. Saxon (No. 21-309)
Oral argument: Mar. 28, 2022 Court below: U.S. Court of Appeals for the Seventh Circuit
This case asks the Supreme Court whether an airline ramp supervisor is exempt from arbitration under the Federal Arbitration Act. The Federal Arbitration Act codifies the federal policy for disputes to go through arbitration, exempting workers that engage in interstate commerce. Southwest Airlines argues that Saxon must resolve her dispute through arbitration because Saxon is not an exempt employee under the Act. Saxon argues that her work as a ramp supervisor includes loading and unloading cargo that travels interstate, so she is exempt from mandatory arbitration. The outcome of this case has implications for defining the limits of the Federal Arbitration Act and how courts define a worker operating in interstate commerce. Full text available at https://www.law. cornell.edu/supct/cert/21-309.
Torres v. Texas Dep’t of Public Safety (No. 20-603) Oral argument: Mar. 29, 2022 Court below: Texas Court of Appeals, Thirteenth District, Corpus Christi & Edinburg
This case asks the Supreme Court to consider whether an act of Congress which allows veterans to sue states in their state court violates Article I of the Constitution. Leroy Torres, a veteran who served in Iraq, filed an employment discrimination case in Texas state court against his former state employer after it failed to provide relief for military injuries. The Texas courts found that Torres could not draw the state into a lawsuit using Texas courts. Torres argues that the text, history, and precedent of the Constitution’s war powers require Texas to participate in the suit. The state employer counters that if a private party were to subject Texas to its own judicial system, it would violate principles of sovereign immunity. This case has important implications for injured veterans’ ability to obtain relief from unlawful discrimination and can potentially radically reshape the balance of power between federal and state courts in deciding war powers questions. Full text available at https://www.law. cornell.edu/supct/cert/20-603. May/June 2022 • THE FEDERAL LAWYER • 43
Viking River Cruises, Inc. v. Moriana (No. 20-1573)
Oral argument: Mar. 30, 2022 Court below: California Second District Court of Appeal
This case asks the Supreme Court to determine whether the Federal Arbitration Act demands that state courts enforce an arbitration agreement’s waiver of the statutory right of action to collect penalties on behalf of the state, despite state law prohibiting such a
contractual waiver. Petitioner Viking River Cruises argues that the Federal Arbitration Act requires that arbitration agreements signed by employees must be enforced as written for claims brought under California’s Private Attorney General Act (PAGA) because such claims are individual disputes and incompatible with the procedures of individual bilateral arbitration. Respondent Angie Moriana counters that PAGA claims involve
the state, not the individual, and that PAGA’s anti-waiver rule is necessary to bolster the state’s labor law enforcement. The outcome of this case has important implications for the enforcement of state labor codes, the availability of civil remedies for workers, and the effectiveness of arbitration agreements to resolve employment-related disputes. Full text available at https://www.law. cornell.edu/supct/cert/20-1573.
Contact the Federal Bar Association to claim your missing issue of The Federal Lawyer or order additional copies at (571) 481-9100 or social@fedbar.org. 44 • THE FEDERAL LAWYER • May/June 2022
Member News 46 | 47 |
Chapter Exchange
Sections & Divisions
52 | 54 |
Tax Law Essay Winners Member Spotlight
Not a member? FBA members enjoy these great benefits: ADVOCACY • Regular Issues Updates for Federal Practitioners • “Washington Watch” Articles • Government Relations Efforts • Annual Capitol Hill Day NETWORKING AND LEADERSHIP • Legal Career Center • More Than 90 Chapters Across 12 Circuits • 23 Practice Area Sections • Six Career Divisions • Volunteer Leadership Opportunities
EDUCATION • Judicial Profile Index • Bimonthly CLE Webinars • National CLE Conferences COMMUNICATIONS AND PUBLICATIONS • The Federal Lawyer Magazine • Bimonthly eNewsletter • Section, Division, and Chapter Newsletters OTHER • Member Plus Affinity Program • Member-Only Directory • “Need an Attorney” Listing
May/June 2022 • THE FEDERAL LAWYER • 45
Chapter Exchange
Left to right: 3L McKenna Cloud (President), Dean Emeritus Jim Rosenblatt (Faculty Advisor), Arthur Johnston III (Clerk of District Court), Dr. Blake Thompson (President, Mississippi College), Danny Miller (Clerk of Bankruptcy Court), and 2L Calvin Combs (President Elect).
FIFTH CIRCUIT Mississippi Chapter The Mississippi College School of Law Student Chapter of the FBA hosted Federal Clerks of Court Danny Miller (Bankruptcy) and Arthur Johnston (District Court) to discuss the role of the clerks of court and the operations of their respective offices. They provided insightful and practical answers to the questions posed by the law students.
NINTH CIRCUIT Northern District of California On March 24, 2022, the Northern District of California Chapter held a panel titled “Insights: Sentencing, Guidelines and Future Trends With the U.S. Sentencing Commission, A Conversation with Senior Judge Charles R. Breyer.” Randy Sue Pollock, a 46 • THE FEDERAL LAWYER • May/June 2022
federal criminal defense sole practitioner in Oakland (and FBA VP Oakland) moderated the program featuring panelists Jodi H. Linker, the Northern District of California’s newly appointed federal public defender; Catheryn Grier, a mitigation specialist and former U.S. probation officer for the Northern District of California; and Jeff Nedrow, the first assistant, U.S. Attorney’s Office. Judge Charles Breyer, brother of Supreme Court Justice Stephen Breyer, is the acting chair of the U.S. Sentencing Commission (USSC) and its sole member. There has not been a quorum on the USSC for four years, and he hopes that the White House appoints new commissioners soon, as his term ends this year. Judge Breyer highlighted the important reports that the USSC has issued, most recently one on compassionate release that covers all the grants/denials in
the United States. He also spoke about his support of the Judiciary Sentencing Information, a tool providing federal judges with sentencing data. The March 24 panel was a highly informative program that will be posted soon on the chapter’s website.
Sections & Divisions
Participants of the 27th Annual Thurgood Marshall Memorial Moot Court Competition.
YOUNGER LAWYERS DIVISION The Younger Lawyers Division Thurgood Marshall Memorial Moot Court Competition—Virtual in 2022 Teams representing schools from across the country participated in the 27th Annual Thurgood Marshall Memorial Moot Court Competition from March 14-18, 2022. While oral argument rounds are normally held in courthouses in Washington, D.C., the competition was held virtually again this year due to the COVID-19 pandemic. The competition kicked off on Monday, March 14, with a virtual program and a welcome keynote address from Colonel Timothy P. Hayes Jr., associate judge, Army Court of Criminal Appeals. Following the welcome address, all were invited to a training to address questions regarding the virtual format. The Thurgood Marshall competition is one of the premier moot court competitions in the country, with oral argument rounds that mirror real court proceedings. As in previous years, the volunteers who served as judges in the competition were state or federal judges, practitioners, or scholars, thereby reinforcing the “real world” experience for
the law students. Following the oral argument rounds, judges submitted their scores and feedback via an online platform. FBA staff served as bailiffs in the virtual courtrooms. This year’s problem is styled as a hypothetical appeal to the U.S. Supreme Court. It centers on allegations that a pair of cryptocurrency entrepreneurs are liable for defrauding investors in connection with the sale of securities under Section 10(b) of the Securities Exchange Act of 1934 in connection with the distribution of certain cryptocurrency tokens (WTP tokens). The case poses two issues: 1) Whether under the Supreme Court’s decision in Howey, the cryptocurrency qualified as a security under the Exchange Act of 1934; and 2) Whether the Securities and Exchange Commission, in alleging a violation of Section 10(b) of the Exchange Act, had to allege facts showing that the defendant “culpably participated” in the alleged fraud. Each of the teams submitted a written brief, supporting either the Petitioner or Respondent, and participated in two preliminary rounds, taking place March 15 and 16. Following the preliminary rounds, teams were ranked based on a combination of written and oral argument scores, and the top 16 teams advanced. The playoff rounds, which
consisted of the round of 16, quarterfinal, and semifinal rounds, were held on March 17 and the morning of March 18. The teams advanced in the playoff rounds based on a combination of written and oral argument scores. The final round was held on the afternoon of March 18. During this round, the competition champion was selected based on oral argument in the final round only. The final round panel consisted of Judge Gustavo A. Gelpi Jr., U.S. Court of Appeals, First Circuit; Judge Michael J. Newman, Southern District of Ohio; LTC Judge Jennifer A. Parker, U.S. Army Court of Criminal Appeals; FBA Treasurer Jonathan O. Hafen; and YLD Past Chair Adine S. Momoh. The annual Thurgood Marshall Memorial Moot Court Competition is the Younger Lawyers Division’s signature event. Initially developed as a means to demonstrate the value of the Younger Lawyers Division’s board to the FBA and FBA membership at large, the competition has grown to be one of the most prestigious moot court competitions in the country, creating the opportunities for law students to develop their written and oral advocacy skills. This year’s competition directors, Ben Reese (Younger Lawyers Division board member) and Daniel Ritter (Younger May/June 2022 • THE FEDERAL LAWYER • 47
Lawyers Division treasurer), thank all who volunteered their time to serve as judges during the weeklong competition; the final round judges; the Younger Lawyers Division board; the Moot Court Committee; Colonel Timothy P. Hayes Jr.; the Army JAG Corps, who generously sponsored the competition; the Foundation of the Federal Bar Association, which provided additional support; the participants and their coaches, who impressed with their oral advocacy skills and careful preparation; and the dedicated FBA staff whose efforts make the competition a success year after year. If you know of any law students eager to learn about federal practice, please encourage them to participate in the 2023 Thurgood Marshall Memorial Moot Court Competition. The Younger Lawyers Division Moot Court Committee is also looking for a
Problem Author for the 2023 competition. If you are interested, please contact Ben Reese (breese@flannerygeorgalis.com).
2022 Moot Court Award Recipients Overall Competition Winners: • F irst Place: Team 35–University of Minnesota Law School • Second Place: Team 28–Regent University School of Law • Third Place: Team 27–Regent University School of Law
Best Final Round Oralist: • H annah McDonald (Team 35)– University of Minnesota Law School
Awards for Preliminary Round Oralists: • F irst Place: Paget Barranco–Duke University School of Law
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 social@fedbar.org with book suggestions or questions regarding your submission today.
48 • THE FEDERAL LAWYER • May/June 2022
• S econd Place (Tie): Meredith Criner– Duke University School of Law and Taylor Phillips–Regent University School of Law • Third Place (Tie): Alexa Macumber and David Livermon–Regent University School of Law
Awards for Best Brief: • F irst Place: The University of Kansas School of Law (Team 11) • Second Place (TIE): Georgia State University College of Law (Team 23) and Caruso School of Law from Pepperdine University (Team 25) • Third Place (Tie): University of Virginia School of Law (Team 1) and Loyola Law School Los Angeles (Team 36)
Federal Bar Association Application for Membership The Federal Bar Association offers unmatched opportunities and services to enhance your connections to the judiciary, the legal profession, and your local legal community. Our mission is to strengthen the federal legal system and administration of justice by serving the interests and the needs of public and private federal practitioners, the federal judiciary, and the public they serve.
Leadership
Advocacy The opportunity to make a change and improve the federal legal system through grassroots work in over 100 FBA chapters and a strong national advocacy.
Learning
Help shape the FBA’s future and make an impact on the growth of the federal legal community by serving in FBA governance positions.
Learn from the experts at our many Continuing Legal Education programs offered throughout the year - at both the national and chapter levels.
Networking
Connect with a vast network of federal practitioners and judges extending across all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.
The FBA - for your career; for a lifetime THREE WAYS TO APPLY TODAY: Online at www.fedbar.org; by fax (571) 481-9090; or by mail: FBA, PO Box 79395, Baltimore, MD 21279-0395. Questions? Contact the membership department at (571) 481-9100 or membership@fedbar.org. Applicant Information (Please print legibly and complete both sides of the application)
First Name m Male m Female
M.I.
Suffix (e.g. Jr.)
Have you been an FBA member in the past? m yes m no
Firm/Company/Agency Phone
Last Name
Number of Attorneys
Title (e.g. Attorney At Law, Partner, Assistant U.S. Attorney)
Is this your business or home address? m business m home
Address
Email Address
City
Suite/Floor State
Zip
Country
/
*Court of Record: ________________________________________
*Court/Tribunal of Record: ________________________________
State: _____________________ Original Admission:
Country: ___________________ Original Admission:
/
/
/
/
Clerk
/
Tribal
State/District: ______________ Original Admission:
Students
*Court of Record: ________________________________________
Foreign
U.S.
Bar Admission and Law School Information (required) Court __________________________________________________ State: _____________________ Law School: _____________________________________________ State/District: ______________ Expected Graduation:
/
/
Date of Birth (mm/dd/yyyy)
/
/
*Court of Record: Name of first court in which you were admitted to practice.
Authorization Statement By signing this application, I hereby apply for membership in the Federal Bar Association and agree to conform to its Constitution and Bylaws and to the rules and regulations prescribed by its Board of Directors. I declare that the information contained herein is true and complete. I understand that any false statements made on this application will lead to rejection of my application or the immediate termination of my membership. I also understand that by providing my fax number and e-mail address, I hereby consent to receive faxes and e-mail messages sent by or on behalf of the Federal Bar Association, the Foundation of the Federal Bar Association, and the Federal Bar Building Corporation.
Signature of Applicant
Date
(Signature must be included for membership to be activated) *Contributions and dues to the FBA may be deductible by members under provisions of the IRS Code, such as an ordinary and necessary business expense, except 4.5 percent which is used for congressional lobbying and is not deductible. Your FBA dues include $15 for a yearly subscription to the FBA’s professional magazine.
www.fedbar.org
May/June 2022 • THE FEDERAL LAWYER • 49
Stay Connected We want to thank you for being a member of the Federal Bar Association and remind you to update your profile to ensure that you continue to get the most value out of your membership. Looking for someone you met at an FBA function, a schoolmate, or a colleague with whom you lost touch – or maybe they’re trying to reach you? Without updated contact information you could be missing out on some of the best things the FBA has to offer: timely updates on federal law, networking, and our magazine The Federal Lawyer.
Your membership gives you access to:
Login at fedbar.org and confirm your Member Profile information today!
ü More than 700 credit hours of free and discounted continuing legal education (CLE) at both the national and local level throughout the year ü Local chapter membership that provides networking, programs, community outreach, and leadership opportunities ü Representation on Capitol Hill on behalf of federal practitioners, and so much more!
Connect with us here to ensure you get the latest news and updates from the FBA.
TAX LAW
ESSAY WINNERS
E
ach year, the FBA Section on Taxation sponsors the Donald C. Alexander Tax Law Writing Competition, named in honor of former IRS Commissioner Don Alexander, who passed away in 2009. Alexander was an advocate for writing and rhetorical skills in tax law. To carry forward his advocacy, the section invites J.D. and LL.M. students to submit original papers concerning federal taxation. The first and second place winners each earn a cash prize, a commemorative plaque, a complimentary one-year section membership, and a complimentary registration to the annual FBA Tax Law Conference. This year’s awards were presented in person on March 3 during the 2022 Tax Law Conference. Michael Shaw, a third-year student at the Sandra Day O'Connor College of Law at Arizona State University, was the recipient of the first-place award for his paper titled “Local Governments in a TIF(f): Theories on Municipal Renegotiation of Tax-Increment Financing Agreements in a Post-Retail Pandemic.” Shaw serves as the president of ASU's International Law Society and is an articles editor for the Corporate and Business Law Journal and a limited practice student with the Innovation Advancement Clinic. He works as a law clerk at Sorrell Law Group, a boutique tax and estate firm in Scottsdale, Ariz. Shaw's interest in tax law began when he worked as a researcher for an education policy think tank. Sam Hampton Sturgis, a third-year student at the Mississippi College School of Law, was the recipient of the second-place award for his paper titled “The Wealth Tax—Egalitarian Dream, or Utilitarian Nightmare.” Throughout law school, Sturgis has served as chief executive editor for the Mississippi College Law Review, finance chair for the Moot Court Board, student body vice president, and extern for Chief Judge Daniel P. Jordan III of the Southern District of Mississippi. His paper analyzes the viability of a “wealth tax,” both as an economic solution and a moral course of action. By applying utilitarian moral theory, the paper examines whether such a tax can commend itself to the plights—actual and perceived—of an ailing society. Sturgis is currently externing with Mississippi Treasurer David McRae and looks forward to pursuing his LL.M. in taxation in the fall.
Local Governments in a TIF(f): Theories on Municipal Renegotiation of Tax-Increment Financing Agreements in a Post-Retail Pandemic By Michael Shaw
Just like many facets of American life affected by COVID-19 pandemic closures and social distancing guidance, public-private real estate development projects in many U.S. cities experienced severe setbacks in 2020 and 2021. For both newly and not-yet-built developments, construction delays, supply chain backups, and financing issues plagued projects. Existing developments saw decreased foot traffic, the breaking of commercial leases, and government-mandated capacity limitations—all of which caused development revenues and the associated tax revenues they produce to fall. From empty office spaces spurred by remote working to shuttered small businesses unable to stay afloat following reduced demand, thousands of commercial real estate parcels experienced under-utilization and an uncertain future. When a government or a quasi-government agency is a party to a real estate development, unique issues in addition to these broken 52 • THE FEDERAL LAWYER • May/June 2022
leases and decreased revenues can arise. Cities or their development arms take leading roles in redevelopment projects by providing site remediation services, installing or improving utilities, increasing police presence, and financing projects with municipal bonds. When the revenues associated with these projects fail to live up to expectations, cities that agreed to and have often already provided project-specific services and financing can experience budget constraints in the face of these obligations. Depending on the language of the public-private development agreement, local governments may have recourse against both project developers and financiers. To read more, visit https://www.fedbar.org/section-on-taxation/ tax/donald-c-alexander-tax-law-writing-competition/.
The Wealth Tax—Egalitarian Dream, or Utilitarian Nightmare? By Sam Hampton Sturgis
Anyone who has ever read a bedtime story knows the legend of Robin Hood. What boy has not run through the woods with a bow and a quiver of homemade arrows, imagining himself cutting through the green of Sherwood Forest to raid Prince John’s wagons? Lusty tales of the benevolent outlaw have woven themselves into the history of the downtrodden since the 15th century with near universal appeal. By robbing the rich to feed the poor, he protected the needy from injustice—becoming the savior not only of Nottingham, but of the lowly and oppressed throughout the ages. Many things have changed through the telling, but the heart of the story has always been the same: a worn-out ballad of rich versus poor; and as long that ballad continues, the poor will need hope. Ever since there was something worth having, there have been those who have it and those who do not. Landed gentry, titled
aristocracy or silicon-valley elite, the rich have always occupied an enviable spot in society. There may not be a king anymore, but there are certainly castles, and the ever-widening gap between the “haves” and the “have nots” can feel like an uncrossable moat. In a world that has recently ground to a halt under the fear and uncertainty of a pandemic, that moat has only grown. As small business owners struggle to keep their doors open and hard-working Americans are laid off by the thousands, America’s billionaire class is thriving. While Jeff Bezos and Elon Musk battle it out for the title of world’s richest man, normal Americans seem to inch daily towards a Nottingham reality. To read more, visit https://www.fedbar.org/section-on-taxation/ tax/donald-c-alexander-tax-law-writing-competition/.
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 social@fedbar.org or (240) 404-6488 with topic suggestions or questions.
May/June 2022 • THE FEDERAL LAWYER • 53
Member Spotlight † Denotes New Member * Denotes Sustaining Member Benjamin Acosta Rachel Agius Joseph Ashby James Astuno Maryam Atty Jeno Berta Alyssa Bivins Jillian Bosmann Kevin Burns Michael Clark Juan Costantini Richard de Bodo David DeVries Nicholas DiLorenzo Thomas Early Alan Eisner Magda El Guindi-Rosenbaum Luis Ewing Alexis Fields Nichole Gatewood Kamal Ghali Shane Gosdis Nathaniel Greene Brady Hall Tristan Higgins Emily Hull Austin Jackson Samuel Jones Michael Kalis Jane Kochman Russell Koonin Roy Lambert Robert McFarland LaNita McWilliams Arsine Mkrtchyan Jonathan Olivito Rachel O’Neil Robert Ortiz James Perez Daniel Phillips Kyle Podolak Robert Rappel Ashley Reyes Clarissa Rodriguez William Schubert Jennifer Steeve Matthew Thompson Nelson Timken Valerie Torres Alicia Voltmer Corey Weber Val Yanaros Alexander Alum* Dean Cook* Martin Dozier* David Hecht* Sunita Mahtabfar* Kiran Nair* Segev Phillips* Robert Sanger* Steven Semeraro* Sara Vargo*
FIRST CIRCUIT
First Circuit At Large Nora Elisa Pou
Hon. Raymond L. Acosta Puerto Rico Gariel R. AvilÈs-Aponte Francisco Fernandez Chiques Patricia Marvez-Valiente Ericka Montull-Novoa MÛnica Rivera-Pag·n
Massachusetts
Edward Baker Bratskeir Richard Campbell Susan Glovsky David Hassett Adam Kessel Louisa Kiu David Lazarus Alissa Lipton James McGrath Edward Naughton Rose Phipps Doreen Rachal Jessica Reece Jocelyn Van Saun Stephanie Capistron* Michael Packard*
Rhode Island
Melissa Horne Julia Shackleton
SECOND CIRCUIT Second Circuit At Large
THIRD CIRCUIT
Third Circuit At Large Andrew Stone
Delaware
Kelsey Bomar Renee Delcollo Stephanie O’Byrne Robert Weber
Eastern District of Pennsylvania Gary Azorsky Kevin Cartwright David Freese Harold Goldner Sean Graber Matthew Lee Sherman Toppin Michael Landis*
Middle District of Pennsylvania Jessica Davis Gerard Geiger Christopher Opiel
New Jersey
Lydia Cotz Shirley Emehelu Rafael Figueroa Renata Lowenbraun Jack Middough Susan Roy*
Stephen Bergstein Allison Fumai Adam Katz Joseph Riley
Western District of Pennsylvania
District of Connecticut
Fourth Circuit At Large
Sarah Christie
Eastern District of New York
Eric Holtzman Brett Klein Russell Penzer Jocelyn Small Jennifer Hurley McGay* Emily Werkmann*
Southern District of New York Stephen Ball Jay Baris Samuel Blaustein Michael Doherty Rachel Epstein Jesse Kean Mishell Kneeland David Litterine-Kaufman Ian Pohl Robert Rando Robert Roby Max Rodriguez Thomas von Plehwe Alicia Washington Lola Waterman
54 • THE FEDERAL LAWYER • May/June 2022
Jason Manne
FOURTH CIRCUIT Jaclyn Hagner Amanda Keaveny
Northern Virginia Brittany Davidson Elizabeth Fouhey Kathleen Holmes Corie O’Rourke
Richmond
Robert Lorey Meagan Mihalko
South Carolina
David Brown Molly Cherry Tina Cundari Gregory Harris Richard Hricik Jamie Khan Michelle McMahon Jamie Schoen Allan Toomey Vordman Traywick
Western District of North Carolina Robert Blake Hannah Michalove
Western District of Virginia Christopher Kavanaugh Wade Massie Shane Waller
FIFTH CIRCUIT
Fifth Circuit At Large Casey DeReus
Austin
Cori Hash Keith Lauerman Charles Kimbrough*
Baton Rouge
Eastern District of North Carolina David Long
Jeremy Carter Ashley Dromgoole Benjamin Wallace Candace Ford*
Hampton Roads
Central Louisiana
Matthew Cooper Katherine Currin
Maryland
Dania Ayoubi Junis Baldon Tonya Bana David Ellin Jessica Farmer Eric Gunderson Brooke Hutchins Liane Kozik Tamesha Larbi Catherine Ottenritter George Ruther William Torrans Stuart Welch
Middle District of North Carolina Neil Oakley
Jack Rutherford
Dallas
David Blackorby Vincent Carrizales Cody Cofer Matthew Davis Blake Ellison Kelly Gibbons Hal Gillespie Parker Graham William Hamilton Roger Haynes Anne Johnson Fabio Leonardi Jim McLeroy Nathaniel Plemons Rebekah Ricketts John Volney Benton Williams
El Paso
Holly Williams
Fort Worth Steve Baker Blakely Mohr
Lafayette/Acadiana Cliff LaCour Jeffrey Riggs Mandy Simon Jessica Allain* Jason Welborn*
Mississippi
Jonathan Barnes Jason Bush Gregg Caraway Jennifer Case John McCants Erica Rose Mike Scott Mary Helen Wall
New Orleans
Leo Aaron John Adcock Mark Allain Valerie Andrews Gregory Angelico Arnoldo Arrate James Baehr Brett Bajon Shannon Barnes William Baxter Carter Monica Bergeron Tyler Blackledge Gary Blanchard Matthew Bordelon Claire Bosarge Kristie Bowerman Gabrielle Broders Lance Bullock Ronald Cantin Brittany Carnes David Castillo Hannah Chafetz Henry Ciolino Tai’Jasmine Cole Elizabeth Cone Alexis Connell Joey Connelly Kristyn Couvillion Chandler Craig Catherine Creed Leonard Davis Nicholas Davison Ashley DeMouy Ryan Didion Thomas Dixon Caleb Dulaney-Brown Ellen Dunbar Ellen Durel George Brittney Esie Makenli Essert Kimberly Fanshier Mary Fernandez Connor Fields Micah Fincher A’Dair Flynt David Freedman
Paul Freese Grant Gardiner Douglas Gitter Alexandra Gjertson Peter Graffeo Derek Graves Matthew Greene Mallory Guillot Grant Herrin Angela Hess Jodi Hill Kayla Jacob Sierra King Richard Kohnke Mahalie Kyzar Jordan Lacoste Lupe Lafont Jason Landry Claire Lansden Tyffani Lauve Jerry Lavespere Lauren LeBlanc Zachary Lester Michael Levatino Mary Loos Danielle Mackie Katelyn McGibney Kate McLean Julie Meaders Gerald Meunier Nicholas Mole Madeleine Morgan James Morock Eric Morvant Brandon Naquin Daniel Olivier Amanda Olmsted Gwyneth O’Neill Rose Rees G. Riley Jackson Ritchie Austin Robert George Rochelle Kaleigh Rooney Kennedy Rose Courtney Ruli Edward Rundell Samuel Sands Timothy Scanlon Grant Schexnailder Jared Shurman Ashelee Singleton Anna Singleton Catherine Smith Meera Sossamon Lisa Soyars J. Spring Luke St. Germain Sydney St. Pierre Virginia Stewart Andre Stolier Megan Tassin Corey Tassin William Tebbe Victoria Terranova Danielle Teutonico Shelia Tolar Christopher Travis Courtney Troxclair Sidney Turnipseed Randy Ungar Alexandria Walker Richard Walker Sarah Wallace Stephanie Wartelle Jacob Weixler Jordan Williams
Trey Williams Breyahna Williams Luke Williams Taylor Winstead Thomas Wisecarver Jordan Zeringue Mark Glago*
Memphis Mid-South
San Antonio
Lisa Rivera
Keith Armstrong Vanessa Cantu Anna MacFarlane
Southern District of Texas Sara Brinkmann Cindy Dinh Seth Gagliardi Bernardo Garcia Robert Garza Andrew Gould Carl Gustafson Anna Kalluri Joshua Lake Mark Moore Zachary Nelson Belia Pena Jonathan Thomas Jonathan Thrope Richard Simses*
SIXTH CIRCUIT
Sixth Circuit At Large Kasey Ingram Thomas Wagner
Chattanooga Cecilia Garrett
Cincinnati-Northern Kentucky, John W. Peck Matthew Byrne Cristina Frankian Zach Hullinger Stephanie Kessler Kati Massey Megan Painter Jade Smarda
Columbus
Shawn Judge Adam Rusnak Mark Troutman William West
Dayton
Lynnette Dinkler Kevin Wallace Kenneth Wilson
Eastern District of Michigan Jonathan Grey Charlotte Johnson Jessica Lefort Jennifer Newby Katherine Pullen David Steingold* Jay Taylor*
Knoxville
Frances Koho Joe Mullis
Allison Baker Denise Barnett
Nashville
Nina Sperling
Northeast Tennessee Northern District of Ohio Rebecca Cambron Louis Chaiten Owen Dunn Marie Magner Marisa Serrat Tu-Anh Vo Misty Wood Cathryn Ensign* Gregory Gilchrist*
Western District of Michigan Christopher O’Connor Mark Totten
P. Michael Mahoney (Rockford, Illinois)
EIGHTH CIRCUIT
Lauren Chun Joachim Cox Sianha Gualano Louise Ing John Kelly Melissa Lambert Andrew Lautenbach Howard Luke Laura Moritz Kevin Richardson Alan Van Etten Richard Wurdeman Teresa Zetwick Howard McPherson*
Nanci McCarthy
Idaho
John Hardison
Southern District of Illinois Nicole Engelhardt Scott Hendricks Shari Rhode
Wisconsin
Adam Vanderwerff*
Eighth Circuit At Large Arkansas
Natalie Smittle
Iowa
Kirk Schuler
Kansas and Western District of Missouri
Seventh Circuit At Large Lorraine Greenberg Courtney Rockett Dana Duncan*
Athena Dickson Heather Hardinger Shawn Lee Anthony Mattivi Ashlea Schwarz Angela Williams Susan Casey* Angela Gupta*
Chicago
Minnesota
SEVENTH CIRCUIT
Mahdis Azimi Maria Baldini-Potermin Alex Becker Mark Bina Ethan Cohen Robert Foley Kinnan Ghali Alan Goldberg Veena Jain Jean Kamp Kyle Kent Susan Laing Caryn Lederer JoAnn Lim Heather McShain Justin Mulaire Paulita Pike Joseph Polick Nicole Provax Sohil Shah Christopher Stetler Lisa Wiggin Justin Randolph* Trisha Rich*
Indianapolis L. Frank
Northern District of Indiana Jared Brown Sydney Burden Warren Cangany Robert Esrock Collin Mockbee Breanna Robinson Daniel Rothenberg Rachael Taylor Melissa Wilhelm
Noah Cozad Vincent John Ella Ruth Huntrods Carly Johnson Laura Johnson Kyle Kroll Courtland Merrill Caroline Moos Tami Norgard Charles O’Meara Erica Rosenbaum Bahram Samie Surya Saxena Mark Schroeder Peter Selness Peter Shakow Geri Sjoquist Keiko Sugisaka Rebekah Bailey* Annie & Jeff Betts*
Nebraska
Catherine Damico
St. Louis
Erin Granger
NINTH CIRCUIT
Ninth Circuit At Large Tony Bisconti Esteban Estrada Howard Franco Molly Priedeman David Saldivar Judith Teichman
Alaska
Nacole Heslep Brewster Jamieson
Hawaii
Tristan Andres
Erika Birch Jaycee Nall
Inland Empire
Andrew Byrd Jo Larick Ruben Escalante*
Los Angeles
Shannon Aminirad Lawrence Boesch Lauren Border Lewis Brande Zachary Byer Kevin Cahill Jesse-Justin Cuevas Brandon Fox Charles Kreindler Voltaire Lazaro Shawn Ledingham Mathew Millen Mark Plager Robert Robertson Jessica Rosen Colleen Smith Angela Suh Christopher Sutton Jarrad Wood Neal Zaslavsky Steven Grahn* Janet Levine* Carolyn Rich* Mark Sedlander*
Montana
Eric Hinckley David M Tudor
Northern District of California Dawn Baum Kelli Duehning James Hockel Annie Hsieh Miranda Kane Elizabeth Kim Warren Metlitzky Monique Olivier Jeannine Sano Hannah Shirey Matthew Smith Fabrice Vincent Victoria Weatherford Joshua White Grace Yang John-Paul Deol* Donald Lancaster*
Orange County Lenore Albert Diane Bass
Laurie Dee Craig Fligor Brandon Smith Courtney Spears Diana Chang*
Oregon
David Atkin Cordelia Daniels Stephanie Dolan Nicole Elgin Ronald Hoevet Nicholas Lauren James O’Donnell*
Phoenix
Annabel Barraza Christina Covault Lauren Crawford Joseph Koehler Yulingxuan Liu Christopher Simpson Warren Stapleton Rachel Stoddard
Sacramento
Marisela Bernal Candice Fields Michael Hirst Alexander Nowinski Sean Riordan Matthew Segal Kenneth Williams
San Diego
Katherine Bowles Esther Bylsma David Casey Kevin Chang Elana Fogel Megan Foster David Frank Alexandra Hanna Robert Huie Zandra Lopez Tarina Mand Sean McGuire Stephen Piotrkowski Mariela Romo Megan Rossi Kelly Smith Elmira Yousufi Robert Boyce* Warsame Hassan*
San Joaquin Valley Bonnie J. Anderson Alyson Berg Joy Dockter Jacob Eaton Dirk Paloutzian Dylan Rain Tree
Washington State Neal Christiansen Kyme A. McGaw Michael Merkelbach
William D. Browning Tucson Rene Alcoverde John Sundt Pilar Thomas
TENTH CIRCUIT
Tenth Circuit At Large Elizabeth LaBauve
North Alabama Louis Durnya
Orlando
Gregory Caravajal Brian Green Jeff Joseph Daniel McAuliffe
Juliane Brumbaugh Ralph Losey Jillian Skinner Lori Vaughan Kristyne Kennedy*
New Mexico
Palm Beach
Northern/Eastern Oklahoma
South Florida
Colorado
Jesse Heibel Rodina Parnall
Whitney Eschenheimer Theresa Hill
Oklahoma City
Cedric Bond Catherine Campbell Christine Cave Hilary Clifton Sheila Cunningham Marc Edwards Brooke Hamilton Lauren Hanna Elise Horne Jennifer Jackson Paige Masters M. Myles Amber Nelson Cara Rodriguez Alexander Snodgrass Meredith Turpin Mary Boren* Kaitlyn Huelskamp* Timila Rother*
Utah
Bronson Bills Lilly Godfrey Trina Higgins Lesley Manley Stanford Purser Kevin Swenson*
Wyoming
Macrina Sharpe
ELEVENTH CIRCUIT Eleventh Circuit At Large Christopher Paradies
Atlanta
Brian Spielman David Webster Kevin Weimer Emma Bellamy*
Birmingham
Kristi McGregor
Broward County Andrea Passarini
Jacksonville Josef Hess
Montgomery
Rhon Jones Stephanie Monplaisir Joseph VanZandt
56 • THE FEDERAL LAWYER • May/June 2022
Alexandra Chase David Ackerman* Daniel Alvarez Susan Dierenfeldt-Troy Freddy Funes Meaghan Goldstein Miguel Gonzalez Shane Grannum John Kozyak Markenzy Lapointe Martha Leibell Genesis Martinez Ana Martinez Edward Mullins David Nabors Robert Neary Angelica Novick Carmen Ortega-Rivero Ariel Sagre Yisel Valdes
Southern District of Georgia Catherine Bowman John Manly
Southwest Florida Gerald Cope Sadie Craig Grisel Grisel Alonso
Tallahassee
Liza Treadwell Michael Ufferman
Tampa Bay
Natalie Adams Krystal Bautista Anitra Clement Matthieu Goddeyne Erik Johanson Petra Justice Ellen Lyons Eden Marcu Sara Mieczkowski John Mueller Luigi Orengo Sarah Papadelias Natalia Reyna-Pimiento Craig Rothburd Mamie Wise Steven Cozzi* Nivine Zakhari*
D.C. CIRCUIT Capitol Hill
Mary Levering Lane McClelland
District of Columbia Niranjan Adhikari Ege Berber Alicia Burns-Wright
Stephen Cohen Jessica Cohn Michael Desmond Gregory DiMeglio Alison Fuller Allison Fultz Alejandro Guadarrama Caleb Hayes-Deats David Jochnowitz Megan Johnson Yosef Koppel Robert Kurucza Kate Lambroza Cate Malycke Maureen McDonald Carolyn McPhillips Richard Miller Prufesh Modhera Mary Monahan Jay Nanavati Eric Purple Robert Rhatigan Anne Robinson Corey Rose Daniel Rosenthal Tejinder Singh David Solander Jeffrey Taft Patrick Turley Aaron Withrow Christina Bixby* Thomas Harman*
District of Columbia Circuit At Large Lancelot King
Pentagon
Kelly Anderson Robert Blazewick
Federal Bar Association Calendar of Events
Visit Fedbar.org for more information.
M AY
JUNE
J U LY
Banking Law Section: General Counsels’ Dinner
Insurance Tax Seminar
John W. Peck Cincinnati-Northern KY Chapter: Federal Practice Seminar for the Southern District of Ohio
M AY 5
M AY 1 0
JUNE 2–3
JUNE 7
Northern/Eastern Oklahoma Chapter: Brown Bag Lunch with Judge Robertson and Judge Thomas
P. Michael Mahoney / Rockford, Illinois Chapter: “People Who Care” after 20 years: Looking Back at the Landmark Rockford School Segregation Case
M AY 1 1
JUNE 8
Broward County Chapter: Judicial Reception M AY 1 3 – 1 4
Immigration Law Conference M AY 2 0
Webinar: Criminal Antitrust Investigations and Trials – Recent Lessons M AY 2 4
Webinar: What Social Media Really Knows About You M AY 2 5
Qui Tam Section: [VIRTUAL] False Claims Act Today – District of Minnesota M AY 2 5
Webinar: The Cost of Free Speech: How Institutional Interests Impact First Amendment Protections M AY 2 6
Eastern District of Michigan Chapter: Book Club Spring 2022 Meeting – Redeeming Justice M AY 3 1
2022 Supreme Court Admissions Ceremony
Webinar: The New Biden Antitrust Regime JUNE 10
National Board of Directors Meeting JUNE 16
Eastern District of Michigan Chapter: Intellectual Property Program on Name, Image, and Likeness of College Athletes JUNE 17
Webinar: Elevating Your ADR Practice, Profile, and Appointments JUNE 30
Western District of North Carolina Chapter: Annual Meeting & CLE – Effective Advocacy
J U LY 1 2
J U LY 2 2
Webinar: Insights into the Two Most Popular Types of PTAB Proceedings: Appeals and Inter Partes Reviews
SEPTEMBER
SEPTEMBER 15–17
2022 FBA Annual Meeting & Convention – Charleston, SC SEPTEMBER 15
National Board of Directors Meeting
O CTO B E R O CTO B E R 7
Eastern District of Michigan Chapter: Anatomy of a Trial
ANNUAL MEETING & CONVENTION September 15-17, 2022
Francis Marion Hotel • Charleston, SC www.fedbar.org/event/fbacon22
SAVE THE DATE!
Sponsorship opportunities available! Contact Caroline Bentley at sponsor@fedbar.org